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The parameters set for the Democratic National Committee’s presidential debate schedule are “unprecedented,” “unenforceable” and “legally problematic,” an attorney for Democratic presidential candidate Martin O’Malley wrote in a memo Tuesday.
For the last week, O’Malley has been lashing out at the DNC for scheduling only six debates, claiming the national party is seeking to stifle competition and pave the way for Hillary Clinton to become the party’s standard-bearer.
O’Malley has threatened to seek alternatives outside of the DNC-sanctioned events.
Now, O’Malley’s team is turning its fire on a clause, agreed upon by the DNC and the media outlets partnering with it for the debates, that says candidates will be excluded from future DNC-sanctioned debates if they participate in an unsanctioned debate.
“The ‘exclusivity’ clause is legally unenforceable,” O’Malley lawyer Joe Sandler wrote in the memo.
“The sponsors of the debates are ten media outlets and one nonprofit 501(c)(3) organization,” Sandler wrote. “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.”
Sandler essentially dared the DNC and the sponsoring groups to blackball O’Malley for breaking the rules.
“It would be legally problematic if any of the sponsors of the sanctioned debates has actually agreed to the ‘exclusivity’ requirement,” Sandler wrote. “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.”
The memo escalates a battle that began last week when the DNC announced its presidential debate schedule.
The DNC said it would hold six debates spanning from October to March. Democrats are seeking to avoid a replay of 2008, when the party held more than two-dozen debates.
This time around, with Clinton the prohibitive front-runner, the underdog candidates see the debates as their best opportunity to break out.
Both O’Malley and Sen. Bernie Sanders (I-Vt.) have criticized the DNC for only scheduling six debates. O’Malley has accused the DNC of limiting debates to facilitate a “coronation” for Clinton.
Sandler pointed to 2008 to argue that the exclusivity clause is “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,” he wrote.
“Indeed, in 2008, all of the major candidates ... 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,” Sandler said.
A representative for the DNC said the six debates “will give plenty of opportunity for the candidates to be seen side-by-side.”
And candidates may still participate in a variety of other forums that are expected to pull all of the Democratic contenders together at the same time.
“I’m sure there will be lots of other forums for the candidates to make their case to voters and that they will make the most out of every opportunity,” the DNC official said.
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