We'll have all the details tomorrow, but an early report from Fox News discloses that there was an FEC complaint filed against Fox last year for its debate criteria. Three FEC commissioners supposedly viewed it as an unlawful contribution to some of the Republican presidential candidates who benefited from the rule change; two commissioners supposedly went so far as to vote to penalize Fox. (UPDATE: apparently these facts are contested; we'll know more shortly.)
It seems absurd to justify--penalizing Fox for inviting more candidates (in the end, 17 candidates) to participate in a pair of debates? But, again, we lack the details. The terms are opaque, but we can pretty easily reconstruct the details.
The seventeen candidates invited to the August 6, 2015 presidential debates included just about everyone--including folks like George Pataki and Jim Gilmore. But the complaint had to have been filed by some other candidate who was left out--some mysterious eighteenth candidate.
It's likely Mark Everson. You may not have heard of him, as his campaign did not last long.
There were reports of him filing such a complaint last August. Here's the text of the complaint. The heart of the claim is this: Fox had "pre-established" and "objective" criteria for debate participation, consistent with FEC rules--after all, networks aren't permitted to invite just the candidates they like, or else it's essentially a campaign contribution to that candidate. (More on this in a moment.) Top 10 candidates in the five most recent polls get in. Other chances for others, it explains, with details later. That was provided on May 20.
Fox later realized that the field was much bigger and much more uncertain than others had anticipated. So they changed the rules: anyone achieving at least 1% in the five most recent national polls; top 10 participate in the "primetime" debate, and others in a debate earlier in the evening. That came June 11.
Then about 10 days before the debate, Fox dropped the 1% threshold and permitted anyone whose names were being "consistently" included in national polls to participate in the debates. That opened up the earlier debate from what might have been just three candidates to six (and later seven) participants, including adding Carly Fiorina, Jim Gilmore, Lindsay Graham, and George Pataki. Mark Everson was not on the list.
Mr. Everson has a point, to a degree. But it's hard to say that "pre-established" precludes networks from responding to changes at later points in time when conditions warrant--as, perhaps, conditions suggested that the May 20 and June 11 criteria were insufficient, and that a modification July 27 was appropriate. Granted, it takes some teeth out of "pre-established." But it was also intended to accommodate more, not fewer, candidates. And the "objective" criteria of those "consistently" included in national polls sounds not terribly objective, until one considers the previous "objective" criteria: candidates with at least 1% in the five most recent national polls... as recognized by Fox News. This is a standard term that gives media outlets flexibility to exclude fly-by-night pollsters touting themselves as "national" pollsters.
One can sympathize, I think, with Mr. Everson's concerns. But one can also understand, I think, why Fox kept modifying its standards in a fairly unusual time before the election. Was it designed to favor these four candidates over Mr. Everson? In a sense, of course it favored them--they got to appear in the debate, and Mr. Everson didn't! Was Fox giving a campaign contribution to these candidates over Mr. Everson?
This is a much stickier issue. Turning the issue around, would the American public have been better off with Mr. Everson, or without Mrs. Fiorina and Messrs. Gilmore, Graham, and Pataki, as the two choices before Fox, rather than the debate format FOX selected?
For the FEC to punish Fox for altering its debate criteria is serious stuff. It's akin to saying the network had the design of manipulating criteria to help a few favored candidates over others, so much so that it ought to be penalized.
But this is the kind of activity that, while on the (admittedly) fringes of "pre-established objective" criteria, threatens a dramatic chilling of debates in the future. How is a network supposed to respond to early-established debate criteria that appear obviously flawed shortly before the debate, having relied on premises that turned out to be false?
This might simply be one of the gray areas in an unusual year where a single candidate suffered from a maladjusted modification in a condensed period of time. But for the FEC to decide to punish that media entity is fairly strong stuff, in my view.
That said, much of this is speculation building upon some history. When the FEC file is disclosed Thursday, we'll see if this speculation has any basis in the facts of the case.
UPDATE: The FEC file, MUR 6952, has been released. The First General Counsel's report, finding that Fox News violated federal law, is here (PDF). Some of the process, however, is not exactly as described. Two of the commissioners agreed with this report; a third dissented not on the merits but as a matter of prosecutorial discretion (that is, the case simply should not proceed). Three other commissioners joined a statement (PDF) that the FEC even lacked the power to investigate Fox for its debate criteria because the First Amendment precluded such investigation; on this, there was divided 3-3 vote.
