Leave the Debates Alone
Third-party candidates are planning to file another lawsuit to force themselves into presidential general-election debates. I’m not a lawyer, but I’m fairly certain that the lawsuit should fail on legal grounds -- and I’m confident that it would be terrible for democracy if it won.
The suit, which will be filed by the Green Party and the Libertarian Party, contends that the major parties -- which sponsor the events through the Commission on Presidential Debates -- are violating speech and antitrust law. I’ll defer to others on the antitrust issue, but it seems far-fetched to me. There is no “market” involved here, but an election.
As Dave Weigel reports, the lawsuit will allege that the debates “artificially advantage the Democratic and Republican Party candidates.” I don’t know what “artificially” means, but, yes, the debates advantage the major parties, in the same way a party advantages its own candidates over independent ones. And in the same way that any two parties -- which are private organizations -- are free to hold debates, and any two candidates are free to speak when, where, and how they wish. Such freedoms are central to the First Amendment, not violations of it. If the government organized such debates, the third parties might have a decent case. But presidential debates are voluntary collaborations involving the parties and the news media, which chooses to broadcast and stream them. That’s free speech. The lawsuit, however, is demanding government control over what the candidates and their parties want to do. 1
Regardless of the correct application of the law, it is in the interest of democracy to allow the two parties to organize debates as they choose. Democracy requires political parties. Of course, a two-party system isn’t the only way to organize a democracy, but it’s what the U.S. has, and it fits the unusual institutional arrangements set up by the Constitution. As such, I see no problem with the government allowing the two parties to (further) institutionalize their dominant positions through private behavior. 2
Moreover, while the ultimate effect of general election debates is widely overrated, the debates still serve some worthwhile functions. They educate the public at least a little (even if that’s mostly confined to teaching partisans what policies they are for, as opposed to helping people decide the candidate to vote for). And they push candidates to make promises on substance and style, which is healthy for representation, and therefore for democracy.
So the debates work just fine. The courts should leave them alone.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
I'm skeptical of such government control when it comes to campaign finance law, but the damages to democratic equality are certainly more severe from unlimited donations than they are from allowing the major parties to behave how they wish. Especially since one option for anyone is to join those parties!
Much more complicated are efforts by the parties to enforce their dominance through government action -- such as making it easier for the major parties to qualify for the ballot, or in campaign finance laws which might favor the major parties. I personally don’t have a problem with those -- supporting parties is good in my book, and the Republicans and Democrats are the ones that matter -- but I can see an argument the other way. Here, though, there’s no government involvement.
Certainly respectable arguments exist for multiparty elections ... along with a parliamentary system and, most likely, proportional representation. But trying to use government to force a multiparty system on current U.S. institutions is a very different kind of reform.
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