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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: WildTurkey

#5 would be an especially good idea. At least give it back to the states and stop the federal government wasting taxpayers money on overhead when the states could do it more efficiently.


41 posted on 10/11/2004 5:36:29 PM PDT by flashbunny
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To: z3n

libertarian >>> Libertarian


42 posted on 10/11/2004 5:36:30 PM PDT by WildTurkey
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To: WildTurkey
Odd considering that these ideologues try to argue against drunk driving laws for the very same reason, that no one should be hindered from swerving just because they might careen into someone, or even hurt themselves down the road. Perhaps they can prove they were forced or defrauded by the Commission on Presidential Debates, since their 2000 standard-bearer had previously defended Osama bin Laden on the afternoon of September 11th as the poor victim of our foreign policy who was merely acting in self-defense against our supposed force or fraud.
43 posted on 10/11/2004 5:36:52 PM PDT by Cultural Jihad
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To: flashbunny
#5 would be an especially good idea. At least give it back to the states and stop the federal government wasting taxpayers money on overhead when the states could do it more efficiently.

Mr. B. is running for FEDERAL office on a platform to eliminate public education. Maybe you have more info on this but if the FEDERAL program is to eliminate state programs, isn't that a little against the grain of the constitution and states' rights?

44 posted on 10/11/2004 5:38:52 PM PDT by WildTurkey
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To: LibertyRocks
How utterly reprehensible to see people posting on FREE Republic saying that a "fringe candidate" who will be on the ballot in every state running for President should be denied the opportunity to debate.

Thanks, all you "The Republicans is mah TEAM!" nitwits for reminding me that so-called "conservatives" can be just as hypocritical and ignorant as the most mindless leftist shill.

45 posted on 10/11/2004 5:39:51 PM PDT by Jonathon Spectre (Nazis believed they were doing good.)
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To: WildTurkey

yes, it is. I wasn't commenting on the state programs (I even mentioned it going back to the states), just the federal involvement in public education---a place that it has no constitutional mandate to be.


46 posted on 10/11/2004 5:40:28 PM PDT by flashbunny
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To: z3n

I think the point is that Libertarians are using government coercion to force a private business to give them a public platform.


47 posted on 10/11/2004 5:40:53 PM PDT by Sam Cree (Democrats are herd animals)
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To: Barlowmaker

You missed my point. "Fringe" was in quotes because my point was that the Republican party was once a third party as well. My comment was meant to point out that simply because it is a third party doesn't mean it's on the fringe.

A questions: What would the Republicans have done back in the mid-1800s if the Democrats and the Whigs hadn't let Lincoln debate? What would your party have done then? Just given up and gone home? I think not.

Well, don't expect us to go home any time soon, either...
Another thing... If you REPUBLICANS who espouse smaller government and constitutional laws were doing your job - the Libertarians wouldn't be here in the first place!!!


48 posted on 10/11/2004 5:41:39 PM PDT by LibertyRocks (It's been a long time - hello to old friends here! (o:)
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To: Cultural Jihad
Thanks for reminding me. Bump this up to #1 on the list of things GWB fears from the LP:

1) 9/11 was the fault of the U.S.

Now that would be a tough one for GWB to answer in a debate.

49 posted on 10/11/2004 5:41:50 PM PDT by WildTurkey
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To: Sam Cree
. . a private business . .

I think you have to consider ASU a public university. At least it used to be.

50 posted on 10/11/2004 5:42:47 PM PDT by logician2u
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To: LibertyRocks
A questions: What would the Republicans have done back in the mid-1800s if the Democrats and the Whigs hadn't let Lincoln debate?

Sued them?

51 posted on 10/11/2004 5:43:06 PM PDT by WildTurkey
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To: Jonathon Spectre
How utterly reprehensible to see people posting on FREE Republic saying that a "fringe candidate" who will be on the ballot in every state running for President should be denied the opportunity to debate.

He has an opportunity to debate; he merely needs to be at 15% in nationwide polls.

Of course, getting to 15% is too much like work for some folks.

52 posted on 10/11/2004 5:43:27 PM PDT by Poohbah (SKYBIRD SKYBIRD DO NOT ANSWER...SKYBIRD SKYBIRD DO NOT ANSWER)
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To: Jonathon Spectre
How utterly reprehensible to see people posting on FREE Republic saying that a "fringe candidate" who will be on the ballot in every state running for President should be denied the opportunity to debate.

Thanks, all you "The Republicans is mah TEAM!" nitwits for reminding me that so-called "conservatives" can be just as hypocritical and ignorant as the most mindless leftist shill.

Please. That's pathetic. The main argument, which you've obviously ignored, is that there is no legal authority for this candidate to interject himself into what is basically a PRIVATE event. It goes against what the libertarian philosphy is supposed to stand for. It's hypocrisy.

Thanks for reminding me why I dislike the 'fringe' parties- they're willing to argue for certain principles when they benefit them, but once those same principles harm them, they'll run crying for the government to fix it for them.

It's just sad.
53 posted on 10/11/2004 5:44:05 PM PDT by flashbunny
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To: logician2u

OK, but is ASU the sponsor or the setting?


54 posted on 10/11/2004 5:44:29 PM PDT by Sam Cree (Democrats are herd animals)
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To: flashbunny
Ironic that a libertarian is trying to use the government to force his way into a privately funded event.

It would be if that were the case. But the contention is that the funds are public, not private.

I think it's ironic that people who say things like that feel the need to obfuscate the issue.

55 posted on 10/11/2004 5:44:34 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
In today's activist judicial world, where the breaks always fall Democrat, who's to say that this isn't really a cover story by the Democrats to weasel out of the third debate so as not to give George Bush one more national stage to shine on?

-PJ

56 posted on 10/11/2004 5:45:23 PM PDT by Political Junkie Too (It's still not safe to vote Democrat.)
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To: LibertyRocks
Well, don't expect us to go home any time soon, either... Another thing... If you REPUBLICANS who espouse smaller government and constitutional laws were doing your job - the Libertarians wouldn't be here in the first place!!!

Libertarians are more concerned with legal drugs than smaller government.

57 posted on 10/11/2004 5:45:56 PM PDT by WildTurkey
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To: z3n
If Bush and Kerry have nothing to fear from these "embarassment" candidates and parties, why would they throw out the debate? just to keep them from being heard? What?

The Libertarians are not a serious party. They attract fringe voters (witness their pathetic, and declining, performance over the last four presidential cycles).

It is not about fear; it is, in fact, about "embarrassment." Bednarik is even further left than Kerry in the war on terror.

Then there's that ole drug thang....

You can't really be serious about this. As someone else said, do the hard work and get 15% support, then you'll be allowed in. Suing your way into the debates is childish.

58 posted on 10/11/2004 5:46:41 PM PDT by sinkspur ("I exist in the fevered swamps of traditional arcana. "--Cardinal Fanfani)
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To: z3n
Libertarian party is definately not well run at the mommet, or well represented.

Or well liked, and this latest stunt isn't going to help in that regard.

59 posted on 10/11/2004 5:46:55 PM 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: sinkspur
The fringers are not part of the debates for the same reason children are not allowed to drive cars.

Typical goofy comment.

If you think that Democrats are adults and Libertarians are children, you shouldn't be allowed to post anymore than children should be allowed to drive.

60 posted on 10/11/2004 5:47:34 PM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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