From Richard Winger at Ballot Access News:

On September 11, 2014, Level the Playing Field asked the Federal Election Commission to revise its regulations on general election debates for President. Any group is free to ask the FEC to revise its regulations. When the FEC receives such a request, it asks for comments. The comment period for this proposal closed on December 15, and soon the FEC will consider the suggestion. All six Commissioners had voted on November 6 that the Level the Playing Field request meets the requirements for being considered.

The Commission on Presidential Debates has a monopoly on general election presidential debates, because it always requires the two major party presidential nominees, and the two vice-presidential nominees, to promise that they won’t appear in any other general election debates. The Commission won’t invite anyone who is not at 15% in the polls.

Level the Playing Field has submitted convincing evidence that the 15% poll rule, in practice, will never be met by anyone but the Democratic and Republican Party nominees, and therefore the Commission’s practices violate federal law and regulations.

The CPD debates cost millions of dollars, and the expenses are paid by profit-making corporations. Federal law and regulations do not permit corporations to make campaign contributions to candidates for federal office. Therefore, the only reason they can make contributions to the CPD debates is because, in theory, the debates are non-partisan and non-discriminatory.

In practice, Level the Playing Field argues, it will be impossible for anyone who is running for President, but who is not a Democratic or Republican Party nominee, to ever meet the 15% requirement.

No one, no matter how appealing, can rise to that level of support without either being introduced to the public by running in the major party presidential primaries, or by spending $250,000,000, according to LPF.

Republican and Democratic nominees always easily meet the 15% poll requirement, because they rely on hardcore partisan support. The nominees invariably become familiar to the public because the mainstream press fully covers the Democratic and Republican presidential primary process. Major party members running for their party’s nominations inevitably participate in dozens of primary season debates, spanning an entire year before the major party national conventions.

Level the Playing Field is a new organization formed by the same people who organized Americans Elect in 2010. Americans Elect was created to put a presidential nominee on the November 2012 ballot who had been chosen by voters via the Americans Elect June 2012 presidential primary. Americans Elect qualified for the 2012 ballot in 28 states, before its leaders concluded that no presidential candidate of any substance wanted the Americans Elect nomination. Americans Elect leaders felt that they had trouble attracting high-qualify candidates because those candidates knew there was little chance for them to be in the general election debates. So, now, the Americans Elect founders are helping to try to improve the general election debates.

Level the Playing Field relies on two experts, Professors Larry J. Diamond and David C. King. The Diamond-King comment to the FEC may be seen at sers.fec.gov/fosers. Choose “2014” and then choose “2014-6” to see all the comments, including the Diamond-King comments.

Diamond is a Senior Fellow at the Hoover Institution, and is the Director of the Center on Democracy, Development, and the Rule of Law at Stanford. He is also the Faculty Co-Director of the Haas Center for Public Service.

King chairs Harvard’s Bi-Partisan Program for Newly Elected Members of Congress. He directs the Executive Program for Senior Executives in State and Local Government. In 2001, he directed the Task Force on Election Administration for the National Commission on Election Reform, which was chaired by Gerald Ford and Jimmy Carter.

Other non-partisan organizations that commented favorably on revising the debate rules include the League of Women Voters of the U.S., the Campaign Legal Center, and Fairvote.

Level the Playing Field specifically asks that polls no longer be used to determine who should be invited into the general election debates, but the FEC is free to revise the debate rules favorably, without necessarily choosing that particular idea. Level the Playing Field suggested that an invitation be extended to the non-major party presidential candidate who submitted the largest number of signatures on ballot access petitions, an idea that discriminates in favor of independent presidential candidates and the nominees of new parties, but against the older minor parties.

The attorney for the Commission on Presidential Debates, Lewis K. Loss, commented in opposition. His letter repeats the usual CPD argument that there are always “scores” of persons who run for President. However, in all U.S. history, there has never been a presidential election with more than seven candidates who had enough candidates for presidential elector to theoretically win the election.

See the July 1, 2007 Ballot Access News for documentation. In 2008, there were six candidates who could theoretically have won; in 2012, there were four.

Loss says “Any candidate with sufficient resources can gather signatures”. His point is that a candidate who can afford to pay petitioners can get on the ballot regardless of how much public support he or she has. This may be true, but the entire jurisprudence of ballot access is based on the idea that a signature on a petition means that the candidate or party has a modicum of support.

Loss also says, “To dictate criteria that would mandate the inclusion of candidates who have not demonstrated substantial electoral support would be to impose a particular educational purpose on the debates. That approach not only would be a substantial departure from existing law and regulations, it also would wrongly limit the sponsoring organization’s speech.”

But even existing rules control what debate sponsors may do. Existing rules already require sponsors to use “pre-established objective criteria to determine which candidates may participate” and already mandate that “the sponsor must not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate.” Existing rules also require that debates include at least two candidates, and mandate that the debates must be structured to be neutral.

Without these rules, the debate sponsors would run afoul of federal campaign laws, because without these rules, they would in effect be contributing to the campaign of a particular candidate or party, in excess of campaign contribution limits and rules against corporate contributions.

(Many individuals are confused about the U.S. Supreme Court’s 2010 decision Citizens United v FEC. That decision did not strike down existing federal law that makes it illegal for corporations to make campaign contributions).