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SANDLER REIFF
SANDLER REIFF LAMB
ROSENSTEIN & BIRKENSTOCK, P.C.

August 9, 2015
MEMORANDUM FOR OMALLEY FOR PRESIDENT CAMPAIGN
FROM:

Joe Sandler

SUBJECT:

DNC Debate Announcement

The DNCs announcement last week of a certain number of DNC-sanctioned debates, among the
candidates for the Democratic nomination, is consistent with its approach in prior election cycles. But
the DNCs effort to force debate sponsors to exclude candidates who participate in other debates is
unprecedented and legally unenforceable.
On May 5, 2015, the DNC announced a set of key principles guiding the process of putting
together a debate schedule. Among those principles is an exclusivity requirement, to the effect that
Any candidate or debate sponsor wishing to participate in DNC debates, must agree to participate
exclusively in the DNC-sanctioned process. Any violation would result in forfeiture of the ability to
participate in the remainder of the debate process.
The DNC is thus attempting to force the media outlets and nonprofit organizations scheduled to
host sanctioned debates, to agree to exclude candidates who participate in any non-sanctioned debates.
First, that effort is entirely unprecedented. Although the DNC announced a schedule of
sanctioned debates both in 2004 and 2008, it has never before attempted to require debate sponsors to
exclude any recognized candidate as punishment for participating in non-sanctioned debates. Indeed, in
2008, all of the major candidates (then-Senator Obama, then-Senator Clinton, Gov. Bill Richardson,
then-Senator Biden, then-Senator Edwards, then-Senator Chris Dodd) participated in one or more debates
not sanctioned by the DNC, and none of the sponsors of sanctioned debates were asked to exclude any of
the candidates for that reason.
Second, the exclusivity requirement is legally unenforceable. The sponsors of the debates are
ten media outlets and one nonprofit 501(c)(3) organization. Under Federal Election Commission rules,
the format and structure of each debate must be controlled exclusively by the debate sponsor, not by any
party or candidate committee. The FEC rules require each debate sponsor to apply pre-existing,
objective criteria for determining who can participate in that sponsors debate. Legally the DNC cannot
dictate the format or structure of any debate sponsored by a media outlet or 501(c)(3) organization
including the criteria for participation. Therefore, it would be legally problematic if any of the sponsors
of the sanctioned debates has actually agreed to the exclusivity requirement. And in any event, it is
highly unlikely that any of those sponsors of the sanctioned debates would ultimately be willing to
enforce that exclusivity requirement.