Presidential debates occupy a unique place in the American political process. Debates trace their ancestry to the Lincoln-Douglas debates of 1858, which were actually between Senators, and focused mostly on the issue of slavery. The Lincoln-Douglas debates were long, often boring, and if voting returns from Illinois counties, where debates were held, are anything to go by, Douglass won, by a rather significant margin. Douglass won the Senate race as well. (Senators were elected by state legislatures at that point in time and the decision of Lincoln and Douglas to publicly debate was controversial.)
The era of televised debates started with Senator Kennedy debating Vice-President Nixon in 1960. The debates came about at the suggestion of Adlai Stevenson whose influential column in The Week first proposed the idea. The debates made history, with footage of Nixon, wiping sweat from this brow, looking unshaven and snappish, firmly embedded in the presidential campaign folklore. But the televised debates of 1960 almost didn’t come off. In 1959, FCC received a complaint from the colorful perennial candidate Lar Daly who was running against the powerful mayor, Richard Daley. Lars complained that television was covering Richard Daley on issues unrelated to the campaign, if there’s such a thing, and argued for, as the law Section 315(a) of Communications Act of 1934 mandated equal time. FCC declined Lars’ request but asked Congress to take action. To address such issues, Congress created four exemptions to equal time law. It ruled that ‘Bonafide candidates’ may appear in Bonafide newscasts, Bona fide news interviews, Bona fide news documentaries, and on the spot coverage of bonafide news events. However, the exemptions made weren’t thought to allow for coverage of the presidential debate. Hence, to allow for the presidential debates, Congress suspended the equal time law for just 1960, and only for candidates running for president, allowing for the 1960 debates to happen.
In 1964, Lyndon Johnson’s reluctance to debate Barry Goldwater meant that the Democrats in Congress shelved the bill to suspend equal time law for the year. 1968 and 1972 had Nixon running for president, and given his prior experience against Kennedy, it meant a summary no to presidential debates. But the history of televised presidential debates is as much a history of politics as telecommunication law intersecting with politics. So let me make a brief detour to talk a little more about Communication law- In 1971, an amendment to the Communications Act required stations make a reasonable amount of time available to federal candidates. Once time is made available under this provision, the equal time requirements of Section 315 did apply. The 1971 amendments also addressed the rates which stations can charge candidates for air time. Before 1971, Congress only required that the rates charged candidates be comparable to those offered to commercial advertisers. Now, Section 315 commands that as the election approaches, stations must offer candidates the rate it offers its most favored advertiser. Thus, if a station gives a discount to a commercial sponsor because it buys a great deal of airtime, the station must offer the same discount to any candidate regardless of how much time he or she purchases.
In 1976, debate coverage was allowed under the Aspen decision, which interpreted presidential debates as following under “on the spot coverage of bona fide news event” exception legislated by Congress in 1959— if the debates were organized someone other than the media, and broadcast live, and in their entirety. This was obviously highly disingenuous but repeated cases in Supreme Court failed to reverse the decision. With the decision in place, people scampered to find an organization willing to organize the debate. League of Women Voters finally accepted the responsibility and organized the 76 debate. The debates were held under their sponsorship till 84, and after 88 under Commission on Presidential Debates. The debates until of recently were the focus of extensive lobbying by the candidates and negotiation on the format (town hall/single moderator or panel of journalists/etc.), podium height, the temperature in the hall, whether candidates could use notes or not, among other things was intense and common. Only now, CPD has been able to leverage its power to limit the list of negotiable items. However, bigger problems remain. Constant questions about the utility of debates, and the rather arbitrary criteria for allowing for a third-party candidate to debate.