Shapiro, Arato & Isserles Petitions to Open Presidential Debates to Independent Candidate

Shapiro, Arato & Isserles represents Level the Playing Field (“LPF”) in connection with its efforts to create an opportunity for an independent candidate to participate in the 2016 presidential debates. LPF is a non-profit, non-partisan corporation that seeks to enhance and strengthen our democracy by creating an opportunity for more competition in our political system. LPF is the successor to Americans Elect, which sought to nominate a nonpartisan presidential ticket in 2012. Americans Elect learned in 2012 that qualified candidates for the presidency will not run under the current debate rules because of the virtual impossibility of securing access to the debates. Accordingly, one major goal of LPF is to reform the presidential debate system to ensure the use of criteria that will provide an independent candidate a real chance to participate in the debates.

On November 14, 2014, the Federal Election Commission (“FEC”) published for public comment LPF’s petition for rulemaking. The petition requests that the FEC amend its regulation governing criteria that debate sponsors can employ in deciding who may participate in general election presidential and vice presidential debates. The Commission on Presidential Debates (“CPD”), which was created by the leadership of the Democratic and Republican parties in the 1980s, currently sponsors the debates. The CPD will not permit candidates to participate unless they poll at 15% or higher in mid-September opinion polls. No independent candidate in modern history, including Ross Perot who obtained 20% of the popular vote in 1992, would have satisfied this polling criterion.

The petition, which is supported by detailed expert empirical evidence, explains that this use of polling criteria discriminates against independent candidates, because as a practical matter it is impossible for them to meet the requirement. Candidates who compete in the Democratic and Republican primaries can easily become well-known to the public due to media focus on the primaries. However, obtaining comparable name recognition is prohibitively costly for an independent candidate, approaching $250 million or more. That is a sum no independent candidate has ever come close to raising. Moreover, as the petition demonstrates, and as the 2014 election results confirm, polls can be extremely inaccurate, especially in three-way races.

To cure this problem, the petition seeks a revision of the FEC rules governing debates to require the CPD or any other debate sponsor to use objective, unbiased criteria that do not require candidates to satisfy a polling threshold as the exclusive means of access to participating in presidential and vice presidential general election debates.

Multiple prominent individuals and nonpartisan organizations have supported LPF’s rulemaking petition in comments to the FEC. These include former Republican congressman and independent presidential candidate John B. Anderson; Stanford Professor Larry Diamond; Harvard Professor David C. King; the League of Women Voters, a former sponsor of the presidential debates; the Campaign Legal Center, which represents the public interest in enforcing campaign and media law; and FairVote, which works to make elections more fair, functional, and representative.

Alexandra Shapiro and Jeremy Licht drafted the petition and are leading these efforts for LPF.

The petition can be found here.

A supplement that LPF submitted in further support of the petition can be found here.

Comments submitted in support of the petition can be found at the following links:
Campaign Legal Center comment
FairVote comment
Larry Diamond and David C. King comment

FairVote also featured LPF’s petition on its blog, found here.