Third Parties Sue Over FEC ’04 Delay

Posted February 11, 2004 at 6:39pm

Ralph Nader, Pat Buchanan and several other current and former third-party presidential candidates filed suit against the Federal Election Commission on Wednesday, alleging that the watchdog agency’s failure to act expeditiously on a complaint they filed against the Commission on Presidential Debates has undermined their right to participate in the 2004 race.

“Ralph Nader is considering running for President in 2004, but if he does not run it will include for the significant reason that he cannot compete fairly with the two major parties due to the exclusionary CPD’s bipartisan control over the national debates,” the complaint argues.

The CPD, a nonprofit group established in 1987 with the goal of educating voters, applies three main criteria for inviting candidates to participate in its presidential debates.

First, candidates must fulfill basic eligibility requirements: They must be at least 35 years of age, a natural born citizen of the United States, and otherwise eligible under the Constitution.

Secondly, candidates must have their name appear on enough states’ ballots to have at least a mathematical chance of securing an Electoral College majority in the general election.

Finally, the CPD requires that a candidate have a level of support equal to at least 15 percent of the national electorate as determined by five selected national public opinion organizations, using the average of those groups’ most recent publicly reported results at the time of the determination.

CPD spokeswoman Janet Brown stressed that the court complaint was filed “solely against” the FEC and rejected the third parties’ claims in their administrative complaint with the FEC that the CPD is not nonpartisan and, therefore “not a proper ‘staging organization’ eligible to sponsor presidential debates under federal election law.”

“Many of the same plaintiffs made the same allegations in 2000 and those allegations were rejected by the FEC’s General Counsel, the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit,” Brown said. “CPD remains in full compliance with the federal election laws and has every expectation that these already-rejected claims will again be dismissed as meritless.”

Ben Manski, a co-chairman of the Green Party and one of the plaintiffs in the case, argued that those criteria demonstrate the “partisan conduct” of the CPD.

“Requiring 15 percent support in major polls is tailored to exclude all but the establishment party candidates,” Manski said in a press release. “The majority of voters want more than two establishment parties in the debates, so the relevant question is who undecided voters, not decided voters, want to hear from.”

And while the CPD calls itself “nonpartisan,” Nader and his fellow third-party candidates depict the group as “bipartisan” — in that it only helps Democrats and Republicans — and asked that the group be decertified by the FEC.

“The FEC’s failure to act on the Administrative Complaint threatens substantial harm to plaintiffs,” their court complaint states. “The Natural Law Party, Green Party of the United States and Constitution Party each intends to field or support a third-party presidential and vice presidential candidate in the 2002 elections.”

In November 2000, a federal appeals court panel threw out Nader’s challenge to FEC rules allowing corporate sponsorship of presidential debates. Nader and the Greens had said that corporate contributions to the debate process gave them improper influence over candidates, but the judicial panel threw out the case, arguing that the rules governing the contributions were within the FEC’s purview, as delegated by Congress.

The CPD is preparing to sponsor three presidential debates and once vice presidential debate during the 2004 elections, with the first debate scheduled in Florida on Sept. 30 and the last in Arizona on Oct. 13.

Nader and the others — who are being represented by the nonprofit National Voting Rights Institute and a pair of law firms — allege in their complaint that the CPD is providing “unlawful corporate support to the major parties’ nominees to the detriment of the competitive political standing of these plaintiffs and/or the candidate they support in the 2004 election that is now underway.”

“The FEC’s failure to act in a timely manner also harms the plaintiffs because they cannot fully assess their prospects of running a successful campaign in a lawful election process without knowing whether the CPD will sponsor the major debates for the 2004 to their exclusion,” the complaint alleges.

While Nader is considering running for president in 2004, the complaint states that other potential third-party candidates such as John Hagelin and Buchanan, both candidates in the 2000 presidential race, are not running “for the significant reason that they cannot compete fairly with the two major parties” because of their exclusion from the national debates.

According to the complaint filed Wednesday, at a presidential debate held in Boston on Oct. 3, 2000, the CDP decided to exclude all third-party candidates from attending the debate, even as audience members and CPD personnel working the doors of the debate hall were supplied with face books picturing prominent third-party presidential candidates so they could “recognize the candidates and deny them access to the event even if they had a ticket,” the complaint stated.

Co-counsel Bonnie Tenneriello of the National Voting Rights Institute defended the rights of her clients to take their fight to court. “Congress gave FEC complainants a right to go to court rather than wait indefinitely for the agency to act, and that is what we are doing. The court has the power to rule the delay unlawful and order the FEC to act.”

The FEC does not comment on pending litigation or ongoing compliance cases.