Shapiro Arato Bach Files Petition for Writ Of Certiorari In Presidential Debates Case

On November 9, 2020, Shapiro Arato Bach filed a petition for writ of certiorari to the United States Supreme Court in Level the Playing Field, et al v. Federal Election Commission on behalf of petitioners Level the Playing Field, Peter Ackerman, the Green Party of the United States, and the Libertarian National Committee, Inc.  The petition is the culmination of a 6-year effort to reform the presidential debate process and presents the United States Supreme Court with critical questions that implicate whether third-party or independent candidates can participate in the presidential debates.

Since the 1980s, the Commission on Presidential Debates (“CPD”)—an unelected organization comprised entirely of Democratic and Republican Party officials and operatives—has been the sole sponsor of every general election presidential debate.  In proceedings before the Federal Election Commission (“FEC”) and a lawsuit in the U.S. District Court for the District of Columbia, petitioners alleged that the CPD is a partisan organization whose debate-selection criteria are being used subjectively to exclude independent and third-party candidates, in violation of the Federal Election Campaign Act and FEC regulations implementing the Act.  Petitioners presented extensive evidence demonstrating that the CPD’s leaders actively participate in partisan politics for the Republican and Democratic parties and that its debate access criteria, which require candidates to average 15% in polls taken shortly before the general election, systematically exclude independent candidates from participating in the debates.  The D.C. Circuit affirmed decisions by the district court and the FEC rejecting petitioners’ arguments on the grounds that the political activities of the CPD’s leaders could not be attributed to the CPD itself, and that the 15% rule was not objective even though it was impossible, as a practical matter, for any independent candidate to satisfy.

The petition presents two questions:  (1) whether the partisan political activities of a debate-staging organization’s decisionmakers bear upon whether the organization “endorses, supports, or opposes political candidates or political parties” in violation of federal law; and (2) whether criteria for determining which presidential candidates are invited to participate in general election debates are “objective”—as required by law—if only major-party candidates can satisfy them.

Alexandra Shapiro, Eric Olney, and Jacob Wolf co-authored the petition, which is available here.  More information about the firm’s work on this case can be found here, here, here, here, here, here, and here.