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Controlling the Presidential Debates:
The First Amendment Issues Raised By Limiting the "Town Hall" To Uncommitted Voters

Tuesday, Oct. 12, 2004

Political speech is at the very core of the First Amendment's protections, according to the Supreme Court. And it's hard to imagine a more political forum than that of a Presidential debate.

So might a First Amendment suit be brought to challenge the agreements relating to the current debates? I believe so, as I will argue below, for there is government action here.

But more fundamentally, whether or not a lawsuit is actually brought, we should be scrutinizing our debates to see if they fulfill the standard the First Amendment imposes. I will argue, in this column, that this year's three debates are falling woefully short of this standard.

The First Amendment, as interpreted by the Court, envisions a rough-and-tumble "marketplace of ideas" -- in which numerous different views are aired, and Americans can choose among them. Yet the recent debates bore no resemblance to this marketplace. Rather than serving this ideal, the candidates, with their debate agreements, served their own mutual interests. And these interests, as I will explain below, are not the same as the interests of the American people.

Why There's State Action Here: An Agreement By the President

First, let's consider the technical legal question: Is there a basis for a First Amendment suit here? I will argue that there is.

To raise a First Amendment issue, a debate would need to first satisfy the "state action" requirement - that is, the requirement that the government, not just a private actor, is involved. I believe that the requirement is satisfied here.

On one hand, the debates are moderated and hosted by private persons and organizations, and they also choose the questions to be asked. But on the other hand, the debates play a role in deciding a national election.

Consider the most recent, "town hall" style Presidential debate - on October 8. It was hosted by the nonprofit Commission on Presidential Debates, which declares itself to be nonpartisan. It was moderated by Charles Gibson of ABC News, who had the power to decide whether to extend time for both sides. Gibson also chose which out of a large pool of questions would be asked, and in what order. Finally, the questions themselves came from "uncommitted" voters -- as identified by polls by another private organization, Gallup.

Why is there "state action" in these debates? Because President Bush and Vice-President Cheney - through their campaigns - agreed to the ground rules. And they did so not only in their capacity as candidates, also but in their current, official capacities as President and Vice-President.

The President and Vice-President agreed to these rules in order to best defend their records in offices they currently occupy - and to argue to the public that the quality of the services they have provided to the American people is high. In addition, they did so in the hopes of continuing to occupy those very offices for another term.

Moreover, and importantly, their public powers include the power to enter into agreements: This is a prerogative of the Executive Branch. (In contrast, Senators Kerry and Edwards cannot enter into government agreements without a Senate vote, which was lacking here. Senators Kerry and Edwards thus agreed to the rules wholly in their personal capacities, as candidates.)

For these reasons, Bush and Cheney acted not only as candidates, but as public officers when they debated. Their agreements, therefore, were in effect informal government agreements. And such agreements are open to First Amendment scrutiny.

Consider, for example, a few leading Supreme Court cases: In Rust v. Sullivan, the government made private family planning groups' funding conditional on their not mentioning abortion. In Snepp v. United States, the government enforced a CIA's agent's confidentiality promise, contained in a contract the agent had made with the government.

In both of these cases, the Court made clear that First Amendment arguments were properly raised - because a government agreement implicated them. Here, too, a government agreement implicates First Amendment issues - and that means there is a basis for a suit here.

In addition, the possibility of a First Amendment suit invites us - whether a suit is actually brought or not, though now it seems it is too late for one - to consider whether our debates are as First Amendment-friendly as they might have been, and if not, to try to do better in the future.

The Debate Agreements This Year: The Problem with Anti-Roaming Rules

What rules, precisely, did the candidates agree to this year?

To begin, the candidates agreed to the by-now-well-known lights system - showing how much time each candidate had left. That seems like a good idea, all around.

But they also agreed on when they could "roam" from their podiums - in the second, "town hall" debate, but not in the first debate. And this agreement is more troubling.

Arguably, a more First Amendment-friendly rule would permit roaming in every debate: Let voters observe their body language and spontaneous reactions, to see how confrontational - or not - the candidates really are. The decision to roam, in these debates, is the decision to take a risk. We ought to care - and be able to observe -- if our president is risk-courting or risk-averse.

In addition, the candidates reportedly agreed, in the first debate, that they would not confront each other with proposals. But again, a more First-Amendment friendly debate would have the candidates shooting proposals at each other if they so chose.

Our President isn't just going to just stand on a box and orate all the time: That's a job component, but far from the whole job. He (or she) has got to be able to participate in lively give-and-take, responding quickly and cogently to ideas others suggest.

If President Kennedy had not had these abilities, would he necessarily have gotten us through the Cuban Missile Crisis? Let's see our candidates under some pressure - that's how it will be if they are actually elected.

The Fallacy of Including Only "Uncommitted" Voters in the Town Hall Setting

One of the pernicious - and particularly anti-First Amendment -- features of mutual debate agreements is that they can tend to disenfranchise those whose political views hew more to the ends of the spectrum, rather than the center. It is these voters the candidates seek to persuade - taking for granted the other voters - and thus it is exclusively to these voters, that the candidates mutually choose to cater.

Last week's town hall format, which included only questions from uncommitted voters, wholeheartedly embraced this tendency. The way the questioners were chosen, by definition, guaranteed that only those smack in the middle would be heard, and answered. And you could tell from the nature of the questions asked -- which didn't exactly sound like they were written by, say, Michael Moore, or Robert Novak.

Among the questioners' worries were, for example (and I am paraphrasing): "Will there be a draft?", "Why can't we get cheaper drugs from Canada?", "Why is health care so expensive?", "Are you going to raise taxes?", "Are our air and water clean?", "Will our jobs go abroad?" and "What about the deficit?" Even the questioner who raised a civil rights issue asked, and here I do quote, "Why are my rights being watered down?"

Obviously, those are legitimate concerns. But they are also self-serving concerns. Most of them relate to Americans' pocketbooks - not their hearts. And that's not surprising, for the truth is that the uncommitted - unless they are very young -- will also tend to be the self-serving or, to put it more kindly, the practical. (Granted, there were a few questions relating to ethical issues of stem cell research and partial birth abortion. But other than these, the questions virtually universally fell into the self-serving category.)

The questions we didn't hear would have been more altruistic. They might have included questions such as: "Why have so many Iraqi civilians ended up dead since the Iraq War began? Doesn't that alone prove our war planning has been disastrous? How would you better minimize such casualties?", "How can we address the crisis in the Sudan - which the government has now termed a 'genocide'?", "Are you concerned about the Attorney General's actions with respect to Arab-Americans and Arab immigrants?"

Finally, those who are strongly anti-war were simply left out. After the Conventions caged them into "protest zones," the "town hall" debates closed the doors on them entirely.

Arab-Americans, too, apparently were entirely left out. That is unconscionable, since they have been inordinately - and in some cases, brutally - affected by post-September 11 policies. No wonder President Bush said he found the questioning "enjoyable": The hard questions, from those who have been profiled and otherwise hurt, were not asked.

And that was it, for all of us: This last debate was the only "town hall" format the American people will be able to tune in to. How ironic that those who felt most strongly, were the very ones systematically excluded. Will the uncommitted voters even bother to show up at the polls? Certainly, the long-committed are very likely to.

A "town hall" that is only peopled by uncommitted voters, is no town hall at all. After all, how could our actual town halls, in towns across America, function if only the uncommitted showed up to ask questions?

Politics is made, and done, by the committed. A debate consonant with First Amendment values would honor that - and allowed the committed, the passionate, even the zealots, to at least participate. If in politics, the committed dominate, shouldn't they at least be allowed to participate in the debates?

In this town hall, the rule seemed to be that idealists and extremists need not apply. Apparently, this made both candidates happy. And why not? After all, questions by the committed might be risky, unpredictable, embarrassing, or explosive.

Such speech might simply be too free for the candidates' taste. Limited speech - from a limited set of questioners guaranteed not to be too fiery or risky - is so much safer. No wonder both Kerry and Bush could agree on it.

The Case for Restricting Town Halls to Uncommitted Voters Is Weak

But, one might object, doesn't it simply make sense for candidates to only clash over the areas where they disagree, and to speak only to the voters who are as yet uncommitted? Yes, and no.

Currently, the debates paint a portrait of differences - at least, those differences the candidates do not mutually want to ignore. But what many voters really want, and should be entitled to, is a portrait of the candidates.

Granted, such a portrait can be offered by the primaries. But with the current stress on intra-party unity, and the reality that many voters ignore the primaries, we can't rely wholly on primaries to show us who the candidates are, and what they believe.

The First Amendment Counsels a More Open, More Genuine "Town Hall"

The First Amendment is based on a beautiful belief: We will find the truth by listening and considering ideas thrown out in a rough-and-tumble "marketplace of ideas." When that marketplace of ideas also includes a "marketplace" for candidates, we should clearly see what we're "buying" when we vote.

But at the same time, we should remember that as voters, we are not consumers. We are not choosing among products, but among people. We need to see who those people really are -- not just what they have to say within a given set of agreed parameters, in response to questions posed by questioners chosen to be of a certain, safe type.

It's important to remember that all that is really necessary to have a debate is speakers, a timer, and questions. Kids do it in high schools all the time. A bare bones, wide open debate would have served the American people much better than the carefully constrained debates we actually saw.

Though the candidates may want to mutually cloak themselves in safe debating rules, it would serve us as voters better to see them in a format they might mutually find more threatening. Then again, the United States Presidency is the most difficult of jobs. The debates shouldn't be - by mutual agreement - the easiest of forums.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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