Tonight, the first presidential debate will take place without the participation of Libertarian candidate Gary Johnson. By rule, Mr. Johnson needed “a level of support of at least 15 percent of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most recently publicly-reported results at the time of the determination.” See Commission on Presidential Debates website.  But as of today, he is hovering around 9% and is out.

But what if I told you that 9% is more support than Ross Perot had at the time he was included in debates in 1992. And after inclusion in the debates, Mr. Perot went on to register 19% in the general election, making him the only third-party candidate since 1924 to exceed the elusive 15% threshold in a presidential election. In fact, since 1924 only four third-party candidates have garnered even 5% of the final vote (technically 3 candidates – Perot did it twice). Add it up and this 15% threshold seems unfair. Pointless.

In my 2004 Note in the Iowa Law Review, I argued that the current debate structure is not only unfair, but illegal on two grounds. See Eric B. Hull, Independent Candidates’ Battle Against the Exclusionary Practices of the Commission on Presidential Debates, 90 Iowa L. Rev. 313, 315 (2004) (much of the following analysis comes from my Note and won’t be cited repeatedly herein). First, the staging organization is not qualified to run the debates. Second, the 15% threshold was specifically created in order to exclude unwanted third parties at the debate. If this seems like a bold claim, simply examine the regulations and evidence.

Like all electioneering activity, the Federal Election Commission (FEC) regulates debates. But the FEC neither sets the 15% threshold nor assigns responsibility for the debates. Instead, the FEC simply promulgates regulations regarding staging debates. “Nonprofit organizations described in 26 U.S.C. 501 (c)(3) or (c)(4) and which do not endorse, support, or oppose political candidates or political parties may stage candidate debates in accordance with this section and 11 CFR 114.4(f).” 11 C.F.R. § 110.13(a)(1). As for candidate selection, “staging organization(s) must use pre-established objective criteria to determine which candidates may participate in a debate. For general election debates, staging organizations(s) shall not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate.” 11 C.F.R. § 110.13(c).

The history behind the regulation explains “that, although the word ‘reasonable’ does not appear in the regulation’s text, ‘reasonableness is implied.’” Buchanan v. Fed. Election Comm’n, 112 F. Supp. 2d 58, 74 (D.D.C. 2000) (quoting 60 Fed.Reg. 64,262 (1995)). “The FEC also stated in its rule making that ‘[s]taging organizations must be able to show that their objective criteria were used to pick the participants, and that the criteria were not designed to result in the selection of certain pre-chosen participants.’” Id. (emphasis added). And perhaps most importantly, “The objective criteria may be set to control the number of candidates participating in a debate if the staging organization believes there are too many candidates to conduct a meaningful debate.” Corporate and Labor Organization Activity; Express Advocacy and Coordination With Candidates, 60 FR 64260-01 (emphasis added).

Tonight’s debate will be presented by the aptly named Commission on Presidential Debates. Shortly before the formation of the Commission in 1987, the then-chairs stated: “t is our conclusion that future joint appearances should be principally and jointly sponsored and conducted by the Republican and Democratic Committees.” Jamin B. Raskin, The Debate Gerrymander, 77 Tex. L. Rev. 1943, 1982 (1999) (emphasis added). Nothing has changed in the interceding years. The current Co-Chairs of the Commission are Frank Fahrenkopf Jr., former chairman of the Republican National Committee, and Michael D. McCurry, former director of communications for the Democratic National Committee and former Press Secretary for Bill Clinton. So contrary to the FEC regulations, the Commission indisputably “endorse[s], support[s], or oppose[s] political candidates or political parties.” Whereas the regulations demand a nonpartisan staging organization, the Commission is blatantly bipartisan.

Furthermore, the Commission has all but admitted that its 15% threshold is designed to exclude all but the major party candidates. Prior to 2000, the Commission used subjective criteria to pick debate participants (hence why Perot was included in 1992 despite polling below 15%). Then in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 672, 118 S. Ct. 1633, 1638, (1998), an independent candidate for Congress sued a public television station that had excluded him from a station-sponsored debate. While not a party to the case, the Commission filed an amicus brief in support of the station. In that brief, the Commission expressed fear that “a strictly mechanical approach . . . runs the risk of creating crowded debate stages in which the voices of the leading candidates (i.e., those in whom there is the greatest public interest) are drowned out by a plethora of legally qualified candidates with little or no public support.” Id. at 4. As an initial note, this fear is laughable. As demonstrated above, few third party-candidates have ever garnered 5% support, let alone enough to “crowded debate stages” or “drown[] out” the major party candidates (notably this year saw as many as eleven Republican primary challengers participate in a single debate).

Undeterred by history, the Commission explained its goal thusly: “to be inclusive enough to invite each of those individuals who genuinely qualify as a leading candidate, but not so inclusive that the candidates in whom the electorate is most interested refuse to participate. It is difficult to conceive of pre-established, purely mechanical criteria that could consistently strike the delicate balance needed to serve this legitimate voter education goal.” Id. at *6 n.4. As a sidenote, the concern regarding candidates refusing to take the stage with a third party is not hypothetical. In 1980, the first presidential debate included independent candidate John Anderson, causing President Jimmy Carter to withdraw from the debate. Ronald Reagan debated John Anderson without the sitting president. But by the same token, this concern all but concedes that the 15% threshold is designed to appease the major party candidates.

Soon after the Supreme Court decided Forbes, the Commission adopted the very “strictly mechanical” approach it derided, instituting the 15% threshold. In doing so, it chose a threshold that no third-party candidate had ever hit in the entire history of televised debates. While Perot garnered 19% of the vote in 1992 after participating in the debates, his polling was below Mr. Johnson’s at the time of the first debate. As one third-party candidate argued (OK, it was Pat Buchanan, but still), the 15% figure is “absurdly high.”

And the district court judge in Mr. Buchanan’s lawsuit against the Commission made the excellent point that a “reasonable person could find it ironic that a candidate need win only five percent of the popular vote to be eligible for federal funding, but must meet a fifteen percent threshold to be eligible for the debates.” Buchanan v. FEC, 112 F. Supp. 2d 58, 74 (D.D.C. 2000).

Indeed, the FEC regulations state that the Commission “must be able to show that their objective criteria were used to pick the participants, and that the criteria were not designed to result in the selection of certain pre-chosen participants.” 60 Fed.Reg. 64,262 (1995)). But the Commission has never been required to make such a showing.

Why not? The FEC only has to present “a coherent and reasonable explanation of [its] decision” to dismiss the complaint in order for the court to uphold it. Buchanan, 112 F. Supp. 2d at 72 (citing Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 1985)). As a result, courts are reticent to second guess the FEC’s interpretation of its own regulations. But here the FEC’s rulings flatly contradict the wording of those regulations. Furthermore, “the FEC differs from other agencies like the Environmental Protection Agency (EPA) or the Federal Communications Commission (FCC). The EPA and FCC create regulations for states and private industry to follow. The FEC . . . regulates politics and elections, a process that it is a part of because the [FEC] Commissioners are political appointees. Members of the FEC are split evenly between the two major parties and are appointed by the President with the consent of the Senate. Therefore, the members may have a more vested interest in keeping the major parties in power as opposed to other agencies that can regulate impartially.” Hull, Note, 90 Iowa L. Rev. at 339.

The Buchanan court upheld the FEC’s ruling despite George Stephanopolous outright admitting that the Clinton and Dole camps agreed to keep Mr. Perot out of the debates in 1996 and forced that decision on the Commission. Buchanan, 112 F. Supp. 2d at 71–72. But at some point, a court will not be able to overlook the fact that a partisan body (I guess technically bipartisan) decides whether another partisan body was acting in a partisan manner when it sets unreasonable threshold to keep out third-party candidates. Polling at nearly 9%, Mr. Johnson has perhaps the best chance of any third-part in history to challenge the Commission and its rules. But no such challenge has been filed so yet another election cycle will pass with the two-party system controlling whom the public gets to watch debate.