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This report was published in 2000 by The Appleseed Center for Electoral Reform

I. Introduction

The Appleseed Citizens’ Task Force on Fair Debates is a project of the Appleseed Electoral Reform Project at American University Washington College of Law. The Appleseed Project addresses the rising dominance of private wealth and corporate soft money in our elections and the corresponding decline in the quantity and quality of political participation by citizens. The Project engages in advocacy and scholarship on a broad range of electoral reform issues. Launched in 1999 by the Appleseed Foundation, a national non-profit public interest law organization, the Task Force is an independent and non-partisan group of distinguished citizens that has assembled to challenge the artificial constriction of American electoral discourse through undemocratic manipulation of our presidential debates.

II. Summary

The Task Force commends the private Commission on Presidential Debates (CPD) for helping to foster a continuing debate ethic in presidential campaigns, and for creating a political climate in which general election presidential debates are considered an essential part of the political process. However, the CPD’s January 6 (2000) announcement that it will require presidential candidates to post a level of support of at least 15 percent in national public opinion polls before they may join the debates is deeply problematic. For the following reasons, we object to the CPD’s participation criteria:

* The CPD places the cart before the horse by basing the exclusion of outsider candidates on the preferences of a public that has not yet seen or heard from these candidates in a debate. At the time of the debates many Americans remain uncommitted to a single candidate.

* The 15 percent rule is both arbitrary and too high. There is no basis in law for the 15 percent threshold.

* The American people do not agree with the CPD. A recent poll revealed that a majority of Americans believe that the CPD’s 15 percent threshold is inappropriate.

* Polls often underestimate the role of Independents. Polling firms regularly base their opinion surveys on “likely voters” as determined by past voting practice. Such determinations ignore the possibility that the debate may, in fact, create new likely voters.

The CPD bases its decision on the belief that the purpose of the general election debates is to contrast for the voters the two candidates who stand the best chance of winning the presidency. We believe formal debates serve greater purposes. When done well, formal debates can advance and crystallize the ideas and issues that are important to the American public. They can provide meaningful political discourse, and can force the candidates to address the issues about which Americans care most deeply.

Particularly in this era where access to money drives access to voters and media coverage, the debates should be an opportunity for voters to see debates among the candidates from whom they wish to hear, and about issues they care to hear discussed.

Therefore, the Task Force calls upon the CPD to change its criteria to permit all constitutionally eligible and mathematically electable presidential candidates to participate in the debates if they:

1. register at 5 percent in national public opinion polls; OR 2. Register a majority (50 percent or more) in national public opinion polls asking eligible voters which candidates they would like to see included in the presidential debates.ii

The Task Force has concluded that these criteria best reflect the democratic principles on which this country was founded. The most significant advantages of the proposed criteria are:

* Voters will have an opportunity to hear candidates before they decide whom they will support.

* The public will get the benefit of a candidate’s views that are important to the political dialogue even if that candidate does not have enough support to win the presidency.

* The 5 percent level of support is based in federal election law, mirroring the 5 percent level of support required for eligibility for federal campaign funding. While the Task Force believes that past electoral performance should not be a sole criterion guaranteeing debate participation, we believe that deference is due to the only national legislative standard regarding candidate seriousness.

* Our criteria respect the opinion of the entire electorate. The 50 percent qualification is based on the opinions of all eligible voters, not just those deemed by a pollster to be likely to vote. This allows for voices representing all potential voters to be heard, recognizing the possibility that the debates can have an important impact on who chooses to go to the polls in November.

Adoption of these criteria would lead to debates that better address the ideas and issues of interest to the American people. If the CPD declines to alter its criteria, then the legitimacy of American presidential elections will be undermined and new approaches for fair and meaningful candidate dialogue must be sought for the 2000 election.

III. The 15 Percent Rule for the 2000 Presidential Election
In response to growing criticism about its selection process in past elections, on January 6, 2000 the Commission on Presidential Debates released its criteria for the 2000 general election debates. These criteria are an improvement over those used in 1996 in that they are relatively clear and easy to articulate. But clarity should not be confused with fairness. The CPD’s new rules do not go far enough in ensuring that the general election debates will be open to candidates who do not represent the two major parties.

The CPD announced that, in addition to the fair and sensible criteria of requiring candidates to be constitutionally eligible to serve and on enough state ballots so as to have a mathematical chance to secure an electoral college majority, candidates must have “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 recent publicly-reported results at the time of the determination.” The CPD will make this determination after Labor Day but “sufficiently in advance of the first-scheduled debate to allow for orderly planning.”

The 15 percent rule is deeply arbitrary and will lead to further constriction of democracy in our national elections.

The 15 Percent Figure is Arbitrary
Even if we accept all of the CPD’s other assumptions about its process, the choice of 15 percent as a cut-off threshold is wholly arbitrary, and has no basis in federal law. The CPD could very defensibly have chosen as the level of necessary support 5 percent, which is the national electoral showing a presidential candidate must have in the popular vote in order to have his or her party qualify for public financing in the next election. Yet the CPD inexplicably tripled this federal statutory figure in a way that seems certain to reduce the chance of new parties and candidates qualifying.

Fifteen Percent is Too High a Figure for a September Determination
The 15 percent figure raises the bar far too high. A candidate who stands at a disqualifying 14 percent in the polls commands the allegiance of more than 17 million registered American voters. Are these voters’ preferences simply to be disregarded in the CPD’s rush to reduce the field to the candidates of the two major parties? The CPD’s heavy-handed dismissal of candidates who represent significant currents of public opinion will radically change the dynamics of the race and will affect the final outcome of the election.

Consider the long-shot 1998 gubernatorial campaign of Reform Party candidate Jesse Ventura in Minnesota. A former pro wrestler, Ventura was a political outsider who built his campaign around those who had grown disillusioned with the two-party system. He participated in each of Minnesota’s ten televised debates, the first of which was held on October 1. On September 11, Ventura was polling at 13 percent. On September 20, he was down to 10 percent. On October 18, however, after the debates began, he was up to 21 percent in the polls, and by October 30 his numbers had risen to 27 percent.iii Had the 15 percent rule been in place in Minnesota, Ventura never would have gained the exposure in the first two debates that sent his poll numbers surging in the later debates. Governor Ventura has stated that he would probably not have won had he been excluded from the debates.

Ross Perot’s two candidacies are similarly instructive. In 1992, when Ross Perot was allowed to debate (at the insistence of both the Democratic and Republican candidates, both of whom thought his presence would benefit them), he received 19 percent of the general election vote. In 1996, when he was excluded from the debates, he received 8 percent.

As late as September and October many Americans remain undecided about whom to vote for in November. Many wait for the debates to clarify their choices. For a candidate with corporate soft money, built-in public financing, and the well-oiled fundraising machines that accompany the nominations of either of the major parties, the 15 percent threshold is no problem. They will have enjoyed hours of free television time in the form of network coverage of the taxpayer-subsidized political conventions in the summer.

But an independent candidate or a candidate of a new party will not, in all likelihood, have enjoyed the resources necessary to build equal public support by Labor Day. But the failure to reach 15 percent two-and-a-half months before the election does not reflect any guarantee that the candidate’s campaign will not surge or win in the end. A candidate with growing momentum could be at 13 percent when the CPD gathers its polling information two months before the election and could still win a three-way race by doubling his support each month before the election.

Upward surges are frequent in politics and cannot always be forecast or picked up by pollsters. In the Democratic primary for U.S. Senate in Wisconsin in 1992, a major poll showed Russ Feingold, with less than three weeks to go to the election, trailing his opponents with a seemingly hopeless 10 percent of the vote compared to 42 percent for Congressman Jim Moody and 40 percent for businessman Joe Checota.v Yet Feingold picked up huge momentum and captured 69 percent of the vote on election day, leaving only 14 percent each for his “likely winner” opponents.

The American Public Opposes the CPD’s 15 Percent Standard
A poll conducted by NBC News and the Wall Street Journal (ironically, one of the five firms that will be used by the CPD in the fall) shows that 51 percent of those surveyed believe that presidential candidates should not have to meet the CPD’s 15 percent requirement in order to participate in the general election presidential debates. 1,010 adults were asked the following question:

“As you may know, the commission that sponsors presidential debates has said that the Reform Party candidates will not be able to participate in presidential debates with the Democratic and Republican candidates this fall (2000) unless they earn fifteen percent of the vote in national news polls preceding the debates. Do you think that Reform Party candidates should or should not have to meet this requirement to participate in presidential debates?”

Of the 1,010 adults polled, 51 percent said that candidates should not have to meet that requirement, 41 percent said they should, and 8 percent said they weren’t sure. The self-stated goal of the CPD is to help educate and serve the American public. Shouldn’t it listen to the public rather than presume to know what is best for the nation?

The CPD’s Polling Methodology is Flawed, and Understates the Role of Independent Voters
There is another major problem with the CPD’s polling methodology. According to the CPD, it will be left to the individual polling firms’ discretion to decide which candidates they will include in their preference poll. It is quite possible that outsider candidates won’t even be included in some of the polling groups’ questions, resulting in an obviously skewed result when the average is taken. If two of the five groups independently decide not to add a candidate’s name to their questions and they thus return with zeroes, then those candidates will have to return scores averaging 25 percent in the other three polls in order to debate.

Polls present other methodological problems. Pollsters’ assessments of what the population of likely voters will look like are subjective and presumptuous. They base their determinations of who is, or isn’t, a likely voter, on past turnout and the voter’s own reported behavior. Under the CPD’s criteria, pollsters decide who is going to vote and who isn’t, and it is only the opinions of these presumed voters that will be counted when determining who should participate in the debates. In states with large pools of first-time and Independent voters–like Minnesota, where a surge of first-time voters catapulted Jesse Ventura to office–polls do not accurately register the preference of those who will vote in the upcoming election. In addition, according to the New York Times, the vast majority of contacted voters simply hang up on pollsters or refuse to participate in polls. Response rates are down to 20 percent in some instances.

Recent experience suggests that polls tend to do a poor job of capturing the preferences of independent voters, an ever-increasing and critical bloc of the electorate. In New Hampshire this year, independent voters outnumbered registered Republicans for the first time, with Democrats running third. In Ventura County, California officials report nearly a 20 percent increase in registered Independents there since 1996. In the South Carolina Republican primary Independents were equal to three-fourths of the total vote count from four years ago, and in Michigan, Independents represented 33 percent of the total voters.xi Indeed, some pollsters in the New Hampshire Republican primary were stunned by John McCain’s huge margin of victory over George W. Bush, in large part because they misjudged independent voter turnout. The polls predicted turnout among Independents in the low 20s, when in fact it was well over 30 percent, leading McCain to a double-digit victory. Reliance on polls fails to recognize that effective debates attract voters that the pollsters assume aren’t going to vote.

The Pollsters Are Asking the Wrong Question
But there is a deeper problem with the CPD’s new approach, even beyond its arbitrary and indefensibly high requirements for poll performance. In relying exclusively on the public’s expressed preference for presidential candidates, the CPD asks the wrong question or, at least, fails to ask the right one. The relevant inquiry for the American public is not, “Who do you think you will vote for in the general election even though you have never seen the candidates debate one another?” but rather: “Which of the following candidates would you like to see participate in the presidential debates so you can make up your mind whom to vote for?”

Despite the fact that it frequently invokes the “public interest” and the idea that it is rendering a public service, the CPD has rejected an invitation standard based on which candidates the public wants to see in the debate, not whom the public might vote for on election day a month or two later. Yet, the public’s current preferences and its desire to see candidates debate are two very different things.

For example, although voter preference polls showed Ross Perot in single digits in the Fall of 1996, the overwhelming majority of Americans in poll after poll voiced a desire to see Perot debate the Republican and Democratic candidates. When he was excluded, they considered the process unfair and undemocratic.

As we witnessed in Minnesota in 1998, the public wants an opportunity to check out the nominees of new parties. Voters find it useful to see them in discussion with the candidates of the major parties. Unlike the CPD, the public also places intrinsic value on hearing from candidates who may present novel approaches to public issues, or who may raise issues that the two major party candidates would prefer to ignore, even if they have no intention of voting for such a candidate. If the purpose of the debates is truly to educate the American electorate and promote broad public discourse, debate decisions should reflect the judgments of the people as to who should participate, rather than the judgment of elite pollsters asking a different question altogether.

The public appreciates debates because they force candidates and voters to address substantive issues in a serious way. If allowed in, a third party can break a conspiracy of silence between the nominees of two parties on controversial issues–like free trade or corporate soft money in our elections–where the parties share a single position at odds with the views of the majority of the American public.

IV. Why The Task Force Alternative is Fairer and More Inclusive
The Task Force concludes that our criteria best respect the democratic principles on which this country was founded. We approach this issue with the belief that presidential debates serve a purpose beyond simply showcasing the two candidates most likely to get the most votes on election day. The debates should be open to those candidates who captivate the attention and imagination of the American people, regardless of their party affiliation. We believe debates serve to educate the public about the candidates and issues, and recognize that often a candidate’s views are important to the political dialogue even if that candidate does not have enough support to win the presidency.

Our criteria do not ask the public to choose the candidate they will support before they hear their views. And, unlike the CPD’s criteria, ours pay deference to the only legislative standard regarding candidate seriousness. Under federal law, candidates for president become eligible to receive federal campaign funding only if their party’s candidate received more than 5 percent of the vote in the previous election. While we do not think that past performance should alone guarantee debate participation, we do believe that any standard that bases debate participation on public support should reflect this statutory threshold.

Lastly, our criteria respect the views of the entire electorate, not just those deemed by polling firms to be “likely voters.” We recognize that the debates serve not only to help voters choose for whom they will vote, but often to help voters decide whether they will vote at all.

V. Conclusion
The CPD should adopt new standards for meaningful presidential debates. Having studied this issue in depth, we recommend that the CPD adopt the criteria proposed here by the Task Force.

Under our proposal, declared candidates for the presidency who are constitutionally eligible and mathematically electable will be invited to participate in the presidential debates if they [1] have a level of support of at least 5 percent of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most recent publicly-reported results at the time of the determination (so long as all relevant candidates are included in the polling questions); OR [2] a majority (50 percent or over) of eligible voters indicate that they would like to see that candidate participate in the presidential debates when asked directly about it.

This system will guarantee that the public will get to see candidates who represent significant streams of minority public opinion and the candidates who most Americans believe are either interesting prospects or likely to enrich and advance public discourse and understanding.

We urge the CPD to adopt these criteria or, at the very least, to conduct national public hearings on the criteria it has chosen. The public needs an authentic response to these issues. We eagerly await an answer.

SIGNED,

* John Anderson, former presidential candidate
* Frank Askin, Professor, Rutgers Law School
* John C. Berg, Professor and Director of Graduate Studies, Department of Government, Suffolk University, Boston
* John C. Brittain, Dean, Thurgood Marshall School of Law, Texas Southern
University
* John Bonifaz, Executive Director, National Voting Rights Institute
* Joan Claybrook, President, Public Citizen
* Derek Cressman, Democracy Campaign Director, USPIRG
* Steve Cobble, former Political Director, the National Rainbow Coalition
* Rick Hasen, Professor of Law, Loyola Law School, Los Angeles
* Ron Hayduk, Assistant Professor of Political Science, Touro College, NYC
* Arianna Huffington, author and syndicated columnist
* Randy Kehler, Co-founder, The Working Group on Electoral Democracy
* Arend Lijphart, Research Professor of Political Science, U. of California, San Diego, and former President of the American Political Science Association (1995-1996)
* Jamin B. Raskin, Professor, American University Washington College of Law
* Robert Richie, Executive Director, The Center for Voting and Democracy
* Thomas Sargentich, Professor, American University Washington College of Law
* Matthew Shugart, Graduate School of International Relations and Pacific Studies, University of California, San Diego
* Jonathan Allan Soros, student, Harvard Law School
* Edward Still, Director, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law
* M. Dane Waters, President, Initiative and Referendum Institute
* Richard Winger, editor, Ballot Access News

Affiliations are shown for identification purposes only.

The views expressed in this report are solely those of the Project at American University and of the Task Force, and may not reflect the positions of the Harvard Appleseed Electoral Reform Project, or of any other Appleseed Center or Project.
Recognizing that important factors such as question wording and order can have important effects on polling results, we have not put forward specific language for this question. A fair and balanced question would be developed with the help of experts in the field.

Citations:
Dane Smith, The stretch run: It’s up for grabs//Only 8 points divide the 3 candidates, Star Tribune Newspaper of the Twin Cities, Nov. 1, 1998.

Steven J. Rosenstone, Roy L. Behr and Edward H. Lazarus, Third Parties in America, p. 263, Princeton University Press, 1996.

Moody and Checota in Close Race for Senate Nomination, Milwaukee J., Aug. 16, 1992, at A1.

Landslide for Feingold, Milwaukee Sentinel, Sept. 9, 1992, at 1A.

Arianna Huffington, How to Overthrow the Government, 2000, Regan Books, p. 82.

During the last decade, the United States has witnessed the election of an Independent, Bernie Sanders, as Vermont’s sole Representative to the U.S. House of Representatives and the election of three Governors, in addition to Jesse Ventura, outside of the “two-party system” – Angus King of Maine, Lowell Weicker of Connecticut, and Wally Hickel of Alaska.

Editorial, New Hampshire’s Wisdom, The Boston Globe at A22, Feb. 2, 2000.
Jim McLain, County rolls show sharp increase in independent voters, Ventura County Star at B01, Feb. 17, 2000.

Op-Ed, Maryland; Poised for Shake-Up, The Washington Post at A23, Feb. 25, 2000.