Since John F. Kennedy and Richard Nixon walked into a Chicago television studio for the first general election presidential debate in 1960, candidate debates have been a fundamental aspect of presidential campaigns and have had broader effects on society at large. The Commission on Presidential Debates (“CPD”) has been in charge of organizing the general election debates since it was created in 1987 by the Democratic and Republican parties. In its tenure, the CPD has restricted its massive platform almost every election to the Republican and Democratic candidates through the use of criteria that seemingly follow the law’s requirement of being pre-established and objective. But the CPD’s criteria is neither truly objective nor nonpartisan; it is effectively bipartisan. By ignoring and dismissing complaints about the CPD’s exclusion of third-party and independent presidential candidates, the Federal Election Commission (“FEC”), which is itself based on a bipartisan structure, reinforces the power of the partisan duopoly in American presidential elections.

There is a strong argument that the FEC should hold the CPD to the legal requirement of non-partisan access to is debates. The spirit of the law points in this direction. But in this, the law is wrong. Rather than commit to the pretense of entirely open access in the elections, the FEC should revise its regulations to reflect the reality: American politics is run through a two-party system.