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Libertarians Win a Hearing in Debate Case
The New York Sun ^ | October 11, 2004 | Josh Gerstein

Posted on 10/11/2004 4:55:37 PM PDT by 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.


TOPICS: News/Current Events; Politics/Elections; US: Arizona
KEYWORDS: asu; badnarik; bush; bushagreatleader; bushweloveyou; candidates; debates; election; electionpresident; ilovebush; kerry; libertarian; president; presidentbush2005; reelectbush; smokeadoobie; thirddebate; votebush2004; votegwb2004
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To: LibertyRocks

These "debates"........................

TV shows, nothing accomplished, entertainment for the masses.



321 posted on 10/12/2004 11:08:56 AM PDT by WhiteGuy (Congress shall make no law... abridging the freedom of speech, or of the press...)
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To: flashbunny

Doesn't sound like it is privately funded yet.


322 posted on 10/12/2004 11:10:57 AM PDT by Paladin2 (SeeBS News - We Decide, We Create, We Report - In that order! - ABC - Already Been Caught)
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To: Triple

but there lies the hypocrisy of the libertarian candidate - it's not right if it's publicly funded and he's not included, but if he is included, he's alright with the public funding.

Also, what defines access? That he gets into the event, or that he gets onto the stage?

By their logic, any meeting or event held in a public forum that isn't entirely paid for by private funds will be held according to the whims of anyone who sues. Community theater play at the high school that isn't entirely 'paid for'? Well then, just sue them, and you'll get a part in the play.

That's the real issue here, and many people seem to be missing it: They're not just suing to stop the debate because it's publicly funded, they're suing to stop the debate UNLESS bednarik gets a spot on stage. In which case, public funds going towards a private event is just a-ok!

And again, he has no standing to interject himself into the debate. He's not a resident of arizona, so he's not one of the harmed parties. All the harmed parties could do (being AZ residents) is have the debate cancelled.


323 posted on 10/12/2004 11:19:58 AM PDT by flashbunny
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To: TheSpottedOwl

I really haven't studied the issues of the other candidates. I just think they should be heard at least in the earlier part of the campaigns.


324 posted on 10/12/2004 11:24:43 AM PDT by MistyCA
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To: Protagoras

Oh sure, the LP, whose vote tally is within the margin of error of absolute zero, doesn't want to promote drug use. It's only when the spotlight is on that they don't mention it. Now they crow about smaller goverment as if that is their main goal. First the LP is in bed with the drug addicts, now with the Greens. What's next? LOL.


325 posted on 10/12/2004 11:26:14 AM PDT by Moonman62 (Federal Creed: If it moves tax it. If it keeps moving regulate it. If it stops moving subsidize it.)
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To: tpaine
Democrats like playing the victim game, too. Someone is punished not because they broke the rules and did something wrong, but because someone told. It is that infantilism and shirking of personal responsibility which keeps the LP's philosophy in the fringe zone.
326 posted on 10/12/2004 11:34:49 AM PDT by Cultural Jihad
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To: Moonman62
doesn't want to promote drug use.

That's correct. Please provide any evidence to the contrary or withdraw your specious charge.

327 posted on 10/12/2004 11:35:26 AM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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To: Moonman62
Tell me, Moonman, if the LP really did promote drug use, as you say (not just legalization, as is in their platform, I believe), is that an automatic disqualifier for being heard in the political arena?

If so, what would you say about a party that promotes confiscation of private property, or wealth, or a ban on smoking in public places? Certainly, these ideas are being talked about openly by candidates running on the major parties (not to mention the prevalent idea that the United States engage in a perpetual war on "terrorism," wherever that may lead). And the detrimental economic and societal consequences, should such policy be enacted into law, must be at least on par with drug use. Yet I hear no one demanding that politicians advocating such ideas be silenced, or that their parties be excluded from the national presidential debates.

Is there a double standard at work here? It think so.

328 posted on 10/12/2004 11:41:47 AM PDT by logician2u
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To: tpaine
I just hate the divisive hypocrisy which you communitarian cultists parade, preach, and proselytize.

Borking is ugly business, and ugly business calls for ugly practices.

329 posted on 10/12/2004 11:45:04 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: sr4402
This thread seems to be assuming that the rules of the debate are prejudicial against this particular candidate. If so, what are the rules and how is it prejudicial?

The rules of the debate are that invitations are issued to candidates which poll at or above 15% in nationwide surveys.

How that objective criterion is prejudicial against the lunatic fringe, I do not know...

330 posted on 10/12/2004 11:47:31 AM PDT by Chemist_Geek ("Drill, R&D, and conserve" should be our watchwords! Energy independence for America!)
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To: logician2u
Is there a double standard at work here? It think so.

No, the LP is a joke and everybody knows it. Like I said, the votes they got in the 2000 election were within the margin of error of absolute zero. Probably all people in Palm Beach who thought they were voting for Al Gore. LOL.

331 posted on 10/12/2004 11:51:56 AM PDT by Moonman62 (Federal Creed: If it moves tax it. If it keeps moving regulate it. If it stops moving subsidize it.)
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To: Cultural Jihad
DC can't play in the game any more. It seems our jihadist complained, and his seat at the table was removed.

Someone is punished not because they broke the rules and did something wrong, but because someone told.

You got it kiddo. -- DC's remark to you was about par for the course on todays FR. -- Only your complaint made it a 'punishable offense'.

It is that infantilism and shirking of personal responsibility which keeps the LP's philosophy in the fringe zone.

Trying to tie your sad little personal spat with DC into the "LP's philosophy" is a fine example of infantile shirking or your part CJ. -- Get real.

332 posted on 10/12/2004 11:55:12 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Protagoras
Please provide any evidence to the contrary or withdraw your specious charge.

Ewwww, I'm so scared. You and the three other people in the LP have accused me of a specious charge. Perhaps you and the Greens can break into your munchie funds and sue me for slander. LOL.

333 posted on 10/12/2004 11:56:00 AM PDT by Moonman62 (Federal Creed: If it moves tax it. If it keeps moving regulate it. If it stops moving subsidize it.)
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To: tacticalogic
I just hate the divisive hypocrisy which you communitarian cultists parade, preach, and proselytize.

Borking is ugly business, and ugly business calls for ugly practices.

Indeed it does.. And you want ugly? We got plenty of ugly Borkists at FR.

334 posted on 10/12/2004 12:00:17 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Moonman62
No need to sue anyone. You have shown yourself to be a twit. Case closed.

BTW, genius, I have no connection whatsoever to the LP.

335 posted on 10/12/2004 12:23:51 PM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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To: LibertyRocks

What debate? [/sarcasm]


336 posted on 10/12/2004 12:54:56 PM PDT by PsyOp (Any man can make a mistake; only a Democrat keeps making the same one.)
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To: ImpBill

I saw Bednarik in Sandusky, Ohio.....yikes!! I could only stand ~5minutes of his rhetoric. When he stated that 92% of the Iraqui people hate us, I left. Talk about spewing garbage! As far as the debates, hey bring it on! I haven't reviewed the Federal Election guidlines, but if they allow inclusion of minor candidates, let them speak.


337 posted on 10/12/2004 2:30:45 PM PDT by village idiot
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To: village idiot
I was making an attempt to be sarcastic. For my money, which isn't worth much, I would like NOT to have any more TV debates. This was a way to make the debate even more ridiculous than they already are as they aren't really "debates" but news-people and campaign staffs taking advantage of playing "gotcha".

That's all.

338 posted on 10/12/2004 2:49:28 PM PDT by ImpBill ("America! ... Where are you now?")
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To: Cultural Jihad

Well, first off, it's not "every infantile flake". It's someone who has made the ballot in the state. In nearly every state. 49 of the 50 states. That's a significant effort. Now, it DOES take some work to get on the ballot in each state. If you deny that, you're lying to yourself and to all of us. So, why is it that they're good enough to meet the state requirements to be on the ballot, but not be a part of the debate? Could it be that ideas that are dangerous to both the behemoth candidates (smaller government, less taxes, personal freedom) would actually be muttered in a nationally televised event. They should have at least one. Every time. If you've made it on at least 50% of the ballots, you've made a significant effort, so you get to actually participate. Maybe even if it was made 100% of the ballots. This year, the LP wouldn't make it, but next time, they'd be back. So would others.

It could make for an interesting debate to allow them in. Instead of this scripted campaign commercial they've turned into.

Paul


339 posted on 10/12/2004 4:25:09 PM PDT by spacewarp (Visit the American Patriot Party and stay a while. http://www.patriotparty.us)
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To: tpaine

Be careful, or you may get reported too.....

Paul


340 posted on 10/12/2004 4:35:06 PM PDT by spacewarp (Visit the American Patriot Party and stay a while. http://www.patriotparty.us)
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