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Ruling on 2010 ONO TV debate gives Socialist Party candidate a new day in court

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Dan La Botz may want to add United States District Judge Rudolph Contreras to his Christmas card list this year or at least send him a thank you note. The decision made Wednesday by Judge Contreras, that the Federal Elections Commission is being remanded a case brought by Mr. La Botz that claims unfair treatment by a consortium of Ohio newsgroups who only included the two most popular candidates in televised debates, gives the 2010 candidate a chance to argue to the FEC to not let history repeat itself, as may happen again this year as ONO gears up for TV debates between major party candidates vying for another U.S. Senate seat.

The court concluded that the FEC’s decision to dismiss Mr. La Botz's complaint was not supported by substantial evidence and denied it. The matter has been remanded back to the agency.

Dan La Botz is a member of Ohio’s Socialist Party who ran an unsuccessful candidacy for the U.S. Senate in 2010. La Botz claims that he was unfairly excluded from three televised debates that took place in October 2010, the month preceding the election. He filed an administrative complaint with the FEC alleging that his exclusion from the debates violated the Federal Election Campaign Act (“FECA”).

FECA prohibits corporations from making financial contributions in connection with any federal election, but in recognition of the importance that debates play in informing the electorate, the FECA allows corporations to defray the costs of nonpartisan televised debates. In allowing corporations to sponsor “nonpartisan activity designed to encourage individuals to vote or to register to vote ... "concluding that 'the debate medium through the TV . . . is not only important but probably vital and essential in today’s world of electronic communication.'” FECA allows corporations to provide financial backing to organizations that stage debates only if certain conditions are met to ensure that the debates remain nonpartisan.

Specific FEC regulations require that the debate staging organization may not “endorse, support or oppose political candidates” and the debate cannot be structured “to promote or advance one candidate over another” ... "When determining which candidates may participate in the debate, the debate staging organization must employ 'pre-established, objective criteria.'”

Candidate La Botz challenged the decision by the Ohio News Organization—the eight major newspapers in Ohio)—to invite only the "top two" candidates for Ohio's U.S. Senate seat to debate before live television audiences. The FEC ruled that ONO's decision was permissible under Federal law. Mr. La Botz appealed this decision to the United States District Court for the District of Columbia (Wash., DC), which reversed the FEC's conclusion.

The court ruled that federal law prohibits corporations, including news organizations, from providing benefits to candidates for federal office without doing so equally. Moreover, Federal law states that in order to do so equally, corporations that sponsor debates must use "pre-existing, objective criteria" that do not categorically include only the major parties' candidates. Court reports indicate ONO produced no evidence before the FEC that it employed pre-existing objective criteria to exclude Mr. La Botz. Rather, the ONO simply claimed that it picked the two most popular candidates, which is not permissible under federal law.

"While the ONO need not have included Mr. La Botz, it had to a least provide him with the criteria it employed to pick its participants. And these criteria could not simply be that it chose to pick the two major candidates," Judge Contreras wrote.

"I hope for a decision there [FEC], or if necessary back in the courts again, which would strengthen the rights of candidates to be heard by the public," La Botz said to CGE via email. "All certified candidates should have equal rights to present their views to the public. It is especially important at a time like this of high unemployment, housing foreclosures, rising educational debt, and growing numbers of people living on food stamps and other government assistance that people have an opportunity to hear the democratic socialist alternative."

The Cincinnatian said a profound transformation is needed that can put "power back in the hands of working people, the employed and the unemployed, those with unions and those without them, to create a government that would meet their needs and the needs of all. People have a right to hear that alternative put forward, and that opportunity was denied them in the November 2010 Senate election."

Mark Brown, a law professor at Capital University whose expertise includes minority party candidates and election law, said of the case going back to the FEC, "We could lose again. The FEC is terrible about federal election litigation and staging debates." Brown said the FEC cannot just approve what debate-stagers say about their criteria.

"Dan will never personally profit from this," he said, adding that it is possible, though, that the FEC could fine the campaigns of Rob Portman and Lee Fisher for participating on the grounds that they were conspirators with knowledge of what was going on. Brown said both the Portman and Fisher campaigns were sent letters at the time, so they knew about La Botz and his desire to be included in the televised debates.

ONO will conduct similar debates again this year between Sen. Sherrod Brown and Ohio Treasurer Josh Mandel. "If we can make this stick, in the future ONO can't do that, just can't the two major party candidates." Brown said its within the authority of the FEC to refer the matter for criminal prosecution, as they did with John Edwards, but that is unlikely to happen he said. By doing what they did, he said, ONO essentially gave money to the Portman and Fisher campaigns.

Although La Botz can't benefit and even though it may take a long time for the FEC to rehear the complaint, Brown said Scott Rupert, an independent running for the U.S. Senate, may want to know about it because ONO is planning to stage TV debates this year with Brown and Mandel. Rupert will be the La Botz of the 2012 campaign season.

Any person who believes a violation of the FECA has occurred may file an administrative complaint with the agency, which may investigate the matter and determine the appropriate course of action. If the FEC determines that no violation has occurred, it may dismiss the complaint, which it did with La Batz's complaint. La Botz had another life. Any one whose complaint has been dismissed may then file a civil action in this court to challenge the legality of the FEC’s decision, and that is what La Botz did.

The ruling represents one of the few times that the FEC has lost a debate case.

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