Independent Voter Project

Lawsuit Against the Commission on Presidential Debates

The presidential debates are the most important conversations political candidates have with the American people. The Independent Voter Project is proud to have filed two amicus briefs in support of Level the Playing Field, et. al  to challenge the two-party control of the debate process and to open up the conversation to more diverse voices.

In April of 2016, the Independent Voter Project (IVP) filed a brief of amicus curiae with the U.S. District Court in Washington, D.C. in the case Level the Playing Field, et. al. v. Federal Election Commission. Level the Playing Field, along with the national Green and Libertarian parties, are challenging the legality of a presidential debate rule that prevents candidates outside the Republican and Democratic parties from being competitive in presidential elections.

The plaintiffs filed the lawsuit in June 2015, charging that the Commission on Presidential Debates (CPD) and certain of its directors have violated federal election law, including an FEC regulation that requires organizations like the debates commission to be “nonpartisan” and to use “objective criteria” to determine who can be in their debates. 

Oral arguments were heard on the case in January of 2017. LPF’s lead attorney, Alexandra Shapiro, provided extensive evidence, analysis, and historical background to support the plaintiffs’ claim that the Commission on Presidential Debates uses unfair criteria to keep competitive voices outside the two major parties out of presidential debates.

In February 2017, Judge Tanya S. Chutkan of the U.S. District Court in Washington D.C. ruled against the Federal Election Commission in the case of Level the Playing Field et al v. Federal Election Commission holding that the rules governing participation in the presidential debates were decided unfairly and arbitrarily. Her ruling in favor of LPF granted their motion for summary judgement and ordered the FEC to reconsider the allegations against the CPD within 30 days. The order stated:

“The FEC is ORDERED to reconsider the evidence and allegations and issue a new decision consistent with this Opinion “within 30 days, failing which the complainant[s] may bring, in the name of such complainant[s], a civil action to remedy the violation involved in the original complaint.”… The FEC is FURTHER ORDERED to reconsider the Petition for Rulemaking and issue a new decision consistent with this Opinion within sixty days.”

Five days after its stunning defeat in U.S. District Court, the Federal Election Commission (FEC) asked Judge Tanya S. Chutkan to clarify and reconsider her order. Four days later the judge responded, and in her new order, the judge granted the FEC an extra 30 days to respond.

The Commission voted on February 22 not to appeal the District Court’s decision. The FEC chose to comply with Judge Tanya S. Chutkan’s order and to issue three new decisions related to the administrative complaints that were previously dismissed by the FEC. The decision they released refuted all claims Level the Playing field made, reiterating their belief that the CPD was a “staging organization” that does not endorse or support any parties or candidates, and that the 15% rule was a truly objective criterion.

In May 2017, Judge Chutkan granted Level the Playing Field’s motion to file another brief - a supplemental complaint - in the case. This required that the FEC respond a second time. This complaint asked the judge to, among other things, order the FEC to “revise its rules governing presidential debates to ensure that debate sponsors do not unfairly exclude independent and third-party candidates from participating.”

On July 25, 2017, the FEC  filed a motion to dismiss the supplemental complaint, arguing that since Level the Playing Field is not a political party and gives no guarantee that it will run or back a candidate in 2020, it had no “competitor standing” to challenge the commission’s policymaking.

In September 2017, Level the Playing Field filed a motion for summary judgment and two new amicus curiae briefs were filed in the case: one by nonprofit leaders, scholars and practitioners, and another by the Independent Voter Project.

We will keep you abreast of future developments as they take place.

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