The Libertarian Party, as I detailed back in May, was involved in two distinct lawsuits that could have resulted in presidential candidate Gary Johnson getting into the presidential debates.
One of them, Johnson v. Commission on Presidential Debates, against the Commission on Presidential Debates (CPD) itself, was tossed in August by U.S. District Court Judge Rosemary Collyer for the D.C. Circuit.
That case is now, according to lawyer Bruce Fein in an email today, “on appeal in the United States Court of Appeals for the District of Columbia Circuit. No briefing schedule has yet been issued and thus no oral argument date.”
A second lawsuit, targeted specifically at the Federal Elections Commission for its alleged failures to properly curb the Commission on Presidential Debates, had been awaiting a decision on motions for summary judgment from both parties for months. Its official name is Level the Playing Field v. FEC.
Level the Playing Field is a “nonpartisan, nonprofit corporation not affiliated with any candidate or candidate committee…[whose] purpose is to promote reforms that allow for greater competition and choice in elections for federal office, particularly for the Presidency and Vice Presidency.” The Libertarian Party and Green Party are also plaintiffs in that suit.
This week, a date was announced for oral arguments on the motions for summary judgment. The catch: they are set for January 7, 2017, too late to effect the debates before the 2016 election.
From my past reporting, a quick summation of the arguments in that case, also in U.S. District Court for D.C.
The latest motion for summary judgment argues that the CPD has always been a deliberated duopoly for the two major parties and has “been violating FECA and FEC regulations limiting debate-sponsoring organizations’ ability to use corporate funds to finance their activities” since its efforts are not truly “nonpartisan.” The suit accuses the FEC “refus[ing] to enforce the law and ignored virtually all of this evidence in conclusorily dismissing the complaints even though there is plainly reason to believe that the CPD is violating FECA….
The suit accuses the CPD’s 15 percent polling requirement to be admitted to the debate as being effectively “impossible for an independent candidate who is not a self-funded billionaire to achieve.”
The suit further claims the FEC is derelict in its duties:
to protect the CPD and the major parties. The FEC relied on an interpretation of its debate staging regulation that is at odds with the text of the regulation and inconsistent with FECA. The FEC ignored virtually all of Plaintiffs’ allegations that the CPD is biased in favor of the two major parties. Its cursory analysis of Plaintiffs’ detailed evidence that the polling criterion disproportionately disadvantages independent candidates was conclusory and illogical, and failed to actually consider Plaintiffs’ allegations. This was arbitrary, capricious, and contrary to law…..
The motion for summary judgment finally requests that:
The Court should grant summary judgment for Plaintiffs, and direct the FEC to do its job, which is to enforce the law and put an end to the CPD’s biased, anti-democratic, and fundamentally corrupt and exclusionary polling rule.
Those arguments will now be made in court in front of Judge Tanya Chutkan, alas too late to matter for 2016 no matter the outcome.
In other L.P./debate access news, I reported last week how, by at least one seemingly legitimate interpretation of the stated rules, the L.P.’s Florida Senate candidate Paul Stanton might qualify to be invited to a public debate on October 26 with incumbent Republican Marco Rubio and Democratic challenger Paul Murphy.
Now, the group running the debates has officially said no go to Stanton’s campaign.
Their reasons, in a letter I’ve obtained, sent from Dean Ridings of the Florida Press Association which co-hosts the debates?
First, that the Public Policy Polling poll in which Stanton earned 9 percent (which, along with what sounded like a 3.5 percent margin of error the hosts would give candidates, places him exactly at the 12.5 percent that should have earned entrance) does not qualify as a “credible and reputable independent poll.”
That’s because the poll was commissioned by a group called VoteVets.org Action Fund, one known to have supported Democrat Patrick Murphy financially. Thus, Ridings says they conclude “that the PPP Poll was performed on behalf of a supporter of a candidate in the United States Senate Race and is not an independent poll.”
Ridings also points out that they consider the poll illegitimate because it only listed three candidates by name, Rubio, Murphy, and Libertarian Stanton. In fact, though, “the ballot will list seven candidates by name. A poll question that contains a false or misleading premise and that only mentions some of the candidates who will appear on the ballot cannot, in our opinion, be considered a credible or fair assessment of likely voter intent.”
Further, Ridings applies the ambiguity I wrote about last week against Stanton. While part of their requirements said that they would apply a uniform 3.5 percent margin of error in a candidates favor, here Ridings falls on the poll’s own margin of error, a mere 3.4 percentage points.
The Stanton campaign’s only comment today was, via email: “With Hurricane Matthew about to make landfall on the East Coast of Florida, Paul is concerned only for the safety of Floridians and has no further campaign statement today.”
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