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Legal Wrangle Over Debates And Who Picks Electoral Victors

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Attorneys for the debates commission defend the selection criteria, saying it would be impossible to accommodate all candidates. A line must be drawn, they say, so that the true front-runners can engage in a meaningful debate to help voters decide on the next president.

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"Not only are the Commission on Presidential Debates criteria completely lawful, but they are fair and make an awful lot of sense," says Lewis K. Loss, a Washington lawyer who represents the commission. "There are over 130 declared candidates. Obviously they can't all participate in the debates."

Mr. Loss adds that a 1987 appeals court decision in a similar case is binding legal precedent, which means Hogan can't ignore it. The decision supports the contention that candidates for president from "minor parties" have no constitutional right to inclusion in televised debates.

The decision by the US Court of Appeals for the District of Columbia says in part: "While ... inclusion in the televised debates undoubtedly would have benefited their campaign, the Supreme Court has held that the Constitution does not demand that all candidates be subsidized to the point that all are equal in terms of financial strength and publicity."

Attorneys for Perot and Hagelin counter by citing a different case, a decision written last month by Judge Richard Arnold, of the Eighth US Court of Appeals.

In that case, the three-judge panel found a government-run television station in Arkansas violated the First Amendment rights of Ralph Forbes, a third-party candidate for Congress. He was excluded from a 1992 televised debate because station officials decided he had no chance to win the election.

Judge Arnold wrote in part: "The question of political viability is, indeed, 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."

He added, "If Mr. Forbes can be excluded today, a Republican or a Democrat who is believed to have no chance of success could be excluded tomorrow."

Jamin Raskin, a law professor at American University in Washington serving as one of Perot's lawyers, says the same legal principle should apply in presidential debates.

"It is undemocratic to use predictions of election results. The Constitution tells when elections will take place and it is impermissible to replace the public election process" by assuming certain candidates will lose, he says. "In our democracy debate comes before election."

Until the mid-1980s, presidential debates were sponsored by the League of Women Voters. But it dropped the debates under pressure from both major parties for control of the debate format.

With the League gone, the debates commission runs the debates in accord with Federal Election Commission regulations. Those regulations mandate in part: "For all debates, staging organizations must use pre-established objective criteria to determine which candidates may participate in a debate."