Wednesday, August 10, 2016

Can We Talk About This CPD Decision?

Seems like every four years, the third parties sue to try and get into the Presidential debates and every four years they always get slapped down- the decision, handed down last week was not surprising- once again, their lawsuit got nowhere. What was different this time around was the legal tack the third parties employed as the basis of their suit- this time, they were arguing that the Commission on Presidential Debates protected a de-facto monopoly and was thus, illegal and that the 15% threshold represented a threat to the First Amendment.

When they launched the lawsuit last year, I thought it was a good idea. I mean the usual ways hadn't gotten anywhere- so why not try a different tack? And the anti-trust angle seemed to be a good way to go, but unfortunately, a Federal Judge was having none of it and the lawsuit was tossed- which means the third parties are on the outside looking in- barring a surge of support for Libertarian Candidate Gary Johnson- once again.

I'm not a lawyer, but I was interested enough in the topic to actually track down the decision and read it for myself- and having done so, I'm reluctantly forced to admit that while some aspects of the decision are absolutely absurd, others are far less so.

(Once again, keep in mind I'm not a lawyer.)

Let's start with the absurd: the Judge in question sweeps aside the anti-trust question by starting that "antitrust laws govern commercial markets and not political activity." In the wake of the Citizens United decision, which pretty much cemented the notion that 'money is speech' and opened the electoral process up to a flood of corporate and special interest money, you can't really make a reasonable argument anymore that there's a clear, solid delineation between commercial and political activities anymore. The line is blurred- whether it's blurred enough to warrant opening up private political entities (such as the CPD or even the Republican and Democratic Parties for that matter) to potential anti-trust violations, I don't know- but to dismiss the notion out of hand is ridiculous- and to pretend that there's a clear boundary between the two spheres anymore is patently absurd.

But, wait- there's more!
Plaintiffs’ alleged injuries are wholly speculative and are dependent entirely on media coverage decisions. The alleged injuries––failure to receive media coverage and to garner votes, federal matching funds, and campaign contributions—were caused by the lack of popular support of the candidates and their parties sufficient to attract media attention. 
Woof. Both the Greens and the Libertarians point out that without the exposure that a nationally televised debate would give them, they're nowhere in terms of garnering popular support or attention for their candidates- and they make a good point. A ridiculous amount of money changes hands between various entities over these debates and they are essentially free advertising for the two major party candidates. But this paragraph sets up almost a circular argument/chicken vs egg to me. So the Greens/Libertarians say that without the debates and the media coverage, they can't get enough support to get off the ground, the Judge said that it's all about media coverage decisions- if their candidates and positions to garner enough support to get media attention, that's their fault.

So which is it? Do the parties/candidates and the support they do/don't get lead to media coverage or does media coverage lead to support that parties/candidates do or don't get? I'm honestly not sure. (When Jesse Ventura ran in 1998, he spent 300k and went outside the box per Wikipedia- but, here's the thing- I'm pretty sure he also had his own radio show at the time. Which helped him get exposure and name recognition, which in turn, garnered him support- so that seems to lend credence to the idea that in order to get the support, you need the media coverage and not the other way around.)

The Free Speech question is where things fall apart for the Greens and the Libertarians- as much as I hate admitting it. There is a clear prohibition on forced speech and forced association- and as the CPD is a private entity and as the Republican and Democratic Parties are private entities, they get to make the rules for who gets into their debates. The slightly maddening part of it all is that as private entities they run the government and the First Amendment protection is from government infringement and the parties are private entities so it doesn't apply.

And yet...  if they run the government and make all the rules? Argh. It's frustrating because it seems like their should be a way in and there just isn't- at least not on First Amendment grounds from what I can see.

While I'm not a lawyer, I do have not one but two degrees in Political Science and here's what I know:

The type of voting system we have- the old 'first past the post' single member district deal- doesn't lend itself well to large numbers of parties. In fact, it tends to spit out- you guessed it- two parties. Maybe there's a third or a fourth smaller party in the mix, but in general there's nothing to suggest that opening the system up and leveling the playing field would pose an existential threat to the two major parties.

But let's say we do just that- we take redistricting to the Iowa model nationwide, we ban direct contributions to campaigns, make being on the ballot in all 50 states the only requirement to entrance to any debate sponsored by any entity- public or private- we make Election Day a national holiday and do pretty much everything we can to make the playing as level as possible- does that mean there will suddenly be a plethora of new parties bursting onto the scene?

Nope. There's still the little matter of building the infrastructure, getting the candidates and persuading the you know, voters that your ideas are better than the other parties. That's the way it should work, to me. That's a democracy I'd want to participate in. Thing is, I have a feeling that the American political system will remain a gigantic ball of suck until people get on board with the idea of wholesale political reform- and barriers to entry will remain high and (to me) unreasonable.

The only thing, at this point I can think of is for the other parties to stage their own debate. How they would get exposure for that, I don't know- whatever Larry King is doing, he had a third party debate on his show in 2012. It was nice to see, but I don't know what, if any impact it had. I'd go for ballot access laws and keep on keeping on. That's a bitter pill to swallow, but I'd like to think at some point in the future, people's desire for more options in the political marketplace will become demands that are too loud to be ignored.

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