INFLUENTIAL VOICES ASK FEC TO REVISE RULES ON PRESIDENTIAL DEBATES

On September 11, 2014, Level the Playing Field asked the Federal Election Commission to revise its regulations on general election debates for President. Any group is free to ask the FEC to revise its regulations. When the FEC receives such a request, it asks for comments. The comment period for this proposal closed on December 15, and soon the FEC will consider the suggestion. All six Commissioners had voted on November 6 that the Level the Playing Field request meets the requirements for being considered.

The Commission on Presidential Debates has a monopoly on general election presidential debates, because it always requires the two major party presidential nominees, and the two vice-presidential nominees, to promise that they won’t appear in any other general election debates. The Commission won’t invite anyone who is not at 15% in the polls.

Level the Playing Field has submitted convincing evidence that the 15% poll rule, in practice, will never be met by anyone but the Democratic and Republican Party nominees, and therefore the Commission’s practices violate federal law and regulations.

The CPD debates cost millions of dollars, and the expenses are paid by profit-making corporations. Federal law and regulations do not permit corporations to make campaign contributions to candidates for federal office. Therefore, the only reason they can make contributions to the CPD debates is because, in theory, the debates are non-partisan and non-discriminatory.

In practice, Level the Playing Field argues, it will be impossible for anyone who is running for President, but who is not a Democratic or Republican Party nominee, to ever meet the 15% requirement.

No one, no matter how appealing, can rise to that level of support without either being introduced to the public by running in the major party presidential primaries, or by spending $250,000,000, according to LPF.

Republican and Democratic nominees always easily meet the 15% poll requirement, because they rely on hardcore partisan support. The nominees invariably become familiar to the public because the mainstream press fully covers the Democratic and Republican presidential primary process. Major party members running for their party’s nominations inevitably participate in dozens of primary season debates, spanning an entire year before the major party national conventions.

Level the Playing Field is a new organization formed by the same people who organized Americans Elect in 2010. Americans Elect was created to put a presidential nominee on the November 2012 ballot who had been chosen by voters via the Americans Elect June 2012 presidential primary. Americans Elect qualified for the 2012 ballot in 28 states, before its leaders concluded that no presidential candidate of any substance wanted the Americans Elect nomination. Americans Elect leaders felt that they had trouble attracting high-qualify candidates because those candidates knew there was little chance for them to be in the general election debates. So, now, the Americans Elect founders are helping to try to improve the general election debates.

Level the Playing Field relies on two experts, Professors Larry J. Diamond and David C. King. The Diamond-King comment to the FEC may be seen at sers.fec.gov/fosers. Choose "2014" and then choose "2014-6" to see all the comments, including the Diamond-King comments.

Diamond is a Senior Fellow at the Hoover Institution, and is the Director of the Center on Democracy, Development, and the Rule of Law at Stanford. He is also the Faculty Co-Director of the Haas Center for Public Service.

King chairs Harvard’s Bi-Partisan Program for Newly Elected Members of Congress. He directs the Executive Program for Senior Executives in State and Local Government. In 2001, he directed the Task Force on Election Administration for the National Commission on Election Reform, which was chaired by Gerald Ford and Jimmy Carter.

Other non-partisan organizations that commented favorably on revising the debate rules include the League of Women Voters of the U.S., the Campaign Legal Center, and Fairvote.

Level the Playing Field specifically asks that polls no longer be used to determine who should be invited into the general election debates, but the FEC is free to revise the debate rules favorably, without necessarily choosing that particular idea. Level the Playing Field suggested that an invitation be extended to the non-major party presidential candidate who submitted the largest number of signatures on ballot access petitions, an idea that discriminates in favor of independent presidential candidates and the nominees of new parties, but against the older minor parties.

The attorney for the Commission on Presidential Debates, Lewis K. Loss, commented in opposition. His letter repeats the usual CPD argument that there are always "scores" of persons who run for President. However, in all U.S. history, there has never been a presidential election with more than seven candidates who had enough candidates for presidential elector to theoretically win the election.

See the July 1, 2007 Ballot Access News for documentation. In 2008, there were six candidates who could theoretically have won; in 2012, there were four.

Loss says "Any candidate with sufficient resources can gather signatures". His point is that a candidate who can afford to pay petitioners can get on the ballot regardless of how much public support he or she has. This may be true, but the entire jurisprudence of ballot access is based on the idea that a signature on a petition means that the candidate or party has a modicum of support.

Loss also says, "To dictate criteria that would mandate the inclusion of candidates who have not demonstrated substantial electoral support would be to impose a particular educational purpose on the debates. That approach not only would be a substantial departure from existing law and regulations, it also would wrongly limit the sponsoring organization’s speech."

But even existing rules control what debate sponsors may do. Existing rules already require sponsors to use "pre-established objective criteria to determine which candidates may participate" and already mandate that "the sponsor must not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate." Existing rules also require that debates include at least two candidates, and mandate that the debates must be structured to be neutral.

Without these rules, the debate sponsors would run afoul of federal campaign laws, because without these rules, they would in effect be contributing to the campaign of a particular candidate or party, in excess of campaign contribution limits and rules against corporate contributions.

(Many individuals are confused about the U.S. Supreme Court’s 2010 decision Citizens United v FEC. That decision did not strike down existing federal law that makes it illegal for corporations to make campaign contributions).

On December 10, it was revealed that the congressional resolution for budget matters (the "cromnibus") contained a provision increasing the contribution limits for individuals to give to political parties. The bill passed the House on December 12, and the Senate on December 14, and President Obama signed it into law on December 16.

The old law says individuals may give $32,400 to a national committee of a political party per year, as well as $32,400 to the same party’s Senate campaign committee, and $32,400 to the same Party’s House campaign committee. The new law says that individuals can also give up to $97,200 to each of the party committees, but only for three purposes: (1) to help pay for the national convention; (2) to help pay for the party’s headquarters; (3) to pay the party’s legal bills. Contributions of $97,200 can go to segregated party funds for each of those three purposes.

The bill angered many individuals who fear that wealthy individuals will now try to influence public policy by making large contributions to political parties that hold power. But, it should be remembered that before the McCain-Feingold Law of 2002, there were absolutely no limits in federal law on how much individuals could give to political parties.

Also, the new law could conceivably help existing or future minor parties. Several significant new parties in the 20^th century were the beneficiary of very large contributions from wealthy individuals, including the Progressive Party of 1912, the Progressive Party of 1948, and the Reform Party of 1996.

Also, the U.S. Court of Appeals ruled in 2010 in Unity ’08 v FEC that a new party that is not yet recognized by the FEC as a national committee, and which hasn’t yet nominated any candidates, may receive unlimited donations from individuals.

On December 18, the Michigan legislature passed SB 1167. It repeals residency requirements for petition circulators, and also deletes the requirement that they be registered voters. Governor Rick Snyder has until January 7 to sign the bill.

The bill had been introduced on December 4, and was probably passed because Congressman John Conyers won his court battle in U.S. District Court on May 23, 2014, in Moore v Johnson. That decision struck down the law requiring petitioners for candidates for district office to be registered voters and to live in the district. Conyers and his supporters filed the lawsuit because otherwise his petition to get on the primary ballot for re-election was invalid.

On December 16, the Eleventh Circuit issued an opinion in Stein v Chapman, 13-15556, the lawsuit brought in 2012 by the Alabama Constitution, Green and Libertarian Parties against the March petition deadline for newly-qualifying parties in presidential election years. The decision says because the parties presented no evidence showing the early deadline is burdensome, therefore the Court will not strike it down.

The reason the parties presented no evidence is that early on in the U.S. District Court proceedings, they failed to file a notice by the deadline, informing the court of who their witnesses would be. The parties still hoped to win the case, despite this setback, because one can make the argument that early petition deadlines, especially in presidential elections, are unconstitutional on their face. The U.S. Supreme Court has already ruled against early petition deadlines four times. The Eleventh Circuit opinion is only five pages and is unsigned by any particular judge.

In the last weeks of the 2013-2014 Illinois legislative session, the legislature revived a long-dormant bill and stuffed it full of hundreds of pages of election law changes, and passed it. SB 172 had been introduced on January 23, 2013, but it had not moved until November 19, 2014, when the Senate passed it after greatly expanding it.

The House then amended it to eliminate the ability of qualified parties to nominate someone after the primary was over (in instances at which no one had run in the primary). But, after that amendment was criticized in Gapers Block, an on-line blog about Illinois politics, the amendment was removed, just one day after the article had appeared.

Illinois voters suffer from too few candidates on the ballot for legislature. In November 2014, 83 of the 137 legislative races had only one candidate on the ballot. There were zero minor party candidates on the ballot for legislature, and only one independent candidate, at that election. If the amendment had passed, this situation would have been even worse.

The bill, as passed, doesn’t harm ballot access, and makes it possible for voters to register on election day, and expands early voting. It was sent to the Governor on December 15.

On December 16, the Oklahoma Policy Institute published a twenty-page report "Repairing Oklahoma’s Broken Democracy", authored by Dr. David Blatt. The Institute is a well-respected 501(c)(3) organization founded in 2005. It recommends that the legislature improve the ballot access laws for newly-qualifying parties and independent presidential candidates. It also recommends that the initiative process be made easier.

At the November 2014 election, 4.6% of the voters supported minor party or independent candidates for the office at the top of the ballot. "Office at the top of the ballot" means Governor, in states that had a gubernatorial election. In other states, it means U.S. Senator. For the five states that had neither a gubernatorial nor a Senatorial election, it means the office actually at the top of the ballot: U.S. House in Washington and North Dakota; Auditor in Missouri; Attorney General in Utah; and Secretary of State in Indiana. For the District of Columbia, "top office" means Mayor.

This is the lowest "other" share in a midterm election since 1994, when the "other" vote was 4.5%. One reason the 2014 "other" vote was lower is that late in the campaign season, independent candidates for Governor in South Carolina and Connecticut said they were withdrawing and recommended that the voters vote for one of the major party nominees. In Maine, the independent candidate for Governor said he was not withdrawing but said all his supporters who felt he couldn’t win should vote for a major party nominee.

Another reason the "other" vote was lower is that California, which had 539,645 "other" votes for Governor in 2010, had since then switched to the top-two system, so that it was literally impossible for any California voter to vote for an "other" candidate in November 2014.

Besides California, the other states in which no one appeared on the ballot in 2014 except for a Democrat and a Republican for the top office were Alabama, New Hampshire, New Mexico, Pennsylvania, and Washington.

The "other" vote in 2014 exceeded 10% in Alaska, D.C., Hawaii, Missouri, New York, Rhode Island, and Wyoming. In Alaska, independent Bill Walker won the gubernatorial election, and in Rhode Island, the Moderate Party polled 21.43% for Governor.

Legislators in these states have said they expect to introduce bills to ease ballot access laws for newly-qualifying parties, or independent candidates, or both: Alabama, Georgia, Maine, New Hampshire, North Carolina, Oklahoma, and Pennsylvania. Activists are seeking sponsors for similar bills in many other places, including Arkansas, California, Connecticut, D.C., Indiana, Kansas, Kentucky, Maryland, New Mexico, North Dakota, Ohio, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin.

One strong argument in favor of easing ballot access laws is that the national turnout in November 2014 was only 35.9%, the lowest for any congressional election since 1942. "Turnout" in this context means the percentage of voters who voted, divided by the number of persons who potentially could have registered and voted. It doesn’t mean the percentage of registered voters who voted. To see each state’s turnout, see electproject.org. Click on "Voter turnout data" on the left; then choose 2014 or any other election year of interest.

Texas Representative Drew Springer (R-Muenster) has introduced HB 464, which would require candidates nominated in conventions to pay the same filing fees that candidates running in partisan primaries must pay. Historically, Texas filing fees were used to pay for the costs of holding primaries. But Texas has never subsidized minor party conventions; the minor parties pay their own convention expenses. The bill would injure the Green and Libertarian Parties.

The print version of the December 1, 2014 B.A.N. said the Alabama petition for newly-qualifying parties for 2016 is 39,975 signatures. Actually it is 35,413.

~	Rep.	Dem.	Lib’t.	Green	Constit.	Wk.Fm	other pty	indep.
Ala.	795,606	0	~	~	~	~	~	~
Alas.	135,445	129,431	10,512	~	~	~	~	5,636
Ark.	478,819	334,174	17,210	16,797	~	~~	~	~
Colo.	983,891	944,203	52,876	~	~	~	6,427	53,613
Del.	98,823	130,655	~	4,560	~	~	~	~
Ga.	1,358,088	1,160,811	48,862	~	~	~	~	~
Hi.	98,006	246,827	8,941	~	~	~	~	~
Ida.	285,596	151,574	~	~	~	~	~	~
Ill.	1,538,522	1,929,637	135,316	~	~	~	~	~
Iowa	588,575	494,370	8,232	~	~	~	~	37,412
Ks.	460,350	0	37,469	~	~	~	~	368,372
Ky.	806,787	584,698	44,240	~	~	~	~	~
La.	819,777	639,233	13,034	~	~	~	~	~
Me.	413,505	190,254	~	~	~	~	~	~
Mass.	791,950	1,289,944	~	~	~	~	~	~
Mich.	1,290,199	1,704,936	62,897	26,137	37,529	~	~	~
Minn.	850,227	1,053,205	29,685	~	~	~	47,530	~
Miss.	378,481	239,439	~	~	~		13,938	~
Mt.	213,709	148,184	7,933	~	~	~	~	~
Neb.	347,636	170,127	~	~	~	~	~	22,128
N.H.	235,347	251,184	~	~	~	~	~	~
N.J.	791,297	1,043,866	16,721	~	~	~	3,890	13,761
N.M.	229,097	286,409	~	~	~	~	~	~
No.C.	1,423,259	1,377,651	109,100	~	201	~	~	~
Okla.	558,166	234,307	~	~	~	~	~	28,260
Ore.	538,847	814,537	44,916	32,434	24,212	~	~	~
R.I.	92,684	223,675	~	~	~	~	~	~
So.C.	672,941	456,726	33,839	~	~	24,207	~	47,588
So.D.	140,741	82,456	~	~	~	~	~	56,215
Tenn.	850,087	437,848	5,678	12,570	36,088	~	~	31,789
Tex.	2,861,531	1,597,387	133,751	54,701	~	~	~	~
Va.	1,055,940	1,073,667	53,102	~	~	~	~	~
W.V.	281,820	156,360	7,409	5,504	2,566	~	~	~
Wyo.	121,554	29,377	3,677	~	~	~	~	13,311
TOT.	22,587,303	19,607,152	885,400	152,703	100,596	24,207	71,785	678,085

Parties in the "Other" column are: Unity (Colorado); Independence (Minn.); Reform (Miss.); D-R Party (N.J.).

U.S. Senate totals in 2012 were: Democratic 50,000,805; Republican 39,131,232; Libertarian 983,413; Working Families 287,070; Conservative 235,747; Green 214,866; Independence 212,052; Constitution 140,706; Independent Party 61,820; Grassroots 30,531; Independent American 28,199; Reform 13,194; Natural Law 11,229; Liberty Union 8,435; Justice 8,342; Socialist 2,249; independents 1,602,260.

U.S. Senate totals in 2010 were: Republican 32,940,025; Democratic 29,101,467; Libertarian 780,676; Green 526,669; Constitution 338,593; Conservative 240,800; Working Families 233,483; Independence 177,462; Peace & Freedom 135,093; Reform 36,918; Socialist 27,887; Progressive 14,466; Independent Party 11,275; Connecticut for Lieberman 6,735; Tea 5,811; U.S. Marijuana 2,731; Socialist Workers 41; independents 2,000,132.

US Senate totals in 2008 were: Democratic 34,481,981; Republican 29,492,211; Libertarian 807,520; Green 436,600; Constitution 227,529; Independence 437,404; other parties 79,110; independent 224,934.

US Senate totals in 2006 were: Democratic 33,623,073; Republican 26,498,032; Libertarian 624,258; Green 386,088; Constitution 133,065; other parties 720,334; independent 939,928.

	Rep.	Dem.	Lib’t.	Green.	Wk Fam	Constit	oth(1)	oth(2)	indp.
Alab.	704,533	331,764	~	~	~	~	~	~	39,005
Alas.	142,572	114,602	21,290	~	~	~	~	~	~
Ariz.	817,168	577,943	23,767	~	~	~	44,924	~	3,496
Ark.	509,631	254,774	66,055	~	~	~	~	~	~
Cal.	2967,603	4050,813	~	~	~	~	9,192	~	104,813
Colo.	1000,197	936,417	33,859	5,503	~	~	~	~	24,546
Conn.	409,513	596,390	2,602	5,996	42,305	~	9,076	~	1,970
Del	85,146	137,251	4,419	4,801	~	~	~	~	~
Fla.	2713,451	2130,626	61,989	~	~	~	~	~	91,068
Ga.	1349,076	956,361	~	~	~	~	~	~	~
Hi.	120,084	235,400	4,693	~	~	~	~	~	~
Ida.	275,072	160,078	~	~	~~	~	~	~	~
Ill.	1721,865	1822,779	~	23,145	~	~	~	~	~
Ind.	788,762	502,104	50,948	~	~	~	~	~	~
Iowa	595,865	509,189	9,054	~	~	~	~	~	4,360
Kan.	540,756	311,530	9,791	~	~	~	~	~	~
Ky.	887,157	508,151	~	~	~	~	~	~	2,318
La.	883,649	392,876	84,942	1,655	~	~	~	~	44,669
Me.	228,071	305,242	~~	~	~	~	~	~	58,747
Md.	704,400	978,267	8,898	9,088	~	~	~	~	~
Mass.	308,598	1475,442	~	~	~	~	~	~	10,373
Mich.	1466,749	1519,030	53,711	23,088	~	10,904	1,680	~	14,315
Minn.	913,539	985,760	~	11,450	~	~	50,836	~	28,877
Miss.	329,169	230,014	7,303	~	~	~	14,897	~	44,896
Mo.	838,283	513,600	63,682	~	~	~	~	~	~
Mont.	203,871	148,690	15,402	~	~	~	~	~	~
Nebr.	340,816	185,234	9,021	~	~	~	~	~	~
Nev.	304,809	210,147	8,302	~	~	16,770	~	~	2,981
N.H	232,379	247,469	~	~	~	~	~	~
N.J.	877,265	914,172	4,854	890	~	~~	6,265	~	17,919
N.M.	240,542	271,222	~	~	~	~	~	~	~
N.Y.	1143,838	1901,779	~	34,580	201,624	~	270,926	83,273	8,718
No.C.	1555,364	1234,027	7,850	~	~	~	~	~	~
No.D.	138,100	95,678	14,531	~	~	~	~	~	~
Ohio	1770,923	1179,587	23,937	15,213	~	10,257	~	~	~
Okla.	457,613	174,022	2,176	~	~	~	~	~	19,602
Ore.	582,909	778,139	37,959	30,132	~	6,208	7,674	~	4,009
Pa.	1833,205	1467,594	~	~	~	~	~	~	22,734
R.I.	122,721	192,776	~	~	~	~	~	~	~
So.C.	734,456	377,025	25,145	~	5,183	~	4,158	~	~
So.D.	183,834	92,485	~	~	~	~	~	~	~
Tenn.	848,846	448,421	9,241	13,902	~	4,451	~	~	46,282
Tex.	2684,592	1474,016	225,178	61,699	~	~	~	~	8,014
Utah	351,034	183,491	6,198	~	~	5,933	13,086	~	5,831
Vt.	59,432	123,349	~	~	~	~	2,071	~	6,459
Va.	1143,747	845,939	47,038	1,739	~	~	30,662	~	47,274
Wa.	981,853	1047,747	~	~	~	~	~	~	~
W.V.	242,823	182,484	7,682	~	~	~	~	~	6,250
Wis.	1233,336	1102,581	6,865	3,686	~	~	~	~	7,002
Wyo.	113,038	37,803	7,112	~	~	6,749	~	~	~
TOT.	39,682,255	35,452,280	965,494	246,567	249,112	61,272	465,447	83,273	676,528

Parties in the "Oth(1)" column are: Americans Elect (Az.); Peace & Freedom (Ca.); Independent Party (Ct. and Ore.); Natural Law (Mich.); Independence (Minn.); Reform (Ms.); .D-R Party (N.J.); Conservative (N.Y.); Labor (S.C.); Liberty Union (Vt.); Indp. American (Utah); Independent Green (Va.). The Independent Green Party of Virginia is not part of the national Green Party.

In the "Oth(2)" column is: New York, Independence Party.

On December 6, Louisiana held runoff elections for races in which no one had received a majority on November 4. The Libertarian and Constitution Party each had one winner in a partisan race on December 6. Libertarian Chad Perry won for Justice of the Peace, ward 7, Calcasieu Parish (this office actually functions as a small claims judge). Constitution Party member Randy Forntenot won for Chief of Police of the town of Eunice. Fontenot is a registered member of the Constitution Party, but the Constitution Party is not ballot-qualified in Louisiana, so he was on the ballot with no partisan label.

On December 19, the Arizona Secretary of State said the Green Party is now on the ballot for 2016 and 2018. The party achieved this by submitting a valid petition. This is the first successful petition drive for any minor party for the 2016 election. The Maryland Green Party will be submitting its petition for 2016 on December 30.

At the November 2014 election, the Conservative Party of New York polled the highest percentage for U.S. House and each house of the legislature since 1990. In 2014, for U.S. House, 8.46% of the voters who were able to vote "Conservative" did so; for State Senate, 9.43% did so; for Assembly, 10.05% did so.

One of the newly-elected members of the Assembly is an enrolled Conservative Party member, although only 12.29% of the voters voted for her on the Conservative line; most of her votes were from the Republican line. She is Angela Wozniak, age 27, in an Erie County district.

For Governor, the Conservatives, as usual, nominated the Republican nominee. The Conservative Party percentage in the gubernatorial race was 6.57%, its best since 1998.

Because the Libertarian Party placed second in the Alaska gubernatorial race, among party nominees, the party has won the right to appoint two of the five members of the Alaska Offices Commission, which regulates campaign finance.

On November 4, minor party members won these non-partisan elections:

Greens were elected to these California bodies: Mayor of Marina; City council of Point Arena, Fort Bragg, Pacifica, Richmond, Arcata; Napa Community College Board; School Boards in Cardiff, Red Bluff, Bonny Doon, Carlsbad, St. Helena, Canyon, Montage; Water Boards in Marin County and Marina; the Crockett Community Services Board; the Scotts Valley Fire Board; the Rollingwood Park District in Contra Costa County; and the Crest-Harbison Canyon Planning Board in San Diego County.

Oregon Greens won a city council seat in Corvallis, and re-elected a Benton County Circuit Judge.

Libertarians were elected to these Arkansas offices: Prairie Green alderman; Mayor of Mineral Springs.

Libertarians were elected in California to the Sequoia Healthcare Board; in Florida, the Lee County Mosquito Control District; in Kentucky, Mayor of Bellemeade; in Minnesota, Crystal City Council; in Nebraska, Wymore City Council; in Oregon to the Baker City Council.

Libertarians polled 1,471,172 votes for the offices at the top of the ballot on November 4, 2014. This is the highest such total for any minor party in a midterm year since 1914, when the Progressive Party polled 1,489,151.