Moving beyond the 2-party presidential debate

When we cast our vote for president this time around, the best many of us will be able to do is hold our nose and breath, and vote for the "devils" we don't know. That's thanks in part to the Democrat and Republican party leaders, who control the televised presidential and vice presidential debates.

Our country's Founders were initially skeptical of political parties -- see, e.g., The Federalist No. 10 (James Madison) (Jacob E. Cooke, ed. 1961) at 56 (describing "the violence of faction"); but see id. at 59 ("[T]he principal task of modern Legislation involves the spirit of party and faction in the necessary and ordinary operation of Government.") -- but many of them soon became partisans themselves. See California Democratic Party v. Jones, 530 U.S. 567, 591 n.2 (2000) (Stevens, J., dissenting) ("Prominent members of the founding generation['s] ... anti-party thought ultimately proved to be inconsistent with their partisan actions.").

By the time of the election of 1800, John Adams and Thomas Jefferson, who worked together on the Declaration of Independence and initially spoke out against political parties, had, as members of their respective Federalist and Democratic Republican Parties, become virulent partisans.

In that election, for the first time, political parties nominated "tickets" for president and vice president, rather than having each candidate run as an individual. Original Article II, section 1 of the Constitution contemplated individual candidates, and gave each state elector two votes, with the president-elect being the candidate getting the most electoral votes, that were at least a number equal to "a Majority of the whole Number of Electors appointed," with the vice president-elect being the second-place finisher.

So, the parties devised a plan whereby one of their two candidates would get one less vote than the other, resulting in a president and vice president of the same party. But Jefferson tied in the Electoral College vote with fellow party member, Aaron Burr, so the House had to decide which one of them became president. That snafu led to the 12th Amendment, which now calls for separate electoral ballots for each office.

After Jefferson was chosen president, but before he was inaugurated, lame-duck President Adams appointed as many federal judges as the lame-duck Federalist-controlled Senate could authorize and confirm (including then-Secretary of State John Marshall as chief justice of the United States). After Jefferson was inaugurated, his new secretary of state, James Madison, refused to sign the commission for one of Adams' "midnight judges," William Marbury, leading to perhaps the seminal decision written by new the chief justice: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See generally Kristian D. Whitten, 'The Economics of Actual Malice: A Proposal for Legislative Change to the Rule of New York Times v. Sullivan," 32 Cumb. L.Rev. 519, 524-25 (2001). So our current federal leadership comes by its current shenanigans "honestly."

Since then, there have been 22 presidential elections in which three or more candidates qualified for the ballot. Also, in at least two presidential elections, justices of the Supreme Court played a deciding role: the election of 1876, where an Electoral Commission made up of Supreme Court justices gave the election to Rutherford B. Hayes; and the election of 2000, where the Supreme Court's opinion in Bush v. Gore, 531 U.S. 98 (2000), effectively gave the election to George W. Bush; not to mention the election of 1824, where even though Andrew Jackson got the most electoral votes, because he did not get a majority, the House was able to give John Quincy Adams the presidency.

The current Commission on Presidential Debates is supposed to be independent of political parties and nonpartisan. But in reality, it is only as "independent" of the two major political parties as any "closely held" corporation is "independent" of its shareholders. And it is only bipartisan because it favors candidates of the Democratic and Republican parties. The word used in the record that led up to the regulation authorizing the debates, 11 CFR 110.13, is nonpartisan, not bipartisan. See Perot v. FEC, 97 F.3d 553, 556 (D.C. Cir. 1996).

Only two third-party candidates have been invited to appear at presidential debates: John Anderson in 1980 (before the Debates Commission was formed) and Ross Perot in 1992.

The Federal Election Commission has ruled that the Debate Commission's "preference for smaller debates where the candidates with the most support are given more time to share their views with the voters" is justified. One court has recently held that finding effectively insulates the FEC's ruling from judicial review. Level the Playing Field v. FEC, 961 F.3d 462 (D.C. Cir. 2020). See also Perot v. FEC, 97 F.3d at 557 (citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)); but see Baldwin v. United States, 140 S. Ct. 690, 691 (2020) (Thomas, J., dissenting from denial of certiorari) ("Chevron also gives federal agencies unconstitutional power.")

Over the years, various plaintiffs have sued to change the rules, but none have ultimately prevailed. Most recently, in Level the Playing Field, the court affirmed the "highly deferential" standard of review applied to a decision of the FEC, which rejected plaintiffs' claim that the Debates Commission is an "'overly partisan' organization whose goal 'is to exclude independent candidates.'" The court determined that plaintiffs had not overcome the deference it must give to the FEC's conclusions, which included that "personal partisan activities [of its members] do not necessarily reflect the views or biases of the organization for which a person works."

Is it nonpartisan to favor general election (as opposed to "cattle show" primary) debates between the two leading "political party" candidates? And the court also determined that it was the FEC's interpretation of the "context" of comments made by former Republican National Committee chairman, and co-founder of the Debates Commission, Frank Fahrenkopf, that caused that conclusion to be justifiable. Ultimately, the court concluded that it was not its job to second-guess the FEC, but only to make sure its decision was not "arbitrary or unreasonable."

Wouldn't it be a relief for voters in future elections to have the opportunity to actually see more declared and registered candidates in debates conducted with a neutrally structured format? Maybe Congress should again look at the regulation of (the composition of the current FEC strongly favors the two major parties) and opening up of future debates? Or is that too ambitious, given that the fact that Congress is populated almost entirely by Democrats and Republicans?

A realistic possibility of becoming eligible to participate in a televised debate would likely encourage more qualified candidates to make themselves available for office, and donors to support such an effort. But that's the "problem," since national "partisan" forces are at work to keep that franchise exclusive to the Democrats and Republicans. They are operating in much the same way as the national political and corporate interests did in 1913, when they successfully removed control of the U.S. Senate from state governments by passing the 17th Amendment, thus allowing them to focus their considerable economic power on Washington D.C., and bypass state capitals. See generally Todd J. Zywicki, "Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals," 45 Clev. St. L. Rev. 165, 215 (1997) ("By making it possible for special interests to lobby senators directly, rather than having to proceed through the intermediary of the state legislatures, the Seventeenth Amendment reduced the costs of lobbying for wealth transfers.")

Direct evidence that the two parties overrode the Debate Commission's decision to exclude Perot in 1992, and that in the 1996 campaign the Clinton campaign agreed to keep Perot out to get leverage over the Dole campaign, and because Clinton had a big lead in the polls, and more, ought to be of interest to We the People, if Congress and the courts continue to punt. See "Note: Independent Candidates' Battle Against the Exclusionary Practices of the Commission on Presidential Debates," 90 Iowa L. Rev. 313, 333 (2004).

Especially in light of the most recent debates, and the resulting calls to update debate procedures and rules, let's see if we can work on procedures that include at least some of the "third-party" candidates in future televised presidential and vice-presidential debates! See generally, Keith Darren Eisner, "Comment: Non-Major Party Candidates and Televised Presidential Debates: The Merits of Legislative Inclusion," 141 U. Pa. L. Rev. 973 (1993) ("[National] campaigns [in our political system] serve other purposes besides electing particular candidates to office. They are also used to educate the public, to advance unpopular ideas, and to protest the political order, even if the particular candidate has little hope of election," quoting Common Cause v. Bolger, 512 F. Supp. 26, 32 (D.D.C. 1980), aff'd 461 U.S. 911 (1983)). 