Legal Wrangle Over Debates And Who Picks Electoral Victors

A team of lawyers is gearing up for a legal showdown this week over whether Ross Perot and other third-party candidates should have a spot on the stage at Sunday's nationally televised presidential debate.

The forum offers the biggest single audience a politician can get - about half of the eligible voters in America. But more than that is at stake, say third-party proponents. At issue is the openness and fairness of democracy in the United States at a time when many voters are deeply dissatisfied with how the political system operates. Still, critics see the legal challenge as a desperate gambit by marginal parties for an unearned role on center stage.

Tomorrow, a federal judge here will be asked to rule on the fairness of the decision to invite only President Clinton and his GOP challenger, Bob Dole, to participate in the two debates next month.

The fate of the debates themselves may hang in the balance should US District Judge Thomas Hogan find merit in the charge that the bipartisan Commission on Presidential Debates has abused its authority by maintaining a monopoly on the debates for the benefit of the Democratic and Republican candidates.

It remains unclear whether Mr. Clinton and Mr. Dole would agree to participate in an expanded debate should Judge Hogan order the commission to include Mr. Perot and perhaps other candidates.

"This is a case of extraordinary national importance," says Thomas Newmark, an attorney based in St. Louis who represents John Hagelin, the candidate of the Natural Law Party.

It was Mr. Newmark who first filed suit against the Federal Election Commission and the Commission on Presidential Debates to seek to reverse Mr. Hagelin's exclusion. Days later, a team of lawyers for Perot filed a similar lawsuit, adopting much of Newmark's legal work.

The central issue is whether the debates commission used unfair criteria to stack the deck against third-party candidates to exclude them from the debates.

Commission lawyers say the criteria were legal and fair.

The debate controversy arose on Sept. 17 when the debates commission, comprising an equal number of Democrats and Republicans, announced that it would extend invitations only to those candidates who have a "realistic chance of being elected" president.

The commission said that it consulted political pundits and journalists, and attempted to assess each candidate's level of public support by analyzing poll results and attendance at rallies.

Perot participated in the 1992 presidential debates and garnered 19 percent of the popular vote that year. This year he is on the presidential ballot as the Reform Party candidate in 50 states and has qualified for $29 million in federal campaign funds.

Hagelin is on the ballot in 45 states and in four others as a write-in candidate. He has qualified for $500,000 in federal campaign funds.

The commission's action has angered millions of American voters who feel their candidates should not be muzzled by a commission made up entirely of Democrats and Republicans.

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.

"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."

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