FORUM

EXCLUSION FROM PRESIDENTIAL DEBATES:

David Kairys and Jamin Raskin

Not long ago, presidential debates were sponsored by the League of Women Voters, the national, nonpartisan, nonprofit group, which had no stake in the outcome of the debates or the elections.

But the sponsorship and the rules of presidential debates have drastically changed without much public debate or attention. The Commission on Presidential Debates (CPD) replaced the League in 1987, after the League upset Democratic and Republican leaders by including Independent John Anderson in the 1980 debates. The CPD gained some notoriety and a lot of criticism when it excluded Ross Perot from the 1996 presidential debates.

Who or what is the CPD? It was set up by the Democratic and Republican National Committees, who also select all of the commissioners, "to implement joint sponsorship" of debates "by the national Republican and Democratic Committees between their respective nominees."

CPD raises money from corporate sponsors, with tobacco and beer companies usually heading the list. For its 1992 contributions, Philip Morris got its banner hung visibly during the post-debate interviews. Anheuser-Busch has played a major role in the CPD and in recent years gave more than a million dollars in soft money to the Republican and Democratic National Committees.

Perot had won 19% of the vote in 1992, but the CPD ruled he was not a "viable" candidate based on vague criteria and interviews with pundits, pollsters and consultants asked to predict the outcome of the election.

This year CPD produced a new standard that isn't vague: inclusion requires a 15% showing in the polls, as measured by the average of five private media polls (some of which may not list all the candidates). This percentage is large and lacks any basis or support in law or policy. It triples the statutory minimum for matching funds, 5%.

Whatever the intention of the CPD, the effect will be to exclude even the most significant third-party candidates, who in our system have found 15% near impossible before and without inclusion in debates. The most significant third-party victory in recent times was the election of Minnesota Governor Jesse Ventura, who has stated that he could not have won without being included in candidate debates. With a pre-debate 15% poll standard, Ventura would have been excluded.

There are two quite significant third-party presidential candidates in the 2000 election. Ralph Nader is actively running as the nominee of the Green Party. He is unusual as a presidential candidate for having actually accomplished a great deal and for substantial name recognition not gained as a politician. He opposes Democratic and Republican policies on world trade, healthcare and the environment and challenges the dominance of corporate interests in the economy, the electoral process and everyday life. The Reform Party candidate is Pat Buchanan, who bolted from the Republicans to advocate a very conservative populism.

In early polls, Nader was at 6% and Buchanan at 4%. Big majorities of those polled favor including both in debates.

Exclusion of candidates like Nader and Buchanan raises fundamental issues. The corporate-funded major parties, which have for many years alienated or bored most of the populace, are literally excluding their principled opposition from the debates. This is being accomplished under the guise of a supposedly neutral body, the CPD, which is completely dominated by the same corporations and two parties and is unaccountable to the government or the people.

An alternative approach has been offered by the Appleseed Citizens' Task Force on Fair Debates, which includes prominent scholars and activists like John Anderson, Arianna Huffington, Rob Richie, and Joan Claybrook. They recommend, in a report entitled "A Blueprint for Fair and Open Presidential Debates in 2000," inclusion of any candidate on enough state ballots to be capable of winning a majority in the Electoral College who shows 5% in the polls or whose participation in the debates is favored by a majority in the polls. For background generally, see Jamin Raskin, The Debate Gerrymander, 77 Texas L. Rev. 1943 (1999).

If you share our concerns, want a copy of the Appleseed Report or more information, or might want to sign this or similar letters being organized, contact us through Laurie Aladjem at laladjem@wcl.american.edu.

May 30, 2000

[Editor's Note: for more information on Presidential debates and other regulatory or legal issues in the U.S. Presidential campaign see JURIST's Topical Guide to the Law of the 2000 Presidential Election.]
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