The Commission on Presidential Debates sponsored four prime time ninety minute debates in 2016 that were covered by nearly every news channel. It’s hard to quantify the value of that free advertising, but it was exclusively given to the Republican and Democrat nominees and withheld from other parties based on arbitrary rules. The Libertarian Party sued the Federal Elections Commission (which regulates the CPD) regarding that decision and labeled it an illegal in-kind political contribution made to the two parties by a purportedly non-partisan (and therefore questionably tax-exempt) Commission. Similar complaints had been dismissed before, but this specific argument (à la Bill Weld) hadn’t been tried yet. It worked.
The Judge in the case just ruled in favor of Level The Playing Field, the Libertarian Party, and the Green Party. The ruling states that the FEC did not adequately consider the evidence put forward that the CPD is not non-partisan and its rules are arbitrary. The FEC has sixty days to rewrite their rules regarding Presidential debate hosting organizations. According to the CPD’s own website “Federal Election Commission (“FEC”) regulations require a debate sponsor to make its candidate selection decisions on the basis of “pre-established, objective” criteria”. Those regulations will have to be rewritten in a way that is “consistent” with this judgement. If they don’t, the judge will authorize the plaintiffs to sue the CPD directly.
This also means that the Commission on Presidential Debates has been officially put on notice. They’re going to have to meet new FEC regulations that have taken into account the Libertarian Party’s complaints. The commission will have to defend the rules they set for debate qualification and prove they’re non-partisan for the first time.
With the mounting pressure, it’s likely that the Commission will reduce, or potentially eliminate, the one requirement that kept Gary Johnson out in 2016: the 15% average polling threshold. The Libertarian Party and Green Party nominees met the other arduous requirement to be on enough state ballots to have a mathematical shot at winning the Presidency. Gary Johnson raised over ten million dollars for his campaign and was qualified for Secret Service protection (though it was never offered to him). With regular appearances on national television, and polling in the double digits, there was little separating Johnson from the other two candidates until the CPD ruled that he could not participate in their debates.
It would have been a very different election if Gary Johnson had been allowed into the Presidential debates. Hopefully this ruling will lead the FEC and the CPD to change. If the 2020 Libertarian Party Presidential nominee can muster the same support as Gary Johnson, they deserve the opportunity to debate just as much as the Republican and Democrat nominees do.