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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

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
If taxpayer dollars are going to be used, then they'd better buy a third chair...

They don't have to buy a third chair. All they need to do is let him and the Socialist have access to the room the next night. Case closed.

81 posted on 10/11/2004 6:10:01 PM PDT by WildTurkey
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To: Protagoras
Nobody's "afraid" of anything.

A presidential debate is between serious candidates who have a chance of winning.

Bednarik...well you know the rest.

82 posted on 10/11/2004 6:10:53 PM PDT by sinkspur ("I exist in the fevered swamps of traditional arcana. "--Cardinal Fanfani)
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To: dAnconia

If that is your augment. Every candidate would have to be there at the debate It would be like the California recall election debate where there were dozens of candidates. You don't learn anything there except who is the best one line artist. I think it should be canidates that have a chance to win. Ross Perot had a chance to win, but all he did was put Bill Clinton into the white house, he took all the moderate votes from Bush 41.

83 posted on 10/11/2004 6:11:12 PM PDT by OKSTATE99 (Oklahoma Republican)
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To: logician2u

I approve of that clause in the Arizona constitution.
Otherwise, though, I am more confused than I was before concerning exactly who is responsible for the debates.

84 posted on 10/11/2004 6:11:17 PM PDT by Sam Cree (Democrats are herd animals)
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To: Republican Wildcat
. . a very serious and important role. It is not about a freak show.

From the comments I've seen here following the recent Bush/Kerry "debates," I would have to disagree with you, RW. Kerry has been called everything but human.

If you can, put yourself in the shoes of the estimated one-third of the voting-age population which aligns itself with neither of the dominant political parties. Then ask yourself, why am I asked to choose between the candidate from Socialist Party A and Socialist Party B, whose disagreement on the most trivial matters would, to an outsider, seem almost contrived.

As a political junkie, you no doubt are familiar with what the Libertarian Party stands for, are you not? And the Constitution Party, also? And the Reformers, if they have a platform left after the 2000 fiasco?

Don't you think the vast unwashed who read only the sports page and maybe the horoscope column in the daily papers are entitled to know that there are valid points of view other than that enunciated by spokesmen for the dominant socialist/fascist parties?

85 posted on 10/11/2004 6:13:18 PM PDT by logician2u
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To: Barlowmaker

You may be right about the Whigs... I apologize. I should have picked a more reliable source of information before posting...

By the way, the source I used was the GOP website...
"In 1856, the Republicans became a national party when John C. Fremont was nominated for President under the slogan: "Free soil, free labor, free speech, free men, Fremont." Even though they were considered a "third party" because the Democrats and Whigs represented the two-party system at the time, Fremont received 33% of the vote. Four years later, Abraham Lincoln became the first Republican to win the White House."

86 posted on 10/11/2004 6:13:19 PM PDT by LibertyRocks (It's been a long time - hello to old friends here! (o:)
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To: Protagoras
If you want PRIVATE debates, let the Parties involved pick up the cost. ALL of it. Otherwise, it's not private.

It will not be known till AFTER the debates how the money was raised. Until the debate is done, Mr. B is not harmed.

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

87 posted on 10/11/2004 6:13:19 PM PDT by WildTurkey
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To: z3n
I tend toward Libertarianism..

However, much as I would like to see a Libertarian candidate in the debates, the party is not ready...
The Libertarian party still does not have it's act together..
It continues to support unrealistic goals, ( legalization of drugs ) ignore constitutional responsibilities, ( defend our borders ) and generally act like a geeky boys club instead of a political party..

Libertarians need to set Realistic Political Goals that fall within their philosophy.. show some responsibility..

In the meantime, I'll vote for Bush.. He's earned it..

88 posted on 10/11/2004 6:14:29 PM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: sinkspur
It is not about fear; it is, in fact, about "embarrassment." Bednarik is even further left than Kerry in the war on terror.

Not even Kerry believes that 9/11 was the fault of the U.S. At least I don't think he thinks that.

89 posted on 10/11/2004 6:14:48 PM PDT by WildTurkey
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To: Protagoras

no, not the first thing I got correct. Maybe the first thing you understood.

The parties involved - the republicans and democrats don't pay for all the cost. It's paid for by donations.

Most likely the sites for these debates all lobied for them to be held there. It's their responsibility to make sure they are paid for. Maybe next time they should hold it at a regular private theater and forget about trying to make these universities happy for the publicity. Maybe that will keep the small government libertarians happy next time.

I guess my analogy was a little off...because bednarik isn't even a resident of arizona - he's a resident of texas. So my analogy would have to be changed to a someone from texas lobbying to get a part in a play in arizona because it's being held at a public university in arizona.

Bednarik has no standing as a 'wronged' person in this case - he isn't an arizona resident. So trying to force his inclusion on the grounds they claim is even more absurd.

90 posted on 10/11/2004 6:16:45 PM PDT by flashbunny
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To: Protagoras

Did you watch the Mr. B. debate on 10/6?

91 posted on 10/11/2004 6:16:53 PM PDT by WildTurkey
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To: sinkspur
A presidential debate is between serious candidates who have a chance of winning.

It's important to recognise that that is YOUR definition.

And the truth is, both of the major parties are scared to have any different ideas introduced to the public. It muddies up their little game and may result in them having to answer some really tough questions. They sure don't want that.

92 posted on 10/11/2004 6:19:03 PM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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To: 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.

It's easy to knock down strawmen of your own imagination. Just make stuff up,,and deabte yourself! LOL

93 posted on 10/11/2004 6:21:08 PM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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To: dAnconia
"Is that why you are so against the inclusion of a legitimate third party candidate?"

I am not particularly against the inclusion of a libertarian candidate on principle. If taxpayer funds are being used to stage the "debates," I kind of think that everyone on the ballot should be represented.

I was thinking that the debates were privately funded, but if I'm wrong in that, and it's starting to seem that I am, then I am probably inclined to change my position.

I note that the Florida ballot includes 4 names other that the big 2, including Socialist Workers Party, Green, Constitution, Reform.

94 posted on 10/11/2004 6:22:34 PM PDT by Sam Cree (Democrats are herd animals)
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To: WildTurkey
Did you watch the Mr. B. debate on 10/6?

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

95 posted on 10/11/2004 6:23:11 PM PDT by Protagoras (When your circus has a big tent, you can fit a lot of clowns inside)
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To: Drammach

Well put.

96 posted on 10/11/2004 6:23:51 PM PDT by WildTurkey
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To: flashbunny

Badnarik isn't the one suing. The Arizona LP is suing ASU and the CPD, on behalf of their membership and the residents of Arizona.

97 posted on 10/11/2004 6:23:55 PM PDT by LibertyRocks (It's been a long time - hello to old friends here! (o:)
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I agree. But read my post #67, my problem lies with the funding of national campaigns by the Federal government.
If I vote GOP or Dimokrat, I still believe that my taxes should not go to pay for the other side. Or my side.
Using taxpayer funds for ANY political campaign is WRONG! PERIOD!
The way it is set up now, only two parties can ever hope to be heard.
The MSM knows and supports this.
If you treasure freedom of thought, you should be all for the repeal of all campaign finance laws.
Those who benefit are not likely to allow that.

98 posted on 10/11/2004 6:27:26 PM PDT by dAnconia (When someone makes something idiot-proof, someone else will just make a better idiot.)
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To: Protagoras

If you really want to get torqued, go here!

99 posted on 10/11/2004 6:27:44 PM PDT by WildTurkey
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To: WildTurkey

Mr. Badnarik is not the one claiming to be harmed in this lawsuit. He is not suing. The Arizona LP is. They are also stating that it is taxpayers who are being harmed already as ASU has only gotten PLEDGES of support from these private organizations and the costs of the debates so far have been borne at least in part by the university themselves.

100 posted on 10/11/2004 6:29:25 PM PDT by LibertyRocks (It's been a long time - hello to old friends here! (o:)
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