On Saturday, October 11, David Patterson, the Libertarian nominee for U.S. Senate in Kentucky, lost his lawsuit to gain entry into a debate sponsored by Kentucky Educational Television, which is a state agency. U.S. District Court Judge Gregory Van Tatenhove, a George W. Bush appointee, ruled that the government may sponsor candidate debates limited to candidates “with a realistic chance of winning”. The decision is Libertarian National Committee v Holiday, e.d., 3:14cv-63.

The decision is contrary to the U.S. Supreme Court precedent Arkansas Educational Television v Forbes, 523 U.S. 666 (1998), which said that when government sponsors a candidate debate, it may not exclude candidates with a bona fide campaign. The Forbes case involved a candidate who “generated no appreciable public interest…the voters lacked interest in his candidacy…he had little, if any, financial support, failing to report campaign finances to the FEC…there was no campaign headquarters other than his house.” Patterson’s campaign has been far more vigorous than the Forbes campaign, and Patterson has been at 5% in recent polls.

Judge Van Tatenhove said that as long as there is no evidence that the government failed to invite a candidate because of his or her political views, then it is constitutional to exclude that candidate. He said, “Voters may actually benefit by a forum or debate that includes only those candidates that have a realistic chance of winning rather than many voices competing for very limited time.” This sentence is deceptive, because there are only three candidates on the ballot in the U.S. Senate election this year, not “many voices.” The decision also says, “Kentuckians will have the benefit of hearing the views of the two major candidates. And, no doubt, the positions of less-established candidates will also be heard this election season, albeit without the mandate of a government-funded forum. Nothing about this circumstance weakens the First Amendment to the Constitution.”

Early in the year, Kentucky Educational TV said a candidate would be invited if he or she met any one of these four conditions: (1) had made pubilc position statements on political issues; (2) maintained an active website; (3) had raised at least $10,000; (4) received 5% in a poll. Later in the year, the criteria were changed to require that a candidate must have raised at least $100,000 and must be at 10% in a poll.

It may be that it is socially useful for debates to be held that only include the two candidates with a chance to win, but if so, private organizations can host such debates. It is not the function of government to host debates that exclude any candidate with a significant campaign.