Shapiro Arato Files Lawsuit To Open Presidential Debates To Independent And Third-Party Candidates

Shapiro Arato represents Plaintiffs Level the Playing Field (“LPF”), Peter Ackerman, the Green Party of the United States, and the Libertarian National Committee, Inc. in connection with their efforts to create an opportunity for an independent or third party candidate to participate in the 2016 presidential debates.  The lawsuit filed on their behalf charges that the Commission on Presidential Debates (“CPD”) and certain of its directors have violated federal election law requiring debate-sponsoring organizations, like the CPD, to be “nonpartisan” and to use “objective criteria” to determine who can be in their debates.  Plaintiffs cite extensive evidence establishing that since its inception, the CPD has been bipartisan, not non-partisan, and has had as its purpose the promotion of the Democratic and Republican parties and their candidates for the Presidency and Vice Presidency.  Moreover, supported by detailed expert empirical evidence, the complaint also demonstrates that since 2000, the CPD has used a criterion that only the nominees of the Democratic and Republican parties could reasonably achieve, in order to illegally exclude third-party and independent candidates from the debates.  Because the CPD violated the regulations governing debate sponsors, its expenditures on debates, receipt of corporate contributions to fund those expenditures, and failure to report those expenditures and contributors all violated the Federal Election Campaign Act.

In September 2014, LPF filed both an administrative complaint and a petition for rulemaking with the Federal Election Commission (“FEC”), arguing that the rules the CPD applies for selecting debate participants systematically discriminate against third-party and independent candidates.  The Green Party and the Libertarian National Committee have filed requests to join the administrative complaint.  Despite having had the administrative complaint for over nine months, the FEC has taken no action on it.  The FEC also has taken no action on LPF’s petition for rulemaking, despite the overwhelming support of public commenters requesting that the FEC amend its regulations to put an end to the discriminatory system now in place and to require the CPD to adopt an objective rule that gives an independent candidate a reasonable chance of gaining access to the debates.

The federal court complaint alleges that the failure of the FEC, whose Commissioners are members of the Democratic and Republican parties, to act on the administrative complaint and the petition for rulemaking was arbitrary, capricious, an abuse of discretion, and otherwise contrary to law.  Plaintiffs have asked the Court to either direct the FEC to find that the CPD and certain of its directors have violated the law, or permit Plaintiffs to bring a civil action directly against the CPD and those directors.  The suit also asks the Court to direct the FEC to open a rulemaking proceeding to revise its rules governing presidential debates.

The lawsuit has received extensive coverage from national news organizations, including The New York Times, Bloomberg, CBS News, ABC News, IVN and Time.

The federal court complaint against the FEC can be found here.  A more detailed discussion of the petition and the public support it has received can be found here and here.  The administrative complaint against the CPD can be found here.