No thirds allowed

Will Nader and Buchanan be shut out of the presidential debates? Ask the Democrat and the Republican in charge of the process.

By Jake Tapper

Published June 22, 2000 7:00PM (EDT)

So this is what the grand conspiracy looks like.

In the exclusive City Club, a posh establishment tucked in the basement of a fabulous new building in downtown Washington, sit the co-chairmen of the Commission on Presidential Debates, bigwig Republican Frank Fahrenkopf Jr. and bigwig Democrat Paul Kirk.

Also present are reporters, producers and editors from major networks and newspapers. And me, too.

This is where, critics say, the charade of fairness is taking place surrounding the forthcoming presidential debates; where decisions are being made that will probably confine the choice of the American electorate to George W. Bush and Al Gore. Or, at the very least, the decisions that will limit the participation in the presidential debates to those two -- which may be the same thing.

The "where" and "when" of the debates are quickly and easily disposed of. The three 90-minute presidential debates will take place Oct. 3 at the John F. Kennedy Library in Boston; Oct. 11 at Wake Forest University in Winston-Salem, N.C.; and Oct. 17 at Washington University in St. Louis. (There will also be one for vice presidential candidates on Oct. 5 at Centre College in Danville, Ky.)

The "who" is a dicier question. H. Ross Perot, as you may recall, was kept out of the debates in 1996. Will that happen this year? According to probable Green Party nominee Ralph Nader and probable Reform Party nominee Pat Buchanan, the debate commission has stacked the deck against them by imposing a new threshold for debate participants.

"We believe it is deliberately designed and crafted to keep the Reform Party in general and to keep me in particular out of these presidential debates," Buchanan said on March 20.

There are 216 individuals who have filed their candidacies for president, Fahrenkopf says. The question is: "Does the candidate have a realistic chance of being elected?"

So this year debate participants must not only be constitutionally eligible (meaning that they're at least 35 years old and an American citizen), and on the ballot in enough states to feasibly win the 270 electoral votes needed to win the presidency, they must be doing OK in the polls.

To be precise: Three days before each debate, participants must average at least a 15 percent standing in five specific polls -- ABC News/Washington Post, CBS News/New York Times, NBC News/Wall Street Journal, CNN/USA Today/Gallup and Fox News/Opinion Dynamics.

But just how did they arrive at 15 percent? Kirk says it's a matter of competition. He explains that if you have a Democrat with 40 percent and a Republican with 40 percent and a third-party candidate with 10 percent, that doesn't seem competitive. If you have three candidates who are all polling in the 30s, that seems competitive. And if you have the two major-party candidates with 35 percent apiece and a third-party candidate with around 17 percent, "Sure, in the interests of fairness, let's let him in."

"Their arrival at 15 percent is completely arbitrary," argues Jamin Raskin, a professor of constitutional law at American University. Raskin has filed a lawsuit on behalf of Nader against the Federal Election Commission for allowing corporate sponsorship of the debates, which he says violates the law against corporate contributions to presidential candidates by providing the Democrats and the Republicans with millions of dollars in free press.

Kirk says he has not read Nader's complaint. That's too bad, because he raises some interesting points. If your party's candidate received at least 5 percent of the vote in the last presidential election, you qualify for federal matching funds, Raskin points out. Therefore, "the only statutory definition we have [for who qualifies as a serious candidate] is 5 percent. But they took that number and tripled it."

Kirk says the polling criteria is a better indicator than the '96 threshold, which, in addition to the ballot access and constitution rules, "took into account national news coverage, what the leaders of [media] bureaus thought and a basket of different factors."

But Raskin says that the commission changed its rules only because of a complaint he filed on behalf of Perot after he was shut out in 1996, "and how close we came to beating them."

In response to Perot's complaint, the general counsel of the Federal Election Commission, Lawrence Noble, judged that the debate panel and the campaigns for President Bill Clinton and GOP nominee Bob Dole had broken the law by excluding Perot as well as John Hagelin of the Natural Law Party. Noble wrote that, "Some of the factors [for qualifying in the debates] appear to be subjective on their face and other factors are so vague as to be imprecise." The five presidentially appointed FEC commissioners unanimously rejected Noble's judgment in March 1998.

"It's not a perfect science, let's face it," allows Kirk of the qualification process. "But neither is polling."

Exactly, counters John Duffy, an attorney who has filed a complaint with the FEC against the debate commission on behalf of the Buchanan campaign and the Reform Party. "The selection of polling is theoretically flawed, because as you know polling does not give you an actual number -- it gives you a range of numbers. It's not '15 percent,' it's '15 percent plus or minus two points', or 'plus or minus three points.' It's not a number, it's an estimate within a range."

"Who selected '15 percent'?" Duffy asks. "It was selected by Republicans and Democrats. I suspect it was the highest number they could select without making themselves look ridiculous. If you look at the history of the commission, it is basically a bipartisan effort. It was a reaction to the 'unfortunate' debate -- in their view -- in which [1980 Independent candidate] John Anderson made an appearance [which was hosted by the League of Women Voters]. The criteria over the years have been designed to exclude third-party candidates and make sure that the debate is just between the two parties' candidates."

That's not true, says Fahrenkopf. He says they looked at historical precedent. Independent candidates George Wallace, Anderson and Perot in '92 all would have qualified under the 15 percent rule. Though they are establishment partisans, Fahrenkopf and Kirk insist that when they serve on the commission, they wear the hats "of the American voter."

But polls show the American voter wants a more open debate. According to a Zogby poll taken in April, 55 percent of Americans want Buchanan to be allowed to participate in the debates, and 51 percent want Nader, even if neither is at the 15 percent threshold.

In the briefing, Fahrenkopf and Kirk even take veiled snipes to third-party naysayers, referring to Buchanan's "former friend Lenora Fulani" and saying that they haven't read Nader's complaint and haven't heard Buchanan charge that they changed the rules in "an emergency meeting" after he decided to run as a Reform Party candidate.

Fahrenkopf and Kirk say that the debates are the last events before the election, that if your candidacy isn't at 15 percent by the end of September you're running a losing effort. "Our role is not to jump-start your campaign and all of a sudden make you competitive," Kirk says.

But if third-party candidate Jesse Ventura hadn't been included in the Minnesota gubernatorial debates in 1998, he wouldn't have won.

"The governor has said publicly many times that the reason he won is because he was included in the debates," says Ventura's spokesman, David Ruth. "It gave him a forum to show what he's about in a serious setting. If you look back at those debates, the governor won every single one of them."

Ventura was included in the debates largely because the Democratic candidate, state Attorney General Hubert "Skip" Humphrey, thought that Ventura would sap away votes from the GOP nominee, St. Paul, Minn., Mayor Norm Coleman. But regardless of the reason for his inclusion, Ventura skyrocketed in the polls as a result of his performance.

As Ventura campaign manager Dean Barkley wrote in his diary -- excerpted in the Minneapolis Star Tribune -- "Jesse hits a home run in [the first debate of the general election in] Brainerd [Oct. 1] and his poll numbers start climbing as a result. The voters begin seeing Jesse for the first time and like what they see."

At the time of the Oct. 1, 1998, gubernatorial debate, the most recent poll had Humphrey in the lead with 49 percent, Coleman with 20 percent and Ventura favored by 10 percent.

Clearly, under the commission's rules, Ventura wouldn't have been invited to debate eventual losers Humphrey and Coleman.

"The argument can be made about the Ventura thing," allows Kirk. But for him and Fahrenkopf it's a matter of "entertainment vs. the serious question of who would you prefer to be president of the United States? Otherwise you get into 'Wouldn't it be fun to have X, Y, Z?'"

"Let's be honest here," Buchanan attorney Duffy says. "Mr. Dole didn't have a realistic chance of winning [in 1996], either. Third parties play an important role in the American system, and it does not necessarily involve them winning. It involves them bringing up ideas that the other two parties are afraid of discussing. Third parties provide a forum for ideas -- and that is what a debate is about."

Or is it? In December 1997, Harvard's Institute of Politics hosted a postmortem on the '96 election. Discussing the Clinton camp's negotiations with the commission and the campaign of GOP nominee Dole, former White House advisor George Stephanopoulos said that the Dole campaign "didn't have leverage going into negotiations. They were behind. They needed to make sure Perot wasn't in it. As long as we would agree to Perot not being in it, we could get everything else we wanted going in. We got our time frame, we got our length, we got our moderator."

Moderator Chris Matthews noted that the debates took place weeks before the election. "Why didn't you have the debates when people were watching the election?" he asked.

"Because we didn't want them to pay attention," Stephanopoulos said. "And the debates were a metaphor for the campaign. We wanted the debates to be a non-event."

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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