The designated nonpublic forum: remedying the Forbes mistake.

AuthorCramm, Tim

Scholars say that 90% of the ideas that have shaped our democracy have come from third parties. These include a women's [sic] right to vote, abolition of slavery, and the minimum wage, all issues that had been ignored--vehemently opposed, actually--by the two main parties. If we close out the debates to third party ideas, we are sounding the death knell for democracy.--John Hagelin (1)

  1. INTRODUCTION

    In early 1998, former professional wrestler, movie star, and Navy SEAL Jesse "the Body" Ventura began to indicate that he intended to run in the Minnesota gubernatorial race. Ventura chose to run as a third party candidate: he had worked as a campaign manager for other Reform Party candidates in the past, and the Party felt he fit with the image of their founder, Texas maverick Ross Perot. (2) While Ventura's name recognition and offbeat antics initially endeared him to many voters, by late September his support in the polls had dropped to only 10%: by contrast, Hubert Humphrey III, the frontrunner, was generating 49% support. (3)

    A series of debates were scheduled to begin in early October. Despite Ventura's low support at the time, he was invited to participate, in large part because his staff chairman was also co-director of the "Minnesota Compact," a program geared toward improving the 1998 campaign (including the candidate debates). (4) As the debates went on, viewers warmed to Ventura's nonpartisan message railing against "politics as usual." (5) By October 20--less than three weeks after the first debate--Ventura's support had risen from 10% to 21%; meanwhile, Humphrey and his Republican foe, Norm Coleman, had fallen into a virtual dead heat. (6) One commentator noted that Humphrey's slide and Ventura's gain were both in large part due to their debate performances. (7)

    The debates continued. After the final debate, held in a public television station in October, Ventura's support had risen again, to 27%. (8) By the election, Ventura captured the state governorship with 37% of the vote, while Humphrey finished last with only 28%. (9) The Humphrey camp openly acknowledged that their biggest mistake in the campaign was insisting that Ventura be included in the debates. (10) In the end, Ventura's camp admitted that, had he not hit "a home run" in the first debate, his poll numbers likely never would have risen and he would not have been elected. (11)

    Jesse Ventura's story may be the exception to the rule, but it makes an important point: had the stagers of the debate chosen to invite only the major party candidates, Ventura almost certainly would not have been elected. There is no stronger illustration of the importance of debates in today's political world--particularly for third party candidates lacking the strong financial and historical support of a well-established campaign machine behind them. The Supreme Court once noted that "the primary values protected by the First Amendment ... are served when election campaigns are not monopolized by the existing political parties." (12) However, the Court made a mockery of that statement when it ruled, in Arkansas Educational Television Commission v. Forbes, (13) that public broadcasters could exclude third party candidates from debates so long as their reasons for doing so did not constitute viewpoint discrimination." (14) The Forbes ruling essentially closed the door to minor party candidates successfully campaigning for public office unless those candidates, like Ventura, are fortunate enough--either through name recognition or other political connection--to be included in the debates.

    The situation is no better for candidates seeking to participate in debates not hosted by public broadcasters. Under the current state of the law, these candidates cannot even be considered for inclusion unless they have significant support in national polls. (15) While many bills have come before Congress in the last decade seeking to change this requirement, none have passed. (16) And so the beat goes on.

    This article offers a new solution to deal with the problems faced by candidates in both the public and private broadcasting forums. Under the proposed doctrine of the "designated nonpublic forum," courts could require broadcasters--both public and private--to include in debates minor party candidates who satisfy certain preexisting objective criteria concerning their ability to prevail in the election. This doctrine rests heavily on the singular importance of debates as a means of information dispersal during elections, as well as on fundamental free speech principles favoring self-governance and a marketplace of ideas.

    Part II looks back at the history of presidential debates and demonstrates how a candidate's debate performance is often the difference between victory and defeat in the election. Part III discusses the challenges that have been made--both in the courts and in Congress--to the current system, that excludes most minor party candidates from debates, paying particular attention to First Amendment claims that have been raised and rejected (as was the case in Forbes). Part IV, after discussing the rights of broadcasters and the regulations imposed on them, looks at the forum doctrines and posits a place in the scheme for the designated nonpublic forum. Part V examines why this new doctrine is necessary: it explores the arguments for and against including minor candidates in debates, including free speech doctrines and the preexisting systemic bias against third party candidates. Part VI concludes by demonstrating how the designated nonpublic forum doctrine would apply to the question of debate participation and answers the question: Would the debates better serve the voting public by including third party and independent candidates?

  2. PRESIDENTIAL DEBATES AND THEIR IMPACT

    The issue of whether third party or independent presidential candidates should be permitted free and open access to debate forums is important from a First Amendment point of view. However, from a political point of view, the issue is crucial only if those debates from which a minor party candidate is excluded impact the electorate sufficiently to render the candidate's exclusion patently untenable. The Ventura story illustrates the most obvious impact: a third party candidate's debate performance may lead to a victory in the election. However, third party participation may have other impacts as well, such as bringing to the forefront issues on which major parties have not yet taken positions. (17) In order to examine the potential impact of presidential debates, their history must first be considered.

    1. Debates in the 19th Century

      Although presidential elections originated in the latter part of the 18th century, presidential debating is a fairly recent phenomenon. (18) During much of the 19th century, the thought of a man so distinguished as to be a candidate for President of the United States '"begging, imploring, and beseeching the people to grant him his wish"' was considered unseemly. (19) In place of direct candidate debates, surrogate debates were conducted on behalf of presidential candidates. (20) Often the surrogates were party leaders, members of Congress, state political leaders, or even former presidential candidates; both Henry Clay and Daniel Webster debated on behalf of Whig party candidates. (21) One advantage to using surrogates--particularly surrogates who were not yet prominent party members--was that they could raise character issues about other candidates without making their own candidate look like a mudslinger. (22) Abraham Lincoln, a surrogate debater on behalf of the Whig candidates in the elections of 1836, 1840, and 1844, freely attacked the Democrats for their jibes against Zachary Taylor. (23) However, for the most part the candidates themselves stayed out of the fray.

      While presidential candidates remained aloof from the debate forum, there were debates taking place between candidates running for other offices--most notably the debates between Republican Abraham Lincoln and Democrat Stephen Douglas during the 1858 Illinois Senate race. (24) These debates bore little resemblance to today's televised debates; each debate lasted three hours, during which each candidate spoke for ninety minutes (rather than fielding questions posed by a moderator). (25) The candidates debated seven times before thousands of boisterous spectators between August and October. (26)

      In the end, the debates produced two outcomes. Most immediately, they led to Douglas's election to the Senate. (27) Their more lasting effect, though was to catapult Lincoln to the forefront of abolitionist politics. (28) Lincoln stepped up his surrogate activities for other Republican candidates throughout the North and also oversaw the publication of transcripts and newspaper accounts of his debates with Douglas. (29) Douglas, on the other hand, lost support from Southern Democrats and other members of his party because of positions he had taken during the debates. (30) It is not unreasonable to argue that but for the Lincoln-Douglas debates, Stephen Douglas would have won the Presidency in 1860. (31)

      However, even though the debates between Lincoln and Douglas were widely attended, "they did not change the ways candidates for major office sought election. Few candidates followed their example, and they produced no public demand for more debates." (32) Not until the candidacy of William Jennings Bryan in 1896 did campaigning become an acceptable means for a candidate to convey his message to the people. (33)

    2. Early Broadcast Debates and Section 315

      By the start of the 20th century, campaigning had become a common tool for presidential hopefuls. Some presidential candidates, such as Theodore Roosevelt in 1904, still chose not to campaign at all, but for the most part the candidates were getting their message out to a wider audience. (34) The increase in campaigning did not, however, produce a...

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