O’Malley Raises Legal Questions About DNC Debate Plan's Exclusivity Clause: “Legally Unenforceable"

[bigtree]

Alex Seitz-Wald ?@aseitzwald 9m9 minutes ago
SCOPLET: O'Malley attorney raises legal question with DNC's debate process. http://www.msnbc.com/msnbc/martin-omalley-raises-legal-questions-democratic-debate-plan …

In a memo shared with msnbc, O’Malley attorney Joe Sandler, who formerly served as the DNC’s general counsel, calls the DNC’s debate plan “entirely unprecedented” and “legally problematic.”

Of particular concern to O’Malley is the DNC’s exclusivity requirement, which would punish candidates and debate sponsors who participate in unsanctioned debates by barring them for participating in remaining official events. The DNC’s goal was the limit the unwieldy sprawl of the last Democratic primary in 2008, when the number of debates mushroomed to about two dozen.

But O’Malley’s attorney says that exclusivity clause is “legally unenforceable.”

“Under Federal Election Commission rules, the format and structure of each debate must be controlled exclusively by the debate sponsor, not by any party or candidate committee,” Sandler wrote in the memo.

The six debates are sponsored by 10 media outlets and one non-profit organization. “Legally the DNC cannot dictate the format or structure of any debate sponsored by a media outlet or 501(c)(3) organization – including the criteria for participation,” Sandler added. “It would be legally problematic if any of the sponsors of the sanctioned debates has actually agreed to the ‘exclusivity’ requirement. And in any event, it is highly unlikely that any of those sponsors of the sanctioned debates would ultimately be willing to enforce that ‘exclusivity’ requirement.”

article: http://www.msnbc.com/msnbc/martin-omalley-raises-legal-questions-democratic-debate-plan


read memo:

MEMORANDUM FOR O’MALLEY FOR PRESIDENT CAMPAIGN FROM: Joe Sandler SUBJECT: DNC Debate Announcement

The DNC’s announcement last week of a certain number of DNC-sanctioned debates, among the candidates for the Democratic nomination, is consistent with its approach in prior election cycles. But the DNC’s effort to force debate sponsors to exclude candidates who participate in other debates is unprecedented and legally unenforceable. On May 5, 2015, the DNC announced a set of “key principles guiding the process of putting together a debate schedule.” Among those principles is an “exclusivity requirement,” to the effect that “Any candidate or debate sponsor wishing to participate in DNC debates, must agree to participate exclusively in the DNC-sanctioned process. Any violation would result in forfeiture of the ability to participate in the remainder of the debate process.” The DNC is thus attempting to force the media outlets and nonprofit organizations scheduled to host “sanctioned” debates, to agree to exclude candidates who participate in any non-sanctioned debates.

First, that effort is entirely unprecedented. Although the DNC announced a schedule of sanctioned debates both in 2004 and 2008, it has never before attempted to require debate sponsors to exclude any recognized candidate as punishment for participating in non-sanctioned debates. Indeed, in 2008, all of the major candidates (then-Senator Obama, then-Senator Clinton, Gov. Bill Richardson, then-Senator Biden, then-Senator Edwards, then-Senator Chris Dodd) participated in one or more debates not sanctioned by the DNC, and none of the sponsors of sanctioned debates were asked to exclude any of the candidates for that reason.

Second, the “exclusivity” requirement is legally unenforceable. The sponsors of the debates are ten media outlets and one nonprofit 501(c)(3) organization. Under Federal Election Commission rules, the format and structure of each debate must be controlled exclusively by the debate sponsor, not by any party or candidate committee. The FEC rules require each debate sponsor to apply “pre-existing, objective” criteria for determining who can participate in that sponsor’s debate. Legally the DNC cannot dictate the format or structure of any debate sponsored by a media outlet or 501(c)(3) organization— including the criteria for participation.

Therefore, it would be legally problematic if any of the sponsors of the sanctioned debates has actually agreed to the “exclusivity” requirement. And in any event, it is highly unlikely that any of those sponsors of the sanctioned debates would ultimately be willing to enforce that “exclusivity” requirement.

[stone space]

1. Of course it's unenforcable. I'm not sure why anybody ever thought otherwise.

Of course, I was thinking it was unenforceable for political reasons, and not for legal reasons.

[bigtree]

3. you mean there could be some sort of penalty of resources or the like from the national party

...for instance, to state and local entities which sponsor or organize separate debates? Or, to the candidates, themselves?

[stone space]

5. It strikes me as a rule enforced by conformity.

If the candidates choose to conform, the rule gets enforced voluntarily.

But if they don't, the bluff has been called.

Then it's between the Party and the Voters.

I don't think it would be the Voters backing down in that case, when push really comes to shove.

But again, that's quite apart from questions of legality or lack thereof.

[RiverLover]

2. I can't say how I truly feel about this.

My post would be hidden.

But thanks for posting, while ignorance is bliss, knowledge is power.

We desperately need new leadership if we want to call ourselves the Democratic Party. Nothing about this is Democratic.

[TexasMommaWithAHat]

4. Make that me, too.

nt

[JackInGreen]

14. +1

[elleng]

40. NEW LEADERSHIP, that's O'Malley.

http://www.democraticunderground.com/12812111

[HappyPlace]

6. This should be front page on DU and everywhere else.

eom

[think]

7. kick

[FSogol]

8. K & R. n/t

[Jim Lane]

9. I considered it a bad idea but I didn't even think of the legal angle.

Props to Sandler and anyone else on O'Malley's legal team for developing this argument!

[whatthehey]

10. IANAL but nice move if true.

[R. Daneel Olivaw]

11. Kick.

Somebody really diesn't want Hillary to debate.

Their fear is palpable.

[erronis]

17. Shirley you don't think that there is a link between the DNC/DWS and Hillary? /sarcasm

[R. Daneel Olivaw]

26. It's possible, and stop calling me Shirley.

[MisterP]

12. when you have no policy difference, all you CAN do is unleash the hall monitors and bullyboys

[Fred Sanders]

13. The problem with the argument is that the media outlet sponsor and the party committee can

simply say they both agree on the same format and structure and argue no one is dictating to the other, and folks are confusing agreement with collusion.

Fox and the GOP, that is collusion.

[cherokeeprogressive]

23. So... no collusion when the Chair of the DNC was Co-chair of Hillary's failed presidential bid?

[askew]

15. I think the problem is going to be the pressure the DNC

can put on the networks not to show any non-sanctioned debate. The DNC may relent and allow outside forums/debates for candidates but Hillary has enough sway that she and the DNC could pressure the networks not to air it by threatening to take away coverage of DNC debates from their network.

[ruffburr]

19. Fine-

The MSM doesn't want to broadcast debates the internet will, So screw them.

[kenfrequed]

16. Agreed

All the candidates running could use a little oxygen in their engines.

Debbie Wasserman-Schultz needs to stop interfering for her preferred candidate and get these frigging debates going.

[peacebird]

18. Good for him! I'm sure little Debbie WS just expects everyone to fall in line and not question

She is such a complete tool

[A Simple Game]

20. All of the non-Hillary candidates need to get together and have a debate, making sure to

invite Hillary who would most likely decline but if not all the better. If all candidates show the DNC has no option but to withdraw the requirement.

If Hillary doesn't participate the DNC can drops the requirement and have debates or shows their true colors and sponsors 6 Hillary speeches. At which point the remaining candidates schedule more debates without inviting Hillary.

[restorefreedom]

27. perfection!

a well crafted plan, and it would show the reality of the rigging..er, situation.

[retrowire]

21. unenforceable by law

But just watch how money controls and enforces everything.

thanks alot Hillary. :/

[Andy823]

22. Once again

O'Malley isn't just talking about things, he is getting things done. I, like others here, never thought about the legal aspects of this issue, but I am sure glad O'Malley, and his staff, did.

[questionseverything]

36. right now he is still at the talking point

when he takes the dnc to court and wins then he will have accomplished something

[YodaJedi215]

24. the Democratic establishment is very nervous.

the Democratic establishment knows that Hillary may not be connecting to the democratic base.
the Democratic establishment fears Hillary is going to further distance herself from Democratic base if she is force to debate Bernie Sanders and O Malley.
It does not take a rocket scientist to figure out Hillary is not developing the energy she needs to make 2016 a slam dunk.
the electorate is probably tired of the names Clinton and Bush.
Hillary Clinton probably needs to come out of her box, she has to attack the TPP, if not the unthinkable could happen!

[blackspade]

25. The DNC is becoming a big problem this election cycle

And it is all on Wasserman-Schultz.
She could cause us to loose this election with her authoritarian bullshit.

[restorefreedom]

28. she does not care about the general

clearly, or she would organize democratic debates.

she cares about one thing...getting hillary the nom..country be dammed

she is a traitor to her party, to her country, and to the entire process of democracy.

[Mnpaul]

43. The DNC hates freedom of speech

and needs to be called out on it.

Not my vision of America

[Gothmog]

29. Good luck with this challenge

[zazen]

30. I wish Colbert would conduct an interview/debate--he'd be a great questioner and it'd get awesome ratings

CBS says they're giving him free rein, right? And he's got an hour. So he can invite three on and if two of them show up, great. It'll go viral.

[think]

32. That would fantastic!

[zazen]

33. I hope at least he has Bernie and O'Malley on soon for extended interviews

[bbgrunt]

31. K and R!!

[Tierra_y_Libertad]

34. How difficult would it be for the candidates to chip in and rent a hall?

Or, put the debate on Democracy Now?

[Recursion]

41. If they do, they're shut out of the "official" debates

That's the part O'Malley is questioning.

[Tierra_y_Libertad]

42. What if Clinton, Sanders, and O'Malley were to rent the hall and debate?

Think the mighty DNC would shut them out?

[Recursion]

47. In theory then the debate would be Webb and Chafee (nt)

[d_legendary1]

35. The DNC is going to give us our DNC Candidate

by hook or by crook.

[John Poet]

37. GOOD on O'Malley !!!

This rule was odious. It's all about 'control'.

[eridani]

38. Good for him! He's definitely my second choice. nt/

[elleng]

39. Thanks for posting this, bigtree.

I missed it earlier; had been away and posted again.

HAPPY to see it, and 'curious' (to say the least!) about what dnc etc. will do about it.

[Andy823]

45. I wonder also

I think if both O'Malley and Bernie push it, together, they might be able to get some changes, but then again I wouldn't bet on it. Legal action would probably take time, and I would really like to see debates start as soon as possible. Of course if what the DNC is doing is really illegal, that might cause them to rethink things instead of banning anyone from their debates if they do any that are unsanctioned by the DNC.

I really hope this has legs.

[elleng]

46. Yes, I HOPE they conclude it 'has legs'

and decide they should not/cannot ban anyone. Wonder whether we'll hear any clues. Negotiations probably won't be publicized.

[sabrina 1]

44. Good for him. It is reprehensible for them to try to control everything a candidate does to benefit

their own agenda. It is totally undemocratic.