Alexandra Shapiro Argues for Changes to Rules Governing Entry into Presidential Debates in Case Against FEC

On January 5, 2017, the United States District Court for the District of Columbia held oral arguments on the motion for summary judgment by Plaintiffs Level the Playing Field, Peter Ackerman, the Green Party of the United States, and the Libertarian National Committee, Inc., in their lawsuit against the Federal Election Commission (“FEC”) regarding the presidential debates. Partner Alexandra Shapiro argued on behalf of Plaintiffs who are challenging the FEC’s dismissal of two administrative complaints against the Commission on Presidential Debates (“CPD”), the organization that stages the general election presidential and vice-presidential debates, alleging that the CPD violates federal election laws that require them to be non-partisan and to apply “objective criteria” in determining who may participate in the presidential debates. Plaintiffs also challenge the FEC’s denial of a petition to initiate a rulemaking to revise the FEC’s regulations governing debate-staging organizations to limit the use of polling as an exclusive means of accessing the general election presidential and vice-presidential debates.

Alexandra argued that the rules used by the CPD to select candidates for the presidential debates “excludes independent and third party candidates from competing against the Democrat and Republican nominees,” which helped produce in 2016 an election between “the two most unpopular presidential candidates in history.” In particular, the CPD’s requirement that candidates appearing in the debates must achieve a level of support of 15% in an average of 5 public opinion polls only a few weeks prior to the debates systematically disadvantages independent and third party candidates because of polling’s “inherent unreliability” and because such candidates are unable to obtain the necessary name recognition to satisfy the criterion because they do not participate in the major party primary process. In addition, Alexandra also argued that the CPD is a bipartisan, not non-partisan, organization that serves the interests of the Democratic and Republican parties, pointing to numerous partisan statements and activities by CPD directors and the CPD’s lack of safeguards from partisan influence, such as a conflict of interest policy. Alexandra explained that the FEC effectively ignored the evidence about the CPD’s partisanship and the systemic bias of the CPD’s polling rule in dismissing Plaintiff’s administrative complaints.

A transcript of the oral argument is available here. News coverage can be read here. More information on the lawsuit, including briefs filed in support of both parties, can be found here and here.