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Balkinization
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Friday, January 11, 2008
How Many Candidates Should Be Asked to Debate?
Ian Ayres
Is there anyway to setup in advance some neutral principals for deciding how many candidates to invite to a presidential debate? Last night 7 Republicans debated. But instead of thinking about the specifics of whether Ron Paul should be allowed to debated, I'm looking for rules that might not be articulated now to decide which candidates would be invited 4 or more years hence.
Comments:
We already have a procedure Americans seem to find legitimate: remove the least popular contestant from the show after each round.
Wasn't Huckabee polling close to nothing several months ago? Using polling data to decide who debates would have probably excluded him . . . even though he's now among the front-runners.
What about issuing a number of invitations to the debate equal to the effective number of candidates, but giving out those invitations by lottery? Each candidate receives a number of entries in the lottery proportional to her poll support. That way, the debates are still properly sized, relative to the concentration of the race, but the proposal doesn't have quite the same exclusionary effect? Granted, exclusionary effect is the point of the proposal, but still--some opportunity for rising insurgents to shake up the debates would be a good thing. And since the debates would be more limited in size, candidates who win the lottery against the odds would be more able to make coherent points rather than being drowned out by all the other long shots.
Given the chicken/egg problem of market share and exposure, I'm not sure that folks would view a market share metric as legitimate.
If the debates are privately sponsored, then -- just a crazy thought -- the private sponsor should determine the invitation list.
Sorry if that formula is too complicated compared to your poll-based "effective candidate" system. On the other hand, the candidates could, in classic collective bargaining style, unite a priori to set their own joint requirements about invitation lists. Just because Fox News invites you, doesn't mean you have to show up -- especially if you've pledged in advance only to attend fully inclusive debates (and with the media, and therefore the public, watching who commits to what and who breaks which promises). At the post-nomination level, meanwhile, the test is simple: Any candidate with a mathematical possibility of an Electoral College victory (i.e., on the ballot in enough states) should be allowed to participate. Stated differently, the debates should be expanded from "bipartisan" to "nonpartisan." Call that the Strong Form; the Weak Form is: "any candidate on the ballot in all 50 states should be allowed to participate."
It is indeed difficult: How do you craft a pseudo-scientific rationale for excluding from debates candidates you don't want the public hearing from, without risk of it excluding your own candidate on the next go-round?
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The debates are fairly expensive to put on, especially given the cost of the air time. Perhaps they should sell the seats to the candidates: Calculate the cost of airing one candidate's worth of replies and rebuttals, add a bit of overhead, and invite every candidate who'll pony up. If you can't afford your share of the cost of the affair, you probably haven't got the funding to run an effective campaign. If you can afford it, they've got the funding to extend the debate time enough to accommodate you being part of it. I must agree with Kipesquire: At the primary level, the debates are private affairs, the organizers should not be legally obligated to include or exclude anyone. 1st amendment, you know, which some of us think applies even to political speech. At the general election level, where our political duopoly has created a de facto government run debate system, (Out of outrage over the LOWV daring to invite a third party candidate, IIRC.) he(?) has identified the logical course: Include every candidate on the ballot in enough states to theoretically win in the electoral college. I can not recall a race, ever, where this number was infeasibly large. The mode, I believe, has been 3, perhaps at most 4.
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Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) Neil Netanel, Copyright's Paradox (Oxford Univ. Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
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