Libertarians Win a Hearing in Debate Case

The New York Sun ^ | October 11, 2004 | Josh Gerstein

[LibertyRocks]

Libertarians Win a Hearing in Debate Case
BY JOSH GERSTEIN - Staff Reporter of the Sun
October 11, 2004
URL: http://www.nysun.com/article/2962

The third and final debate between President Bush and Senator Kerry has been thrown into doubt after a state judge in Arizona ordered a hearing on whether the event, scheduled for Wednesday, should be halted because the Libertarian Party's nominee for president has not been invited.

Judge F. Pendleton Gaines III instructed the debate's hosts, Arizona State University and the Commission on Presidential Debates, to appear in his courtroom in Phoenix tomorrow to respond to a lawsuit filed last week by the Libertarians.

"I'm happy so far with the way things are going," an attorney for the Libertarian Party, David Euchner, said in an interview yesterday. "He did not have to sign that order. The fact that he did is a good sign."

The suit argues that the university is illegally donating state resources to the Republican and Democratic Parties by serving as host for a debate that showcases Messrs. Bush and Kerry but excludes their Libertarian counterpart, Michael Badnarik, who is on the ballot in Arizona and 47 other states.

"They can't have debates that make public expenditures for private benefit," Mr. Euchner said. "A.S.U. is spending its money in violation of the state constitution."

A spokeswoman for the university, Nancy Neff, said she was unaware of the hearing tomorrow. "If that's the judge's order, then we'll be there for sure," Ms. Neff said.

While the university is constructing a massive press filing center and has incurred large expenses for security, Ms. Neff insisted the debate will take place at no cost to taxpayers.

"We are not spending public money on the debate. We have underwritten it using private donations, in-kind gifts, and private foundation funds," the university spokeswoman said. "The price we've been working with is $2.5 million, and that's what we've been trying to raise," Ms. Neff said.

Major sponsors for the third debate include a heavy equipment maker, Caterpillar Inc.; a local utility company, APS, and an Indian tribal group that owns two casinos near Scottsdale, the Salt River Pima-Maricopa Indian Community.

Ms. Neff acknowledged, however, that the university has yet to raise all the funds required for the event, which is scheduled to take place at an auditorium on the school's Tempe campus, just east of Phoenix. "We're still raising money even as we work on it," she said, adding that at the last tally about $2.3 million had been pledged.

Mr. Euchner said the university's claim that no public money is involved is laughable. "The fact they've got their hat in hand helps us," he said. "The evidence is pretty clear that if there's a shortfall here that A.S.U. is holding the bag. They made, essentially, an interest free loan."

Mr. Euchner said the state's involvement in the debate is part of what many Libertarians see as a pattern of improper use of government funds to promote the two major parties. "Taxpayers foot the bill for the Democratic and Republican national conventions," he complained. "Anything they can get the taxpayers to pay for that way, they do it."

Several legal experts said the Libertarians face an uphill battle in attempting to use the so-called gift clause of the Arizona Constitution to block Wednesday's debate.

"It doesn't strike me as a very strong ground," an author of a book on the Arizona Constitution, Toni McClory, said. "It's not a violation of the gift clause if the state is getting something of real value." While state universities have been hosts to presidential debates in the past, Arizona State is the only one to do so this year.

Ms. McClory, who teaches at a community college near Phoenix, said the publicity surrounding the debate might be considered a substantial benefit to the university. "It's giving the university a great deal of public exposure," she said.

A law professor at the University of Arizona, Robert Glennon, said the court dispute is likely to turn on whether Arizona State is seen as discriminating against the Libertarians. He said offering the Libertarians the use of a similar facility on campus would probably be enough to fulfill the state's obligations.

"So long as the state has a nondiscriminatory policy, the fact that one particular party or one religion uses it is of no consequence," Mr. Glennon said. The professor noted that the requirements to bring a case for abuse of taxpayer funds are often lower in state courts than in the federal system, but he said he was surprised that the judge granted the Libertarians a hearing.

Judge Gaines was appointed to the bench in 1999 by Gov. Jane Hull, a Republican. In his show-cause order issued Friday morning, the judge also required that the university and the debate commission be served with the lawsuit by Friday afternoon. An attorney for the university accepted service, but security guards at the commission's headquarters in Washington ordered process-servers to leave the building, Mr. Euchner said.

Indeed, Mr. Badnarik and the Green Party nominee, David Cobb, were arrested Friday night after they crossed a police line at the presidential debate in St. Louis. Mr. Badnarik said he was trying to serve the lawsuit on a representative of the debate commission. The two candidates were released after being given tickets for trespassing and refusing a reasonable order from a policeman.

The commission, which is a nonprofit corporation, has insisted that it applies nonpartisan criteria to determine who is invited to the debates. The rules require that candidates have at least 15% support in national polls to qualify. None of the third-party candidates this year has met that hurdle.

Critics of the debate commission assert that it is little more than a front for the major parties. They note that the Democrats and the GOP issued a joint press release announcing the creation of the "bipartisan" commission and describing its purpose as facilitating debates between their "respective nominees." More recently, the commission has described itself as "nonpartisan," although its adherence to that standard remains in question.

Last month, a spokesman for the debate commission told the Sun that the panel could not comply with a provision in the agreement worked out between the Bush and Kerry campaigns that dictated the makeup of the audience for Friday's town meeting debate be one-half "soft" supporters of Mr. Bush and one-half "soft" supporters of Mr. Kerry. "We can't use soft Bush and soft Kerry supporters because we are a nonpartisan group, not a bipartisan group," said the commission spokesman, who asked not to be named. "We have said we'd use undecided voters."

In an interview with CNN last week, the editor in chief of Gallup, Frank Newport, said that more than 90% of those in the audience for Friday's debate had stated a "soft" preference for either Mr. Bush or Mr. Kerry. Mr. Newport did not indicate whether supporters of the independent candidate Ralph Nader or of Mr. Badnarik were considered for the audience.

In August, a federal judge in Washington sharply criticized the Federal Election Commission for ignoring evidence of bias on the part of the debate commission. Judge Henry Kennedy Jr. noted that in 2000 the debate commission gave security guards "facebooks" with pictures of third-party candidates and instructed the guards to prevent those in the photos from entering the debate venues, even with valid audience tickets. "The exclusion policy appears partisan on its face," Judge Kennedy wrote.

In a national poll taken in September, 57% of likely voters favored including presidential candidates other than the president and the Massachusetts senator in the debates. The survey, conducted by Zogby International, found 57% of likely voters in favor of adding Mr. Nader, and 44% in favor of including Mr. Badnarik.

[WildTurkey]

According to Libertarian philosophy, you have to wait until AFTER you are harmed before suing.

You have a vivid imagination. You haven't a clue about libertarian philosophy.

You mean that it is ok with Libertarians to sue BEFORE you are harmed? I thought their philosophy was "no-harm, no-foul". Where am I wrong?

[flashbunny]

You still have responded as to how your previous claim of...

"The Libertarians are not suing to be included. They are suing to prevent the use of taxpayer dollars to fund a PRIVATE event!"

with the first line from the article:

"The third and final debate between President Bush and Senator Kerry has been thrown into doubt after a state judge in Arizona ordered a hearing on whether the event, scheduled for Wednesday, should be halted because the Libertarian Party's nominee for president has not been invited. "

Your version is even different from the official bednarik web site:

“If all of the candidates were invited, it might be portrayed as an educational program,” says David Euchner, the Tucson attorney pressing the Libertarians’ case. “When legitimate candidates whose names will appear on the Arizona ballot are excluded, the only word for it is ‘campaign commercial.’”

So he's not against taxpayer money being used for the debate - only if it's held without him.

[LibertyRocks]

"the costs of the debates so far have been borne at least in part by the university themselves."

should read, "the cost of the debate so far has been borne at least in part by the university itself."

(I should probably finish editing _before_ I post, huh?) (o:

[WildTurkey]

They are also stating that it is taxpayers who are being harmed

They are NOT suing on behalf of the taxpayers.

[Protagoras]

I thought their philosophy was "no-harm, no-foul". Where am I wrong?

I can recommend some books about different political philosophies if you like.

You really should read up before you start spouting nonsense. It makes you look silly and kills any chance of credibility for your arguments.

[Sam Cree]

"otherwise every crackpot would have to be allowed on stage."

It would make more sense to limit it to just those who are actually on the ballot.

[WildTurkey]

I can recommend some books about different political philosophies if you like. You really should read up before you start spouting nonsense. It makes you look silly and kills any chance of credibility for your arguments.

Just tell me which one you think it is:

A) It is LP philosophy to only sue AFTER harm is done, or
B) It is LP philosophy to be able to sue someone before they harm you.

Simple. Select one.

I claim it is A but you don't want to select either. Why not?

[dAnconia]

And by the same standard, if the ASU debates are fully funded privately, then the organization holding the debate has the right to invite who it will.
Once again I am only trying to point out that our current system is geared by two parties, to remain two parties.
Campaign finance laws are structured to prevent any outside parties from gaining influence.
Still, I say put your money where you mouth is.
If you are GOP all the way, cool.
No one has the right to force others to fund ideas or idealists who are opposed to their own values.

[Sam Cree]

I would have thought you a libertarian.
Would it be possible to ask if you have a label that you consider appropriate for you political philosophy?

[Commie Basher]

Why are Bush and Kerry such frightened wimps that they fear openly debating third party challengers?

[Poohbah]

Well, there's always the mechanism built into the CPD policy by which the Libertarian Party gets automatically included in the debates: all they need to do is get to 15% in national polls.

[WildTurkey]

No, who did he debate and would I have learned anything new? I'm guessing not.

This is REALLY telling. Mr. B. goes on a national debate and Mr. P is not even aware that it occurred. And now Mr. P is upset that Mr. B is excluded from a national debate.

It seems that Mr. P. is not really very concerned about Mr. B and the LP when the people Mr. P. is arguing about are more informed than he is about the the LP and even took some time to watch the national debate that Mr. B. was in.

[flashbunny]

If they actually WERE suing on behalf of the taxpayers, they would ask that the debate be shut down unless all money has been collected before the debate.

They're not doing that.

Even though libertyrocks claims otherwise, they're suing because bednarik is not invited. Hell, even bednarik's web site claims they'd be ok with it if he was invited. Which just proved EVERYTHING I've been saying in this thread, even though I've been attacked for being untruthful.

[Sam Cree]

"And by the same standard, if the ASU debates are fully funded privately, then the organization holding the debate has the right to invite who it will."

Yes. I agree with your 108 pretty much on all points, with the possible exception that I don't see a 2 party "system" so much as just the 2 parties doing what they can to hold onto power. Yes to your thoughts on CFR, though.

[flashbunny]

just realized I should put untruthful down as 'untruthful', for the people that failed reading comprehension.

[Flux Capacitor]

----The Libertarin party is once again reminding me why I don't call my self a libertarian. They're sadly little more than a joke.----

Michael Badnarik guested on the Art Bell show this past weekend. Listening to him whine his way through a plea to be put into a debate hall with Bush and Kerry, three questions kept running through my mind:

1. Why should a presidential candidate now polling at around 1% on a good day be debating candidates with actual bases of support?

2. Coupled with this, why does a political party that, in 35 years of existence, has never managed to elect to national office so much as a CONGRESSMAN have any claim to a place at the presidential-debate table?

3. Why does Badnarik even care that he's not included in the debates, since John F'n Kerry is doing a fine job articulating his cut-and-run strategy on the War on Terror for him?

With what they're pulling now, I'm even less impressed with the Libertarians than I have been in the last couple of cycles. I'm libertarian in very many ways, but I want nothing to do with that party.

-Dan

[LibertyRocks]

I hadn't seen your post yet.... Here is my reply:

FIRST - and this is important - I am not a lawyer. I do not represent the LP, the AZLP, or any other part of the party at present time. Technically, I am a small "l" libertarian at the present time although I was active in the party a few years back. The following is my personal understanding of the case upon perusing the court documents and reading press releases, and media accounts of the events.

I believe your misunderstanding is where the media comes to play in all of this. The reporter is focusing on one aspect of the case. Unfortunately, it is a mere part and not the part of legal merit. The full charge against the university is such:

It is a misappropriation of taxpayer dollars to fund an event in which there are exclusionary practices. In other words, taxpayer dollars cannot be used to fund events in which private individuals or organizations could be deemed to profit and from which other parties are excluded.

The university's claim is that it is merely host to an event that will be paid for by private donations. The AZLP contends that taxpayer dollars are being used for this event.

Perhaps I didn't speak clearly in that post you cited either...
I said, "The Libertarians are not suing to be included. They are suing to prevent the use of taxpayer dollars to fund a PRIVATE event!"

Perhaps, I should have stated it as follows, "The Libertarians are not suing to be included. They are suing to prevent the use of taxpayer dollars to fund _what_ should_be_ a private event. Furthermore, they are suing for the right of inclusion if it is deemed that it is being funded with taxpayer dollars and therefore is a public event."

In any case, I don't want to unintentionally mislead anyone Republican, Libertarian or otherwise on the exact nature of the case so...

***I will post a better explanation of the case itself in a few minutes taken from a more "expert" source, along with links to the actual court documents.***

[dAnconia]

Thank you. I see what you mean. That clarifies my ideas,and I agree.

[dAnconia]

Please read my post #108.

[Poohbah]

I read it.

If the CPD wishes to say 15%, 10%, or 5%, or whatever figure in nationwide polling is the trigger for an invitation, then that's their call.

Faced with the decision between doing hard work to get up to 15%, or going judge shopping, the LP chose the latter.

F*** 'em.