The Independent View: Commission on Presidential Debates Rules Violate Federal Campaign Law

Lawrence Lessig has this essay in The Daily Beast, explaining why the Commission on Presidential Debates (CPD) breaks Federal Campaign law when it holds General Election Presidential Debates that are, in fact, only open to the Republican and Democratic nominees.

When America views this year’s General Election debates, it will be easy to miss the scandal brewing just off stage. For decades, corporations have used debate sponsorships as a way to skirt the clear purpose of Campaign Finance laws, and to influence Presidential Campaigns. That evasion will happen again this year, as corporations work with the Debate Commission to effectively assure that any Independent Presidential candidate will be shut out.

Campaign Finance law prohibits corporations from contributing to Federal Election campaigns. That prohibition is meant to limit corporate influence in Washington while avoiding any appearance of quid pro quo corruption. The law, however, permits corporations to support “nonpartisan activity,” so long as that activity is “designed to encourage individuals to vote or to register to vote.”

The Federal Election Commission (FEC) has interpreted this law to permits corporate sponsorship of Presidential candidate debates, because in the FEC’s view, these debates are “nonpartisan.” But that is just nonsense. The CPD may well be “bipartisan,” but it is plainly a Partisan Commission, keen to exclude anyone who doesn’t toe one of just two Party lines.

Formed in 1998, the CPD was created by, and is controlled by, the Republican and Democratic parties. The Commission is Co-Chaired by Frank Fahrenkopf, former Head of the Republican Party and lobbyist for the gaming industry, and by Michael McCurry, a prominent Democratic insider who left the Clinton administration to lobby for corporate interests in Washington. Fahrenkopf is closely connected to his Party’s candidates, campaigns on their behalf, and contributes large sums of money to their campaigns. The same is true of McCurry. And the Commission’s staff is teeming with high-ranking partisan operatives, including Party officials, lobbyists, and donors.

Before the CPD, Presidential debates were staged by the nonpartisan League of Women Voters. Their neutrality, including their openness to third-party candidates, made it nearly impossible to recruit corporate sponsors. But when the CPD took control of the debates, the money began to flow from corporations like Philip Morris, Anheuser Busch, J.P. Morgan, AT&T, and IBM. Why would these companies want to contribute now when they didn’t before? It is very hard to believe that change has nothing to do with their believing they now get something valuable in return that they didn’t get before.

1. The CPD gives these corporations an easy way to influence both the Republican and Democratic parties with just one donation. This secures their seat at the table, regardless of which Party is in power.

2. CPD sponsorship gives corporations direct access to the Presidential Campaigns themselves. As Charles Lewis, Founder and former Executive Director of the Center for Public Integrity, has observed, CPD sponsors “get close access to both parties’ Presidential candidates It’s another way to curry favor with the powers that be.” One former CPD Director conceded during an interview with longtime CPD critic George Farrah that corporations contribute to the CPD precisely to obtain such “access.”

3. Because the CPD claims to be “nonpartisan,” these donations are exempt from the FEC’s disclosure requirements. This allows the CPD to conceal both the identity and the amount contributed, an easy way for corporations to have influence without the public even recognizing that influence. And to add insult to injury, the public subsidizes this influence because these “charitable contributions” are tax deductible.

Thus just at the moment that Americans have become most weary of both the Republican and Democratic parties, the CPD has crafted a system of rules and financial influence that make it practically impossible for an independent to participate in the debates. Even Ross Perot couldn’t meet the current standards. which is precisely CPD’s purpose in crafting the rules as they have.

Some corporations have objected to these practices. Philips, for example, pulled its support for the CPD because rather than being “nonpartisan,” its “work may appear to support bi-partisan politics.”

Yet too few outside of Washington have taken notice of how here again, money gets used to entrench the status quo. If America were happy with that status quo, that might be a fine thing. But in an America in which more than 40% affiliate with “none of the above,” yet another institution devoted to entrenching a polarized bipartisan squabble is just what we don’t need.