The designated nonpublic forum: remedying the Forbes mistake.
In early 1998, former professional wrestler, movie star, and Navy SEAL Jesse "the Body" Ventura began to indicate that he intended to run in the Minnesota gubernatorial race. Ventura chose to run as a third party candidate: he had worked as a campaign manager for other Reform Party candidates in the past, and the Party felt he fit with the image of their founder, Texas maverick Ross Perot. (2) While Ventura's name recognition and offbeat antics initially endeared him to many voters, by late September his support in the polls had dropped to only 10%: by contrast, Hubert Humphrey III, the frontrunner, was generating 49% support. (3)
A series of debates were scheduled to begin in early October. Despite Ventura's low support at the time, he was invited to participate, in large part because his staff chairman was also co-director of the "Minnesota Compact," a program geared toward improving the 1998 campaign (including the candidate debates). (4) As the debates went on, viewers warmed to Ventura's nonpartisan message railing against "politics as usual." (5) By October 20--less than three weeks after the first debate--Ventura's support had risen from 10% to 21%; meanwhile, Humphrey and his Republican foe, Norm Coleman, had fallen into a virtual dead heat. (6) One commentator noted that Humphrey's slide and Ventura's gain were both in large part due to their debate performances. (7)
The debates continued. After the final debate, held in a public television station in October, Ventura's support had risen again, to 27%. (8) By the election, Ventura captured the state governorship with 37% of the vote, while Humphrey finished last with only 28%. (9) The Humphrey camp openly acknowledged that their biggest mistake in the campaign was insisting that Ventura be included in the debates. (10) In the end, Ventura's camp admitted that, had he not hit "a home run" in the first debate, his poll numbers likely never would have risen and he would not have been elected. (11)
Jesse Ventura's story may be the exception to the rule, but it makes an important point: had the stagers of the debate chosen to invite only the major party candidates, Ventura almost certainly would not have been elected. There is no stronger illustration of the importance of debates in today's political world--particularly for third party candidates lacking the strong financial and historical support of a well-established campaign machine behind them. The Supreme Court once noted that "the primary values protected by the First Amendment ... are served when election campaigns are not monopolized by the existing political parties." (12) However, the Court made a mockery of that statement when it ruled, in Arkansas Educational Television Commission v. Forbes, (13) that public broadcasters could exclude third party candidates from debates so long as their reasons for doing so did not constitute viewpoint discrimination." (14) The Forbes ruling essentially closed the door to minor party candidates successfully campaigning for public office unless those candidates, like Ventura, are fortunate enough--either through name recognition or other political connection--to be included in the debates.
The situation is no better for candidates seeking to participate in debates not hosted by public broadcasters. Under the current state of the law, these candidates cannot even be considered for inclusion unless they have significant support in national polls. (15) While many bills have come before Congress in the last decade seeking to change this requirement, none have passed. (16) And so the beat goes on.
This article offers a new solution to deal with the problems faced by candidates in both the public and private broadcasting forums. Under the proposed doctrine of the "designated nonpublic forum," courts could require broadcasters--both public and private--to include in debates minor party candidates who satisfy certain preexisting objective criteria concerning their ability to prevail in the election. This doctrine rests heavily on the singular importance of debates as a means of information dispersal during elections, as well as on fundamental free speech principles favoring self-governance and a marketplace of ideas.
Part II looks back at the history of presidential debates and demonstrates how a candidate's debate performance is often the difference between victory and defeat in the election. Part III discusses the challenges that have been made--both in the courts and in Congress--to the current system, that excludes most minor party candidates from debates, paying particular attention to First Amendment claims that have been raised and rejected (as was the case in Forbes). Part IV, after discussing the rights of broadcasters and the regulations imposed on them, looks at the forum doctrines and posits a place in the scheme for the designated nonpublic forum. Part V examines why this new doctrine is necessary: it explores the arguments for and against including minor candidates in debates, including free speech doctrines and the preexisting systemic bias against third party candidates. Part VI concludes by demonstrating how the designated nonpublic forum doctrine would apply to the question of debate participation and answers the question: Would the debates better serve the voting public by including third party and independent candidates?
II. PRESIDENTIAL DEBATES AND THEIR IMPACT
The issue of whether third party or independent presidential candidates should be permitted free and open access to debate forums is important from a First Amendment point of view. However, from a political point of view, the issue is crucial only if those debates from which a minor party candidate is excluded impact the electorate sufficiently to render the candidate's exclusion patently untenable. The Ventura story illustrates the most obvious impact: a third party candidate's debate performance may lead to a victory in the election. However, third party participation may have other impacts as well, such as bringing to the forefront issues on which major parties have not yet taken positions. (17) In order to examine the potential impact of presidential debates, their history must first be considered.
A. Debates in the 19th Century
Although presidential elections originated in the latter part of the 18th century, presidential debating is a fairly recent phenomenon. (18) During much of the 19th century, the thought of a man so distinguished as to be a candidate for President of the United States '"begging, imploring, and beseeching the people to grant him his wish"' was considered unseemly. (19) In place of direct candidate debates, surrogate debates were conducted on behalf of presidential candidates. (20) Often the surrogates were party leaders, members of Congress, state political leaders, or even former presidential candidates; both Henry Clay and Daniel Webster debated on behalf of Whig party candidates. (21) One advantage to using surrogates--particularly surrogates who were not yet prominent party members--was that they could raise character issues about other candidates without making their own candidate look like a mudslinger. (22) Abraham Lincoln, a surrogate debater on behalf of the Whig candidates in the elections of 1836, 1840, and 1844, freely attacked the Democrats for their jibes against Zachary Taylor. (23) However, for the most part the candidates themselves stayed out of the fray.
While presidential candidates remained aloof from the debate forum, there were debates taking place between candidates running for other offices--most notably the debates between Republican Abraham Lincoln and Democrat Stephen Douglas during the 1858 Illinois Senate race. (24) These debates bore little resemblance to today's televised debates; each debate lasted three hours, during which each candidate spoke for ninety minutes (rather than fielding questions posed by a moderator). (25) The candidates debated seven times before thousands of boisterous spectators between August and October. (26)
In the end, the debates produced two outcomes. Most immediately, they led to Douglas's election to the Senate. (27) Their more lasting effect, though was to catapult Lincoln to the forefront of abolitionist politics. (28) Lincoln stepped up his surrogate activities for other Republican candidates throughout the North and also oversaw the publication of transcripts and newspaper accounts of his debates with Douglas. (29) Douglas, on the other hand, lost support from Southern Democrats and other members of his party because of positions he had taken during the debates. (30) It is not unreasonable to argue that but for the Lincoln-Douglas debates, Stephen Douglas would have won the Presidency in 1860. (31)
However, even though the debates between Lincoln and Douglas were widely attended, "they did not change the ways candidates for major office sought election. Few candidates followed their example, and they produced no public demand for more debates." (32) Not until the candidacy of William Jennings Bryan in 1896 did campaigning become an acceptable means for a candidate to convey his message to the people. (33)
B. Early Broadcast Debates and Section 315
By the start of the 20th century, campaigning had become a common tool for presidential hopefuls. Some presidential candidates, such as Theodore Roosevelt in 1904, still chose not to campaign at all, but for the most part the candidates were getting their message out to a wider audience. (34) The increase in campaigning did not, however, produce a concomitant increase in debating. With the newspaper still being the most popular and accessible media outlet, candidates chose either to debate in print or to make solo campaign stops to communicate with the electorate. (35)
Two technological advances--radio and television--would change this preference. The first radio broadcast occurred in 1920: by 1924, the party conventions were being carried on the radio. (36) The forerunners to modern presidential campaign debates began to occur on the radio by the late 1940s. In 1948, Thomas Dewey and Harold Stassen--both candidates for the Republican presidential nomination--held a debate days before the critical Oregon primary. (37) Rather than debating across the platform, the candidates debated only whether the Communist party should be outlawed in the United States. (38) Between forty and eighty million listeners tuned in to the debate: Dewey won the debate (coming off sharper and more decisive against Stassen's rigidity), the Oregon primary, and the nomination (though, ultimately, not the presidency). (39)
Television was a fledgling medium in 1948, but by 1952, candidates were willing to attempt a limited number of televised debates. Democratic and Republican hopefuls appeared on a nationally televised debate in May 1952: again, the issues discussed were limited, encompassing only questions concerning government dishonesty and foreign economic assistance. (40) In 1956, Adlai Stevenson and Estes Kefauver, both Democratic presidential candidates, held a televised debate around the time of the Florida primary. (41)
As early as 1952, there were calls for televised debates between those candidates chosen to represent their parties at the conventions. Senator Blair Moody suggested that a television network offer to host debates between Stevenson and Dwight Eisenhower: though both NBC and CBS offered time, Eisenhower declined to debate, feeling (and rightly so) that his popularity would carry him to victory. (42)
Broadcasters faced another obstacle to televised debates beyond that of candidate disinterest. Section 315(a) of the Federal Communications Act required licensees to afford "equal opportunities" to all candidates for an office to use the broadcasting station. (43) This rule made licensees hesitant to broadcast major party events because, under the law at the time, once they provided access to the air to one candidate for an office, they would have to do so for every candidate for that office, no matter how minor the party that candidate represented. (44) Congress amended Section 315 in 1959, exempting from the rule coverage of political candidates so long as their televised appearance was one of: a (1) "bona fide newscast"; (2) "bona fide news interview"; (3) "bona fide news documentary"; or (4) "on-the-spot coverage of bona fide news events". (45)
1. The 1960 Election
While the changes to Section 315 did ease the equal time rule, they did not expressly include candidate debates within the exempted activities. (46) Because this question was still unsettled, Congress, in August of 1960, agreed to suspend Section 315 for the duration of that presidential campaign. (47) This action opened up the floor for the first--and perhaps most memorable--set of presidential debates: those between John F. Kennedy and Richard Nixon.
Four debates were held, each broadcast simultaneously on all three major television networks, as well as on four radio networks, in September and October of 1960. (48) Both Nixon and Kennedy were convinced that the debates would lead them to victory; Nixon knew himself to be a skilled debater, while Kennedy felt the debates would give him a forum to rebut the charges that he was too young and inexperienced to be a viable candidate for the presidency. (49) Interestingly, the networks advertised the candidates' appearance as "'discussions"' rather than "'debates"' in order to avoid creating an expectation in viewers that one candidate would "win," while the other would "lose." (50)
A victory and a defeat, of course, are precisely what happened. Vice President Nixon, hobbled by a knee injury and suffering from a severe case of the flu, appeared tired and pale; because he refused makeup, he looked poorly shaven, with circles under his eyes. (51) Senator Kennedy, on the other hand, appeared youthful and vigorous, attacking the issues and Nixon both. (52) Even though the general commentary in the media was that Nixon had outpointed Kennedy on the substance of the issues, Nixon was unable to overcome his tired appearance. (53)
Over 100 million Americans saw at least one of the debates, and the average audience for the four debates was around 71 million viewers. (54) These viewers saw a contrast in images and styles that ultimately helped determine the winner of the 1960 election. (55) Analysis of the 1960 election has demonstrated the importance that the debates--and in particular the first debate--played in the ultimate outcome of the election. Post-election polls found 57% of voters reporting that the candidates' performances in the debates had ultimately influenced their voting choice; 6% reported that they based their final decision on the debates alone--and Kennedy won the support of 72% of this group. (56) If the poll results are accurate, then two million people voted for Kennedy strictly on the basis of the debates--a margin more than sufficient to change the outcome of the election. (57) A later study found that Kennedy gained an average of 4% in support polls per debate and that the debates tended to make undecided voters more likely to support Kennedy than Nixon. (58) While there are some who argue that the effect of the debates on the 1960 election has been exaggerated with the passage of time, even these more pessimistic studies tend to find a small gain for Kennedy from the debates. (59)
2. 1964-1972: Candidates Refuse to Debate
Perhaps wary of the mistakes Nixon had made in his debate with the upstart Kennedy, President Lyndon Johnson--riding a wave of popularity and sympathy after Kennedy's assassination--declined to debate his challenger Senator Barry Goldwater. (60) Johnson believed he had the race in hand and did not want to give his opponent a national forum in which to air his views and possibly undercut support for the sitting President. (61) In both 1968 and 1972, Richard Nixon--back in the national spotlight after the 1960 debate disaster--refused to debate his Democratic challengers. (62) The 1960 debates had obviously taught him a valuable lesson: despite his intellect and grasp of the issues, he refused to debate in any forum where his physical appearance might be used against him. (63)
3. The FCC Clarifies Section 315 Exemptions
Both Johnson and Nixon hid behind the ambiguity in the exemptions of Section 315(a) concerning whether a broadcaster airing a debate would be required to give equal time to all other candidates in the presidential race not invited to participate in the debate. (64) Congress tried but failed several times to duplicate the suspension of Section 315 that had permitted the Kennedy-Nixon debates to occur. In 1963, a resolution that would have temporarily exempted presidential and vice-presidential debates from the requirements of Section 315 for the 1964 election passed both houses of Congress after a strong endorsement from President Kennedy. (65) However, while the bills were in conference to resolve differences between the House and Senate versions, Kennedy was assassinated; the measure was then tabled. (66) A similar measure came before Congress before the 1968 elections; it passed the House, but threat of a Senate filibuster tabled it again. (67) In 1970, a wide-ranging campaign reform bill landed on President Nixon's desk: among other things, it would have exempted presidential and vice-presidential debates from Section 315. (68) Nixon vetoed the bill, arguing that a comprehensive bill covering the complete campaigning process was more appropriate, and Congress could not override his veto. (69) When this more inclusive bill was proposed, though, provisions relating to Section 315 were eliminated because of a disagreement between the House and Senate over the scope of the exemption. (70)
However, in 1975, in the Aspen Institute case, the FCC issued a declaratory order extending the exemptions of Section 315(a) so long as five conditions were met: (1) they were unaffiliated with the broadcaster (i.e., they were set up by a third party, such as the National Organization for Women (NOW)); (2) they did not take place in a broadcasting studio; (3) they were covered live (to ensure that they were newsworthy); (4) they were covered in their entirety; and (5) their coverage reflected bona fide journalistic judgment that the debate was, in fact, newsworthy and did not slant coverage toward the interests or positions of any one candidate. (71)
The FCC felt that its previous interpretation of the amendments to Section 315(a) had been erroneous and was unsupported by legislative history. (72) In The Goodwill Station, (73) for example, the FCC had held that a radio debate between two gubernatorial candidates did not fall within the exemptions in light of the fact that:
the appearance of the candidates constituted the principal aspect of the event to which the station gave on-the-spot coverage, that the debate itself was staged well in advance of the broadcast, and that the invitation to the two candidate-participants by its terms excluded the appearance of other opposing candidates. (74)
In Aspen Institute, however, the FCC recanted, reasoning that "a program which might otherwise be exempt does not lose its exempt status because the appearance of a candidate is a central aspect of the presentation, and not incidental to another news event." (75) The FCC rebutted the argument that Congressional action suspending Section 315 in 1960 would have been unnecessary if debates were implicitly included within the exemptions of the 1959 amendments by noting that, in floor discussion of the 1960 bill, members of Congress rationalized the necessity of the bill at least in part on the fact that insufficient time had passed since the enactment of the 1959 amendments for the FCC fully to consider and interpret them. (76) In other words, Congress, in passing the 1960 bill, was not stating a belief that debates were outside of the purview of the 1959 amendments; it was only stating a belief that whether or not debates actually fell outside of the amendments was a question that the FCC simply had not yet had time to consider. (77)
C. Debates Take Hold
With the equal time issue resolved, the door was open for new presidential debates satisfying the Aspen Institute test. In 1976, the League of Women Voters sponsored three debates between Jimmy Carter, the Democratic nominee, and incumbent Gerald Ford. (78) As in 1960, the debates were widely viewed; some estimate that 160 million Americans saw at least part of one of the presidential debates. (79) The 1976 debates are considered noteworthy for at least two reasons. First, the incumbent (Ford) was willing to debate the challenger (Carter); and second, because Carter had previously agreed to debate in 1976, he found it difficult to avoid the debate forum when he ran for reelection in 1980. (80)
As in 1960, one candidate's mistake during the debates proved costly. During one of the debates focusing on foreign policy, Ford stated his belief that the Soviet Union did not dominate countries in Eastern Europe, even though Soviet occupation of countries like Romania, Poland, and Yugoslavia was well-known. (81) After the debate Ford continued to stand by his statement, and the issue was the hot topic in the post-debate analysis shows. These wrap-ups hurt Ford tremendously; one poll found that, while only 10% of viewers found his statement significant when asked directly following the debate, that figure increased to 60% following the post-debate television analysis. (82) While the absence of post-debate commentary likely hurt Nixon in 1960, its presence hurt Ford in 1976. (83)
After the 1976 elections, the Twentieth Century Fund, an independent research foundation, examined the role that the debates had played and considered whether debates should continue to be a major part of presidential campaigns. (84) While the study concluded that debates should be a regular part of the campaign, it did not go so far as to suggest that candidates be required to debate. (85) The Fund advocated that nonpartisan groups like the League of Women Voters continue to sponsor the debates, rejecting the idea that broadcasters should ever have that role--even if Section 315 were further modified to permit broadcaster-sponsored debates. (86)
As for third party candidates, the study argued that selection criteria could not be fixed in advance of the election; however, it suggested that, at a minimum, a third party candidate should be able to demonstrate significant support, as evidenced by: (1) the party's having received at least 5% of the previous election's popular votes; (2) nomination by a party primary or convention; (3) signed petitions from at least 15% of voters in the majority of states; (4) evidence of "significant" poll support; or (5) other party members having been previously elected or campaigning for office in the current election. (87) The Fund also reported several other criteria that had been proposed, including one that included defining a "major party candidate" as one whose party had received at least 3% support in the previous election; "minor party candidates" were those whose parties received at least 1% in the last election. (88) It concluded by warning that "by the next series of presidential debates, however, the role of the minor party or independent candidate must be fully addressed." (89)
With incumbent Carter already having debated in 1976, it seemed that the 1980 debates would go off without a hitch. However, the 1980 campaign contained a factor that had not been present in any of the previous televised debates: a viable third candidate. John Anderson had initially campaigned for the Republican nomination; when he lost out to Ronald Reagan, he announced his intention to run as a candidate for the National Unity Party. (90) The League of Women Voters, again the sponsor of the debates, adopted three criteria for determining whether a candidate should be invited to debate: (1) satisfaction of the constitutional criteria for holding the office; (2) a mathematical possibility of winning the election (as measured by a place on the ballot in enough states that, if the candidate were to win them all, would give him the required votes in the electoral college); (3) "significant" voter support (as measured either by a nomination by a major party or a showing of at least 15% in nationwide support polls). (91)
The League's criteria came under heavy fire, particularly the support requirement. (92) As of the time for scheduling the debates, Anderson's public support was above 20% in several national polls; as a result, the League invited all three candidates to participate in the debates. (93) While Reagan and Anderson agreed, Carter refused. Carter wanted a two-way debate with Reagan, while Reagan wanted any debate to include Anderson. (94) At an impasse, the League reluctantly agreed to hold a debate with only Reagan and Anderson. (95)
While the Reagan-Anderson debates boosted Reagan ahead of Carter in the polls, (96) Anderson was much less fortunate: despite a competent debate performance, his support sank to below ten percent. (97) With his support so low, the League could justify refusing to invite him to a second debate. The Carter-Reagan debate only solidified Reagan's lead, as the former actor's stage presence gave him an easy victory over Carter. (98) The Anderson-Reagan debate had been viewed by only about 55 million voters (less than half that of the Carter-Ford debates in 1976); the Carter-Reagan debate rebounded to a viewership of about 120 million. (99) Public interest in the debates continued, and the debates continued to shape voter opinions.
1. The FCC Steps In Again
After the 1980 campaign had concluded, the FCC continued to examine the issue of debate exemption under Section 315. In 1983, it overturned the portion of the Aspen Institute decision making it a violation of Section 315(a)(4) for a broadcaster to sponsor a debate. (100) The express language of Section 315(d) gives the FCC "broad discretion in interpreting and implementing the Section 315 exemptions." (101) The Commission here used its discretion to apply a balancing test between Congressional concern that broadcaster-sponsored debates might result in candidate favoritism and Congressional desire to create a more informed electorate by encouraging candidate debate. (102) In the end, the FCC felt that the benefits of broadcaster sponsorship--which likely could include more debates and easier scheduling--outweighed the risks that broadcasters would use the debate forum to favor one candidate over another. (103)
The 1984 campaign debates were the first to be held under the more relaxed Geller standard of broadcaster sponsorship. The FCC's prediction that overturning that part of Aspen Institute would increase the number of debates turned out to be correct: where there had been only five debates in the 1980 campaign, that number increased to fourteen in 1984 (and to more than forty in 1988). (104) Even in light of the Geller ruling, the 1984 presidential debates were once again sponsored by the League of Women Voters. (105)
2. Calls for Reform
After the 1984 election, two national studies proposed changes to the debate process. The Commission on National Elections ("CNE"), a bipartisan group, recommended that the debate process be institutionalized; instead of finding sponsors every four years, the two major parties jointly would control the debates. (106) The CNE also felt that, as for third party candidate participation, "the importance of television forums argues for erring on the side of favoring the party nominating processes rather than the rights of other candidates." (107)
Then, in 1986, a group sponsored by the Twentieth Century Fund and chaired by a former FCC member reached conclusions similar to those put forth by the CNE. (108) Among the Fund's recommendations were establishing a bipartisan group to administer the 1988 debates and not letting the "question of third-party candidates ... undermine the goal of institutionalizing debates between the Democratic and Republican party candidates." (109)
The result of these two studies was the 1987 formation of the Commission on Presidential Debates ("CPD"), a "nonpartisan, nonprofit, tax-exempt corporation ... not affiliated with any political party [and which] does not lobby, take positions on political issues, or report on elections." (110) The stated mission of the CPD was (and is) "to ensure that debates, as a permanent part of every general election, provide the best possible information to viewers and listeners." (111) It consisted of a ten-member panel comprised largely of current and former politicians from the two major parties. (112)
In 1987, the CPD scheduled the debates for the 1988 election--and then the League of Women Voters, debate sponsors during the previous three elections, announced its own plans to sponsor debates again in 1988. (113) Ultimately, the three 1988 debates between Vice President George Bush and Democratic nominee Michael Dukakis were CPD-sponsored affairs, the League having withdrawn its sponsorship when the candidates demanded more guidelines than the League had promulgated after the 1984 election. (114)
The audience for the 1988 debates grew tremendously compared to 1984: without an incumbent holding a large lead to dampen public interest, over 160 million viewers tuned in to at least one of the two presidential debates. (115) Even though the debates in 1988 did not seem to have the influence on voter opinion that they had in prior years, a pre-election poll found that half of voters felt the debates were "'very helpful'" in deciding whom to support. (116)
D. Debates in the 1990s
For the first time in twelve years, the 1992 presidential campaign included a strong third party candidate. By midsummer, independent candidate Ross Perot was running virtually even with Democratic nominee Bill Clinton and ahead of President Bush. (117) Even with this support, the CPD initially planned its debates for only the Republican and Democratic nominees. (118) While at the time the CPD had adopted no guidelines for dealing with minor or independent candidates who wished to debate, in June (and in the face of Perot's growing popularity) the Commission adopted a set of guidelines to deal with the issue. (119) The CPD reasoned that, because only Democrats and Republicans had been elected in the 20th century, their nominees warranted automatic inclusion. (120) As for other parties, the CPD developed three "nonpartisan" criteria upon which to base its decision. (121)
First, the candidate had to present "evidence of national organization," as measured by satisfaction of the constitutional requirements for the office, ballot access in a sufficient number of states to win the electoral college, and/or eligibility to receive federal campaign funding. (122) Second, "signs of national newsworthiness and competitiveness" were required, as measured by the opinions of political columnists and pollsters, political scientists, and media coverage of the candidate's campaign. (123) Finally, the CPD looked at "indicators of national public enthusiasm or concern," including poll results and attendance at campaign stops. (124) These three criteria would be examined by an advisory committee on a case-by-case basis. While these criteria set no quantitative level (as the League of Women Voters had done in 1980, requiring 15% support in national polls), perhaps the League's approach was more fair; the subjective nature of the CPD's criteria made eliminating non-major candidates simpler and made challenging exclusion much more difficult.
After applying these criteria to Perot's candidacy, the CPD chose not to invite him to debate. However, Perot went on television and loudly complained that he was being left out because the other candidates were afraid to debate him: with his support in the polls continuing to remain high, the parties had no choice but to invite him to debate. (125) Other third party candidates, who had also qualified for access on all fifty ballots, were not invited: they participated in a separate debate on C-SPAN. (126)
The three presidential debates for the 1992 election were viewed by an average of 90 million viewers--a sharp decline from the 160 million who had seen one of the two 1988 debates. (127) However, those who did view the debates found them much more helpful than the 1988 debates. (128) Furthermore, voter turnout for the election soared to its highest levels since 1968. (129) While Perot received the highest marks in polls after two of the three debates, his debate success did not translate into electoral success: despite receiving almost 19% of the popular vote, Perot won no electoral college votes. (130)
In 1996, Ross Perot was not alone in campaigning for inclusion in the CPD debates. Both Ralph Nader of the Green Party and Harry Browne, the Libertarian candidate, felt that they should be included. (131) The CPD, applying the same criteria it had in 1992, ruled that none of the minor party candidates should be permitted to debate. (132) While Perot and Browne (along with John Hagelin, the Natural Law party candidate) had qualified for federal campaign funds, none of the minor candidates was at even 8% in national polls. (133) Interestingly, one commentator has noted that there was a statistically insignificant difference between Perot's 1992 pre-debate level of support (when the CPD chose to invite him to debate) and his 1996 pre-debate level of support (when the CPD declined to invite him). (134) Even some members of Congress urged the CPD to invite Perot to participate. (135)
The CPD's advisory committee issued a letter in September of 1996 defending its decision. (136) The letter focused on the fact that, while each candidate had satisfied some of the CPD's criteria, none had a '"realistic chance"' of being elected. (137) The committee saw the CPD's purpose--and the purpose of the debates--as one to "help the voters face the actual choice before them, and therefore [it] ought to be as realistic as possible." (138)
The 1996 debates between Republican nominee Bob Dole and President Clinton marked the beginning of the current decline in debate impact. In a poll after the final debate, only 4% of voters said that the debates would affect how they voted. (139) With a popular incumbent and with no disruptive third candidate to root for, debate viewership dropped drastically. While the average viewership for the 1992 debates was 90 million, in 1996 that number plummeted to 42 million. (140) Similarly, 1996 saw the lowest voter turnout in presidential election history: only 48.5% of eligible voters cast a ballot. (141)
In 2000, the CPD faced many of the same problems it had stared down in 1996. Nonmajor candidates--particularly Ralph Nader of the Green Party and the Reform Party's Pat Buchanan--were arguing for inclusion in the Bush-Gore debates. Having drawn criticism for its subjective 1996 criteria, the CPD adopted a new set of criteria for determining debate eligibility in 2000. (142)
The 2000 criteria focused on three areas. First, the candidate had to be constitutionally eligible. (143) Second, the candidate had to be on enough ballots to obtain an electoral college majority should the candidate win each of those states. (144) Finally, in a move harkening back to the League of Women Voters' criteria in 1980, the candidate had to demonstrate an average of at least 15% in national public support polls. (145) While five of the minor candidates could satisfy the first two criteria, none could meet the third: as a result, the CPD limited the Presidential debate participants to Vice President A1 Gore and Republican nominee George W. Bush. (146)
Even though, as in 1988, the campaign featured no incumbent and two closely matched candidates, debate viewership in 2000 was only a fraction of that in 1988. Perhaps the networks were the first to sense that these debates lacked importance, even in such a tight Presidential race. During the first debate, NBC chose to air a baseball game; FOX broadcast a two-hour premier movie for a new series about a killer girl living in a Blade Runner-type future, showing the debate only later on tape delay. (147) The viewership for the first debate--approximately 46.6 million--was the highest of the three debates; each of the final two debates drew only around 37.5 million viewers. (148) The average for the three debates was barely 40 million viewers, even lower than the 1996 numbers. Furthermore, when the candidates each purchased thirty minutes of airtime on FOX on the Friday night before the election, they scored the lowest ratings in that timeslot in the history of the FOX network. (149)
III. THIRD PARTY CHALLENGES TO DEBATE EXCLUSION
A close examination of the history of presidential debates demonstrates that in virtually every election where there was a debate until 1996, the results of the debate had a significant impact on the outcome of the election. However, debates seem to be losing their impact on election results. Debate audiences have been cut by over 50% compared with 1992 levels, and voter turnout is at an all-time low as well. Furthermore, unlike many of the early media elections, neither the 1996 nor 2000 debates seem to have tipped the scale in voters' minds to one candidate or the other.
The problem, though, is not that debates are becoming less important: substantive issues today are at least as complex and important as they were when Kennedy and Nixon debated in 1960, and the issues of appearance and character will continue to play important roles in the minds of potential voters. Instead, the decline in debate relevancy can be linked to the decline in debate interest: when no one watches the debates, they simply cannot have the impact that they once had. As the steep drop in debate audience and the record low levels of voter turnout indicate, voter apathy has become a serious problem within our democratic system of government.
This voter (and viewer) apathy may be traced to many factors, but one that should be considered is the continuing dominance of the two party system. With the growth of the Internet, fringe candidates have found it much easier to get their messages out to the electorate; (150) in the 2000 election, every party candidate had at least one official website touting platform positions and campaign appearances. Information is more readily accessible than ever before; in addition to the Internet, multiple all-news cable television stations now exist, each presenting copious amounts of election and candidate-related material to the viewing public. For debates to regain their importance, they are going to have to stand out as the one forum where all of the candidates get together and share their views on the same issues with the potential voters. If debate organizers exclude minor party candidates, though, many voters will simply choose not to tune in, feeling that nothing will be said during the debate that has not been said already (or that will not be said ad nauseam during dozens of combined hours of network and cable station post-debate wrap-up commentary).
In truth, though, this increased news coverage also focuses primarily on the Republican and Democratic candidates. Other candidates are often left with no realistic means for widely disseminating their messages to the voters. It is no wonder, then, that these candidates have bitterly argued that they should be eligible to participate in debates with the major party candidates. The only two minor party candidates thus far to succeed--independents John Anderson in 1980 and Ross Perot in 1992--had such strong public support at the time that it was virtually impossible for debate organizers to ignore their presence in the campaign.
But what about other candidates? If a debate is one of the most important tools a candidate has for getting his or her message across and demonstrating how he or she measures up to the other nominees, why should support be a requirement for participation? Many minor party candidates have made such an argument. While there were some minor successes in local and state election races, the Supreme Court's 1998 decision in Arkansas Educational Television Commission v. Forbes (151) has likely closed the door to any future challenges. This article will now detail the challenges--both successful and unsuccessful--before Forbes; it will then turn to examining Forbes and analyzing whether Forbes does, in fact, completely foreclose future attacks by third party candidates.
A. Challenges by Minor Party Presidential Candidates
Beginning in 1976, minor and independent candidates challenged their exclusion from presidential debates on many grounds. These included violations of the fairness doctrine and the First Amendment, violations of Article I of the Constitution, ultra vires actions by the FEC, and challenges to the tax-exempt status of the CPD. While these suits were infrequent in the 1970s and 1980s, in both 1996 and 2000 multiple candidates challenged the debate regulations that kept them out of the forum.
1. Early Challenges
In 1976, independent candidate Eugene McCarthy and American Independent Party candidate Lester Maddox each filed suit with the FCC to enjoin broadcast of the Ford-Carter debates. (152) Maddox argued that, by excluding "significant candidates" except Ford and Carter, the broadcasters were in violation of the requirements of the Aspen Institute ruling because they were, in effect, favoring and promoting the interests of the major party candidates rather than presenting neutral coverage. (153) Maddox also argued that his exclusion violated the fairness doctrine because the networks failed to provide him with reasonable time to present his differing viewpoint; while he admitted that his candidacy had received some coverage, he felt the coverage was woefully inadequate when compared with that given to Carter and Ford. (154) McCarthy, while conceding that Aspen Institute permitted debates to be limited only to serious or major candidates, argued that he qualified as a serious candidate because he had "measurable support" and a "mathematical chance" of victory. By excluding a major candidate, the debates now fell outside of the Aspen Institute definition of "on-the-spot coverage of a bona fide news event." (155)
The FCC rejected both candidates' claims, stating:
[T]he critical factor in determining whether a debate comes within the 315(a)(4) exemption is the role and the intent of the broadcaster in covering it.... [T]he broadcaster must determine to cover a debate based on its reasonable, good faith independent journalistic judgment as to the newsworthiness of the event and not for the purpose of "serv[ing] the political advantage of a candidate." (156)
Neither candidate produced sufficient evidence to rebut the networks' claim that they acted "reasonably" in determining that broadcasting the Ford-Carter debates constituted "on-the-spot coverage of a bona fide news event." (157) As for Maddox's fairness doctrine claim, the FCC noted that the fairness doctrine only requires that broadcasters make a "reasonable good faith judgment as to the significance of a particular candidate and decide how much broadcast coverage should be devoted to his candidacy and campaign activities." (158) Without evidence of unreasonableness or bad faith on the part of the networks, the FCC refused to find a violation of the fairness doctrine. (159)
Minor party presidential candidate challenges continued into the 1980s. In 1984, the FCC denied a request by Sonia Johnson, the Citizens Party candidate, to be included in the Reagan-Mondale debates. (160) Johnson appealed the decision in federal court, arguing that the debates "had become so institutionalized as to be a prerequisite for election [and her] exclusion from the 1984 debates would restrict [her] access to the ballot and impinge upon associational choices protected by the First Amendment." (161)
The court first noted that, because candidates get greater access to broadcast media than regular citizens--including the right to reasonable access, right of reply, and advertising rate reductions--Congress obviously intended an election campaign to be an opportunity to present the public with a wide range of political views. (162) However, a debate is not the sole outlet for airing these views: "the several access provisions of the Communications Act ensure that political debate will not be monopolized by one or a very few candidates, but that candidates from all points of the political spectrum will be able to utilize the media." (163)
What Johnson requested here, though, was not a right to general media access during the campaign but rather a right to specific access to one particular forum from which she had been excluded. The court, noting first that the 1959 Amendments to Section 315(a) and the subsequent Chisholm decision--upholding the debate requirements laid out in the Aspen Institute ruling--exempted debates from the equal time requirement, reasoned that Johnson's First Amendment rights were adequately protected by the general media access afforded her by provisions of the Communications Act. (164) To permit her to demand and receive specific access ran '"the risk of an enlargement of Government control over the content of broadcast discussion of public issues." (165) Even though broadcasters are generally afforded less First Amendment freedom than the print media, governmental interference should still be minimized.
Johnson also argued that, because debate participation is a de facto prerequisite for electoral success, there was an additional First Amendment problem: denying her access violated the First Amendment rights of association of the voters who would choose to support her as their candidate of choice. (166) However, the court reasoned that Johnson's exclusion from the debate was a much lesser constitutional offense than exclusion from the ballot would be. (167) In this way, Johnson's claim was similar to the one the Court rejected in Buckley v. Valeo: "the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates" than complete denial of ballot access. (168) Ultimately, the court held that "the First Amendment interests of candidates, broadcasters and the public [are] adequately served" by the access provisions of the Communications Act; Johnson's claim was denied. (169)
In both 1988 and 1992, Lenora Fulani, a candidate for the New Alliance Party, unsuccessfully challenged her exclusion from the debates in federal court. (170) Fulani claimed that the CPD should be stripped of its Section 501(c)(3) tax exempt status because it was, in fact, a partisan organization engaging in political endeavors. (171) However, in both eases the court ruled that she had no standing to make such a claim. (172)
2. Challenges to the CPD's 1996 Criteria
In 1996, Ross Perot and John Hagelin jointly filed suit to enjoin the first Clinton-Dole debate. (173) They asked that the court adopt and apply objective criteria different from those promulgated by the CPD; they argued in the alternative that the debate regulations put forth by the CPD (and by the Federal Election Commission) were ultra vires and unconstitutional. (174) When the district court denied their requests, the candidates appealed, raising both statutory and constitutional claims. The statutory claim alleged that the CPD's candidate selection criteria violated FEC regulations; the constitutional claim argued that the delegation of debate regulation by the FEC to the CPD represented an unlawful delegation of legislative authority in violation of Article I of the Constitution. (175)
The candidates' statutory argument was based on the fact that the CPD was a corporation, and the Federal Election Campaign Act of 1971 barred corporations from making "a contribution or expenditure in connection with" any federal election. (176) Because the FEC did not want Section 441 to bar corporate sponsorship of debates, it enacted a regulation in 1979 expressly permitting broadcasters and nonprofit corporations to stage debates. (177) In late 1995--after the CPD had announced its selection criteria for minor candidates to be applied to the 1996 campaign--the FEC amended this regulation to set forth requirements for candidate selection criteria (including the requirement that the criteria be "objective"). (178) Perot argued that the CPD's criteria violated the new FEC regulation requiring objective criteria. (179)
The appellate court held that, even if the candidates were correct in their interpretation of the FEC regulation, the district court correctly concluded that it lacked jurisdiction to enforce FEC regulations. (180) The most it could do was to order FEC action. (181) As for the constitutional claim, the court found that permitting the CPD to determine the candidate selection criteria did not constitute an unconstitutional delegation of legislative authority because, in the end, final approval of the criteria rested with the agency, not with the CPD. (182)
3. Challenges in the 2000 Campaign
Pat Buchanan, running on the Reform Party ticket, challenged the 2000 CPD criteria in court, using the Perot argument that the criteria violated FEC regulations and that the FEC had erred in dismissing his administrative complaint to that effect. (183) The court, while agreeing that Buchanan had standing to pursue this claim, nevertheless upheld the dismissal, finding (much as had been found in 1996) that the FEC should be accorded great deference in its determination that the CPD's 2000 criteria satisfied the requirements of the FEC regulation. (184) While the court found it "ironic that a candidate need win only 5% of the popular vote to be eligible for federal funding, but must meet a 15% threshold to be eligible for the debates[,]" it ruled that the 15% support threshold did meet a reasonable definition of an objective requirement. (185)
Ralph Nader also filed suit to enjoin the first Bush-Gore debate. (186 Nader's argument was one that had been tried before: because CPD was a corporation, permitting it to sponsor debates violated Section 441(b) of the FECA. (187) The court found no reason to overturn a "reasonable" interpretation of Section 441(b) that, together with the FEC regulations, permitted the CPD to stage the presidential debates. (188) After the debate occurred, Nader filed another suit; the CPD, without admitting fault for excluding him from the debate itself, agreed to apologize and pay him $25,000 for having him physically escorted from the Boston forum where the debate was held. (189)
Even after the election had been decided, the suits continued. In 2001, a voter sued the CPD, alleging that its policy excluding minor candidates violated his First Amendment rights because "'he cannot hear the third party candidates who may have much to contribute to an otherwise banal discussion.'" (190) The district court dismissed his suit for lack of standing, and the appellate court affirmed on the grounds that the voter pleaded no constitutionally sufficient injury. (191)
B. Congressional Proposals
Candidates have not mounted the only challenges to the regulations applied to presidential debates, and the courts have not been the sole forum for attempted change. Since 1989, over twenty bills have been introduced in Congress that would reform the debate process in some way. Many of these bills focused on the problem of the omission of minor party candidates. However, none of these bills passed; in fact, none ever even got out of committee to the House or Senate floor.
Many of these bills tied debate participation to the receipt of federal matching funds. For example, in 1989, Representative Barbara Boxer proposed the Presidential Election Debate Act; the Act, similar to Senator Dole's proposal after Carter's refusal to debate in 1980, would withhold federal election funds from candidates refusing to participate in debates. (192) Similar bills have come up virtually every two years, but Congress has yet to link federal funds with willingness to debate. (193)
One such bill which generated some interest was the Presidential Debates Act of 1992. (194) In addition to linking funds and debate participation, the bill also set objective criteria concerning the inclusion of third party candidates. Senator Wellstone, who introduced the bill, noted that third party candidates "have been fertile sources of new ideas and new programs, and have provided opportunities for the American public to enter into a diverse and open dialogue on the critical issues of the day." (195) Wellstone's bill would have included any minor candidate who both qualified on the ballot in at least forty states and either qualified for federal matching funds or raised at least $500,000 for his or her campaign. (196) Though Wellstone's bill failed, many similar bills also began to include minor party objective criteria. (197)
In 1993, a series of hearings on the state of presidential debates was held in the House Subcommittee on Elections. (198) Among those testifying were the chairman of the CPD and the chair of the League of Women Voters, as well as representatives of both major parties and several minor parties (including the Libertarian Party and the New Alliance Party). (199) Mr. Livingston, Ranking Member of the Committee, expressed concern that the proposed bills linking debate and finance would violate the First Amendment right not to speak; (200) others thought the bills contradicted specific language in Buckley v. Valeo. (201) Representatives of the major parties downplayed inviting minor party candidates to debate, feeling that doing so did not really "advance the process" of informing viewers before the election and arguing that the growth of cable television provided them with adequate media support. (202) The chairman of the CPD, Frank Fahrenkopf, remarked that the debates' purpose was not "to provide a springboard for a relatively unknown candidate." (203)
The representatives of the minor parties, of course, had the opposite reaction. Arthur Block of the New Alliance Party noted that, under the objective criteria being considered in Congress, only ten independent or minor party candidates would have qualified to debate in all of the 20th century. (204) He argued that Perot would have been "screened out" of the 1992 debates if he had not been independently wealthy and able to finance a massive media campaign. (205) Stuart Reges, director of the Libertarian Party, argued that "[e]ven if people decided not to vote for those third-party candidates, they would still feel we had a positive effect on the debates" because they would force the major candidates to debate the issues. (206) In the end, the bills pending before Congress that might have changed the criteria failed.
About six weeks before the 1996 general election, Representative Bill McCollum introduced legislation that would have amended the FECA to create a Presidential Debate Commission ("PDC") responsible for overseeing the scheduling and format of the debates. (207) The PDC would be comprised of ten people nominated by members of Congress and the President, at least four of whom were not members of either major party. (208) McCollum's bill would have included any minor party candidates in the debate who were on the ballot in at least forty states and whose poll support was not less than 10%. (209) McCollum also proposed that any candidate on the ballot in all fifty states should be invited to a special "preliminary" debate, regardless of support level. (210)
In 1997, Representative Ron Paul introduced another bill tying finance and debate; however, unlike previous bills, the Freedom Debate Act would withhold funds from any candidate who appeared in a "multicandidate forum" that failed to invite any candidate appearing on the ballot in at least forty states. (211) Around the same time, Representative James Traficant introduced a bill that would have made it illegal for the CPD (or any other corporation) to stage or sponsor a debate if the debate did not include every candidate who was on the ballot in enough states to make an electoral college victory possible. (212) Both Paul and Traficant reintroduced their bills in the next Congress without success. (213)
In concert with the Nader and Buchanan problems during the 2000 election, Representative Jesse Jackson, Jr., proposed a concurrent resolution that would overrule the CPD's 15% support criteria and replace it with a requirement of 5% support. (214) Jackson noted that a poll had revealed that the majority of voters believed the CPD's standard was too high; he also argued that the 5% requirement would be in line with the federal campaign funds requirement, whereas 15% seemed to be arbitrarily chosen. (215) He ultimately proposed that the debate should include any candidate who either met the 5% support criteria or whom the majority of voters would prefer to see participate in the debate. (216)
Jackson unsuccessfully reintroduced a similar resolution in the 107th Congress. (217) Ultimately, though they have put forth considerable effort, members of Congress have been no more successful than minor party candidates in challenging the current status of debate law. (218)
C. First Amendment Challenges by Non-Presidential Candidates
Of course, candidates for offices other than the President also engage in campaign debates. Many of the challenges to debate exclusion of minor party candidates have come in state and local races, and many of them have raised First Amendment claims. For example, although unsuccessful with the claim, Sonia Johnson argued that the First Amendment afforded her the right to participate in a debate. (219) However, there is a difference between her case and the cases brought by candidates for state office: while Johnson challenged debates staged by a private entity and aired by private broadcasters, many of the state cases have involved debates staged by public broadcasters. Although candidates have occasionally found a sympathetic ear, (220) ultimately these cases have all been decided in favor of the public broadcasters.
1. DeYoung and Chandler
In 1984, Garry DeYoung campaigned as a minor party candidate in the Iowa race for the United States Senate; after being omitted from a debate on Iowa Public Television ("IPT") that involved the two major party candidates, DeYoung sued the station for damages under 42 U.S.C. [section] 1983, alleging his exclusion violated his First Amendment free speech right. (221) The district court dismissed the claim, finding that IPT did not qualify as a state actor for purposes of a Section 1983 suit because the actions of IPT and its employees could not be "fairly attributed" to the state. (222) On appeal, DeYoung again raised his First Amendment claims. (223)
The appellate court first determined that IPT was a state agency subject to suit under Section 1983, thus rejecting the district court's conclusions that IPT was not a state agency and that its employees were not state actors. (224) As for DeYoung's First Amendment claim, the court noted that "[a] political candidate does not have a 'constitutional right of broadcast access to air his [or her] views."' (225) Furthermore, the court found that the public television station did not meet the criteria of First Amendment public forums--IPT did not permit unrestricted public access to its airwaves, and television does not qualify as the kind of historical forum to which the public had virtually unfettered access. (226) Therefore, DeYoung's First Amendment claim was rejected. (227)
A similar suit arose in connection with the 1990 Georgia gubernatorial race. (228) Walker Chandler, the Libertarian candidate for lieutenant governor, sought to enjoin debates on Georgia Public Television ("GPT") that were to feature only the Republican and Democratic candidates. (229) Chandler claimed his exclusion violated his First Amendment free speech right. (230) As in DeYoung, the court found that a debate broadcast on public television was a non-public forum, giving GPT the right to control access even "'based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." (231)
The court then examined the circumstances and found GPT's decision to exclude Chandler to constitute both viewpoint discrimination and unreasonable prior restraint on speech in violation of the First Amendment. (232) The court reasoned that including one additional candidate in the debate would not disturb the effectiveness of the debate--though it noted that, could it be shown that Chandler intended to, or would in fact, disrupt the debate, GPT could exclude him. (233) While the court emphasized that nothing in its ruling constituted a finding of constitutionally mandated access to broadcast media, the court upheld the First Amendment claim and issued a temporary restraining order stopping the debates. (234)
GPT appealed. (235) Two days before the debate was to take place, the appellate court reversed the finding of a First Amendment violation. (236) Because public television is a nonpublic forum, GPT has the right to make content-based (though not viewpoint-based) decisions about its programming: the court found the exclusion of the Libertarian candidate to be a permissible content-based decision that was reasonable in order for GPT to uphold its "obligation to serve the public interest." (237) In other words, GPT committed no act in violation of the First Amendment by determining that the public interest would be best served by airing a debate featuring only the Republican and Democratic candidates. (238) In reversing the district court's finding of a First Amendment violation, the court lifted the temporary restraining order, and the debate took place without Chandler. (239)
Judge Clark dissented from the court's First Amendment analysis, remarking that "[t]he uncensored right to speak and to hear go to the heart of governance in this democracy. Political debate should have the highest rank on the First Amendment's scale of liberties." (240) While Clark agreed with the characterization of GPT as a nonpublic forum, he felt that the district court was correct in finding GPT's actions to be viewpoint discriminatory. (241) He noted that, while it might be permissible for private networks to air debates excluding qualified candidates, public broadcasting exists in part to further the public interest by ensuring that educational and informative programming makes it to the airwaves. (242)
Clark made one final point that will be important to the later discussion of presidential debates. He noted that there were only four ballot-qualified candidates in the gubernatorial race; Chandler's inclusion, therefore, would not make it "difficult or impossible to conduct a debate...." (243) However, he conceded that should a race contain so many qualified candidates to make a debate for all of them at once impossible, then a public broadcaster would have a neutral reason to exclude some candidates--even if doing so ultimately favored some viewpoints over others. (244)
2. Forbes I and Forbes H
In 1992, Ralph Forbes ran as an independent candidate in a Congressional election for an Arkansas seat in the United States House of Representatives. (245) When the Arkansas Educational Television Network ("AETN"), a public broadcaster, refused to invite Forbes to participate in a debate between the major party candidates, Forbes claimed his First Amendment rights had been violated and sought a preliminary injunction to stop the debate. (246) Relying on DeYoung, the district court denied his request. (247) Forbes refiled his claims, and the district court granted the defendants' Rule 12(b)(6) motions and dismissed all of the claims. (248) Forbes appealed.
The appellate court first noted that AETN's sponsorship gave Forbes a "qualified right of access" to the debate: as a result, AETN's reason to exclude him must be legitimate to survive First Amendment scrutiny. (249) Then, expressly disagreeing with DeYoung, the court said that Forbes did have a First Amendment right to participate in this debate. (250) The court reasoned that the AETN debates could be seen either as a nonpublic forum (consistent with the Chandler court's holding) or as a limited public forum which AETN had opened for free speech, if only for a limited time and on a limited topic. (251) In either case, a broadcaster still violates a candidate's rights if it excludes him in a viewpoint discriminatory manner. (252) Because AETN had not yet answered Forbes' complaint, the court remanded to permit the station to articulate its reasons for its denial of access. (253)
On remand, the case went to a jury trial. (254) The district court instructed the jury that the debates were a nonpublic forum as a matter of law, and the jury found that AETN's decision to exclude Forbes was not viewpoint-based. (255) Forbes again appealed, and the appellate court reversed, finding that the district court erred in characterizing the debates as a nonpublic forum. (256) The court drew a distinction between the public broadcasting station as the forum and the debate itself as the forum--because Forbes sought access only to the debate, not to general station programming, the court characterized the debate as the proper forum to be considered. (257) The court reasoned that by staging the debate, AETN had "opened its facilities to a particular group candidates running for the Third District Congressional seat." (258) In doing so, the station could not then limit that class of eligible speakers only to the major party candidates unless its reason for doing so was constitutionally permissible. (259)
AETN's reason here was not constitutionally permissible; AETN chose to exclude Forbes simply because it did not consider him to be a politically viable candidate. (260) However, the court reasoned that this was not the station's decision to make--it was one for the voters. So long as Forbes satisfied Arkansas's ballot access laws, he should be placed on equal footing with the major party candidates. (261) Because the station's reasoning was neither compelling nor narrowly tailored, the court found for Forbes and remanded for the sole purpose of determining damages. (262)
3. Cases Relying on Forbes I & II
While the Supreme Court considered whether or not to grant Forbes H certiorari, other courts heard similar cases that employed the reasoning articulated in both Forbes I and Forbes II. In New Jersey, independent gubernatorial candidate Marilyn Arons brought suit against the state public broadcasting authority after being excluded from televised debates. (263) The court agreed with much of the reasoning in Forbes I--Forbes H having not yet been decided--and declared that the public broadcasters had in fact opened up a limited public forum when they staged debates for qualified candidates. (264)
Unlike in Forbes' situation, the public broadcasters in Arons had a neutral reason for excluding the candidate. New Jersey, by statute, permitted only those who met the definition of a qualified candidate to participate in the debates. (265) Because Arons had failed to raise the necessary funds and apply for matching funds, the court found that the broadcaster's decision to exclude her from debates was viewpoint-neutral and, therefore, not in violation of the First Amendment. (266)
After Forbes H had been decided, a group of third party Congressional candidates in Iowa, led by Natural Law Party candidate Jay B. Marcus, filed suit against Iowa Public Television ("IPT") to force the broadcaster to include them in a series of debates which preceded the 1996 election. (267) The case went to a jury trial: the jury found in special interrogatories that the plaintiffs failed to prove that their appearance at the debates would be newsworthy and that the defendants had properly used that criterion for excluding them from the debates. (268)
The district court's opinion in Marcus I approved the jury's findings and additionally ruled that the plaintiffs' First Amendment rights had not been violated. (269) The court, relying on Forbes II, held that the debates were limited public fora and that IPT could exclude Marcus and the other plaintiffs only for a narrowly tailored and compelling reason. (270) However, even under this heightened standard of scrutiny, the court upheld IPT's decision to exclude the plaintiffs from the debate. IPT decided that since the plaintiffs were not newsworthy, their inclusion would not serve the public interest. This satisfied the compelling interest prong. Since IPT made additional airtime available to each candidate--and the candidates in fact accepted it--the decision was considered narrowly tailored. (271) The court distinguished Forbes H on the ground that AETN had kept Forbes out of the debate because they considered him not to be a viable candidate; IPT conceded the plaintiffs' viability, but justified their exclusion because their candidacies were simply not "newsworthy." (272)
The plaintiffs appealed the decision and filed a motion for emergency injunctive relief with the Court of Appeals for the Eighth Circuit. (273) While the court agreed that the candidates would suffer irreparable harm if the debates went on in violation of the First Amendment, the majority ultimately agreed with the district court's viability/newsworthiness distinction and denied the motion. (274) One judge dissented from the denial of the injunction, arguing that Forbes II was indistinguishable from the facts at hand and dictated granting the candidates' requested relief. (275)
D. The Supreme Court Decides Forbes III
By granting certiorari to review the Forbes II decision, the Supreme Court mooted the issue of whether Forbes II should have been controlling in Marcus II. (276) Reversing the Eighth Circuit's decision and rationale, the Court, by a 6-3 vote, held that the debate was a nonpublic forum and that AETN's decision to exclude Forbes because he lacked financial support, lacked organization, and lacked the position as a "serious candidate" in the eyes of both voters and the news media was a permissible viewpoint-neutral use of its editorial discretion. (277)
The Court first examined whether the lower courts had been correct in applying public forum principles at all to the context of broadcasting. (278) As a general rule, both private and public broadcasters have a great deal of editorial discretion over their programming choices: this discretion is necessary in order to permit the broadcasters to serve the public interest. (279) While the Court recognized that this editorial power is certainly subject to abuse, subjecting these broadcasters to the constraints of the forum doctrines would likely erode journalistic discretion and force courts to "'oversee far more of the day-to-day operations of broadcasters' conduct, deciding such questions as whether a particular individual or group has had sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired.'" (280) Therefore, the Court felt that public broadcasters were under no First Amendment duty to open up their everyday programming to the general public. (281)
However, the Court reasoned that candidate debates present a different situation for two reasons. First, the debate was intended to be a forum for candidate and political speech, whereas most of AETN's programming was not political in nature. (282) Furthermore, even in regularly scheduled political programming, typically the broadcaster provides a host who mixes his views--which may or may not be partisan--with those of the candidates. (283) The Court noted that a debate, on the other hand, permits candidates to speak with minimal broadcaster intrusion. (284)
Second, the Court identified that, "in our tradition, candidate debates are of exceptional significance in the electoral process." (285) Noting that most people get the majority of their campaign information from television as opposed to other sources, the Court reasoned that debates represent the only time during the campaign when the attention of the voters is truly focused on the election. (286) While the Court conceded that there would be situations where it would be impossible to permit every candidate to debate during the same program, it nevertheless held that broadcast debates were subject to the constraints of the forum doctrines and that, as such, broadcasters could not exclude candidates for viewpoint-based reasons. (287)
Answering whether the forum doctrines should apply at all was only half of the battle; the Court then had to determine which forum category properly encompassed broadcast candidate debates. After rejecting the traditional public forum as an option, the Court turned to the designated (or limited) public forum. (288) It rejected the argument that AETN had made its airwaves "generally available" by staging the debate. (289) AETN did not open its debate generally to all of the candidates in one particular race it merely permitted those candidates to be eligible to use the forum at the editorial discretion of the station. (290) In this way, the Court compared AETN's actions to those of the school district in Perry Education Ass'n v. Perry Local Educator's Ass'n and to the charity drive organizers in Cornelius. (291) As this constituted "selective access" rather than general availability, the Court held that the debate is a nonpublic forum. (292)
The Court noted that finding the debate to be a designated public forum--as the Eighth Circuit had done--would actually result in less speech because the potential "cacophony" of voices might lead broadcasters to choose simply not to stage debates at all. (293) There had been at least nineteen candidates on the ballot in one or more states in each of the three previous Presidential elections; Congressional elections typically had between six and eleven candidates on the ballot. (294) Only by permitting broadcasters to use their journalistic discretion to winnow the number of appearing candidates would debates be possible in such circumstances. (295)
Even under the nonpublic forum doctrine, though, the broadcaster's discretion is not unfettered. (296) Excluding candidates because of viewpoint discrimination is strictly prohibited, and all other exclusions must at least "be reasonable in light of the purpose of the property." (297) In rejecting Forbes' arguments that he was excluded either because his views fell outside of the mainstream or because of political pressure exerted on AETN by the major parties, the Court found instead that "AETC excluded Forbes because the voters lacked interest in his candidacy, not because AETC itself did." (298)
Justice Stevens dissented in an opinion which Justices Souter and Ginsburg joined. (299) Stevens focused first on a factor the majority had not emphasized: the difference between public and private broadcasters. (300) He noted that had this debate been staged by a private broadcaster, it would have been subject to the FECA's "objective criteria" of participation requirement. (301) However, the AETC's criteria either newsworthiness (as it argued) or political viability (as Forbes argued)--were "so subjective, so arguable, so susceptible of variation in individual opinion, as to provide no secure basis for the exercise of governmental power consistent with the First Amendment." (302) Furthermore, as AETN is a state actor rather than a private broadcaster, "deference to its interest in making ad hoc decisions about the political content of its programs necessarily increases the risk of government censorship and propaganda in a way that protection of privately owned broadcasters does not." (303)
Turning to the forum question, Stevens argued that the real question was not whether the debate was a designated public forum or a nonpublic forum but rather whether AETC, in creating the debate forum, circumscribed its use with sufficient specificity to justify excluding Forbes or other ballot-qualified candidates. (304) He analogized this case to cases where a group sought a permit from a government body cases in which the Court has held that the government may not deny the permit "without narrow, objective, and definite standards to guide the licensing authority." (305) AETC's standards here were highly discretionary: they presented Forbes' lack of financial support as one reason for excluding him, yet invited a major party candidate to debate who had raised even less money than Forbes had. (306)
Though unwilling to reach the same result as the Eighth Circuit--that all ballot-qualified candidates should have access to the forum--Stevens did conclude that any candidate exclusion from a publicly-sponsored debate must "be governed by preestablished, objective criteria." (307) Agreeing with the majority that "the debate forum implicates constitutional concerns of the highest order," Stevens felt that compelling broadcasters to use such criteria constituted a modest requirement that would guard against subjective, arbitrary or viewpoint-based exclusions. (308)
IV. THE DESIGNATED NONPUBLIC FORUM DOCTRINE--AN ANSWER TO FORBES
The state of affairs for minor party candidates is fairly glum. In presidential races, they must demonstrate a support level of at least 15%--a level that only three candidates have been able to reach since 1924--in order even to be considered for the debates under the CPD's 2000 selection criteria. (309) State and local candidates, whose debates are typically held on public television, can be excluded after Forbes III even for subjective reasons, so long as those reasons do not amount to viewpoint discrimination. Given the nearly universal view that debates are critical to a candidate's chances of election, the current rules work a tremendous hardship on the political viability of any third party or independent candidate.
The purpose of Part IV of this article is to offer a different framework by which some of these problems can be resolved. The Court in Forbes III correctly found that candidate debates, because of their importance to the American system of governance, constituted a forum for First Amendment purposes. (310) However, the Court was then trapped into choosing between two inadequate options--the limited public forum and the nonpublic forum--because existing First Amendment jurisprudence lacked a viable and preferable alternative that would accurately encompass the nature of the debate forum.
This article proposes that a new forum be added to the existing First Amendment forum doctrines. This forum--the "designated nonpublic forum"--provides a useful solution to the problem the Court faced in Forbes III. After looking at the current state of regulation of broadcasters (both public and private), this article will examine the forum doctrines as they exist today. It will delineate the narrow parameters of the designated nonpublic forum and explain how and why debates should fall within that sphere of First Amendment law.
A. Rights and Regulations of Public and Private Broadcasters
Regulation of broadcasters, both public and private, is extensive. Beginning in 1927 with the Radio Act, (311) Congress has, as licensor, been heavily involved in regulating most aspects of broadcasting. Courts have consistently upheld regulations of broadcasting content while they have been reticent to uphold statutes which regulate the content of print media. (312) The power to deny and grant licenses was the primary regulatory tool, and from the beginning it contemplated administrative oversight of and intervention in programming decisions. (313)
Broadcasters in general have been afforded less First Amendment freedom of the press protection than other forms of the media. The argument of "spectrum scarcity" is the oft-cited rationale for this fact: because there is only a limited amount of broadcast spectrum physically available--and thus only a limited number of broadcast licenses that can be granted--Congress has more power to regulate a broadcaster without running afoul of the broadcaster's First Amendment rights than it does, for example, to regulate a newspaper. (314) Even so, Congress must still respect the broadcasters' First Amendment rights, and any regulation passed must satisfy strict scrutiny review. (315)
Public broadcasters have a statutory duty to schedule programming that serves the "public interest, convenience, and necessity." (316) As such, they must exercise a great deal of journalistic and editorial discretion in programming determinations--even if in doing so they "facilitate the expression of some viewpoints instead of others." (317) Courts realize the necessity of relying upon broadcaster discretion in order to further the public's interest in the presentation of a balanced set of viewpoints. (318)
Public broadcasting in general is not subject to the constraints of the forum doctrines because the doctrines' limitations on speech regulation would directly conflict with the broadcasters' exercise of discretion and would lead to endless lawsuits brought by those who felt that their opportunity to speak their viewpoint had been denied. (319) While the public does have a right to reasonable coverage of differing viewpoints on an issue, not every member of the public has a corresponding right to go on the air and proclaim his or her views; this is the result which the public forum doctrine would create. (320) As a result, the Court has held, for example, that a radio station may deny access to a group seeking to run paid editorial ads expressing the group's views on the Vietnam War on the grounds that the public interest would not be served by such announcements. (321)
This discretion is not without its limits, though, particularly in the area of information considered vital to the public interest. (322) For example, Congress enacted Section 312(a)(7) of the FECA to ensure that stations permitted "reasonable access" to all candidates for federal election. (323) The Court upheld the application of Section 312(a)(7) to federal election television access, recognizing that '"it is of particular importance that candidates have the.., opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day.'" (324) The FCC, in denying a ballot-qualified candidate's request to be included in a television debate, noted that Section 312(a)(7) entitled the candidate only to "reasonable access"--not to the right to demand access to any particular program. (325)
At the time of the Columbia Broadcasting System case, Section 312(a)(7) also encompassed the fairness doctrine. The fairness doctrine required broadcasters both to cover issues of public importance and to provide reasonable opportunities for the expression of divergent views on those issues. (326) This did not require that the coverage be equally balanced or that all views appear as part of the same program: decisions concerning the appropriate forum and spokesperson for each viewpoint were discretionary on the part of the licensee, subject only to the requirement that the discretion be exercised reasonably and in good faith. (327)
While the Supreme Court initially upheld the fairness doctrine against a challenge that it violated the broadcasters' First Amendment rights not to speak, (328) the FCC ultimately repealed it on First Amendment grounds. (329) Under the League of Women Voters standard, applications of the fairness doctrine would have to be narrowly tailored to meet a compelling governmental interest, thus satisfying strict scrutiny review. (330) While the fairness doctrine surely satisfied a compelling governmental purpose--protecting the public interest in receiving all views on information of public importance--the FCC felt that rather than serving that public interest, the fairness doctrine actually chilled political speech on controversial issues because it provided a powerful disincentive for broadcasters to air programming without making reasonable access available to all opposing views. (331) Furthermore, the FCC found that the fairness doctrine was no longer a narrowly tailored means to serve the public interest--the dramatic growth in the number of stations since Red Lion increased the public's ability to hear differing viewpoints on important issues without requiring any one broadcaster to present all sides. (332)
B. The Requirement of State Action
Courts have long imposed a finding of state action as a prerequisite to finding a First Amendment violation. (333) While the status of public broadcasters as state actors is no longer questioned, the same cannot be said of private broadcasters. The difficulty then becomes classifying private broadcasters as state actors as well, such that the designated nonpublic forum doctrine can apply to debates broadcast on any network, public or private. While the state action doctrine has been narrowly construed, it does provide that in limited cases, private parties can qualify as state actors for purposes of the First Amendment. (334) The preeminent position of debates within the electoral system and the extensive regulation and licensing of private broadcasters by the FCC provide the necessary basis upon which to ground an argument of state action.
Under the most widely used test, the actions of a private individual or entity can be deemed as state action only when one of three situations is present: (1) a "'sufficiently close nexus"' between the state and the private entity; (2) the exercise of "coercive power" or "significant encouragement" by the state over the private entity; or (3) the exercise of '"traditionally" state powers by the private entity. (335) Under this test, extensive governmental regulation alone is insufficient for a finding of state action. (336) Similarly, the fact that the government provides a license to the private entity does not convert that entity's action into state action. (337)
However, several other arguments can be made based on other areas of the state action test. The first argument, applicable to the presidential and vice-presidential debates, bypasses the broadcasters completely by arguing that the CPD itself is a state actor subject to the constraints of the First Amendment. The only case to consider this question rejected the argument that the CPD is a state actor. (338) The Hagelin court stated only that "the plaintiff has not shown that the CPD is a state actor" without explicitly going through the state action tests to reach its conclusion. (339) On appeal, the court barely addressed the state action issue except to state, without further explanation, that the CPD was a "private actor." (340) Given the lack of articulated legal reasons for such a finding, these cases hardly present a high hurdle which must be overcome before the CPD can be found to be a state actor.
One argument that the CPD is a state actor lies in the "coercive power" prong of the state action test. The government, through members of the major political parties, has exerted pressure on the CPD from its inception to exclude minor party candidates to whatever extent practicable. While the CPD holds itself out as a "nonpartisan" organization, (341) it was formed at the urging of the chairmen of the two major parties. (342) A look at CPD's current board of directors reveals many prominent politicians from the major parties, including current and former members of Congress and former cabinet members. (343) As a sponsor of a debate, the CPD decides virtually every aspect of the debate, from its format and dates to the candidates who will be invited. (344) In addition, whatever objective criteria the CPD sets must be approved by the FEC. (345) Arguably, the government's de facto control over the CPD works as coercive action sufficient to render the CPD a state actor. If so, then any CPD regulations prohibiting third party participation would be subject to the scrutiny applicable to state actors proposed under the designated nonpublic forum.
Another argument for state action rests squarely on the notion that private broadcasters are slate actors--a question that the Court has already addressed. In Columbia Broadcasting System, Inc. v. Democratic National Committee, Chief Justice Burger--in a section of the opinion joined only by a plurality of justices--stated that the state action doctrine could not be extended to hold private broadcasters liable under the First Amendment for exercise of their journalistic discretion. (346) While noting that "[w]hen governmental action is alleged there must be cautious analysis of the quality and degree of Government relationship to the particular acts in question," Burger concluded that Congress had expressed an intent "to maintain a substantial measure of journalistic independence for the broadcast licensee." (347) In addition, Burger noted that a finding of state action here would "undermine nearly a half century of unmistakable congressional purpose to maintain--no matter how difficult the task--essentially private broadcast journalism held only broadly accountable to public interest standards." (348)
Justice White, concurring in the judgment but not in Burger's state action discussion, found it "at least arguable" that the Communications Act, the policies of the FCC, and the fairness doctrine were sufficiently implicated by the facts of the case so as to require First Amendment review of the Commissioner's actions. (349) However, White did not decide whether the broadcasters were state actors; rather, he indicated only that, given the circumstances, some measure of First Amendment review should have been applied. (350)
Justice Douglas also concurred in the judgment but not in Burger's state action discussion, arguing that "[i]f a broadcast licensee is not engaged in governmental action for purposes of the First Amendment, I fail to see how constitutionally we can treat TV and radio differently than we treat newspapers." (351) Douglas questioned the constitutionality of the fairness doctrine, arguing that people should be entitled to express "extreme ideas, silly ideas, partisan ideas" just as freely in the broadcast media as they can in print. (352) However, where government regulation of the print media is disfavored, regulation of the broadcast media is not only encouraged but expected. Douglas, rejecting the argument that government regulation of the broadcast media is required because of scarcity, reasoned:
the press in a realistic sense is likewise not available to all. Small or "underground" papers appear and disappear; and the weekly is an established institution. But the daily papers now established are unique in the sense that it would be virtually impossible for a competitor to enter the field due to the financial exigencies of this era. The result is that in practical terms the newspapers and magazines, like TV and radio, are available only to a select few. (353)
Douglas concluded that, so long as governmental regulation of broadcast media was so pervasive, the broadcasters--private or public--had to be considered state actors for purposes of First Amendment analysis. (354)
Justice Brennan, dissenting from the plurality judgment and particularly from Burger's state action findings, looked to the '"extraordinary relationship between the broadcasters and the federal government--a relationship which puts that industry in a class with few others"' in evaluating the state action question. (355) For example, broadcasters lease the electromagnetic spectrum for airing their programs from the government, which controls access to the spectrum. (356) Additionally, broadcasters depend directly on the government to limit the number of licensees so as not to crowd the spectrum and to assign to each individual licensee a specific spectrum home. (357) Brennan saw other factors of government involvement in the extensive regulation of the broadcasting industry by the FCC and the FCC's promulgation of the fairness doctrine. (358) Because of all of these factors, Brennan concluded that there was a sufficient nexus between the broadcasters and the government to hold the broadcasters liable as state actors for First Amendment purposes. (359)
Under the state action doctrine, excluded candidates could argue along the lines of Justice Brennan's dissent in Columbia Broadcasting System--namely, that the government and broadcasters are sufficiently entwined to satisfy the nexus prong of the state action test. The factors Brennan cited remain present today and perhaps are buttressed by the Court's ready recognition of the indispensable nature of debate participation in the electoral process. (360) Furthermore, Columbia Broadcasting System represented an overruling of a federal court of appeals decision which found that the broadcasters were state actors, focusing on the fact that the private broadcasters controlled "the only means of truly mass communication [which] play an absolutely crucial role in the processes of self-government and free expression." (361) The Court itself in Red Lion stated that "[t]here is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. 'Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." (362) If the question of whether private broadcasters are state actors is a close one, as the fact that the Columbia Broadcasting System decision on the state action question was only a three-judge plurality may indicate, (363) the importance of debates, particularly presidential debates, should be the thumb on the scale in favor of a finding of state action.
C. Brief Examination of the Forum Doctrines
While the roots of the public forum doctrine date to the late 19th century, (364) not until Perry did the Court begin to try to delineate and classify the various types of speech forums. (365) In Perry, the Court held that a public school which had opened its internal mail system to the incumbent teacher's union had not violated the First Amendment speech rights of a rival union, which had also sought access to the system. (366) In doing so, the Court established the three categories of speech forums: the traditional public forum, the designated (or limited) public forum, (367) and the nonpublic forum. In later cases, the Court has refined its definitions and developed tests to separate potential speech venues into three speech categories. (368)
Traditional public forums are those, like streets and parks, which "'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" (369) The government cannot completely prohibit speech in a traditional public forum unless the restriction is narrowly tailored to serve a compelling state interest. (370) The government can enforce time, place, and manner regulations, but only if they are content-neutral, narrowly tailored to further a significant government interest, and leave open "ample alternative channels" of communication. (371)
The government can also designate property as available to the speaking public that was not historically considered open for expressive activities. While it is not required to do so, once it does, these "designated" public forums are protected by the same First Amendment standards that guard traditional public forums. (372) Whether or not property is deemed a designated public forum turns on one of two inquiries: whether the government, through an affirmative act, intended to make it "generally available" to a specific class of speakers; (373) or whether the government, through a period of acquiescence to public use, has permitted the property to acquire the character of a public forum. (374) Once the government opens a forum and permits discussion of a particular topic, it may not selectively deny access to others speaking on that topic unless that denial is unrelated to the particular viewpoint expressed. (375) Similarly, once the forum is open to a specific group of speakers, members of that group may not be excluded without a narrowly tailored, compelling reason. (376)
All other government property must either be a nonpublic forum or, in the words of the Forbes III court, "not [a] for[um] at all." (377) In a nonpublic forum, the government's regulatory power over expression is much greater--it may limit speech so long as it does so in a reasonable manner and so long as its regulations are not viewpoint discriminatory. (378)
D. Designated Nonpublic Forum
The Court in Forbes III crafted a less-than-adequate solution to the third party debate question because it gave itself only less-than-adequate options to consider. Neither the majority nor the dissent considered expanding the forum doctrines to carve out a new niche for something as important as an election debate. However, given the nature of broadcasters' rights and regulations, the importance of debates to the electoral process, and the apparently declining public interest in the American electoral process, this article proposes that debates should be placed in a new category--the "designated nonpublic forum."
In order to completely understand how the designated nonpublic forum better addresses the issues particular to debates, one must first understand how the existing forum doctrines do not adequately encompass televised debates. Debates seem at first blush to fit the definition of a limited public forum: the government (in the body of the broadcaster) has made the airwaves generally available to all members of a specified class of speakers (candidates campaigning for a particular office) to discuss a particular topic (the issues facing the candidates for that office). Accordingly, to safeguard the free speech rights of the candidate the broadcaster seeks to exclude, the broadcaster's proffered reason for exclusion would have to satisfy strict scrutiny; this would demand a showing that the exclusion was narrowly drawn to serve a compelling state interest. The Court in Forbes III, however, disagreed: it concluded that broadcasters simply make a specified class of speakers (the candidates) eligible to make use of the forum (the debates), and as such, the broadcasters may employ journalistic discretion to eliminate some of the candidates in order to better serve the public interest. (379) As a result, the Court concluded that broadcast debates qualified as a nonpublic forum. The vigorous dissent of three members of the Court demonstrates, though, that it was far from a clear question.
The main problem with the existing forum doctrines is that they fail to balance the competing interests present in the debate context. A finding that debates are a limited public forum, as the Eighth Circuit did in Forbes II, (380) favors the candidates who claim a First Amendment right to participate in the debates. (381) Conversely, the holding in Forbes III--that debates are a nonpublic forum--favors the government, through the broadcasters. (382) Not only did Forbes III apply the more relaxed rational basis standard in reviewing broadcaster decisions to exclude candidates, it also announced that broadcasters exercising "editorial discretion in the selection and presentation of its programming ... engage in speech activity" that is deserving of some level of First Amendment protection. (383) Finally, and perhaps most importantly, neither the nonpublic forum nor the designated public forum truly takes into account what is arguably the key reason for holding debates in the first place--providing the electorate with the information necessary to cast an informed vote, and in doing so, having one's voice heard in this system of representational government. (384)
The solution to this problem is to create a fourth speech forum that applies in situations where the government has taken steps to open a forum for public speech but has opened it to only a limited class of speakers. (385) Once the government opens such a forum, the inquiry next turns to the interests of the general public in hearing what those speakers have to say, not to the interests of those wishing to speak. Where the public has a separate and independent interest in the forum being accessible to the broadest possible class of potential speakers, and that interest is at least as strong as the governmental interest in regulating the forum by excluding speakers, the forum is a designated nonpublic forum. (386) Conversely, where the public's interest is less than the government's interest, the forum is a nonpublic forum akin to those discussed in Cornelius and Perry. (387)
The debate forum should be deemed a designated nonpublic forum because the balancing of the public interest and government interest tips in favor of the public. Within the parameters of the designated nonpublic forum, to exclude speakers who are members of the limited class to which the forum was opened, the government must demonstrate: (1) its exclusion of speakers is done in a viewpoint-neutral manner based on preexisting, objective criteria; and (2) the exclusion of candidates serves an important governmental interest and does not burden substantially more speech than necessary.
The level of scrutiny required by the designated nonpublic forum thus falls between that of strict scrutiny (applicable to the designated public forum) and rational basis review (applicable to the nonpublic forum). The standard of review for the designated nonpublic forum is that of intermediate scrutiny, previously employed by the Court to resolve First Amendment questions concerning cable television. (388) The test also borrows the requirements of viewpoint-neutrality and preexisting objective criteria from Forbes III. (389)
One can examine how the test works by applying it to the facts of a case which the Court in Forbes III identified as being similar to the actions taken by AETC in excluding Forbes. In Perry, the defendants argued that the school districts had created a limited public forum by permitting an educational union and other private groups not connected to the school to have access to the teachers' mailboxes. (390) These facts illustrate a potential designated nonpublic forum case; the mailboxes were not a traditional public forum, and the school selectively permitted access to various speakers while denying access to others.
To determine whether this situation fits the profile of a designated nonpublic forum, one should look first to the public interest and the governmental (school) interest. Unless the public interest in having maximum speech is at least as strong as the school's interest in excluding certain speakers, the forum is a nonpublic forum rather than a designated nonpublic forum. In Perry, the school had an interest in permitting those with legal responsibilities to the teachers to stay in communication with them--to ensure labor peace in the school by avoiding on-site staff exposure to inter-union bickering. (391) The school also presumably had an interest in preserving the nature and use of the forum by preventing the mailboxes from being so stuffed with fliers, pamphlets, and other group announcements that communication via the mailboxes, even by those associated with the school district, would become impossible.
The public interest, on the other hand, is fairly minimal. Parents might want full access to the mailboxes because announcements about community activities would be more easily communicated to teachers, who could then pass them on to their students. Similarly, the community has an interest in assuring adequate compensation for teachers, making it less likely that a teacher will leave the district to work elsewhere--permitting rival unions to woo the teachers via the mailboxes could further that goal. Even so, the public's interest in open access to teacher mailboxes is not as strong as the school's interests in maintaining labor peace and in preserving the nature and use of the forum as a means of interoffice communication. Since the forum fails the first part of the designated nonpublic forum analysis, the mailboxes are a nonpublic forum.
V. BALANCING THE INTERESTS IN THE DEBATE SETTING: BROADCASTERS AND THE PUBLIC
Under the designated nonpublic forum doctrine, the government's interest in regulating speech must be balanced against the public's interests in hearing what the speaker has to say. Thus, the public's interest in having potentially excludable third party candidates participate in debates must at least equal the broadcasters' interest in excluding them. This article now examines these competing interests and concludes that--in the area of broadcast candidate debates--the public interest in acquiring the information necessary to make a freely informed electoral choice outweighs the broadcasters' (392) interests in maintaining a manageable forum and in not being forced to speak through its programming.
A. Broadcaster Interest in Excluding Minor Party Candidates
While public broadcasters have long had the power, in furtherance of their duty to serve the public interest, to exclude speakers from the airwaves, the Court in Forbes III announced a new public broadcaster power: the power to speak through exercise of its editorial judgment. (393) As such, broadcasters would have a stronger First Amendment argument in this balancing of interests than they had pre-Forbes III. If the broadcaster truly speaks with some First Amendment protection, then it should have much more power to exclude candidates--even for a viewpoint-based reason--than it would if its editorial discretion was seen as merely regulatory. (394) Such a finding has the potential to transform virtually every government regulation into an act of government expression, with the concomitant First Amendment protections to support it. (395) Yet Forbes III, after announcing this position of government-as-speaker, went on to limit it: the government may not exercise its editorial discretion over which candidates are included in the debate in a viewpoint-discriminatory way. (396)
Perhaps the inconsistency inherent in Forbes--that First Amendment protected government speech is still subject to the viewpoint-neutrality requirement--makes sense in light of the market involved. If the government-as-speaker is operating in a market in which the government is but one of many participants, then the government's expression of preferences or views is protected First Amendment speech activity. This is so even if it has the consequence of excluding some viewpoints and may be true even if that consequence is the intent of the government's speech in the first place. However, where the government holds a position of virtual monopoly (as it did in Forbes III), its editorial discretion--though protected by the First Amendment--must be somewhat limited. (397) Unfettered discretion would effectively permit the government to silence any speaker's viewpoint under the guise of journalistic decision-making. (398) Therefore, even assuming that Forbes III can and should be read for the proposition that a state actor's exercise of editorial discretion is protected First Amendment expressive activity, the designated nonpublic forum's balancing test will give that state actor's First Amendment rights less value where the state actor speaks in a market in which he holds a de facto monopoly to suppress disagreeable viewpoints.
Broadcasters could also take the position that forcing them to include unwanted candidates would inhibit speech, not promote it, because they might choose to not schedule debates at all rather than be forced to include minor party candidates. (399) After Forbes H had been decided (but before Forbes III), at least one public broadcaster chose to cancel a debate rather than include third party candidates in the forum. (400) In part, such an action echoes the FCC's decision to repeal the fairness doctrine; perhaps requiring broadcasters to include all views on a topic will instead lead them to refuse to present any views at all. However, Justice Stevens, in his dissent in Forbes III, argued that the station would likely not have cancelled the debate had it known that it could have excluded the candidates on the basis of preexisting objective participation standards. (401) In addition, the FCC has recently begun to review its repeal of the fairness doctrine. (402) The Commission argues now that it was wrong to consider the absolute number of media outlets (which had grown since Red Lion) in determining the constitutionality of the fairness doctrine. Rather, the FCC now maintains that the most important factor to consider is "that the spectrum is a public resource and 'there are substantially more individuals who want to broadcast than there are frequencies to allocate.'" (403)
If the FCC were to return to the days of the fairness doctrine, a third party candidate could certainly bring a claim against a public broadcaster who excluded him or her from a debate based on that doctrine. (404) While the fairness doctrine did not require broadcasters to include all views on an issue as part of the same forum, the excluded third party candidate could reasonably argue that because debates are such a unique forum, no other airtime access would offer the same "reasonable access" to the airwaves. As such, the only way a broadcaster could meet its fairness doctrine requirements would be to include the candidate in the debate unless, of course, it had preexisting and established criteria for excluding the candidate that were consistent with the First Amendment.
Broadcasters also argue that increased access to debates will result in voter confusion. Permitting multiple candidates to participate in the same debate may make the debate worthless and confuse voters in the process. The Court in Forbes III agreed with this somewhat, noting the potential "cacophony" of voices that permitting such debates could produce. (405) The Court suggested that the potential for voter confusion may be a relevant factor in considering whether to give a third party candidate access to the ballot. (406) However, it seems likely that any such rule limiting debate access to those candidates who satisfy stringent objective criteria will select for debate only those candidates whose campaigns are sufficiently well-known and organized, thereby avoiding the voter confusion problems identified by the Court. (407)
History also demonstrates that debates held with multiple candidates do not necessarily descend into cacophony. In 1991, six Democratic presidential hopefuls squared off in a debate in St. Louis without incident. (408) Similarly, in 1987, six potential Republican candidates debated in Houston; again, voices were heard and issues clearly discussed even in front of the raucous partisan crowd. (409) While it is certainly possible for such a scenario to get out of hand as the number of candidates multiplies, (410) in recent elections, third party candidates qualifying even under the most lax of objective criteria--no support requirement and ballot access in an electoral college majority of states--do not number more than the six that debated without incident in 1987 and 1991. (411)
In truth, the argument for eliminating voter confusion represents more of a public interest than a broadcaster interest. A broadcaster hosting a cacophonous debate in which no information is transmitted ultimately suffers little harm--the broadcaster has wasted an hour of air time that could have gone to other programming, including, at least for private broadcasters, programming containing commercial time which the broadcaster could have sold for some amount of money. Alternatively, the broadcaster may suffer some ridicule for having hosted a fiasco in the first place, which may theoretically lead to a loss of advertising revenues from companies which no longer want to have their names associated with that broadcaster.
It is the viewers, however, who suffer true harm. They are left no closer to understanding either the issues or the candidates' positions on those issues than they were when the debate started. Thus, while there is a strong public interest in third party debate participation, there is an equally important public interest in making the debate meaningful. The broadcasters serve merely as the guardians of that interest.
B. Public Interest in Third Party Participation
The public interest in third party participation centers around one simple question: Would permitting the third party candidates to participate in the debate have any meaningful effect on the election? The concept of an election is not limited to the ultimate outcome in terms of who wins and who loses: the election encompasses every act from the time that party nominees are determined and begin to campaign until the time that the voter closes the curtain and pulls the lever or punches the chad (or at least tries to). (412) Limiting the notion of the election only to the vote itself ignores the long and arduous process by which most elections are decided--including debating with other candidates to expose a candidate's issue platform to the voting public.
Given this broad reading of elections, third party participation obviously has had a meaningful effect in the past and surely will continue to do so in the future. While the origins of political parties can be traced to the time of the First Congress, (413) in early elections often more than one candidate appeared on the ballot for a given political party, thus making multiple-party candidate participation less necessary than it is today. (414) By 1832, third parties had started to insinuate themselves into presidential elections as well; William Wirt, the Anti-Mason candidate, received almost 8% of the popular vote. (415) The Anti-Masons merged with other discontents to form the Whig Party; by 1840, a Whig had been elected President. (416)
Third party candidates tend to gather the most support in times of political crisis. (417) Often during these times, public opinion can become so divided that the two major parties simply cannot occupy all of the positions that voters seek to have addressed. It is from this disenchantment with major parties that minor parties rise. The Anti-Masons rose as a response to growing egalitarianism. (418) Four significant minor parties--the Free Soil Party, the American Party, the Breckinridge Democrats, and the Constitutional Unionists--formed in the period leading up to the Civil War; each received at least 5.6% of the popular vote in one election between 1848 and 1860. (419) Third parties, therefore, serve an important function in American politics in giving a voice to a section of the public who may feel isolated in times of extreme turmoil. As such, they further one of the fundamental notions underlying the need for a free speech principle: the creation of a safety valve through which people, by talking rather than by violence, can express their displeasure. (420)
As the quote opening this article notes, third parties are also important in the area of promoting new issues; "[u]nimpaired by continuing commitments or the need to seek the middle of the road, they have repeatedly forced controversies into the open, compelling the major parties to respond." (421) For example, the Free Soilers forced the slavery issue into the public eye during the 1848 election; it was the failure of the major parties to deal adequately with the issue that led to the formation of additional third parties, which in turn fractured the vote in the 1856 and 1860 elections. (422) Issues as diverse as progressive taxation, railroad regulation, child labor laws, election reform (including suffrage for women), and social insurance were brought to light by third parties; each was ultimately picked up by a major party and became law. (423) While certainly not all minor party platforms ultimately become implemented, they often do call important issues to the forefront of the political scene, sparking debate in government and in the general public. In doing so, they promote a second theory supporting the idea of a free speech principle: free speech is necessary to ensure a broad marketplace of ideas. (424)
Third party candidates often appeal to voters that the major parties tend to ignore; as a result, the presence of a viable third party candidate serves as an incentive for voters to exercise their franchise. Recall that the percentage of registered voters participating in the 1992 election--where Ross Perot made an impressive showing--was the highest since 1968, the year of the Wallace Independents. (425) Studies have shown that much of the support for George Wallace in 1968 came from rural Southerners who distrusted big government and who previously had little involvement in electoral politics. (426)
However, in seven out of the ten elections between 1832 and 1992 where one or more third party candidates posed a significant threat, the level of voter participation actually declined. (427) This may represent decreased efforts by major parties to encourage voting--out of fear that encouraging voters might actually lead them to vote for the third party candidate even where they had supported major party candidates in the past. (428) To the extent that third parties do encourage voting--even if only in pockets of voters who had not previously participated--they advance yet a third justification for free speech: the notion of self-governance. (429)
One final argument in favor of third party participation concerns the political system itself. Much of the system is biased against third parties; as such, they often begin their campaigns handicapped compared to their major party counterparts. (430) Permitting third party candidates to participate in debates works to level the playing field and gives the public what may be their only chance to hear the candidates' message.
Beyond exclusion from debate participation, three additional areas of bias against third parties stand out: campaign finance, the electoral college system, and ballot-access laws. Under current campaign finance laws, each major party candidate is entitled to limited payments from the Presidential Election Campaign Fund, regardless of the number of votes received for that candidate's party in the previous election. (431) In contrast, the funding of minor party candidates depends on the proportion of votes their party received in the last election. In order to receive any funding at all, the minor party candidate must have received at least 5% support in the previous election and must be on the ballot in at least ten states in the current election. (432) In addition, history shows that most third parties that fare well in one election do not achieve the same results in the next election; most who receive 5% once do not achieve that level four years later. (433)
The electoral college system is also biased in favor of major parties by virtue of its "winner-take-all" method of assigning electoral votes. Under the current system, the candidate winning the plurality of the popular vote in a state receives all of the electoral votes for that state; all other candidates receive nothing, regardless of the margin of victory or the actual number of votes the candidate received. (434) Most third party candidates do not receive anywhere near the number of votes that the major party candidates receive: in 1992, Ross Perot placed third in every state save two. (435) However, if the electors in each state were proportioned according to the popular vote rather than being meted out in a winner-take-all fashion, Perot's 19% of the popular vote would have been sufficient to send the election to the House of Representatives. In the House, Perot could have been elected President in spite of his lower popular vote total. (436)
The context of a House election brings to the forefront yet another factor which favors the two party system. When the election goes to the House of Representatives, the electors are not apportioned according to the popular vote. Instead, each state gets one vote, and the candidate winning a majority of states wins the election. (437) As a result, Perot's votes would have been largely silent because there were no members of the Reform Party in the House; it is likely that the representatives of each state would have cast their single vote along majority party lines. Until a third party gets enough members of the House to interfere with this two party bias, a third party candidate is going to have to win the Presidency by taking a majority of electoral votes. (438) There have been numerous laws proposed to abolish the electoral college in favor of election by popular vote, but as yet the electoral college stands. (439) So long as the electoral college remains in force, third party candidates are at a disadvantage because the level of their support must rise to that of the major party candidates before their true effect on the election can be felt. (440)
Ballot access laws provide a final example of the prevalence of the two party bias. Because the laws are different in each state, minor party candidates wishing to get on the ballot nationwide "must leap fifty-one different bureaucratic hurdles, expending valuable time, energy, and resources while doing so." (441) In addition, eleven states have no provisions by which a group may acquire the status of a qualified party on an election ballot. (442) Instead, candidates must meet the requirements of the ballot-access laws as independents; once they are on the ballot, the states permit them to run under a party name of their choice. While courts have somewhat eased the ballot access burden in the last few decades, (443) ballot access for minor party candidates remains an important drain on finances that could otherwise be spent publicizing the candidate's platform. (444)
An examination of the benefits that third parties bring to elections and the biases against them demonstrates that while third parties have a very real contribution to make to the American electoral system, that contribution is often muted by the dominance of the two party system.
The factors considered in Part V ultimately point in favor of permitting third party candidates to debate. While broadcasters can argue that they are becoming forced speakers in violation of their First Amendment rights, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." (445) The public interest is clearly well served by the promotion of third party candidacies: third parties provide a voice for the disenchanted public, are a source of important new issues that major parties are not yet aware of--or that are too controversial for them to risk tackling--and can often make a difference in who gets elected.
Under the designated nonpublic forum doctrine, broadcasters could silence the voice of third party candidates wishing to debate only where: (1) they do so via preexisting, viewpoint-neutral objective criteria; and (2) they do so in service of an important government interest and in a manner that does not burden substantially more speech than is necessary. As for the first requirement, while many groups have attempted to formulate objective criteria, including the League of Women Voters, the CPD, and various members of Congress, the attempts have failed to achieve the appropriate balance between the importance of third party candidate participation in the debates and the broadcaster's interest in airing a debate that best serves the public interest.
Arguably, the optimal set of objective criteria could be drawn piecemeal from the various proposals put forth in the last twenty-five years. The objective criteria should concern only one thing: the candidate's mathematical ability to prevail in the election. This notion of mathematical eligibility implies simply that the candidate is ballot-qualified in enough states such that, should the candidate carry every one of those states, the candidate would have at least 270 electoral votes. (446) While it certainly is possible that ten candidates each winning one state could combine to send the election to the House of Representatives, the criteria proposed do not have to take account of every possibility by which a candidate might win the election through a House vote. Because this article focuses on the electorate the "public" interest--it seems only reasonable to set the criteria for debate exclusion at a level where, regardless of the public support, the voters themselves could never elect the candidate because the candidate simply is not on the ballot in enough states.
These objective criteria could--and probably should--also include other basic trappings of political viability as well. For example, the candidate should have the basic campaign accoutrements of a campaign headquarters and campaign finance machinery. In this day and age, it might even make sense to require the candidate to have an Internet website where the public could learn more about the candidate's platform and upcoming appearances. In other words, a candidate who satisfies the bare minimum requirements that the voters would expect of a viable candidate ballot access in a sufficient number of states and evidence of an organized political machine--should be permitted to debate.
This proposal eliminates the most common (and often most controversial) criterion that has been used to disqualify otherwise eligible candidates from debating: public support. Support criteria are tricky because they become essentially a chicken-egg problem: does the candidate lack support because of exclusion from debates, or should the candidate be excluded from debates because of lagging public support? Measuring support as a function of public opinion polls seems flawed as well. Random members of the public will likely have little knowledge of a candidate unless the news media has provided sufficient coverage of his campaign. However, those news organizations will be less likely to cover the campaigns of candidates whose poll numbers hover around the margin of error. In addition, at what point should a broadcaster (or the CPD) be permitted to draw the line and say that, below this level of support, not only are you not "viable," but your candidacy is so pointless that you should not be permitted on the stage with the real candidates? Fifteen percent (the CPD level) seems extraordinarily high, particularly given the 5% requirement for campaign matching funds. (447)
However, even 5% seems high. A candidate or party may not get 5% in its first election; requiring 5% before that candidate can participate in one of the most important electoral processes raises the bar that much higher. Consider a candidate who, without debating, could garner 3% of the vote, but after debating could reach 6%: absent the debate, the candidate would never reach the 5% level, but with the debate, the candidate's party has now qualified to receive funds for the next election that will permit more news coverage, more campaign stops, access to more ballots, etc. In the next election, rather than still being back at 3%, the candidate might start at 6%; with a powerful message and a good campaign, the candidate could grow to 10%. This is how viable political parties take hold--not all in one election, but little by little, getting their name and their message into the minds of the electorate over the course of several elections.
A broadcaster who adopted such criteria would then be able to exclude a candidate only upon a showing that the candidate's exclusion would satisfy an important governmental interest and that the exclusion does not burden substantially more speech than necessary. What constitutes an "important" governmental interest in this area is, of course, uncertain. However, even should a court agree that one or more of the proposed interests is "important," the broadcaster will almost invariably fail the second part of the query. Only where the number of candidates who qualify under the objective criteria is so large that a debate featuring all of them would be either patently unworkable or where a candidate seeks to participate solely for purposes of disruption would the broadcaster satisfy the requirement that exclusion of a candidate or candidates does not burden substantially more speech than is necessary.
Even in the area of presidential elections, as has been previously noted, no more than six candidates would likely meet the most basic support criteria outlined above. Debates involving six candidates have proceeded without descending into a worthless din. (448) Given the alarming increase in voter apathy and the relative two party stranglehold that has contributed to it, opening the debates to viable minor party candidates could both reinvigorate the electoral process and sow the seeds for the growth of new parties that could challenge the Democrats and Republicans, just as the Republicans once ousted the Whigs as the "other" major party on the American electoral scene. Under the designated nonpublic forum doctrine, the First Amendment would require broadcasters to open their debates and permit this process to begin.
In the end, not even Forbes III could quiet Forbes. In 1998, after the Forbes III decision was handed down, Ralph Forbes announced that he would campaign for the Third District Congressional seat as a member of the Reform Party. This time, AETN invited him and all of the Reform Party candidates for state office to debate. (449) In an outcome that can only be called brutally ironic, two of the three debates were ultimately cancelled because major party candidates refused to participate. (450) Though in a sense Forbes won this battle, Forbes won the war. (451)
(1) SIDNEY KRAUS, TELEVISED PRESIDENTIAL DEBATES AND PUBLIC POLICY 111 (2d ed. 2000) (quoting John Hagelin, the 1996 Natural Law Party presidential candidate).
(2) See Dane Smith, Diary of an Upset, STAR-TRIB. (Minneapolis-St. Paul), Nov. 8, 1998, at 1A, 1998 WL 6375354 (describing the reaction to Ventura when he campaigned for other candidates and discussing the nontraditional composition of his primary campaign staff as including a car-wash manager, a pull-tab manager, and several other nontraditional politicians who had participated in Perot's earlier candidacy).
(3) Robert Whereatt & Dane Smith, Poll Indicates Humphrey has Strong Lead over Coleman, STAR-TRIB. (Minneapolis-St. Paul), Sept. 23, 1998, at 1A, 1998 WL 6368993.
(4) Smith, supra note 2, at 1A.
(5) See, e.g., Dane Smith, Second Debate Takes Candidates to New Terrain, STAR-TRIB. (Minneapolis-St. Paul), Oct. 3, 1998, at 1B, 1998 WL 6370361 (relating the highlights of the second televised debate in the Minnesota gubernatorial election, which included Ventura's unconventional stance on the drug war, his attack on the other two candidates as "career politicians," and his appearance--tieless with athletic shoes--because he was scheduled to coach a high school football game after the debate); Conrad deFiebre, Ventura Wins Crowd's Cheers Debating in Usual DFL Territory, STAR-TRIB. (Minneapolis-St. Paul), Oct. 7, 1998, at 1B, 1998 WL 6370652 (describing Ventura's strong performance in a typically Democratic stronghold).
(6) See Robert Whereatt, Suddenly, It's a Dead Heat, STAR-TRIB. (Minneapolis-St. Paul), Oct. 20, 1998, at 1A, 1998 WL 6373045 (reporting Humphrey at 35% and Coleman at 34%).
(7) See id. (quoting political scientist Chris Gilbert: '"Humphrey has not come across as the leader in the race'").
(8) See Dane Smith, The Stretch Run: It's Up for Grabs, STAR-TRIB. (Minneapolis-St. Paul), Nov. 1, 1998, at 1A, 1998 WL 6374509 (reporting Humphrey's support at 35%, Coleman's at 30%).
(9) See Dane Smith & Robert Whereatt, Ventura Wins, STAR-TRIB. (Minneapolis-St. Paul), Nov. 4, 1998, at 1A, 1998 WL 6374813 (calling Ventura's victory the biggest by a Minnesota third party candidate in almost seventy years).
(10) See id.; Patricia Lopez Baden, Rueful DFLers Look to Recover, STAR-TRIB. (Minneapolis St. Paul), Nov. 6, 1998, at 1B, 1998 WL 6375225 (asserting the Humphrey camp's belief that the majority of Ventura's support came from younger voters and those disenchanted with election promises made and never kept).
(11) Smith, supra note 2, at 1A.
(12) Anderson v. Celebrezze, 460 U.S. 780, 794 (1983).
(13) 523 U.S. 666 (1998).
(14) See Part III.D infra for a full discussion of the Forbes ruling.
(15) See Part II.C infra for a discussion of the Commission on Presidential Debates' ("CPD") selection criteria.
(16) See Part III.B infra for a discussion of congressional proposals involving the inclusion of minor party candidates.
(17) See KRAUS, supra note 1, at 262.
(18) See id. at 29-32, for a general history of presidential debates.
(19) NEWTON N. MINOW & CLIFFORD M. SLOAN, FOR GREAT DEBATES: A NEW PLAN FOR FUTURE PRESIDENTIAL TV DEBATES 6 (1987) [hereinafter FOR GREAT DEBATES] (quoting PAUL F. BOLLER, PRESIDENTIAL CAMPAIGNS 109-10 (1984)). The quote is taken from an 1860 newspaper article chastising Stephen A. Douglas for campaigning during the 1860 presidential race. Id.
(20) KATHLEEN HALL JAMIESON & DAVID S. BIRDSELL, PRESIDENTIAL DEBATES: THE CHALLENGE OF CREATING AN INFORMED ELECTORATE 35 (1988).
(22) Id. at 35-36. Another advantage to using party neophytes was that these surrogates obtained national exposure and name recognition, thereby making them viable candidates for future political campaigns. Id.
(23) Id. at 36.
(24) Id. at 34.
(25) See FOR GREAT DEBATES, supra note 19, at 6 (explaining that the first speaker addressed the crowd for sixty minutes, the second speaker for ninety minutes, followed by the first speaker for an additional thirty minutes).
(27) Id. at 7. Even though Douglas and the Democrats won the election as decided by the Illinois state legislature, Lincoln and the other Republican candidates actually won a greater share of the popular vote (125,430 to 121,609). Robert W. Johannsen, Introduction, in THE LINCOLN-DOUGLAS DEBATES OF 1858, at 3, 12 (Robert W. Johannsen, ed., 1965).
(28) Johannsen, supra note 27, at 8, 12 (discussing the evolution of Lincoln's beliefs about slavery and noting that his prominence in the Republican party became greater after he lost the election).
(29) JAMIESON & BIRDSELL, supra note 20, at 55.
(30) See id. at 55-56 (including, as one such position, Douglas' belief in "popular sovereignty"' which would allow each state to choose whether to outlaw slavery).
(31) See Johannsen, supra note 27, at 12. It is interesting to note that, both at the time of the 1858 Senate race and in the 1860 Presidential race, Lincoln's Republicans were considered to be a minor party (even though the Republicans had outpolled the Whigs in the 1856 election); the Whigs and the Democrats were the major parties. Presidential Debates: Hearing Before the Subcomm. on Elections of the Comm. on House Administration, 103rd Cong. 159 (1993) [hereinafter Presidential Debates] (testimony of Stuart Reges, National Director of the Libertarian Party).
(32) ANTHONY CORRADO, LET AMERICA DECIDE: THE REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON PRESIDENTIAL DEBATES 50 (1995).
(33) FOR GREAT DEBATES, supra note 19, at 6.
(34) Id. at 7. Though Roosevelt was more than willing to use his Presidential position as a '"bully pulpit,"' he felt it would be "undignified for a sitting president to engage in personal campaigns[.]" Id.
(35) See generally id. at 6-7 (discussing various candidates' campaign tactics for reaching their constituents).
(36) See id. at 7 (asserting that the increased accessibility created by radio changed presidential politics by lessening the role of the parties and giving voters direct access to candidates).
(37) RICHARD NORTON SMITH, THOMAS E. DEWEY AND HIS TIMES 491-92 (1982).
(38) Id. at 492.
(39) JAMIESON & BIRDSELL, supra note 20, at 90, 92. It is thought that Dewey would have been out of the race if he lost Oregon; Stassen had won Wisconsin and Nebraska, and led Dewey in the latest Gallup poll. Id. at 90. Dewey's ultimate margin of victory in Oregon was less than 10,000 votes. See CONGRESSIONAL QUARTERLY, PRESIDENTIAL ELECTIONS 1789-1992, at 168-69 (1995) [hereinafter PRESIDENTIAL ELECTIONS] (reporting the results of the 1948 primaries).
(40) CORRADO, supra note 32, at 50-51. The participants were Republicans Harold Stassen and Paul Hoffman (both of whom appeared as surrogate debaters for Dwight Eisenhower) and Democrats Averell Harriman, Robert Kerr, and Estes Kefauver. SUSAN A. HELLWEG ET AL., TELEVISED PRESIDENTIAL DEBATES: ADVOCACY IN CONTEMPORARY AMERICA 2 (1992).
(41) CORRADO, supra note 32, at 51. Unlike the Dewey-Stassen debate, there was no clear winner; while Stevenson won the Florida primary, and ultimately his party's nomination, there is little evidence that his debate performance pushed him over the top. Id.
(42) SIG MICKELSON, THE ELECTRIC MIRROR: POLITICS IN AN AGE OF TELEVISION 196 (1972). Eisenhower would decline again in 1956. Id. at 197.
(43) See 47 U.S.C. [section] 315(a) (1958): If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed.., upon any licensee to allow the use of its station by any such candidate. Id.
(44) CORRADO, supra note 32, at 51-52. The broadcaster's fears were not unfounded; the FCC enforced this regulation strictly. See CBS, Inc. (Lar Daly Case), 26 F.C.C. 715, 719, 750-51 (1959) (requiring that a minor candidate for Chicago mayor be given 21 seconds of airtime because broadcasters had covered incumbent mayor Richard Daley's ceremony greeting a visiting dignitary at the airport).
(45) 47 U.S.C. [section] 315(a)(1)-(4) (2000).
(46) In fact, one House version of the bill had expressly included "debates" as one of the exemptions; the term was omitted from the final bill. Aspen Inst. Program on Communications and Soc'y, 55 F.C.C.2d 697, 699-700 (1975) [hereinafter Aspen Institute].
(47) CORRADO, supra note 32, at 52. At the time, there were at least fourteen minor party candidates who could have made an equal time claim, including candidates from such fringe groups as the American Beat Consensus and the American Vegetarian Party. FOR GREAT DEBATES, supra note 19, at 10. In the election, the third party candidate with the largest support--Orval Faubus of the National States Rights Party--received only 209,000 votes (with 170,000 coming from Louisiana alone). Id. at 15.
(48) CORRADO, supra note 32, at 53.
(49) Id. at 52-53. Kennedy had already debated once during the 1960 campaign, engaging in a debate with fellow Democrat Hubert Humphrey during the primary season. HELLWEG ET AL., supra note 40, at 2.
(50) ALAN SCHROEDER, PRESIDENTIAL DEBATES: FORTY YEARS OF HIGH-RISK TV 66-67 (2000). The promotional copy for the first debate read: "The Television and Radio Networks and their affiliated stations throughout the United States urge you to be present during the first in a series of face-to-face discussions between Senator John F. Kennedy and Vice President Richard M. Nixon." Id. (quoting N.Y. TIMES, Sept. 26, 1960, at 66).
(51) CORRADO, supra note 32, at 54. Nixon's haggard appearance was not his only problem. He was also poorly prepared by his handlers for the debate. While Kennedy's staff engaged him in a series of mock debates and met with the television producers to go over the staging of the event, members of Nixon's staff treated it as "just another campaign appearance." SCHROEDER, supra note 50, at 2 (citing Jules Witcover, The Bottom Line is Style, WASH. POST, Sept. 19, 1976, at A4 (quoting Don Hewitt, producer-director of the first debate)).
(52) See CORRADO, supra note 32, at 54 (noting that while radio listeners generally perceived the debate to be a draw, those who watched the debate on television gave Kennedy a decided edge).
(53) Id. at 54. Kennedy's edge may, in part, have resulted from the fact that the networks refrained from any kind of analysis immediately following the debates, choosing instead to resume their regular programming. SCHROEDER, supra note 50, at 173. Seeing as the wrap-ups tended to give the advantage on the issues to Nixon, vigorous post-debate commentary on even one network might have worked to offset the appearance-related gains Kennedy made during the debate. CORRADO, supra note 32, at 54.
(54) CORRADO, supra note 32, at 53-54. Another 10 million Americans listened to the debates on radio. Id. at 54.
(55) Id. at 55.
(56) Id. The timing of these polls may create a hindsight bias problem (similar to the anecdotal reports that many more people recall being at Wrigley Field in 1932 to see Babe Ruth "call his shot" than the stadium could ever hold). In other words, after the election and the tremendous news coverage of the debates, it is at least arguable that more people remembered having been influenced by the debates than actually were.
(57) See THEODORE H. WHITE, THE MAKING OF THE PRESIDENT: 1960, at 294 (1961) (reporting that 57% of those who voted believed that the debates were, at least in part, responsible for their choice).
(58) See Saul Ben-Zeev & Irving S. White, Effects and Implications, in THE GREAT DEBATES: KENNEDY VS. NIXON, 1960, at 331, 334 (Sidney Kraus, ed., 1977) (noting also that those voters who favored Nixon before the debates tended to still favor him even after his poor television appearance).
(59) See, e.g., Elihu Katz & Jacob J. Feldman, The Debates in the Light of Research: A Survey of Surveys, in THE GREAT DEBATES: KENNEDY VS. NIXON, 1960, at 173, 209-212 (Sidney Kraus, ed., 1977) (referenced in HELLWEG ET AL., supra note 40, at 112) (reporting that an examination of thirty-one studies of the debates found that, while the first debate shifted attitudes toward Kennedy, later debates served to solidify viewer attitudes toward their preferred candidate). Hellweg concluded that this "crystallization of attitudes" favored Kennedy and likely produced a small swing of net votes to his advantage. HELLWEG ET AL., supra note 40, at 112.
(60) CORRADO, supra note 32, at 55-56.
(61) Id. at 56.
(62) Id. In 1968, Nixon refused to debate, in part to avoid giving exposure to independent candidate George Wallace; Hubert Humphrey, Nixon's Democratic opponent, felt Wallace should be included in the debates. Id.
(63) Nixon was eventually able to joke about the 1960 debacle, remarking once that he was a "'dropout from the electoral college--because [he] flunked debating."' SCHROEDER, supra note 50, at 99 (quoting GERALD GARDNER, ALL THE PRESIDENT'S WITS: THE POWER OF PRESIDENTIAL HUMOR 157 (1986)).
(64) CORRADO, supra note 32, at 52. Johnson made sure that Congress, then controlled by the Democrats, did not revoke or further suspend the equal time rule. Nixon, in 1968, avoided proposals for joint appearances, while Senate Republicans blocked the suspension of Section 315. Id. at 55-56.
(65) H.R.J. Res. 247, 88th Cong. (1963); see Nicholas Zapple, Historical Evolution of Section 315, in THE PAST AND FUTURE OF PRESIDENTIAL DEBATES 56, 61 (Austin Ranney ed., 1979) [hereinafter Ranney] (quoting Kennedy as supporting temporary suspension instead of permanent repeal to give Congress the ability to review the change in the future).
(66) Ranney, supra note 65, at 61. The vote was forty-four to forty-one. Id.
(67) See id. (recalling that Senate minority leader Everett Dirksen "was prepared to 'use every weapon at the command of the minority leader in order to stop this resolution[,]" a threat on which he ultimately prevailed).
(68) S. 3637, 91st Cong. (1969).
(69) Id. at 62-63.
(70) S. 382, 92nd Cong. (1971). While the Senate felt that any repeal of Section 315 could be extended to include senators and representatives as well as the President and Vice-President, members of the House refused to accept such a broad scope. Ranney, supra note 65, at 63-64. Some have argued that Nixon helped orchestrate this block to amending Section 315. CORRADO, supra note 32, at 56.
(71) See Aspen Institute, 55 F.C.C.2d 697, 699-701 (1975); see also HELLWEG ET AL., supra note 40, at 5 (discussing the Aspen Institute requirements for exempted debates).
(72) Aspen Institute, 55 F.C.C.2d at 703-04.
(73) Goodwill Station, Inc., 40 F.C.C. 362 (1962).
(74) Id. at 364. The third party candidate who sought inclusion in the debate, James Sim, represented the Socialist Labor Party, which had received only 1,479 out of approximately 3.2 million votes cast in the previous gubernatorial election. Id. at 363.
(75) Aspen Institute, 55 F.C.C. 2d at 705.
(76) See id. at 706 (citing 106 CONG. REC. 13424 (1960) (remarks of Sen. Pastore)).
(77) The U.S. Court of Appeals for the D.C. Circuit later upheld the Aspen Institute regulations for Section 315. See Chisholm v. FCC, 538 F.2d 349, 366 (D.C. Cir. 1976) ("[W]e find nothing in the Commission's Opinion inconsistent with the basic philosophy of Section 315 as amended in 1959.").
(78) HELLWEG ET AL., supra note 40, at 5. Even after the Aspen Institute ruling, the League was still concerned about Section 315; it scheduled a hearing before the Senate Commerce Committee to float the idea of suspending Section 315 for the 1976 election season. Waiver of Equal Time Law and the 1976 Presidential Debates: Hearing Before the Senate Comm. on Commerce, 94th Cong. (1976) (statement of Peggy Lampl, League of Women Voters). Feeling that Aspen Institute had adequately dealt with the problem, the committee declined to act. See id. at 8 (statement of Senator John Pastore).
(79) CORRADO, supra note 32, at 58.
(80) Robert V. Friedenberg, Patterns and Trends in National Political Debates 1960-1988, in RHETORICAL STUDIES OF NATIONAL POLITICAL DEBATES: 1960-1988, at 187, 188-89 (Robert V. Friedenberg ed., 1990). Of course, part of Ford's decision to debate Carter likely came from the fact that he trailed Carter by up to thirty points in pre-debate polls. FOR GREAT DEBATES, supra note 19, at 19.
(81) CORRADO, supra note 32, at 59.
(82) Id. at 59-60.
(83) On the day following the debate, coverage of Ford's blunder was so widespread that the percentage of viewers who believed he won the debate dropped from 31% to 19% in just twelve hours. Id. Carter himself admitted that, "if it hadn't been for the debates, I would have lost." Stephan Lesher et al., Did the Debates Help Jimmy Carter?, in Ranney, supra note 65, at 137.
(84) See generally LEE M. MITCHELL, WITH THE NATION WATCHING: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON TELEVISED PRESIDENTIAL DEBATES (1979) (reporting the results of the study).
(85) Id. at 5 ("We favor creating conditions which will encourage candidates to participate and broadcasters to provide coverage.") (emphasis added).
(86) Id. at 6-8 (asserting that the possibility for media influence over the electoral process would be too great if the news organizations were allowed to sponsor the debates). One member of the Fund, William Small, disagreed with this conclusion:
[T]he fairness doctrine and Section 315 violate both the spirit and the language of the free speech and free press provisions of the First Amendment. Sadly, there are those in Congress, the regulatory agencies, and the judiciary who do not agree. Broadcasters and newspapers have "sponsored" candidate debates on the local and state levels for many years.
(87) Id. at 9-10.
(88) Id. at 85-86 (citing Roscoe L. Barrow, The Presidential Debates of 1976: Toward a Two Party Political System, 46 U. CIN. L. REV. 123, 145 (1977)). According to Barrow, as of the 1976 election only six candidates not representing the Republican or Democratic parties would have qualified their parties for major party status under the 3% rule. Barrow, supra, at 145.
(89) MITCHELL, supra note 84, at 87.
(90) See PBS--A Third Choice: The Story of Third Party Candidates in America, at http://www.pbs.org/thinktank/thirdchoice/timeline.html (last visited Oct. 24, 2003) (discussing Anderson's formation of the National Unity Party after Reagan gained the Republican nomination).
(91) CORRADO, supra note 32, at 62.
(92) See, e.g., Albert H. Cantril, The Polls Shouldn't Govern the Debate, N.Y. TIMES, Sept. 1, 1980, at E19 (criticizing the League's reliance on poll support for attributing a degree of certainty and objectivity to the polls that is not warranted).
(93) See The Gallup Poll Election 1980, at http://www.gallup.com/Election/th1980.htm (last visited Mar. 3, 2003) (showing Anderson's support wavering between 21% and 24% from mid-April until July).
(94) CORRADO, supra note 32, at 62. In part, Reagan's insistence likely stemmed from the critical belief that Anderson would siphon votes away from Carter so long as Anderson remained at least marginally competitive. See JOEL L. SWERDLOW, BEYOND DEBATE: A PAPER ON TELEVISED PRESIDENTIAL DEBATES 5 (1984) (noting that conventional wisdom was that, so long as his support remained above 6%, Anderson would take more votes from Carter than Reagan).
(95) SCHROEDER, supra note 50, at 16. The League initially announced that it would place an empty chair on the stage to remind viewers of Carter's refusal to participate; it later withdrew the threat under pressure from the Democratic Party. Id.
(96) SWERDLOW, supra note 94, at 36.
(97) CORRADO, supra note 32, at 63. By the time of the election, Anderson received 5.7 million votes--about 6.6% of the total cast. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2002, at 235-36 (122nd ed. 2001). While this was the strongest showing by a third party candidate since George Wallace in 1968 (who received 13.5% of the vote), Anderson failed to collect a single representative in the electoral college. Id. at 236. See Part V.B infra for further discussion of the political system's bias against third parties.
(98) CORRADO, supra note 32, at 63. One of Reagan's most memorable political lines was the simple statement "There you go again" in response to one of Carter's remarks during the debate. He also asked the question, "Are you better off [now] than you were four years ago?" that would become a rallying cry for Republican stumpers during the campaign's final week. Id. at 63-64. As in 1976, post-debate coverage reinforced a candidate's statements in the public mind; unlike Ford in 1976, though, Reagan benefited greatly from this analysis. Id.
(99) CORRADO, supra note 32, at 62-63.
(100) Henry Geller, 95 F.C.C.2d 1236, 1237 (1983).
(101) Id. at 1241; see also 47 U.S.C. [section] 315(d) (1982) ("The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.").
(102) Geller, 95 F.C.C.2d at 1244.
(103) See id. at 1244-45 (noting that, even assuming the risk of broadcaster favoritism, parties arguing to keep the Aspen Institute restrictions made no showing that Congress did not understand this risk when passing the 1959 amendments to Section 315(a)). As with Aspen Institute, Geller was judicially affirmed. League of Women Voters Educ. Fund v. FCC, 731 F.2d 995, 995 (D.C. Cir. 1984) (unpublished table decision).
(104) Kyu Ho Youm, Editorial Rights of Public Broadcasting Stations vs. Access for Minor Political Candidates to Television Debates, 52 FED. COMM. L.J. 687, 697 (2000).
(105) Los CORRADO, supra note 32, at 65. If nothing else, the 1984 debates proved that no debate performance can save a lost cause. Mondale was seen as the clear debate winner. See HELLWEG ET AL., supra note 40, at 120 (noting that one post-debate poll had the Mondale advantage at 66% to 17%). Even so, he won the electoral votes of only Minnesota and the District of Columbia. PRESIDENTIAL ELECTIONS, supra note 39, at 72.
(106) FINAL REPORT OF THE COMMISSION ON NATIONAL ELECTIONS, ELECTING THE PRESIDENT: A PROGRAM FOR REFORM 43 (Robert E. Hunter ed.. 1986) [hereinafter ELECTING THE PRESIDENT].
(107) Id. at 44. Given that the CNE was the result of a bipartisan venture, this attitude toward third parties can hardly be called surprising.
(108) See FOR GREAT DEBATES, supra note 19, at 45-47 (setting forth the group's conclusions).
(109) Id. at 45-46. The Fund recommended considering options such as public access television as a forum for minor candidate debates. Id. at 46.
(110) Commission on Presidential Debates, About CPD: Commission History, at http://www.debates.org/pages/history.html (last visited Sept. 7, 2003); see also KRAUS, supra note 1, at 248-50 (discussing the steps taken by the bipartisan chairman to form the CPD).
(111) Commission on Presidential Debates, About CPD: Our Mission, at http://www.debates.org/pages/mission.html (last visited Oct. 24, 2003).
(112) See Presidential Debates, supra note 31, at 33 (listing the ten members of the committee). The committee members included the then chairmen of the Democratic and Republic National Committees, two former governors, a former Senator, a current member of the House, and (for whatever reason) the Ambassador to France. Id.
(113) HELLWEG ET AL., supra note 40, at 10.
(114) Id. at 11. The League's major concern with the debates was that the candidates' campaign handlers were taking over the debates, determining such fundamental issues as what the cameras could take pictures of and how moderators, would be selected. Id.
(115) CORRADO, supra note 32, at 66, 69, 70.
(116) CORRADO, supra note 32, at 72.
(117) See, e.g., Richard Morin, Clinton's Ratings Rise as Bush, Perot Battle: Post-ABC News Poll Indicates Tight Race, WASH. POST, June 30, 1992, at A13, 1992 WL 2180164 (reporting 33% of voters choosing Clinton, compared with 31% for Perot and 28% for Bush).
(118) See KRAUS, supra note 1, at 89-91 (describing preparations for the 1992 debates).
(119) See Comm'n on Presidential Debates' Candidate Selection Criteria for 1992 General Election Debate Participation, reprinted in Presidential Debates, supra note 31, at 237-40 [hereinafter 1992 Criteria].
(120) Id. at 237 ("Such historical prominence and sustained voter interest warrants the extension of an invitation to the nominees of the two major parties to participate in the Commission's 1992 debates.").
(121) Id. (noting, however, that even meeting these criteria will not "trigger automatic inclusion in a Commission-sponsored debate").
(122) Id. at 238-39 (advocating a focus on both objective and subjective considerations in measuring a candidate's potential success).
(123) Id. at 239.
(124) Id. at 239-40; see generally Philip E. Converse & Michael W. Traugott, Assessing the Accuracy of Polls and Surveys, SCIENCE, Nov. 28, 1986, 1986 WL 2338619 (discussing the accuracy of polling).
(125) KRAUS, supra note 1, at 201-02.
(126) Presidential Debates, supra note 31, at 169 (statement of Stuart Reges, national director of the Libertarian Party). C-SPAN invited both Lenora Fulani, the New Alliance Party candidate, and Libertarian Andre Marrou, using the criteria that each would be on enough ballots to have a mathematical chance of winning the election. Id.
(127) See Debate This--Open Up the Presidential Debates!, at http://www.debatethis.org/action.html (last visited Sept. 7, 2003) [hereinafter Debate This].
(128) See Presidential Debates, supra note 31, at 78 (reporting that 70% of voters found the 1992 debates at least somewhat helpful, compared with 48% in 1988).
(129) See PRESIDENTIAL ELECTIONS, supra note 39, at 80. Voter turnout in 1992 was 55.2%, the highest since 1968's 60.9%. Voter turnout was 55.2% in 1972, but then drastically decreased until the 1992 election. Id.
(130) KRAUS, supra note 1, at 103-04; see also PRESIDENTIAL ELECTIONS, supra note 55, at 128 (reporting Perot received 18.9% of the popular vote). Some thought that Perot's invitation marked a shift in willingness to include minor candidates in presidential debates. Dr. Leonora Fulani, who in 1988 had become both the first black and the first woman to appear on all fifty state ballots as a candidate for President, opined after Perot's inclusion:
There's no way the Commission of [sic] Presidential Debates or the League of Women Voters, or whoever or whatever winds up sponsoring presidential debates in 1996, can keep significant independents out again. I guarantee you that there will never be another presidential debate that includes only a Democrat and a Republican. From now on it will be three, maybe four candidates who will put their views before the American people.
LEONORA FULANI, THE MAKING OF A FRINGE CANDIDATE 175-76 (1992), quoted in KRAUS, supra note 1, at 201-02.
(131) KRAUS, supra note 1, at 106. Browne went as far as setting up Internet petitions to drum up support for his inclusion. Id.
(132) See Commission on Presidential Debates, About CPD: Candidate Selection Process: Commission on Presidential Debates' Candidate Selection Criteria for 1996 General Election Debate Participation, at http://www.debates.org/pages/candsel.html (last visited Oct. 24, 2003) [hereinafter 1996 Criteria].
(133) KRAUS, supra note 1, at 108.
(134) Id. (quoting Reform Party chairman Russell Verney); but see Diana B. Carlin, Constructing the 1996 Debates: Determining the Settings, Formats, and Participants, in THE ELECTRONIC ELECTION: PERSPECTIVES ON THE 1995 CAMPAIGN COMMUNICATION 133, 142-43 (Lynda Lee Kaid & Dianne G. Bystrom eds., 1999) (noting that most 1996 polls showed Perot in the 4-6% range at the time the CPD made its decision, compared with 9-20% in 1992).
(135) See 142 CONG. REC. S24232 (1996) (statement of Sen. Conrad) (noting that Perot made a "significant contribution" to the 1992 debates and that 76% of people polled wanted him included in the debates); H.R. Res 555, 104th Cong. (1996) (resolving that Perot should be permitted to debate because his inclusion "would provide a significant benefit to the American voters in that this forum would allow for an equal airing of his views, allowing the American voter to make an informed choice").
(136) See AllPolitics: Advisory Letter to the CPD, available at http://www.cnn.com/ALLPOLITICS/1996/news/9609/18/election.commission /letter.shtml (Sept. 17, 1996) [hereinafter 1996 Letter] (reprinting text of letter in full).
(139) See Howard Kurtz, No Debate About It: TV Analysts Say Clinton's a Winner, WASH. POST, Oct. 18, 1996, at D1, D5, available at 1996 WL 13426982 (finding Clinton the debate winner with 54% of viewers--as compared with only 26% for Dole).
(140) Debate This, supra note 127. Only 36 million viewers saw the final Clinton-Dole debate. Id.
(141) KRAUS, supra note 1, at 104; see also Julia A. Spiker & Mitchell S. McKinney, Measuring Political Malaise in the 1996 Presidential Election, in Kaid & Bystrom, supra note 134, at 319-34 (examining the causes of the historically low voter turnout including cynicism, disapprobation, political efficacy, alienation, and apathy).
(142) See Commission on Presidential Debates: About CPD: Candidate Selection Process: Commission on Presidential Debates" Nonpartisan Candidate Selection Criteria for 2000 General Election Debate Participation, at http://www.debates.org/pages/candsel.html (last visited Sept. 7, 2003) [hereinafter 2000 Criteria] (explaining that the criteria were established to ensure that debates would be open to candidates considered legitimate rivals for the presidency).
(146) B. Drummond Ayres, Jr., The 2000 Campaign: Campaign Briefing, N.Y. TIMES, Sept. 27, 2000, at A18. Nader first demanded an apology, then announced plans to sue the CPD, remarking, "By the time I'm finished with the debate commission, its ranking in political opinion polls will be below [that] of used-car dealers." Ben White, Left-Out Nader Sues Debate Commission, WASH. POST, Oct. 18, 2000, at A13, available at 2000 WL 25422881 (announcing the lawsuit); see also David Barstow, The 2000 Campaign: The Green Party: Nader Assails His Exclusion from Debates, N.Y. TIMES, Oct. 2, 2000, at A23 (reporting the apology demand); see infra notes 186-188 and accompanying text (discussing Nader's suit).
(147) See Jim Rutenberg, The 2000 Campaign: The Ratings: TV Audience for Debate is Smaller than Expected, N.Y. TIMES, Oct. 5, 2000, at A30 (reporting FOX's Dark Angel drew an estimated 17.4 million viewers--or almost 40% of the debate total); see also Maureen Dowd, Liberties: Dead Heat Humanoids, N.Y. TIMES, Oct. 5, 2000, at A35 (remarking that Dark Angel was "the TV show you wanted to watch" when compared with the relative tedium of the debates). NBC fared much worse; its game between the New York Yankees and Oakland Athletics was seen by one of the smallest audiences ever for a postseason game. Rutenberg, supra.
(148) Jim Rutenberg, The 2000 Campaign: The Viewers: Number of Debate Viewers Rises from the First but Remains Low, N.Y. TIMES, Oct. 19, 2000, at A28.
(149) See Lisa de Moraes, A Really Low Voter Turnout for Fox's Candidate Infomercials, WASH. POST, Oct. 31, 2000, at C7, available at 2000 WL 25425396 (reporting that Bush-Gore drew only 2.9 million viewers--almost 5 million fewer than FOX's regularly scheduled program, Police Videos).
(150) One Gore campaigner estimated that over 200 people had registered to run for president in the 2000 election. Barstow, supra note 146, at A23.
(151) 523 U.S. 666 (1998).
(152) Am. Indep. Party, 62 F.C.C.2d 4, 4 (1976).
(153) Id. at 5. Maddox contended that he qualified as a significant candidate because he was on the ballot in thirty states--enough to get him elected should he win them all. Id. at 6.
(154) Id. at 6-7 (listing Maddox's complaints and conveying every major television network's response to his criticisms).
(155) Id. at 6.
(156) Id. at 10 (citation omitted).
(157) Id. at 11.
(158) Am. Indep. Party, 62 F.C.C.2d 4, 11-12 (1976).
(159) Not truly viable candidates to begin with, their debate exclusion ended any threat that either McCarthy or Maddox could have posed in swaying swing voters into their camps. In the election, neither received even 1 million total votes. See PRESIDENTIAL ELECTIONS, supra note 39, at 124 (reporting 756,691 total votes for McCarthy, with his highest support being 3.9% of the Oregon vote); id. at 135 (reporting 170,531 votes for Maddox, who failed to garner even 1% of the popular vote in any state).
(160) Sonia Johnson, 56 Rad. Reg. 2d. (P & F) 1533, 1538 (1984) (denying Johnson's fairness doctrine and First Amendment claims); see also James F. Clarity & Warren Weaver, Jr., Briefing." Access to the Air, N.Y. TIMES, Oct. 21, 1985, at A16 (noting that the FCC remarked that "it is difficult for the commission to accept complainants' reasoning that debates have become such an institutional part of the election process that the First Amendment requires complainants' inclusion").
(161) Johnson v. FCC, 829 F.2d 157, 159 (D.C. Cir. 1987).
(162) Id. at 161.
(164) Id. at 161-62.
(165) Id. at 162 (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm'n, 412 U.S. 94, 126 (1973)).
(166) Johnson, 829 F.2d at 164. Johnson argued her exclusion was analogous to the racially exclusionary primaries of the pre-1960s South. See, e.g., Terry v. Adams, 345 U.S. 461, 469-70 (1953) (finding racially exclusionary primary to violate Fifteenth Amendment).
(167) Johnson, 829 F.2d at 164-65.
(168) Buckley v. Valeo, 424 U.S. 1, 94 (1976).
(169) Johnson, 829 F.2d at 165.
(170) Fulani v. Brady, 935 F.2d 1324, 1325 (D.C. Cir. 1991); Fulani v. Bentsen, 862 F.Supp. 1140, 1152 (S.D.N.Y. 1994).
(171) Brady, 935 F.2d at 1326
(172) Id. at 1331; Bentsen, 862 F.Supp. at 1152.
(173) Hagelin v. Fed. Election Comm'n, CIV.A.96-2132, 96-2196, 1996 WL 566762, at * 1(D.D.C. Oct. 1, 1996) (per curiam).
(174) Id. at * 2. It is interesting to note that, upon the formation of the CPD, focus on debate challenges shifts from the FCC to the FEC. In other words, rather than challenging the broadcasters' rights (as defined by the FCC) to carry debates that exclude third parties, the candidates are now challenging that exclusion directly (an exclusion covered by regulations set forth by the FEC that permit the CPD to sponsor the debates).
(175) Perot v. Fed. Election Comm'n, 97 F.3d 553, 555 (D.C. Cir. 1996) (per curiam) (noting that the appeal was limited only to the regulatory and constitutional issues and did not, therefore, address whether the appellants were wrongfully excluded from the debates).
(176) See 2 U.S.C. [section] 441b(a) (2000) ("It is unlawful for any ... corporation ... to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office....").
(177) Funding and Sponsorship of Federal Candidate Debates, 44 Fed. Reg. 76,734, 76,734-35 (Dec. 27, 1979) (codified at 11 C.F.R. [section] 110.13(a) (2003)):
(1) 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).
(2) Broadcasters (including a cable television operator, programmer or producer), bonafide newspapers, magazines and other periodical publications may stage candidate debates in accordance with this section and 11 CFR 114.4(f), provided that they are not owned or controlled by a political party, political committee or candidate. Id.
(178) 11 C.F.R. [section] 110.13(c) (2003):
For all debates, staging organization(s) must use pre-established objective criteria to determine which candidates may participate in a debate. For general election debates, staging organization(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.
In 1999, the FEC received a Petition for Rulemaking urging the Commission to establish the objective criteria itself rather than relying on the debate stagers to do so. Candidate Debates, 64 Fed. Reg. 31,159, 31,160 (June 10, 1999). The petitioners:
recommend[ed] that the debates be open to any candidate that (1) has the mathematical potential to win the election in that he or she is on the ballot in enough states to earn 270 electoral college votes; and (2) has proven his or her viability by having spent at least $500,000 on the campaign by the end of the month preceding the date of the first scheduled debate held on or after September 1 of the election year.
Id. However, the FEC chose to delay ruling on the petition until after the 2000 election. See, e.g., Letter from Rosemary C. Smith, Assistant General Counsel, Federal Election Commission, to Mary Clare Wohlford and William T. Wohlford (Feb. 17, 2000) (on file with author) (remarking that the FEC "received approximately 1300 comments in response" to the petition). Mary Clare Wohlford, it turns out, is a "70-year-old grandmother and activist with The Virginia Reform party [who] wants to shake up the system to open presidential debates to third-party candidates." See Peter Hardin, Retiree Is Ready To Rumble: She Wants Debates Open to 3rd-Party Candidates, RICHMOND TIMES--DISPATCH, Oct. 10, 1999, at A1, 1999 WL 4367231 (noting that Ms. Wohlford had used a similar strategy to force the Food and Drug Administration to change the way they regulated goat milk ice cream). The FEC ultimately denied her petition. Peter Hardin, Pulaski Pair Lose 3rd-Party Battle, RICHMOND TIMES--DISPATCH, Aug. 4, 2000, at A7, 2000 WL 5044201.
(179) Perot v. Fed. Election Comm'n, 97 F.3d 553, 557 (D.C. Cir. 1996).
(180) Id. The court, while not expressly discussing the state action question, did refer to the CPD as a "private actor". Id. at 559 ("We agree with the general proposition that when Congress has specifically vested an agency with the authority to administer a statute, it may not shift that responsibility to a private actor such as the CPD.") (emphasis added).
(181) Id. at 559.
(182) See id. at 560:
The FEC has chosen to give the CPD ... the latitude to choose their own "objective criteria." In adopting such standards, a staging organization acts at its peril.... [running] the risk that the FEC will subsequently determine that its criteria are not objective, and that its sponsorship of the debate violated [section] 441b.
This case did not mark the end of the fight. Hagelin and Perot subsequently went to the FEC; the Commission dismissed their action, finding that the CPD's criteria satisfied the regulation's objectivity requirement. The candidates appealed the dismissal to federal court; the court found the candidates had standing to challenge the FEC's dismissal. See Natural Law Party of U.S.v. Fed. Election Comm'n, 111 F. Supp. 2d 33, 41-51 (D.D.C. 2000) (detailing reasons for denying FEC motion for summary judgment).
(183) Buchanan v. Fed. Election Comm'n, 112 F. Supp. 2d 58, 60 (D.D.C. 2000) (mem.).
(184) Id. at 70.
(185) Id. at 63, 74.
(186) Becker v. Fed. Election Comm'n, 112 F. Supp. 2d 172 (D. Mass.), aff'd, 230 F.3d 381 (1st Cir. 2000), cert. denied, 532 U.S. 1007 (2001). Becker, the named plaintiff, was associated with neither Nader nor the Green Party; she was merely a registered voter who did not want to vote for either Gore or Bush. Id. at 173.
(187) Id. at 173.
(188) Id. at 183. Nader appealed; the reviewing court agreed that the FEC's interpretation of its regulations was reasonable. Becker v. Fed. Election Comm'n, 230 F.3d 381, 397 (1st Cir. 2000), cert. denied, 532 U.S. 1007 (2001).
(189) Dan Balz, Debate Groups Send Nader Check, Apology, But Not a Seat: Green Party Candidate Sued Sponsor of Bush-Gore Faceoff, WASH. POST, Apr. 17, 2002, at A13, available at 2002 WL 19154396. Nader announced plans to form a commission similar to the CPD, which would sponsor debates during the 2004 election. Id.
(190) Crist v. Comm'n on Presidential Debates, 262 F.3d 193, 194 (2d Cir. 2001) (per curiam).
(191) Id. at 195.
(192) H.R. 95, 101st Cong. [section] 2 (1989) (seeking to amend 26 U.S.C. [section] 9003 to include such a provision).
(193) See H.R. 511, 101st Cong. [section] 3 (1989); H.R. 60, 102nd Cong. [section] 3 (1991); H.R. 1733, 101st Cong. [section] 3 (1989); S. 725, 101st Cong. [section] 3 (1989); H.R. 1112, 102nd Cong. [section] 2 (1991); S. 491, 102nd Cong. [section] 2 (1991); H.R. 2003, 103rd Cong. [section] 2 (1993) (all seeking to amend [section] 9003).
(194) S. 2213, 102nd Cong. [subsection] 2(b), 3 (1992); see also Susan E. Spotts, The Presidential Debates Act of 1992, 29 HARV. J. ON LEGIS. 561, 579-80 (1992) (concluding that the Presidential Debates Act would provide assurance that voters could receive more substantive information from the candidates as well as the views of third party candidates when watching televised debates).
(195) 138 CONG. REC. 1988 (1992) (statement of Sen. Wellstone).
(196) S. 2213, 102nd Cong. [section] 3(e)(3)(A)-(C) (1992).
(197) See H.R. 791, 102nd Cong. [section] 3 (1991) (adopting identical criteria); H.R. 1753, 103rd Cong. [section] 4 (1993) (same). Wellstone reintroduced his criteria in both 1993 and 1995 as part of more sweeping election reform bills. Senate Fair Elections and Grassroots Democracy Act of 1993, S. 951, 103rd Cong. [section] 602 (1993); S. 116, 104th Cong. [section] 602 (1995). Both bills failed in their entirety.
(198) Presidential Debates, supra note 31.
(199) Id. at III-IV (listing the speakers). It should be noted that the committee did invite representatives from Perot's camp to testify, but they were unable to attend. Id. at 2.
(200) Id. at 2 (statement of Representative Livingston).
(201) Id. at 43 (statement of Bobby Burchfield, Bush-Quayle campaign member):
[I]t is my strong view that a proposal to condition public funding on participation in Presidential debates violates the First Amendment. In the Buckley v. Valeo case ... [the Supreme Court] made clear that it was relying upon Congress's commitment in the legislative history not to become involved in telling candidates how they can run their campaigns.
(202) Id. at 82 (statement of Mr. Burchfield); id. at 82-83 (statement of Harold Ickes, former vice chair, Democratic National Committee):
There was, I think, little question that Perot ... [was] going to be ultimately included in these debates. There was great public pressure and I think there would have been a real public outcry had that campaign not been included in the debates, but we can certainly all envision other situations in which [he] may have had the same relative standing in the public opinion polls but not have been included in the debates, depending upon the dynamics at the time the decisions were being made.
(203) Presidential Debates, supra note 31, at 82 (statement of Frank Fahrenkopf, Cochairman, Commission on Presidential Debates).
(204) Id. at 131 (testimony of Arthur Block, special counsel to the New Alliance Party).
(205) Id. at 137 (testimony of Arthur Block).
(206) Id. at 158 (prepared testimony of Stuart Reges, National Director of the Libertarian Party). Reges believed that status on all fifty ballots should be sufficient to qualify a candidate for the debates. Id. at 168-69 (prepared testimony of Stuart Reges).
(207) Presidential Debate Reform Act, H.R. 4310, 104th Cong. (1996). The Act proposed amending the Internal Revenue Code of 1986 to reduce the amount of funding provided for party nominating conventions for any party whose nominee for President or Vice President does not participate in any debate scheduled by the Commission. Id.
(208) Id. [section] 2(b)(1).
(209) Id. [section] 2(0(4).
(210) Id. [section] 2(f)(1). Like Wellstone, McCollum reintroduced his legislation two more times; neither emerged from committee. H.R. 223, 105th Cong. (1997); H.R. 178, 106th Cong. (1999). H.R. 178 changed the qualified candidate criteria to a showing of at least 5% in national polls. H.R. 178, [section] 323(f)(4).
After the problems with the 2000 election, Representative Peter DeFazio introduced similar legislation; rather than being limited strictly to overseeing debates, though, his Federal Elections Review Commission would study and make recommendations about all facets of the election process. H.R. 5631, 106th Cong. [section] 3(b)(9) (2000). DeFazio reintroduced this bill in 2001, omitting debates from the aegis of the Commission. H.R. 57, 107th Cong. (2001). (211) H.R. 2478, 105th Cong. [section] 2(b) (1997).
(212) H.R. 4310, 105th Cong. [section] 1 (1998).
(213) H.R. 2027, 106th Cong. (1999) (Paul); H.R. 2461, 106th Cong. (1999) (Traficant).
(214) H.R. Con. Res. 373, 106th Cong. (2000).
(216) Id. The constitutionality of requiring a showing of some modicum of support has been upheld in the area of ballot access laws. See, e.g., Am. Party of Tex. v. White, 415 U.S. 767, 768 (1974) (upholding requirement of support equal to 1% of voters in previous gubernatorial election); Jenness v. Fortson, 403 U.S. 431, 432 (1971) (upholding 5% requirement).
(217) H.R. Con. Res. 263, 107th Cong. (2001).
(218) As of the writing of this article, no debate legislation had been introduced in the 108th Congress.
(219) See supra notes 160-72 and accompanying text (describing the suit brought by candidate Sonia Johnson, reported at 56 Rad. Reg. 2d 1533 (1984)).
(220) See, e.g., Chandler v. Ga. Pub. Telecomms. Comm'n., 749 F. Supp. 264, 270 (N.D. Ga.) (stating that it is unreasonable for the public broadcaster to exclude a candidate from a debate based on the stated purpose of the forum and other circumstances), vacated, 917 F.2d 486 (11th Cir. 1990).
(221) DeYoung v. Patten, 898 F.2d 628, 630 (8th Cir. 1990).
(222) Id. at 631.
(223) Id. at 632-33.
(224) Id. at 632.
(225) Id. at 632-33 (quoting Kennedy for President Comm. v. FCC, 636 F.2d 417, 430-31 (D.C. Cir. 1980)) (emphasis added by DeYoung).
(226) DeYoung, 898 F.2d at 633.
(227) Id. at 635. DeYoung also sought to base his Section 1983 action on violations of Section 315's equal time provision; the court held that even if DeYoung had a claim under Section 315, the FCA contained no express or implied private right of action to support a Section 1983 claim. Thus, DeYoung's remedy was to petition the FCC for equal time. Id. at 633-35.
(228) Chandler v. Ga. Pub. Telecomms. Comm'n, 749 F. Supp. 264 (N.D. Ga.), vacated, 917 F.2d 486 (11th Cir. 1990).
(229) Id. at 265.
(230) Id. at 266-67. Chandler also alleged an Equal Protection violation. Id. at 266.
(231) Id. at 267 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985)).
(232) Chandler, 749 F. Supp. at 268.
(233) Id. at 269; see also Cornelius, 473 U.S. at 811 (finding that the First Amendment permits viewpoint-neutral exclusion of speakers whose inclusion would destroy the forum's effectiveness).
(234) Chandler, 749 F. Supp. at 269-70. The court, for substantially similar reasons, also found an Equal Protection Clause violation. Id.
(235) Chandler v. Ga. Pub. Telecomms. Comm'n, 917 F.2d 486 (11th Cir. 1990) (per curiam), cert. denied, 502 U.S. 816 (1991) [hereinafter Chandler 11].
(236) Id. at 490 (finding no constitutional violation because any programming decision could be construed as content-based, and such decisions do not amount to a suppression of expression).
(237) Id. at 488-89.
(238) Id. at 489 (remarking that the DeYoung court, when faced with the same issue, had reached the same conclusion).
(239) Id. The court also overruled the lower court's finding of an Equal Protection violation because Libertarians were not a protected class; as such, GPT's decision needed only satisfy rational basis scrutiny. Id.
(240) Chandler II, 917 F.2d at 490 (Clark, J., dissenting).
(241) Id. at 490-92 (Clark, J., dissenting).
(242) Id. at 492 (Clark, J., dissenting).
(243) Id. at 494 (Clark, J., dissenting).
(244) Id. (Clark, J., dissenting).
(245) Forbes v. Ark. Educ. Television Communication Network Found., 22 F.3d 1423, 1426 (8th Cir. 1994) [hereinafter Forbes Ii.
(247) Id. at 1426-27.
(248) Id. at 1427. Upon amending his complaint, Forbes stated additional claims, including Section 315 claims against private stations, Section 1981 claims and Section 1985 conspiracy claims. Id.
(249) Id. at 1428.
(250) Forbes 1, 22 F.3d at 1428-29.
(251) Id. at 1429. The court declined to decide the question, feeling it would be better left to the factfinder on remand.
(252) Id. at 1429-30.
(253) Id. at 1430. Several judges joined in a separate opinion stating that, while they generally agreed with the majority's analysis, Forbes should be required first to take his claims to the FCC. Id. at 1431 (McMillan, J., concurring in part and dissenting in part). McMillan clearly noted in his opinion his belief that the debates were a nonpublic forum. Id. at 1432.
(254) Forbes v. Ark. Educ. Television Comm'n, 93 F.3d 497, 499 (8th Cir. 1996), rev'd, 523 U.S. 666 (1998) [hereinafter Forbes II].
(256) Id. at 504 ("There is no bright line or objective test for determining the character of the forum. We can say without reservation, however, that the forum in this case, the debate, is a limited public forum.").
(257) Id. at 503.
(258) Id. at 504. The court reasoned that the case was analogous to Widmar v. Vincent, where the Supreme Court held that a university had created a limited public forum by granting registered student groups access to its facilities. Id.; see Widmar v. Vincent, 454 U.S. 263, 272-73 (1981).
(259) Forbes II, 93 F.3d at 504-05 (emphasizing that excluding Forbes because the station felt that he was not politically viable was not constitutionally permissible).
(260) Id. at 504.
(262) Id. at 505.
(263) Arons v. Donovan, 882 F. Supp. 379, 382-83 (D.N.J. 1995).
(264) Id. at 388.
(265) See N.J. SWAT. ANN. [section] 19:44A-3(m) (West 1999):
The term "qualified candidate" means:
(1) Any candidate for election to the office of Governor whose name appears on the general election ballot; who has deposited and expended $150,000.00 ...; and who ... (a) notifies the Election Law Enforcement Commission in writing that the candidate intends that application will be made on the candidate's behalf for monies for general election campaign expenses ... and (b) signs a statement of agreement, in a form to be prescribed by the commission, to participate in two interactive gubernatorial election debates....
Id.; see also N.J. SWAT. ANN. [section] 19:44A--45 (West 1999) (requiring such debates so long as there is more than one qualified candidate).
(266) Arons, 882 F. Supp. at 390. The court noted that Arons failed to raise the issue of whether Section 19:44A-45 itself is unconstitutional. Id. at 388.
(267) Marcus v. Iowa Pub. Television, 1996 WL 764143, at * 1 (S.D. Iowa 1996) [hereinafter Marcus I]. The plaintiffs included the Natural Law Party candidates in each of Iowa's five Congressional Districts, a Natural Law Party senatorial candidate, and a Working Class Party candidate from the Third Congressional District. Id.
(268) Id. at * 2.
(269) Id. at * 3
(271) Id. at * 3-* 4 (stressing the importance of professional editorial judgment).
(272) Marcus I, 1996 WL 764143, at * 4 (S.D. Iowa 1996).
(273) Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1138 (8th Cir. 1996) [hereinafter Marcus II].
(274) Id. at 1144.
(275) Id. at 1144 (Beam, J., dissenting) ("[T]here can be no realistic argument advanced that a subjective opinion by a government employee that a candidate is or is not 'newsworthy' is different from a subjective conclusion that he or she is or is not 'politically viable.' The inquiry involves two peas from the same analytical pod.").
(276) Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 672 (1998) [hereinafter Forbes III] (granting certiorari to resolve the conflict between the Eighth Circuit's Forbes H decision and the Eleventh Circuit's Chandler H decision).
(277) Id. at 669.
(278) Id. at 672 (warning that public television broadcasting is very different from the context of parks and streets, where the doctrine of the public forum was originally applied).
(279) Id. at 673-74.
(280) Id. at 674 (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 127 (1973)).
(281) Forbes III, 523 U.S. at 675.
(284) Id. The Court may have been overstating this point, or at least over-generalizing it. While there likely are some debates where broadcasters play a hands-off role, broadcaster intrusion can take as subtle an incarnation as choosing the shows scheduled around a debate to maximize (or minimize) the potential viewing audience, particularly where only one station or network televises the debate.
(285) Forbes III, 523 U.S. at 675.
(286) Id. at 676 ("[E]lectoral speech may have its most profound and widespread impact when it is disseminated through televised debates.").
(288) Id. at 677. While some lower federal courts differentiate between the designated and the limited public forum, the Supreme Court tends to use the terms interchangeably. See Sheri M. Danz, A Nonpublic Forum or a Brutal Bureaucracy? Advocates" Claims of Access to Welfare Center Waiting Rooms, 75 N.Y.U.L. REV. 1004, 1031 n.151 (2000). For examples of the usage employed by lower courts, see The Good News Club v. Milford Centr. Sch., 202 F.3d 502, 508 (2d Cir. 2000) (finding limited and designated public forums indistinguishable), rev'd on other grounds, 533 U.S. 98 (2001); Whiteland Woods, L.P.v. Township of W. Whiteland, 193 F.3d 177, 182 n.2 (3d Cir. 1999) (defining designated public forum as a nontraditional forum open for "public discourse," while a limited public forum is one open for discussion only on "limited topics"); Warren v. Fairfax County, 196 F.3d 186, 193 (4th Cir. 1999) (finding no such distinction); DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964-65 (9th Cir. 1999) (making same distinction as Whiteland Woods court but also noting that limited public forums can be limited as to which groups have access to them). For further discussion of limited and designated public forums, see infra Part IV.C.
(289) See Forbes III, 523 U.S. at 678-80 ("A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.").
(290) Id. at 680.
(291) Id. at 678-80; see Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 804-05 (1985) (noting that the charity drive was not a designated public forum because the government required charities "seeking admission to obtain permission" from campaign officials before being permitted to participate); Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 47 (1983) (finding that the school's mailbox system was not a designated public forum because the school's regulations, rather than granting general access, merely opened the possibility of access; the individual school principal had to grant permission to a group before that group could use the mailboxes).
(292) Forbes III, 523 U.S. at 680.
(293) Id. at 680-81.
(294) Id. at 681; see also CORRADO, supra note 32 at 148 (reporting that 168 candidates declared an intention to run for President in 1988, and 23 of these ultimately appeared on the ballot in at least one state).
(295) Forbes III, 523 U.S. at 681.
(296) Id. at 682.
(297) Id. (citing Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).
(298) Id. at 683.
(299) Forbes III, 523 U.S. at 683 (Stevens, J., dissenting).
(300) Id. at 684-89 (Stevens, J., dissenting).
(301) Id. at 685 (Stevens, J., dissenting); see also supra Part III.A.2 (discussing the FECA regulations) and supra note 181 (providing the text of 11 C.F.R. [section] 110.13(c), which requires the use of objective candidate selection criteria).
(302) Forbes III, 523 U.S. at 686 (Stevens, J., dissenting) (quoting Forbes II, 93 F.3d 497, 505 (8th Cir. 1996)).
(303) Id. at 689 (Stevens, J., dissenting).
(304) Id. at 690 (Stevens, J, dissenting).
(305) Id. at 691 (1998) (Stevens, J., dissenting) (quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992) (finding a First Amendment violation where the administrator followed neither "articulated standards" nor "objective factors").
(306) Forbes III, 523 U.S. at 686 n.6 (Stevens, J., dissenting) (reporting that Republican Dennis Scott, a candidate in the Second District, had raised only $6,000).
(307) Id. at 694-95 (Stevens, J., dissenting).
(308) Id. at 692-94 (Stevens, J., dissenting). The appeal from Marcus I was still pending when the Court decided Forbes III. The Eighth Circuit, finding Forbes III controlling, denied the appeal. Marcus v. Iowa Pub. Television, 150 F.3d 924, 925 (8th Cir. 1998).
(309) See 2000 Criteria, supra note 145 (mandating the candidate demonstrate this level of support by averaging results from five selected national public opinion polling organizations).
(310) Forbes III, 523 U.S. at 675-76.
(311) Radio Act of 1927, 47 U.S.C. [subsection] 81-119 (1927) (repealed 1934).
(312) See Near v. Minnesota, 283 U.S. 697, 721-23 (1931) (invalidating a Minnesota statute which prohibited the publication of "malicious, scandalous and defamatory" newspapers and periodicals); see also Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 117-18 (1973) (comparing the economic incentives inherent in newspaper sales to the imposed moral obligations of the broadcast media); Trinity Methodist Church, S. v. Fed. Radio Comm'n, 62 F.2d 850, 853 (D.C. Cir. 1932) (upholding the FRC's denial of license renewal to a church radio station for its broadcast of defamatory programs about the Catholic Church), cert. denied, 288 U.S. 599 (1933).
(313) DOUGLAS H. GINSBURG ET AL., REGULATION OF THE ELECTRONIC MASS MEDIA: LAW AND POLICY FOR RADIO, TELEVISION, CABLE AND THE NEW VIDEO TECHNOLOGIES 35 (2d ed. 1991).
(314) See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256, 258 (1974) (invalidating a Florida statute giving political candidates "right of reply" to newspaper editorials and discussing the need for newspapers to have a high degree of editorial freedom).
(315) See FCC v. League of Women Voters, 468 U.S. 364, 375, 402 (1984) (striking down federal statute which prohibited federally-funded public broadcasters editorializing). While a different standard of review might be applicable to debates carried on cable broadcasting stations (such as CNN), this article chooses to focus this section on traditional broadcast television spectra of UHF and VHF stations. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997) (applying intermediate scrutiny to uphold "must-carry" provisions applicable to cable television operators).
(316) 47 U.S.C. [section] 309(a) (2000).
(317) Forbes III, 523 U.S. 666, 674 (1998).
(318) League of Women Voters, 468 U.S. at 378.
(319) Forbes III, 523 U.S. at 674-75.
(320) Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 111-13, 122 (1973).
(321) Id. at 124-25 (eschewing First Amendment forum doctrines in favor of FCC regulation as a means of governing right to access).
(322) Red Lion Broad. Co. v. FCC, 395 U.S. 357, 390 (1969) ("It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.").
(323) 47 U.S.C. [section] 312(a)(7) (2000).
(324) CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981) (quoting Buckley v. Valeo, 424 U.S. 1, 52-53 (1976)).
(325) Letter to Jim Trinity, 7 F.C.C.R. 3199, 3199 (1992) (noting that the candidate had not requested reasonable access to the station, and therefore such access had not been refused).
(326) Editorializing by Broadcasting Licensees, 13 F.C.C. 1246, 1257-58 (1949):
[T]he Commission believes that under the American system of broadcasting the individual licensees of radio stations have the responsibility for determining the specific program material to be broadcast over their stations. This choice, however, must be exercised in a manner consistent with the basic policy of the Congress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee. This requires that licensee devote a reasonable percentage of their broadcasting time to the discussion of public issues of interest in the community served by their stations and that such programs be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community.
Id.; see also S. REP. NO. 101-141, at 4 (1989) (identifying the requirements placed on broadcasters as a result of the fairness doctrine).
(327) The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 F.C.C.2d 1, 8 (1974).
(328) See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389 (1969):
There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
(329) Syracuse Peace Council, 2 F.C.C.R. 5043, 5043 (1987) (mere.) ("[W]e conclude that the fairness doctrine, on its face, violates the First Amendment and contravenes the public interest.").
(330) FCC v. League of Women Voters, 468 U.S. 364, 380 (1984).
(331) Syracuse Peace Council, 2 F.C.C.R. at 5049; see also Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 145, 161 (1985) ("As a result of the asymmetry between its two components, the fairness doctrine in its operation encourages broadcasters to air only the minimal amount of controversial issue programming sufficient to comply with the first prong.").
(332) See Syracuse Peace Council, 2 F.C.C.R. at 5052 ("We are concerned that the dramatic growth in the number of both radio stations and television stations has in fact increased the amount of information, as well as the diversity of viewpoints, available to the public in both large and small broadcast markets.").
(333) See Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114 (1973) (reaffirming that First Amendment prohibitions on Congress--to pass no law which restricts the freedom of speech or the press--are restrictions on state or government action, not private action).
(334) See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 725-26 (1961) (concluding that a private restaurant leasing space in a building owned by a state agency was not acting exclusively as a private entity when it refused to serve customers on the basis of their race).
(335) Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1962).
(336) See Jackson v. Metro. Edison Co., 419 U.S. 345, 358 (1974) (finding that a private utility, though heavily regulated, did not satisfy the state action requirement).
(337) See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77 (1972) (holding that, despite possessing a state-issued liquor license, a private club's racially discriminatory policies did not violate the Equal Protection Clause).
(338) Hagelin v. Fed. Election Comm'n, Nos. 96-2132, 96-2196, 1996 WL 566762, at * 6 (D.D.C. Oct. 1, 1996).
(339) Id. C[T]here is not sufficient evidence to show that the CPD is really a state actor in any fashion.").
(340) Perot v. Fed. Election Comm'n, 97 F.3d 553, 559 (D.C. Cir. 1996), cert. denied, 520 U.S. 1210 (1997).
(341) See supra note 112 and accompanying text.
(342) KRAUS, supra note 1, at 248-49.
(343) See Commission on Presidential Debates, About CPD: Commission Leadership, at http://www.debates.org/pages/lead.html (last visited Sept. 19, 2003) (listing board of directors). Current board members include former Republican Senators John Danforth and Alan K. Simpson, as well as Republican Representative Jennifer Dunn. The co-chairmen are both former party chairmen--one Democratic, one Republican.
(344) Commission on Presidential Debates, About CPD: Candidate Selection Process, at http://www.debates.org/pages/candsel.html (last visited Sept. 19, 2003); see, e.g., Commission on Presidential Debates, News: CPD Announces Candidate Selection Criteria, Sites and Dates for 2000 Debates, at http://www.debates.org/pages/news3.html (Jan. 6, 2000) (describing CPD's candidate selection criteria and debate plans for the debates preceding the 2000 presidential election).
(345) See 11 C.F.R [section] 110.13(c) (1996) and 2 U.S.C. [section] 437f (2000). The Perot court did discuss this aspect of FEC control over the actions of debate supporters. Perot, 97 F.3d 553, 560 (D.C. Cir. 1996). The court noted that an organization setting objective criteria without first getting FEC approval ran the risk of having the FEC "subsequently determine that its criteria are not objective, and that its sponsorship of the debate violated" federal laws that could make the debate sponsor subject to penalties set forth in the FECA. Id.
(346) 412 U.S. 94, 120-21 (1973).
(347) Id. at 115-16.
(348) Id. at 120. Burger felt that the public interest requirements alone were sufficient to control the broadcasters' exercise of journalistic discretion. Id. at 120-21.
(349) Id. at 146 (White, J., concurring). WTOP, a radio station, refused to permit a group to air its views on the Vietnam War because the station was already providing "full and fair coverage" of the war. Id. at 98.
(350) Columbia Broad. Sys., Inc. 412 U.S. at 146-47 (White, J., concurring). If anything, White appears to disagree with Burger. Id. at 147 ("In this context I am not ready to conclude, as is done in the [state action portion of Burger's] opinion, that the First Amendment may be put aside for lack of official action necessary to invoke its proscriptions.").
(351) Id. at 150 (Douglas, J., concurring). Douglas went on to remark that "[t]he sturdy people who fashioned the First Amendment would be shocked" by the scope and extent of governmental regulation of broadcasters as a branch of the press. Id. at 151.
(352) Id. at 155 (Douglas, J., concurring).
(353) Id. at 159 (Douglas, J., concurring).
(354) Id. at 156 (Douglas, J., concurring):
The constitutional mandate that the Government shall make "no law" abridging freedom of speech and the press is clear; the orders and rulings of the [FCC] are covered by that ban; and it must be carefully confined lest broadcasting--now our most powerful media--be used to subdue the minorities or help produce a Nation of people who walk submissively to the executive's notions of the public good.
(355) Columbia Broad. Sys., Inc. 412 U.S. at 173 (Brennan, J., dissenting) (quoting Bus. Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642, 651 (D.C. Cir. 1971)).
(356) Id. at 173-74 (Brennan, J., dissenting).
(357) Id. at 175-76 (Brennan, J., dissenting).
(358) Id. at 176-79 (Brennan, J., dissenting). The FCC directly approved of the station's action in the case. Id. at 178.
(359) Id. at 180-81 (Brennan, J., dissenting).
(360) Forbes III, 523 U.S. 666, 675-76 (1998).
(361) Bus. Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642, 653-54 (D.C. Cir. 1971).
(362) Red Lion Broad. Co. v. FCC, 395 U.S. 367, 392 (1969) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)).
(363) Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 171 (Brennan, J., dissenting) (noting that only Stewart and Rehnquist joined Burger for that part of his opinion).
(364) See Eric D. Strand, Case Note, The Supreme Court's Misapplication of Public Forum Doctrine Creates Governmental Veto of Political Speech by Ballot-Qualified Candidates: Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), 73 TEMP. L. REV. 331, 339-40 (2000) (arguing that the seeds of the forum doctrine were sown by Justices Holmes and White in the late 19th century).
(365) Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 44 (1983).
(366) Id. at 54-55.
(367) See supra note 292 for a discussion of the Supreme Court's interchangeable use of the terms "limited public forum" and "designated public forum." For purposes of this discussion, this article will consider them to be one category as well.
(368) See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995) (defining allowable speech restriction within the category of a limited public forum); Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (discussing the framework for distinguishing between a nonpublic forum and a public forum); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (identifying the three traditional forum designations).
(369) Perry, 460 U.S. at 45 (quoting Hague v. C.I.O., 307 U.S. 496, 515 (1939)).
(370) Id. (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).
(372) Id. at 45-46.
(373) Krishna Consciousness, 505 U.S. at 678, 680.
(374) See Widmar v. Vincent, 454 U.S. 263, 277 (1981) (finding that a university had created a designated public forum by opening its property to student groups for general use).
(375) Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); see, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (finding a municipal theater's denial of use of its facility for a production of Hair impermissible because the theater operated as a venue for expressive activity).
(376) Widmar, 454 U.S. at 276-77.
(377) Forbes III, 523 U.S. 666, 677 (1998).
(378) Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 46 (1983).
(379) Forbes III, 523 U.S. at 680-81.
(380) Forbes II, 93 F.3d 497, 504 (8th Cir. 1996).
(381) Such a finding would allow excluded candidates to challenge their exclusion either as viewpoint discrimination by the broadcasters or as action that fails to pass constitutional muster under the applicable strict scrutiny standard of review.
(382) See Forbes III, 523 U.S. at 680-81 (describing the burdens on broadcasters should all candidates be permitted to participate in debates).
(383) Id. at 674-75. Forbes III is the first case to hold that a public broadcaster's exercise of editorial discretion constitutes expressive activity that deserves some measure of First Amendment protection. Whether this "speech activity" engaged in by the government/broadcasters in the course of exercising editorial discretion rises to the level of a First Amendment right or is something less--more a speech interest than a right--is open to debate. For a discussion of broadcaster discretion as a form of First Amendment expressive activity, see infra Part V.A.
(384) Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (noting that in the area of broadcast regulation particularly, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount").
(385) One must note that if the government made the forum generally available to a class of speakers, then the forum would be a designated public forum. Thus, the designated nonpublic forum formulation applies only when the government has opened a forum less-than-generally.
(386) Similar to the traditional forum doctrines, this is intended to be assessed through case-by-case analysis. However, Part V of this article will demonstrate that, at least in the area of broadcast candidate debates, the government will rarely (if ever) be able to demonstrate that the public interest in hearing candidate debate is subservient to the government's/broadcaster's interest in excluding certain candidates from the debate forum.
(387) In other words, as the Court discussed in Forbes III, the government may exclude speakers who are eligible to participate in the forum so long as they do so in a reasonable and viewpoint-neutral manner. Forbes III, 523 U.S. 666, 676 (1998).
(388) Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 185 (1997) (applying intermediate scrutiny to uphold "must-carry" provisions applicable to cable television operators).
(389) Forbes III, 523 U.S. at 676 ("[A] broadcaster cannot grant or deny access to a candidate debate on the basis of whether it agrees with a candidate's views."); see id. at 693-94 (Stevens, J., dissenting) (arguing that broadcasters should not be permitted to exclude candidates without first establishing objective criteria on which they will rely when making such a decision).
(390) Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983).
(391) Id. at 52 (citation omitted).
(392) Note that the use of the term "broadcaster" assumes a finding of state action. The basis for this assumption is the dissent in Columbia Broadcasting Sys., Inc. which would have ruled that private broadcasters are government actors. Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 180-81 (1973) (Brennan, J., dissenting); see supra notes 361-69 and accompanying text. However, if instead the state action finding hangs directly on the CPD, then the designated nonpublic forum analysis would examine the interests of the CPD, rather than the interests of the broadcasters. Such a situation presents a much easier case for a finding that the public interest outweighs the government interest. It is difficult to imagine a single reason (outside of the obvious bipartisan ones) that the CPD could proffer as a basis for excluding third party candidates, particularly if the more reasonable objective criteria discussed in Part VI infra were to replace the CPD's current candidate selection criteria.
(393) See Randall P. Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 IOWA L. REV. 953, 960-61 (1998) ("[W]ith the possible exception of the deeply ambiguous FCC v. League of Women Voters ... case, Forbes may be the first decision expressly acknowledging the First Amendment significance of government's role as a speaker.") (footnote omitted); Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1441, 1445-46 (2001) (analyzing Forbes and Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) in terms of government editorial discretion as an expressive activity).
(394) Bezanson & Buss, supra note 393, at 1441-42.
(395) See id. at 1442 ("For example, one might argue that government's decisions about candidate access to the ballot are, in reality, editorial judgments protected under the First Amendment, for they result in specific content being included or excluded from a printed ballot, a communicative artifact of the government's making.").
(396) Forbes III, 523 U.S. 666, 682 (1998); see also Bezanson & Buss, supra note 393, at 1445-46.
(397) Bezanson illustrates this point nicely. Consider Nat'l Endowment for the Arts v. Finley, where the Court upheld the government's right to require the NEA to take "general standards of decency" into consideration when evaluating art for possible grant monies. 524 U.S. 569, 572-73, 576 (1998). In the art world, the government was but one patron among many; a denial of government funding did not necessarily mean that the artist would go unfunded--it meant only that he would have to go elsewhere for funding. Bezanson & Buss, supra note 393, at 984-85. However, in the debate realm, it is unlikely that a candidate, rebuffed from participating by a state broadcaster exercising its editorial judgment, could then turn to another debate being aired on another network; that candidate is effectively left without a forum in which to speak.
(398) Bezanson & Buss, supra note 393, at 985.
(399) Forbes III, 523 U.S. at 681.
(400) See C. David Kotok, Nelson, Hagel to Appear But Not Debate at Fair, OMAHA WORLD-HERALD, Aug. 24, 1996, available at 1996 WL 6028916 (noting that Nebraska Education Television, the debate's sponsor, had not wanted to include the Libertarian and Natural Law Party candidates because neither had at least 10% support in public opinion polls).
(401) Forbes III, 523 U.S. at 694 n.19 (Stevens, J., dissenting).
(402) Repeal or Modification of the Personal Attack and Political Editorial Rules, 15 F.C.C.R. 19,973, 19,978 (2000).
(403) Id. at 19,980 (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388 (1969)). Some have argued that Syracuse Peace Council was not a reflection of a reinterpretation of the fairness doctrine's constitutionality as much as it was a reflection of changing political stances on the FCC; for a thoughtful treatment of this position, see DONALD J. JUNG, THE FEDERAL COMMUNICATIONS COMMISSION, THE BROADCAST INDUSTRY, AND THE FAIRNESS DOCTRINE 1981-1987 (1996) (exploring personnel changes on the FCC during the 1980s leading up to the repeal of the fairness doctrine).
(404) At least one third party case did raise a fairness doctrine claim. See supra notes 152-62 and accompanying text (discussing the fairness doctrine claims by Eugene McCarthy and Lester Maddox).
(405) Forbes III, 523 U.S. 666, 681 (1998).
(406) See Storer v. Brown, 415 U.S. 724, 732 (1974) (noting that multiple Supreme Court decisions had resolved that avoiding voter confusion was "an important state interest'") (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971); but see Anderson v. Celebrezze, 460 U.S. 780, 798 (1983) ("A [s]tate's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.").
(407) See, e.g., Williams v. Rhodes, 393 U.S. 23, 33 (1968) (identifying that the potential for voter confusion would be a sufficient state interest to regulate ballot access only where there were "multitudinous fragmentary groups" seeking access--a threat the Court considered only "'theoretically imaginable'"); see also Jenness v. Fortson, 403 U.S. 431, 442 (1971) (remarking that one way to help alleviate voter confusion is to "requir[e] some preliminary showing of a significant modicum of support"). The support requirement contemplated in Jenness was not akin to the CPD's support requirements measured by public opinion polls; instead, it was merely a requirement that the candidate who wished to be included on the ballot gather signatures from a certain percentage of the state's eligible voters. Jenness, 403 U.S. at 432. Assuming this requirement does state a "significant modicum of support" for voter confusion purposes, then all candidates considered for the debate under the designated nonpublic forum doctrine should satisfy it as all will have had to meet the ballot eligibility criteria in at least an electoral majority of states--most, if not all, of which include the gathering of a significant number of signatures as a ballot access requirement.
(408) Bill Lambrecht, Democrats Court Middle Class in Televised Debate: Six Presidential Contenders Also Snipe at Bush, ST. LOUIS POST-DISPATCH, Dec. 16, 1991, LEXIS, News Library, SLPD File.
(409) David S. Broder & David Hoffman, Bush Deflects Attacks In First GOP Debate: Vice President Alone Defends INF Past, WASH. POST, Oct. 29, 1987, at A1, available at 1987 WL 2017212.
(410) After the fall of communism in Czechoslovakia, the interim government required broadcasters who had scheduled a televised debate to invite representatives from every party or movement that wanted to participate. The resulting debate involved nearly fifty people. "[B]y the end of the hour, so many sides had argued their points that viewers could not remember who said what." See ELLEN MICKIEWICZ ET AL., TELEVISION AND ELECTIONS 40 (2d ed. 1999) (reporting on debate practices in other countries).
(411) In 2000, the largest of the primary debates involved three candidates, only two of whom were physically present in the same room. See Ronald Brownstein, In GOP Debate, Rivals Bristle Over Attacks, L.A. TIMES, Mar. 3, 2000, at A1, available at 2000 WL 2216348 (noting that Governor Bush and Alan Keyes appeared in Los Angeles, while Senator John McCain appeared via satellite from St. Louis).
(412) See C. Edwin Baker, Campaign Expenditures and Free Speech, 33 HARV. C.R.-C.L. L. REV. 1, 33-34 (1998) (explaining a normative view of politics as encompassing the election and "the non-campaign and pre-campaign political activities that cause shifts in public opinion--public opinion being the political ground on which most electoral candidates compete to stand").
(413) See JOHN F. HOADLEY, ORIGINS OF AMERICAN POLITICAL PARTIES, 1789-1803, at 3-5 (1986) (citing several studies that put the first party origins at some time between the First Congress, where the Federalists emerged around 1792, and the Third Congress, with the passage of the Alien and Sedition Acts).
(414) For example, the 1824 election featured four main candidates--John Quincy Adams, Andrew Jackson, Henry Clay, and William H. Crawford--all representing the Democratic-Republican party. While Jackson won a plurality of popular votes, he did not receive a majority of electoral votes; the House of Representatives chose Adams as the President. PRESIDENTIAL ELECTIONS, supra note 39, at 7-8, 25, 65.
(415) The Anti-Masons arose in the late 1820s, opposing orders like the Masons and other secret societies. FRANK SMALLWOOD, THE OTHER CANDIDATES: THIRD PARTIES IN PRESIDENTIAL ELECTIONS 14-15 (1983). They had some success in local and state elections during their short stint as a party. See WILLIAM B. HESSELTINE, THIRD-PARTY MOVEMENTS IN THE UNITED STATES 109-11 (1962) (reprinting a letter from William H. Seward later Lincoln's Secretary of State--who had been elected to the New York State Senate as an Anti-Mason).
(416) SMALLWOOD, supra note 415, at 15; PRESIDENTIAL ELECTIONS, supra note 39, at 91 (reporting Whig candidate William Henry Harrison received 52.9% of the popular vote).
(417) See ROBERT A. DAHL, POLITICAL OPPOSITIONS IN WESTERN DEMOCRACIES 50-53 (1966) (identifying ten periods of "intense conflict" between the 1830s and 1970s and noting that major third parties arose during those periods).
(418) SMALLWOOD, supra note 415, at 15.
(419) DANIEL A. MAZMANIAN, THIRD PARTIES IN PRESIDENTIAL ELECTIONS 28 tbl.2-1 (1974). Free Softer (and ex-President) Martin Van Buren received 10.1% of the popular vote (and no electoral votes) in 1848; American Millard Fillmore, 21.5% popular and 8 electoral in 1856; Southern Democrat John Breckinridge 18.1% popular and 72 electoral in 1860; and Constitutional Unionist John Bell 12.6% popular and 39 electoral in 1860. Interestingly, both Bell and Breckinridge received more electoral votes than one of the major party candidates--Democrat Stephen Douglas--even though Douglas received almost 30% of the popular vote. PRESIDENTIAL ELECTIONS, supra note 39, at 38-40, 68, 70, 71.
(420) See Bradley C. Bobertz, The Brandeis Gambit: The Making of America's "First Freedom," 1909-1931, 40 WM. & MARY L. REV. 557, 609 (1999) (discussing the historical origins of the notion of free speech as a "safety valve" for those disenchanted with the political system).
(421) MAZMANIAN, supra note 419, at 67.
(422) Id. at 6748.
(423) Id. at 81-82. It is estimated that most of Roosevelt's New Deal programs had been proposed decades earlier as part of the platforms of Progressive Party candidates. KENNETH C. MACKAY, THE PROGRESSIVE MOVEMENT OF 1924, 14-15, 261-62 (1966).
(424) See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market....").
(425) See KRAUS, supra note 1, at 103-04 (depicting Perot's strong success in debates); see also PRESIDENTIAL ELECTIONS, supra note 39, at 83-84 (reporting voter turnout for the 1992 election).
(426) MAZMANIAN, supra note 419, at 77.
(427) Id. Voter participation increased only in the pre-Civil War elections of 1856 and 1860, as well as in 1992. See, e.g., PRESIDENTIAL ELECTIONS, supra note 39, at 83-84 (reporting the 1992 presidential election voter turnout).
(429) ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 65-66 (1948) (arguing that freedom of speech promotes self-government through "the freedom of public inquiry and debate").
(430) See 26 U.S.C. [section] 9004(a) (2000) (describing the criteria for receipt of campaign finances).
(431) 26 U.S.C. [section] 9004(a)(1) (2000):
The eligible candidates of each major party in a presidential election shall be entitled to equal payments under Section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under Section 320(b)(1)(B) of the Federal Election Campaign Act of 1971.
(432) 26 U.S.C. [section] 9004(a)(2)(A) (2000):
The eligible candidates of [each] ... minor party in a presidential election shall be entitled to payments under Section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under [[section] 9004 (a)(1)] ... for a major party as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election.
Id.; see also 26 U.S.C. [section] 9002(7) (defining "minor party" as a party receiving 5-25% of the total popular vote in the previous election); 26 U.S.C. [section] 9002(2) (defining "candidate" as someone either nominated by a major party or qualified to be on the ballot in at least ten states).
(433) See PRESIDENTIAL ELECTIONS, supra note 39, at 236 (reporting that before Perot's showing in 1996, the highest subsequent popular vote percentage earned by a third party having received 5% in a prior election was the 4.9% received by the Pree Soilers in 1852).
(434) In fact, the "winner-take-all" method of election did not gain favor until political parties had taken hold in the early 19th century. Prior to that, most states meted out their electors proportionally to the popular vote garnered by each candidate. Id. at 10. Thus, for example, in the 1796 election thirteen different candidates received at least one electoral vote. See id. at 25 (reporting the range from 71 electoral votes for victor John Adams to 1 for Charles Pinckney). Hoadley notes that the electoral college was created specifically upon the assumption that the system would not contain political parties. HOADLEY, supra note 413, at 31.
(435) See PRESIDENTIAL ELECTIONS, supra note 39, at 128 (reporting that Perot defeated Bush in Maine by about 300 votes and Clinton in Utah by about 20,000 votes).
(436) See id. at 81. As of 1992, sixteen presidents had been elected with less than 50% of the popular vote. However, because of the mechanics of the electoral college, only two of those elections--the 1824 election of John Quincy Adams and the 1876 election of Rutherford B. Hayes--were decided in the House of Representatives. See id. at 89.
(437) See U.S. CONST., amend. XII:
[I]n choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
(438) Interestingly, in 1992, had the election gone to the House of Representatives as is theorized here, the newly elected members of the 103rd Congress, having already taken office, would have cast the votes. Assuming that all members would have voted strictly along party lines, Clinton still would have won the election. After the 1992 Congressional election results, 30 states had a majority of Democratic representatives, while only ten states were majority Republican. Ten states had their delegations equally split between Republican and Democratic representatives, and Vermont's lone representative was an independent. See Donnald K. Anderson, Statistics of the Presidential and Congressional Election of November 3, 1992, at http://clerk.house.gov/members/election_information/1992/92Stat.htm (1993) (detailing district by district results of the 1992 election).
(439) See NEIL R. PEIRCE & LAWRENCE D. LONGLEY, THE PEOPLE'S PRESIDENT: THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT VOTE ALTERNATIVE 161 (1981) (noting that over 100 bills proposing to abolish the electoral college have arisen in Congress); see, e.g., H.R.J. Res. 1, 3, 5, 17, 18, 107th Cong. (2001) (proposing abolition of electoral college).
(440) An interrelated point concerns another provision of the Twelfth Amendment. Should no candidate receive a majority of electoral college votes, the House must choose the president from among those with the top three vote totals. U.S. CONST., art. XII. Therefore, unlikely though a House election may be, the public should be afforded the opportunity to see at least the top three candidates debate in the event that no candidate wins an electoral majority. Jamin B. Raskin, The Debate Gerrymander, 77 TEX. L. REV. 1943, 1997 (1999). The necessity of third party debate would gain even greater importance should some overhaul of the electoral college ever come to pass.
(441) Keith Darren Eisner, Comment, Non-Major-Party Candidates and Televised Presidential Debates: The Merits of Legislative Inclusion, 141 U. PA. L. REV. 973, 992 (1993).
(442) See Appleseed Center for Electoral Reform, A Model Act for the Democratization of Ballot Access, 36 HARV. J. ON LEGIS. 451, 452 n.6 (1999) (reporting that "Connecticut, Illinois, Indiana, Iowa, Kentucky, New Jersey, New York, Pennsylvania, Virginia, Washington, and West Virginia have no procedure by which a group may become a qualified party prior to any particular election").
(443) See, e.g., Storer v. Brown, 415 U.S. 724, 746 (1974) (striking down parts of California's ballot access law); Williams v. Rhodes, 393 U.S. 23, 34 (1968) (finding Ohio ballot access law in violation of the Equal Protection Clause).
(444) One commentator noted that in 1996, a third party candidate would have to spend approximately $1.6 minion to get on the ballot in all fifty states, while a major party candidate would need only 20% of that amount. Appleseed Center, supra note 450, at 451-52.
(445) Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
(446) Of course, this criterion operates only in the context of presidential debates. Given the wide variation in ballot requirements for state and local office, it would be impossible to generate objective criteria that could apply to all elections for all offices in all states. The designated nonpublic forum doctrine requires only that the broadcasters develop such objective criteria. So long as those criteria are not so restrictive as to violate intermediate scrutiny review, broadcasters will retain some discretion in choosing which criteria to employ.
(447) For further discussion on the peculiarity of requiring a level of support substantially higher than the level required for campaign funding, see supra Parts II.C and III.A.3.
(448) See supra notes 408-11 and accompanying text.
(449) See '92 Rejectee Forbes Invited, But Debate Uncertain, ARK. DEMOCRAT-GAZETTE, Sept. 4, 1998, LEXIS, News Library, ARKDEM File (noting that the debate was uncertain because the Democrats had not nominated anyone to run against incumbent Republican Asa Hutchinson).
(450) See Rachel O'Neal, Huckabee Passes up Invitation; AETN Kills Debate, ARK. DEMOCRAT-GAZETTE, Sept. 11, 1998, LEXIS, News Library, ARKDEM File (reporting the cancellation of the gubernatorial debate because Governor Mike Huckabee, a Republican, was too busy to attend); Doug Thompson, Asa Hutchinson Fears Debate, Reform Foe Says Forbes Also Brings up Allegation of Perjury, ARK. DEMOCRAT-GAZETTE, Oct. 6, 1998, LEXIS, News Library, ARKDEM File (citing a need to remain in Washington for the Congressional session as the basis for Hutchinson's decision in declining to debate Forbes).
(451) Even though the debate never took place, AETN ultimately gave Forbes a ten-minute block of airtime. Doug Thompson, Reform Party Candidate Forbes Set for 10-Minute AETN Broadcast, ARK. DEMOCRAT-GAZETTE, Sept. 25, 1998, LEXIS, News Library, ARKDEM File. Forbes received 19.26% of the vote in the November 1998 election. See Federal Election Commission, 1998 U.S. House of Representatives Results, available at http://fecweb1.fec.gov/pubrec/fe19981arh.htm (last visited Sept. 19, 2003) (reporting Forbes received nearly 37,000 votes).
Tim Cramm, M.D., University of Arkansas, 1997; J.D., University of Iowa, 2002. Particular thanks go to: Professor William Buss, whose insightful comments helped shape the First Amendment forum arguments into something resembling a logical discussion; and Professor William Hixon, who provided both a keen vision of the current predicaments facing third party candidates and a driving range exercise that tamed my slice. Any section, page, paragraph, sentence, phrase, or word in this article which persuades the reader that the arguments in this article have merit is the direct result of the two wise souls mentioned above. Any section, page, paragraph, sentence, phrase, or word which persuades the reader to put down the article in favor of something more edifying is, of course, my fault. And to my parents, who have somehow managed to put up with my flights of fancy through the last few years. Every section, page, paragraph, sentence, phrase, and word in this article is, ultimately, the product of your support. (Keep that in mind when I decide to go to cooking school).
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|Publication:||Albany Law Review|
|Date:||Sep 22, 2003|
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