Skip to comments.Libertarians Win a Hearing in Debate Case
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
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.
No matter what side of the issue you are on I think we can agree that an organization who would attempt to avoid legal service is not one that should be hosting debates, no matter who funds them or who is in them.
Ping! Please add to your bump list?
Great! Bring all the candidates in. Libertarian, Socialist Party, Green, Constitutional Party, etc. Heck bring in the dog catchers as well. The more the merrier. Should be quite a show and draw record viewers from around the world.
Ironic that a libertarian is trying to use the government to force his way into a privately funded event.
I notice that too, nice catch.
Yet again the moral-liberal Me-ocrats in the so-called 'party of principle' have shown they are no friend of liberty or the rights of people to live in the kind of society they want to live in.
It's in the same place you find the right to privacy. Take a look.
OK, I really like the Libertarian Party.... but they should cope with the fact, that they are at the moment an irrelevant party. In order for a third party to join a debate it has to get some sort of popular support (e.g. Perot and the Reform Party).
no, I'm not. I know what libertarians believe - I hold some of the same beliefs.
Here's an analogies for you: The masters. Smoking bans in bars. Libertarians trying to get into a private event via the the court system.
The commission is a private organization. Not public. It's made up of the two parties. There is not constitutional authority that can give a private party the right to force their way into the debate. The debate is being held with privately raised funds as well.
This is almost as pathetic as the constitution party candidate saying he'll ban all abortions with an executive order that re-inteprets the 5th amendment.
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.
Flashbunny said: Ironic that a libertarian is trying to use the government to force his way into a privately funded event.
Reply: That's the point you failed to see. This lawsuit is being brought because this event is NOT being paid for by private money. ASU has only raised PLEDGES of $2.3 million to pay for this event. Their own budget shows a price tag of $2.5 million. Who is left holding the bag if they fail to come up with the rest of the money - the Arizona TAXPAYERS...
That's why this suit is being filed.
The REPUBLICAN party was once a "Fringe" third-party too.
Ah, the lawyers' anarchist party with its dream for a borderless nation of lawsuits speaks again! Anarchists haven't changed at all since the early 1900s, and they continue to support their friends in that other Party. And this is my polite way of saying it.
no, the suit is being filed because the libertarian party is unfortunately run by incompetents and babies.
There is no conspiracy to keep the libertarian party down. The party does that well enough on it's own.
LOL!!! Nader says the same thing.
The fringers are not part of the debates for the same reason children are not allowed to drive cars.
People are well able to see the shabby political product sitting on the LP shelf and choose, in a freewill choice freely made, to walk away from it. Any other explanation or rationalization is sour grapes.
Bush could pull a "Reagan" and insist on their inclusion or threaten to back out.
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