The Ohio Socialist Party candidate who tried but failed to enter last year's three televised debates hosted by Ohio's big eight for-profit newspapers, between losing candidate Lee Fisher, a Democrat, and the winner, Rob Portman, a Republican, has now filed a lawsuit in federal court against the Federal Elections Commission, alleging its criteria for selecting candidates to be included in the debates were unlawfully kept secret from him and all other minor-party candidates and that the debates therefore constituted an illegal contribution to the candidates respective campaigns.
Dan La Botz, an elementary school teacher in Cincinnati who got himself on the ballot and found over 25 thousand Ohioans who voted for him and not the other four candidates on the ballot, hopes this legal ploy will remedy the FEC's wrongful dismissal of the administrative complaint he filed at the time against the Ohio News Organization (ONO), its corporate members, the senatorial campaign of Robert Portman, and the senatorial campaign of
Lee Fisher.
The ONO is a for-profit, unincorporated business association consisting of the eight largest newspapers in Ohio, which are all for-profit corporations organized under the laws of Ohio: The Toledo Blade, the (Canton) Repository, the (Cleveland) Plain Dealer, the Columbus Dispatch, the Cincinnati Enquirer, the Dayton Daily News, the Akron Beacon Journal, and the (Youngstown) Vindicator.
La Botz filed his administrative complaint with the FEC in late September of 2010, alleging that ONO and its corporate members had scheduled a series of televised debates between Portman and Fisher in violation of the Federal Election Campaign Act (FECA).
In his filing, La Botz alleges that ONO and its corporate members made illegal campaign contributions to the Fisher and Portman campaigns by financing and organizing a series of televised debates including only those two major-party candidates without establishing and announcing permissible “pre-established objective criteria to determine which candidates may participate in the debate” and by categorically limiting the debates to these two major-party candidates.
Acting on advice of its General Counsel, the FEC subsequently dismissed La Botz's administrative complaint on May 19, 2011.
La Botz argues he was never afforded an opportunity by ONO and its corporate members, prior to its selection of only the two major-party candidates, to present evidence or argument showing that he should be included in the debates or otherwise satisfied ONO’s secret standards.
"The Commission’s dismissal of Plaintiff’s administrative complaint is contrary to law, an abuse of discretion, and arbitrary and capricious," La Botz's law team of Mark Brown of Capital Law School and Oliver B Hall of the Center for Competitive Democracy in Washington, D.C. wrote.
A collection of corporations like ONO that selects the Republican and Democratic candidates for televised debates, and categorically excludes all other ballot-qualified candidates, thus makes illegal contributions to those two major-party candidates, in violation of the Federal Election Campaigns Act, the lawsuit states.
Citing Buchanan v. Federal Election Commission, La Botz said that “[t]aken together, these statements by the regulation’s drafters strongly suggest that the objectivity requirement [of 11 C.F.R. § 110.13(c)] precludes debate sponsors from selecting a level of support so high that only the Democratic and Republican nominees could reasonably achieve it.”
La Botz, who told CGE via email Sunday that he won't be a candidate in next year's contest involving incumbent Democratic Sen. Sherrod Brown, his Republican challenger or another minority party candidate, said he qualified for Ohio’s 2010 United States Senate ballot in May 2010 by winning the Socialist Party of Ohio’s (a ballot-qualified party in Ohio) political primary.
The Socialist Party USA, of which the Socialist Party of Ohio is a member, is a direct descendant of Eugene Debs’ Socialist Party of America. Eugene Debs ran for President five times from 1900 to 1920.
The debates negotiated by ONO, its corporate members and the Fisher and Portman campaigns were scheduled to be held (and in fact were held) in Cleveland, Toledo and Columbus during the month of October 2010, the lawsuit said. It noted all three of ONO’s debates between Portman and Fisher were broadcast live on local television, either through independent broadcasters or broadcasters affiliated with ONO’s corporate members.
Socialist Party candidates have only won a handful of votes in Ohio, compared to major party candidates. For example, in 1912, Debs won 8.69 percent of the vote (90,144 votes) in Ohio’s presidential election. A Gallup Poll from February of 2010 reports that “socialism” is viewed favorably by 36 percent of Americans.
La Botz argues, using several examples to make his point, that Ohio has unconstitutionally excluded minor-party candidates for sixty-plus years from its ballots. This, he says, has "led Ohio’s primary news outlets, including the eight corporate members of ONO, to habitually and presumptively focus exclusively on the two major parties. Ohio news organizations, especially those corporations that have joined to form the ONO, regularly ignore candidates who are not affiliated with either the Democratic or Republican Parties."
These organizations also control the Ohio Statehouse press corps, which is a creature of the legislature, who ultimately decides which media outlets gain access to the floors of the House or Senate, the sole perk of membership in the group that is now as outdated as the 1893 mission of the group is in today's Twitter- and Facebook-driven world of news.
In is filing, La Botz offered a response from Bruce Winges, editor and vice-president of the Akron Beacon Journal, one of the eight corporate members of ONO, describing ONO’s criteria for inclusion in the debates: "The Ohio News Organization generally follows the structure used by the Commission on Presidential Debates, which allows for only the major-party candidates to debate. The logic is sound: In a television debate format, when time constraints limit the number of questions and answers to be heard, it is of the utmost importance that voters hear from the two candidates who are clearly the front-runners for the office. While we have and will continue to write about third-party candidates when warranted, including them in debates limits Ohioans’ ability to hear answers from the top candidates on issues critical to the state’s future."
One counter argument to Winges' is that if voters never hear from minority party candidates, they won't vote for them, and not voting for them will maintain the supremacy Democrats and Republicans have enjoyed since the Civil War, but which Americans have grown weary of, as the rise of the tea party last year showed. Sufficiently inspired, Americans will vote for other candidates, albeit in small numbers, but maybe with more reporting on them, more voters might think their positions more sensible than what Democrats and Republicans have been foisting on the electorate over the decades.
CityBeat, a Cincinnati weekly that caters its content on topical issues, art and culture to young professionals, endorsed La Botz last year over Portman or Fisher.
Recently, in Columbus, the first ever We the People Convention took place, at which over a thousand motivated advocates and activists tired of the on-going gridlock and self-serving actions put both parties on notice that they intend to have an effect on next year's elections, if not sooner.
One Independent Candidate for U.S. Senate from last year, Dr. Michael Pryce, upgraded his status from Independent to Republican, just so he can take on whomever Republican powerbrokers choose to run against Sen. Brown. So far, it looks like the new, young Republican Auditor of State, Josh Mandel, has been anointed to be that candidate.
Dr. Pryce told CGE in an interview at the WTP convention that he doesn't intend to bow out, as GOP chairman Kevin DeWine told him to do. Last year, running as an Indepdent, Pryce, like La Botz, his political polar opposite, also said the decked was stacked for the major party candidates.
Last year, La Botz netted 26,454 votes, a puny amount compared to the 3.7 million votes the majority party candidates won. The four minority party candidates, combined, won 143,059 votes.
Minority party candidates didn't win any seats last year, but in the race for governor, the votes they did get - 151,224 - was almost twice the margin John Kasich defeated Ted Strickland by, a skinny 77,127 votes. Kasich could only muster 49 percent of 49 percent of the voters who turned out to vote. Had the three minority party candidates not run, it could be argued that Strickland would have won. Polls show that if Kasich and Strickland were to run again today, based on Kasich's track record so far, Strickland would win going away in a second runoff.
But while La Botz may have leverage using FECA, the new campaign financing landscape made possible with the Citizens United decision by the U.S. Supreme Court can create its own leap-frog-scenario, where another funding source other than ONO can pay for debates, invite ONO members and majority party candidates to it and likely not be in violation of FECA.
La Botz wants the court to declare the FEC's dismissal of his complaint "contrary to law, an abuse of discretion and arbitrary and capricious." He also wants it sent back to the FEC and for awarding attorney's fees and litigation expenses.
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