NO. 20-649

In the

Supreme Court of the United States

LEVEL THE PLAYING FIELD, PETER ACKERMAN,

GREEN PARTY OF THE UNITED STATES, AND

LIBERTARIAN NATIONAL COMMITTEE, INC.,

Petitioners,

–v–

FEDERAL ELECTION COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the 

United States Court of Appeals for the D.C. Circuit 

BRIEF OF AMICI CURIAE IN SUPPORT PETITIONERS OF THE 

INDEPENDENT VOTER PROJECT, ADMIRAL JAMES STAVRIDIS,

SENATOR JOSEPH ROBERT KERREY, SENATOR JOSEPH 

ISADORE LIEBERMAN, THE HONORABLE CLARINE NARDI 

RIDDLE, THE HONORABLE DAVID M. WALKER, AND

THE HONORABLE CHRISTINE TODD WHITMAN 

STEPHEN CHAD PEACE

PEACE & SHEA LLP

2700 ADAMS AVENUE, SUITE 204

SAN DIEGO, CA 92116

CORY J. BRIGGS

COUNSEL OF RECORD

BRIGGS LAW CORPORATION

99 EAST “C” STREET, SUITE 111

UPLAND, CA 91786

(909) 949-7115

CORY@BRIGGSLAWCORP.COM

DECEMBER 10, 2020 COUNSEL FOR AMICI CURIAE

SUPREME COURT PRESS ♦ (888) 958-5705 ♦ BOSTON, MASSACHUSETTS
i

TABLE OF CONTENTS 

Page

TABLE OF AUTHORITIES .......................................ii

STATEMENT OF IDENTITY, INTEREST, 

AND AUTHORITY TO FILE............................... 1

INTRODUCTION ....................................................... 4

ARGUMENT............................................................... 9

I. CPD’S 15% RULE CONFLICTS WITH ITS 

MISSION STATEMENT AND IGNORES THE 

IMPORTANT ROLE THAT THIRD-PARTY 

CANDIDATES PLAY IN A HEALTHY REPUBLIC ........ 9

II. CPD’S 15% RULE HAS, AND WILL CONTINUE 

TO, PREVENT THIRD-PARTY AND INDEPENDENT 

CANDIDATES FROM PARTICIPATING IN THE 

DEMOCRATIC PROCESS, LEAVING NONPARTISAN 

VOTERS UNREPRESENTED............................... 11

III. CPD’S 15% RULE IS INCONSISTENT WITH 

THE MANNER IN WHICH WE ELECT OUR 

PRESIDENT AND OUTSOURCES DETERMINATION 

FOR PARTICIPATION TO PRIVATE COMPANIES ... 14

A. CPD’s 15% Rule Offends the Very 

Democratic Principles the United 

States Promotes Abroad .................. 15

B. CPD’s 15% Rule Is Part of an Anticompetitive Election Framework That 

Disenfranchises a Plurality of American 

Voters ........................................................ 16

CONCLUSION.......................................................... 19
ii

TABLE OF AUTHORITIES 

Page

TABLE OF AUTHORITIES 

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983)............................................... 9

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ........................................... 17

Illinois Elections Bd. v. Socialist Workers Party, 

440 U.S. 173 (1979) ............................................ 10

Nader v. Schaffer,

429 U.S. 989 (1976) ........................................... 17

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................. 9

Williams v. Rhodes,

393 U.S. 23 (1968) .......................................... 9, 16

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ............................................. 9, 16

JUDICIAL RULES

Sup. Ct. R. 37 .............................................................. 1

 

 
iii

TABLE OF AUTHORITIES – Continued 

Page

OTHER AUTHORITIES

Commission on Presidential Debates, 

Debate History, http://www.debates.org/

index.php?page=debate-history (last visited 

Sep. 15, 2017) .................................................... 10

Commission on Presidential Debates,

Our Mission, http://www.debates.org/index.

php?page=about-cpd (last visited Sept. 15, 

2017) .................................................................... 9

David Paleologos, 

Paleologos on the Poll: Voters Want ThirdParty Candidates on Debate Stage, 

USA TODAY (Sept. 1, 2016), https://www.

usatoday.com/story/news/politics/elections/

2016/09/01/paleologos-poll-johnson-steindebates/89710228/ ............................................. 11

David Wright,

Poll: Trump, Clinton Score Historic 

Unfavorable Ratings, CNN (Mar. 22, 2016), 

http://www.cnn.com/2016/03/22/politics/

2016-election-poll-donald-trump-hillaryclinton/index.html ............................................. 11

Gallup,

Gallup Presidential Election Trial-Heat 

Trends, 1936-2008, http://www.gallup.com/

poll/110548/gallup-presidential-electiontrialheat-trends-19362004.aspx#4.............. 10, 11

Gallup,

Party Affiliation (2017), http://www.gallup.

com/poll/15370/party-affiliation.aspx ........... 5, 16
iv

TABLE OF AUTHORITIES – Continued 

Page

Heidi M. Przybyla,

Hillary Clinton Prepares for ‘Reality Show’ 

Debates, USA TODAY (Sept. 15, 2016),

https://www.usatoday.com/story/news/

politics/elections/2016/09/21/hillary-clintondonald-trump-debates/90310878/ ....................... 5

Katherine M. Gehl and Michael E. Porter,

Why Competition in the Politics Industry Is 

Failing America (Harvard Business School 

ed., 2017).............................................. 6, 7, 17, 18

National Conference of State Legislatures,

State Primary Election Types,

http://www.ncsl.org/research/elections-andcampaigns/primary-types.aspx

(last visited Sept. 15, 2017)............................... 17

Republican Party Platform of 1860, 

(May 17, 1860), http://www.presidency.

ucsb.edu/ws/index.php?pid=29620.................... 10

Socialist Labor Party Platform of 1896,

(Jul. 4, 1896), http://projects.vassar.edu/

1896/slpplatform.html....................................... 10

Ted G. Jelen, 

ROSS FOR BOSS: THE PEROT PHENOMENON 

AND BEYOND (2001) ........................................... 10

U.S. Dept. of State. 

DRL Programs, (Sept. 15, 2017), 

https://www.state.gov/j/drl/p/index. htm .......... 15

USAID,

Democracy, Human Rights and Governance

(Aug. 17, 2017), https://www.usaid.gov/

democracy .......................................................... 15
1

STATEMENT OF IDENTITY, INTEREST, 

AND AUTHORITY TO FILE 

Pursuant to Supreme Court Rule 37, the following 

amici curiae respectfully submits this brief in support 

of Petitioners.1

CORY J. BRIGGS and STEPHEN CHAD PEACE 

Cory J. Briggs is admitted as a member of this 

Court. Stephen Chad Peace is pending admission to 

this Court. They are attorneys for the Independent

Voter Project (“IVP”) and represent the additional amici 

for purposes of this brief of amici curiae. They have 

no other financial or client interest in the outcome of 

this litigation, and no attorney for a party has helped 

write this brief or defrayed the cost of its preparation.

INDEPENDENT VOTER PROJECT (IVP) 

Founded in 2006, IVP is a 501(c)(4) organization

that seeks to educate voters about voters’ nonpartisan 

rights and other important public policy issues, to 

create a climate for otherwise disenfranchised voters 

to engage in the political process, and to encourage 

1 Pursuant to this Court’s Rule 37.2, all parties with counsel 

listed on the docket have consented to the filing of this brief. 

Counsel of record for all listed parties received notice at least 10 

days prior to the due date of the Amici Curiae’s intention to file 

this brief. Pursuant to Rule 37.6, Amici Curiae affirm that no 

counsel for any party authored this brief in whole or in part, 

and no counsel or party made a monetary contribution intended 

to fund the preparation or submission of this brief. No person 

other than Amici Curiae, its members, or its counsel made a 

monetary contribution to its preparation or submission.
2

nonpartisan voters to vote and participate in the 

democratic process. IVP is most well-known for 

authoring California’s “top-two” nonpartisan primary, 

passed by the voters in 2010.

ADMIRAL JAMES STAVRIDIS 

Admiral Stavridis is a retired Navy admiral. He 

was 15th Commander, U.S. European Command and 

NATO’s 16th Supreme Allied Commander Europe. 

Admiral Stavridis has been working for several years 

to change the 15% rule.

SENATOR JOSEPH ROBERT KERREY 

Senator Kerrey served as the Governor of 

Nebraska from 1983 to 1987 and as a United States 

Senator from Nebraska from 1989 to 2001. He has 

been a leading advocate for changing the 15% rule for 

several years.

SENATOR JOSEPH ISADORE LIEBERMAN 

Senator Lieberman served as a United States 

Senator from Connecticut from 1989 to 2013. He has 

been working to remove the 15% rule for over 3 years.

THE HONORABLE CLARINE NARDI RIDDLE 

Clarine Nardi Riddle served as the Attorney General of Connecticut from 1989 to 1991. She served as 

chief of staff for Senator Lieberman from 2003 until 

2013. She co-founded and works with No Labels, an 

organization of Republicans, Democrats and Independents dedicated to addressing issues of hyper-partisanship in the United States to promote problem solving.
3

THE HONORABLE DAVID M. WALKER 

David M. Walker served as the seventh Comptroller General of the United States from 1998 to 2008. 

He is also a national co-founder of No Labels and an 

original signatory on the “Change the Rule” letter to 

modify CPD’s 15% rule.

THE HONORABLE CHRISTINE TODD WHITMAN 

Christine Todd Whitman served as the Governor 

of New Jersey from 1994 to 2001 and was the Administrator of the Environmental Protection Agency from 

2001 to 2003. Whitman was an original signatory of 

the “Change the Rule” letter that challenged CPD’s 

15% rule.
4

INTRODUCTION 

A healthy democracy promotes the free flow of 

ideas and embraces different perspectives. The presidential debates are the most important conversations

between candidates for the Presidency of the United 

States of America and the American people. The 

Commission on Presidential Debates (“CPD”) has 

established a 15% rule of entry to presidential debates 

that, in practice, prevents popular third-party and independent candidates from participating in the debates, 

narrows the flow of ideas in our political discourse, 

and insulates well-heeled major party candidates 

from the hazard of confronting different perspectives.

CPD is an extra-governmental organization originally sponsored by the major political parties and 

sanctioned by the federal government, the effect of 

which is to calcify an existing ruling political class. 

Our forefathers never could have contemplated such 

a system for controlling presidential debates and, 

given their predisposition to oppose political parties, 

would have opposed any such granting of governmental 

powers to a private corporation simply because it 

enjoyed the mantle of the major political parties. The 

insidiousness of this husbanding of the duopoly is so 

perverse that even in academia the American system 

is regularly referred to as a “two-party system.”

Limitations on the participation of third-party 

and independent candidates from our presidential 

debates exacerbates divisions in America. A substantial

plurality of American voters no longer identifies with 
5

either the Republican or Democratic Parties.2 As hyperpartisanship plagues our media, our political discourse, 

and our electoral options, the nonpartisan plurality 

of voters is forced to either embrace one side of this 

artificial division or not participate in the national 

dialogue at all.

The more pernicious consequence of the 15% rule 

is its shaping of the American mind. By many estimates, audiences neared 100 million viewers for the 

CPD 2016 presidential general election debates. Nearly 

one-third of all Americans were exposed to the 

calculated barbs traded by the Republican candidate 

Donald J. Trump and the Democratic candidate Hillary 

Clinton. It was pugilism by personal attack and not a 

debate of ideas about the state of our country and its 

future. As stated by Mrs. Clinton herself—this was 

reality television.3 The most recent 2020 presidential 

debates were similarly mired by mudslinging. This is 

the consequence of limiting the governing flow of 

participants and ideas. And, although the spectacle 

may drive media ratings up, its consequence is 

devastating to the body politic, as perception drives 

real behaviors.

A study published in 2017 by the Harvard Business School concluded that the public’s distrust in 

government is directly connected to the lack of real 

competition in the electoral process:

2 Gallup, Party Affiliation (2017), http://www.gallup.com/poll/15370/

party-affiliation.aspx.

3 Heidi M. Przybyla, Hillary Clinton Prepares for ‘Reality Show’ 

Debates, USA TODAY (Sept. 15, 2016), https://www.usatoday.com/

story/news/politics/elections/2016/09/21/hillary-clinton-donaldtrump-debates/90310878/.
6

By nearly every measure, the industry of 

politics, itself, is thriving. There’s just one 

problem. The people whom the politics 

industry is supposed to serve have never 

been more dissatisfied. Public trust in the 

federal government is hovering at a near 

60-year low. Competition in politics appears 

intense, which is usually good for customers. 

But today’s competition is failing, delivering 

gridlock and growing division instead of 

offering practical solutions to the nation’s 

problems. The parties compete on ideology 

and unrealistic promises, not on action and 

results. The parties compete to divide voters 

and serve special interests, rather than weigh 

and balance the interests of all citizens and 

find common ground to move the country 

forward. And there is no accountability for 

results . . . The underlying root cause is the 

kind of political competition that the parties 

have created, including their insulation from 

new competition that would better serve the 

public interest.

Katherine M. Gehl and Michael E. Porter, Why Competition in the Politics Industry Is Failing America, 2 

(Harvard Business School ed., 2017).

The rules of our republic should support civil 

disagreement rather than encourage hostile behavior 

in political discourse or undermine confidence in our 

government. CPD defends its 15% rule as a reasonable

and objective measure of candidate viability. CPD’s 

purpose, however, is not to choose winners. CPD has 

failed to articulate how the 15% rule supports its 

organizational mission to “provide the best possible 
7

information to viewers and listeners.” Limiting participation by the arbitrary 15% rule undermines this 

objective by providing a pedestal for the major party 

candidates and their platforms, exacerbating the 

perception that the American people have only binary 

policy and candidate choices. CPD’s candidate viabilitybased defense of its 15% rule is a model of the 

contrived political competition dissected by Gehl and 

Porter to its root purpose of limiting any competition 

of new ideas.

Nowhere in the Constitution, the documents 

published in preparation of its establishment, or its 

successor amendments is there an allusion to, or 

contemplation of, our form of government being a 

“two-party system.” Yet, CPD’s 15% rule results in 

our presidential debates accommodating only the two 

major political parties’ candidates and it was designed 

to produce this outcome.

It’s important to recognize that much of what 

constitutes today’s political system has no 

basis in the Constitution. As our system 

evolved, the parties—and a larger political 

industrial complex that surrounds them—

established and optimized a set of rules and 

practices that enhanced their power and 

diminished our democracy. These changes—

often created behind closed doors and largely 

invisible to the average citizen—continue to 

take their toll at both the federal and the state 

levels.

Gehl and Porter, at 2.

There is a difference between a natural result of 

constitutional construction that has led to the ebb and 
8

flow of societal change being channeled into coalitions of two broadly defined political parties and the 

institutionalization of two particular parties as 

permanent impermeable forces. CPD’s 15% rule 

serves the latter rather than the former. Rather than 

accommodate the ebb and flow of societal change that 

has been at the heart of the Constitution’s survival, 

CPD’s 15% rule acts as an agent to suppress debate, 

limit access, and, ultimately, alienate the public from 

their government.

With these considerations, amici argue in support

of Petitioners.
9

ARGUMENT 

I. CPD’S 15% RULE CONFLICTS WITH ITS MISSION 

STATEMENT AND IGNORES THE IMPORTANT ROLE 

THAT THIRD-PARTY CANDIDATES PLAY IN A HEALTHY 

REPUBLIC. 

CPD’s nonprofit and “nonpartisan” mission is to, 

“provide the best possible information to viewers and 

listeners.”4 Throughout this case, however, the CPD 

has defended its 15% rule without regard to how the

rule supports or subverts its own mission statement. 

Instead, and by CPD’s admission, the 15% rule is 

designed to determine a candidate’s viability to win 

the general election. This determination does not 

have a qualitative component as it relates to the 

information the candidates may provide to the viewers.

As the Supreme Court has recognized time and 

again,5 a healthy republic is one that embraces debate 

about minority opinions as well as more popular ones. 

Anderson v. Celebrezze, 460 U.S. 780, 794 (1983) (citing 

Illinois Elections Bd. v. Socialist Workers Party, 440 

4 Our Mission, CPD, http://www.debates.org/index.php?page=

about-cpd (last visited Sept. 15, 2017).

5 See, e.g. Williams v. Rhodes, 393 U.S. 23, 32 (1968) (“The fact is, 

however, that [it] does not merely favor a ‘two-party system’; it 

favors two particular parties-the Republicans and the Democratsand in effect tends to give them a complete monopoly.”);

Anderson v. Celebrezze, 460 U.S. 780, 794 (1983) (“In short, the

primary values protected by the First Amendment . . . are served

when election campaigns are not monopolized by the existing

political parties.”) (citing New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964)) .
10

U.S. 173, 186 (1979)) (“Historically political figures 

outside the two major parties have been fertile sources 

of new ideas and new programs; many of their challenges to the status quo have in time made their way 

into the political mainstream.”). Many of the ideas 

viewed today as fundamentally American were first 

introduced by third parties or third-party candidates. 

The Socialist Party, for example, introduced women’s 

suffrage as an issue in the late 1800s.6 Abraham 

Lincoln was elected from a third party (at the time) 

on an anti-slavery platform.7

H. Ross Perot is one of only two third-party 

candidates to ever be allowed a place on the presidential 

debate stage when he ran as an independent candidate 

for president in 1992.8 Perot ultimately received 18.9% 

of the popular vote in the general election.9 Many of 

Perot’s ideas were incorporated into legislation and 

even the major parties’ political platforms.10 Yet, 

had the 15% rule been in place in 1992, Perot would 

have been barred from participating in any of the 

6 Socialist Labor Party Platform of 1896 (Jul. 4, 1896), http://

projects.vassar.edu/1896/slpplatform.html.

7 Republican Party Platform of 1860, THE AMERICAN PRESIDENCY 

PROJECT (May 17, 1860), http://www.presidency.ucsb.edu/ws/index.

php?pid=29620.

8 Debate History, CPD, http://www.debates.org/index.php?page=

debate-history (last visited Sept. 15, 2017). 

9 Gallup, Gallup Presidential Election Trial-Heat Trends, 1936-

2008, http://www.gallup.com/poll/110548/gallup-presidentialelection-trialheat-trends-19362004.aspx#4 (last visited Sept. 15, 

2017).

10 Ted G. Jelen, ROSS FOR BOSS: THE PEROT PHENOMENON 

AND BEYOND (2001).
11

presidential debates.11 Although Perot did not win 

the presidency, and even if he did not have a chance 

of being the winner, the value of his ideas improved 

the health of our democracy.

II. CPD’S 15% RULE HAS, AND WILL CONTINUE 

TO, PREVENT THIRD-PARTY AND INDEPENDENT 

CANDIDATES FROM PARTICIPATING IN THE DEMOCRATIC PROCESS, LEAVING NONPARTISAN VOTERS 

UNREPRESENTED. 

CPD’s 15% rule has prevented every third-party 

and independent candidate from participating in the 

presidential debates since its adoption two decades 

ago. In 2016, the 15% rule prevented an alternative

voice from participating despite both major party 

candidates having record-setting disapproval ratings12

and 76% of voters wanting to see a third-party candidate in the debates.13 We should not deny voters their 

desired more inclusive debate process, and we should 

not rely on the two-party-controlled CPD’s 15% rule 

to predict potential victors of our democratic process.

11 Although CPD argues he would not have been barred as his 

support had been over 15% at other points in the race, in September (prior to the debates when the polling determination is made), 

Perot was only at 8% support. Gallup Presidential Election 

Trial-Heat Trends, 1936-2008, supra note 8.

12 David Wright, Poll: Trump, Clinton Score Historic Unfavorable 

Ratings, CNN (Mar. 22, 2016), http://www.cnn.com/2016/03/22/

politics/2016-election-poll-donald-trump-hillary-clinton/index.html.

13 David Paleologos, Paleologos on the Poll: Voters Want ThirdParty Candidates on Debate Stage, USA TODAY (Sept. 1, 2016), 

https://www.usatoday.com/story/news/politics/elections/2016/09/

01/paleologos-poll-johnson-stein-debates/89710228/.
12

Institutional barriers can be such a powerful 

force that they render the measurement of their 

impact impossible. The number of qualified candidates 

that would run for President of the United States 

absent the 15% rule cannot be quantified. Several

amici to this brief are amongst those who would be 

judged as credible candidates for President of the 

United States as either third-party or independent

candidates, but for the practical institutional barrier 

presented by the 15% rule.

Admiral James Stavridis served as the Commander of U.S. European Command and 16th NATO 

Supreme Allied Commander from 2009 to 2013. He 

was vetted as a potential running mate for Hillary 

Clinton in July 2016 and later interviewed as a 

possible U.S. Secretary of State and Director of 

National Intelligence by President-elect Donald J. 

Trump in December 2016. He was approached to run 

as an independent in the 2016 election, but, in part 

due to CPD’s 15% rule, declined. With the 15% rule 

in place, Stavridis had no reasonable expectations 

that he could achieve the name recognition necessary

to be a competitive candidate. Stavridis believes many 

qualified candidates would have considered running 

for President in 2020 if the debate rules were changed 

to allow unaffiliated candidates a fair chance to 

compete with the nominees of the two major parties.

Former Governor and United States Senator 

Joseph Robert Kerrey, a Navy Seal and Medal of Honor 

recipient, sought the Democratic Party nomination 

for president in 1992. Based upon his experience, he 

would not consider an independent candidacy viable 

in 2020, absent a change in the CPD rules.
13

Senator Joseph Isadore Lieberman was the 

Democratic Party nominee for Vice President in the 

2000 election. He sought the Democratic presidential 

nomination in 2004. In 2006, Lieberman was re-elected 

to the Senate as an Independent. He believes that 

independents do not seek the presidency, in great part, 

because access to the presidential debate is critical 

and the CPD’s 15% rule pre-emptively disqualifies 

even serious challengers from such access.

The Honorable Clarine Nardi Riddle was the first 

female Attorney General of Connecticut and is a cofounder of No Labels, an organization of Republicans, 

Democrats and Independents that promotes the politics 

of problem solving. She argues that the 15% rule 

blocks not only independent and nonpartisan candidates, but even has the effect of excluding the consideration of independent and nonpartisan ideas.

The Honorable David M. Walker is the immediate

former Comptroller General of the United States and 

head of the U.S. Government Accountability Office. 

He was urged to consider running as an independent

for President or Vice President in 2012 but ultimately 

decided against doing so, in part due to the fact he 

knew it would be vitrually impossible to draw the 

support necessary in the polls to get into the fall 

presidential debates. He then embarked on a nationwide tour promoting sensible solutions to our nation’s 

serious fiscal challenges.

In 2012, the Honorable Christine Todd Whitman, 

former two-term Governor of New Jersey, was asked 

to consider running for President or Vice President 

as an independent candidate but declined. While 

other personal factors may have gone into that decision, 

ultimately, it is her judgment that the 15% rule 
14

precluded any practical expectation of access to the 

debates.

These highly qualified Americans represent the 

tip of the iceberg. It is impossible to know how many 

others whose ideas, energy, and hopes for America’s 

future are held captive by the arbitrary and impenetrable barrier to participation represented by the CPD’s 

15% rule.

III. CPD’S 15% RULE IS INCONSISTENT WITH THE 

MANNER IN WHICH WE ELECT OUR PRESIDENT AND 

OUTSOURCES DETERMINATION FOR PARTICIPATION 

TO PRIVATE COMPANIES. 

Given the well-documented declining accuracy of 

polling, it is difficult to miss the irony of CPD’s decision to, in effect, outsource the enforcement of its 

15% rule by relying on five national political polls 

conducted by media organizations. Such polls are a 

measurement, at best, of a candidate’s pre-debate 

popularity on a national level. Rightly or wrongly, 

presidential elections are determined not by popular 

vote, but by the Electoral College in a methodology 

that is fundamentally different.

For example, a candidate may hold viewpoints that 

resonate with a substantial portion of the population 

in states that are most directly impacted by those 

viewpoints or the issues that underlie them. But, on 

a national level, he or she may not achieve the 15% 

threshold across the five national polls required to 

participate in the presidential debates. The 15% rule, 

in that regard, artificially homogenizes public discourse, having the perverse effect of discouraging the 

diversity of ideas critical to a rational public debate.
15

Just as importantly, by relying on privately 

constructed and controlled polls, CPD has assigned 

the gatekeeper function to a process with no public 

oversight as to methodology, policy bias, or conflicts 

of interest (real or perceived). Conferring the power 

to limit access to private media corporations is both 

inappropriate and, inevitably, subject to a level of 

public skepticism that only serves to undermine the 

public’s confidence in the system and to reinforce a 

growing belief that “the system is rigged.”

A. CPD’s 15% Rule Offends the Very Democratic 

Principles the United States Promotes Abroad. 

The United States of America spends hundreds of 

millions of dollars promoting democracy abroad.14 A 

centerpiece of those programs is to introduce and 

spread democratic best practices, including “the 

promotion of free, transparent and fair political 

competition.”15 The goal of these programs is to ensure 

“that all have the opportunity to participate and have 

a voice in how they will be governed,” so “citizens’ 

preferences are represented.”16

At the heart of any democracy is political competition. As the Supreme Court recognized when it 

struck down an Ohio law that effectively gave the 

two major parties a “total monopoly” on ballot access, 

“[c]ompetition in ideas and governmental policies is 

at the core of our electoral process and of the First 

14 DRL Programs, U.S. Dept. of State, https://www.state.gov/j/

drl/p/index.htm (last visited Sept. 15, 2017).

15 Democracy, Human Rights and Governance, USAID (Aug. 

17, 2017), https://www.usaid.gov/democracy.

16 Id.
16

Amendment freedoms.” Rhodes, 393 U.S. at 32. Today, 

however, a vast plurality of American voters now selfidentifies as independent of the two major parties.17

Yet, these voters are not represented at all on the 

presidential debate stage because independent and 

third-party candidates cannot gain access.

Similar to the onerous ballot access requirements 

in Rhodes, CPD’s 15% rule has prevented a single 

voice outside of the two major parties from participating 

in the presidential debates since the rule was first 

adopted in 2000. On this fact alone, we should embrace 

the democratic policies we promote abroad, consider 

our own Supreme Court precedent recognizing the 

importance of political competition, and reject the 

monopoly CPD’s 15% rule has given the Republican 

and Democratic Parties over our presidential debates.

B. CPD’s 15% Rule Is Part of an Anticompetitive 

Election Framework That Disenfranchises a 

Plurality of American Voters. 

The framework of our entire election process, 

including the presidential debates, gives the two 

major parties and their members a decided advantage. 

Politics is an industry, and many of the rules governing 

our election process were established not by a neutral 

arbitrator to achieve fair competition, but by the 

major political parties to distort the rules of competition 

in their favor. If CPD’s defense of its 15% rule is 

rooted in a bright-line test of “candidate viability,” 

then it can only be fully understood within the broader 

17 Party Affiliation, supra note 1.
17

context of the rules that govern the candidate nomination process and voter access to that process.18

The interplay of CPD’s 15% rule with primary 

elections provides a good example of this systematic 

distortion of competition in our electoral process. 

Presidential primaries and caucuses in every state 

are private activities that serve political parties.19 In 

many states, only major political party members can 

participate at all.20 The primary election season now 

runs nearly a full year, and there is near constant 

media coverage directed almost exclusively on the major 

party candidates. These primary elections are finalized 

less than two months prior to CPD’s presidential 

debates. And the polls used by CPD to determine

whether a candidate is qualified to participate in the 

“nonpartisan” presidential debates are conducted right 

after the grand finale: the nationally televised Republican and Democratic Party conventions.

18 Gehl and Porter, at 9. 

19 Notwithstanding taxpayer funding of primary elections, they 

serve the private purpose of selecting party nominees. See Cal. 

Democratic Party v. Jones, 530 U.S. 567, 574 (2000), (holding 

that political parties have the right to exclude nonmembers 

from their primary elections because the corollary of the private 

right of association is the right to not associate.); see also, 

Nader v. Schaffer, 429 U.S. 989 (1976).

20 See National Conference of State Legislatures. State Primary 

Election Types, http://www.ncsl.org/research/elections-andcampaigns/primary-types.aspx (last visited Sept. 15, 2017).
18

As summarized by Gehl and Porter:

One of these hidden rules involves access to 

the fall presidential debates. A person running as a Democrat or Republican knows 

that if they win the nomination they will be 

guaranteed a place in the debates. The 

Commission on Presidential Debates (CPD), 

a private organization dominated by partisan 

loyalists, requires every other candidate to 

meet a 15% polling hurdle in a three-way 

race decided just seven weeks before the 

election. While 15% may seem reasonable, 

the poll taken so late in the election cycle 

creates an insurmountable “Catch-22.” The 

practical effect of this rule is to create a 

major anticompetitive barrier to any candidates outside the duopoly, and that is why 

there hasn’t been a third candidate on the 

Presidential debate stage since 1992.

Gehl and Porter, at 40.

With voter turnout over the last several election 

cycles trending lower, we must change CPD’s 15% rule 

to allow a broader spectrum of ideas on the presidential 

debate stage. CPD’s 15% rule is the ultimate affirmation of a broader set of preliminary rules designed to 

limit true electoral competition. While CPD’s 15% rule 

may measure candidate viability in a system that promotes the two major political parties, its relationship

to the viability of a candidate’s views in a competition 

of ideas is lacking, at best.
19

CONCLUSION 

CPD has the sober responsibility of promulgating 

the rules that govern the most important political 

conversation candidates can have with the American

people: the presidential debates. As part of this 

responsibility, it is CPD’s duty to embrace the true 

competition of ideas in our political discourse and 

electoral process. CPD, in conflict with its stated 

mission, has abdicated this responsibility and defends 

a rule that is so limiting on the marketplace for new 

ideas that no third-party or independent candidate 

has qualified for the presidential debates in more than 

two decades. When a significant plurality of voters does 

not feel represented by either major party, we have a 

heightened obligation to change the rule.

For the reasons stated above, the Petition for Writ 

of Certiorari should be granted.

Respectfully submitted,

STEPHEN CHAD PEACE

PEACE & SHEA LLP

2700 ADAMS AVENUE

SUITE 204

SAN DIEGO, CA 92116

CORY J. BRIGGS

COUNSEL OF RECORD

BRIGGS LAW CORPORATION

99 EAST “C” STREET

SUITE 111

UPLAND, CA 91786

(909) 949-7115

CORY@BRIGGSLAWCORP.COM

COUNSEL FOR AMICI CURIAE

DECEMBER 10, 2020