This topic is monitored by Moritz Law Professor Edward B. Foley
Nader and the Debates: Can He Insist on Participating?
In the United States, televised debates featuring presidential candidates have a long tradition of exceptional significance in the electoral process. A majority of the American population cites television as its primary source of election information, and televised debates are arguably the occasion at which the largest portion of the public is focused on the election. With Ralph Nader attempting to play a role in this year's election, the question arises whether he, or other presidential candidate besides the Democratic and Republican nominees, has a right to participate in televised debates, the first of which is scheduled for September 30. The answer, almost certainly, is no – and this answer remains true despite the existence of a new district court decision that, although superficially mudding the waters a bit, ultimately should have little or no relevance on the way the debates will proceed this year.
The new decision, Hagelin v. Federal Election Commission (Aug. 18, 2004), concerns a controversy that arose in connection with the presidential debates in 2000. Those debates, like the ones in the three previous presidential elections (1988, 1992, and 1996), had been sponsored by the Commission on Presidential Debates (CPD), an organization created by leaders of the Democratic and Republican parties to facilitate the organization of these debates. Although presidential candidate Pat Buchanan had previously challenged CPD's eligibility to sponsor presidential debates, that challenge had been rejected by an earlier district court decision. Buchanan v. FEC, 112 F.Supp.2d 58 (D.D.C. 2000). Also rejected was Buchanan's contention that CPD improperly favored major-party candidates by requiring that minor-party and independent candidates be able to show support from 15% of the electorate in opinion polls in order to participate in CPD-sponsored debates.
The new case, therefore, focused narrowly on whether CPD had acted improperly in excluding all minor-party and independent candidates from attending the 2000 presidential debates as members of the debate audience. CPD feared that Nader and Buchanan, if in the audience, would attempt to disrupt the debates (Nader, and to a lesser extent, Buchanan made noises suggesting such a threat), and, consequently, CPD decided to exclude all non-debating candidates from attending as members of the audience. Nader, Buchanan, several other candidates and their allies complained to the Federal Election Commission on the ground that this exclusion showed CDP to be partisan against minor-party and independent candidates. The Commission disagreed, ruling that the exclusion was based on a genuine fear of disruption rather than any partisan motive. The district court, however, remanded the case back to the Commission, saying that it needed to consider whether the exclusion of all minor-party candidates, when only some presented the threat of disruption, constituted improper partisanship.
This remand decision should have little or no effect on the 2004 presidential debates. First, as the district court noted, the Commission is not obligated to reconsider its ruling until after this year's debates. More important, even if the Commission and the courts ultimately conclude that the CPD was wrong to exclude all non-debating candidates from the audience in 2000, CPD can adopt for this year an anti-disruption policy that excludes only those candidates that it has reason to believe might be disruptive. Either way, CPD remains eligible to sponsor this year's debates, as it has in the past, and no outcome from this case can cause Nader to have the right to participate as a debating candidate.
Nor does Nader have an alternative First Amendment argument. For one thing, CDP is not itself a government agency subject to the requirements of the First Amendment. See Perot v. FEC, 97 F.3d 553, 558 (D.C. Cir. 1996). For another, even if it were, its 15% threshold of support would be a reasonable, neutral rule for determining eligibility to participate in the debate. See Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).
Thus, the presidential debates will go forward this year with only President Bush and Senator Kerry participating – assuming these two major-party candidates can agree on format, procedure, and similar matters.