A federal judge is considering whether to force Kentucky Educational Television to include a Libertarian U.S. Senate candidate in its debate Monday between Republican Sen. Mitch McConnell and Democratic challenger Alison Lundergan Grimes.
U.S. District Judge Gregory F. Van Tatenhove’s decision could have a major impact on one of the country’s most watched Senate races. Monday’s event will likely be the only debate between McConnell and Grimes on statewide television. Both candidates have raised and spent millions of dollars in a race that could help determine which political party controls the Senate. Including little-known Libertarian candidate David Patterson would change the expected dynamic of the debate just three weeks before voters go to the polls.
The U.S. Supreme Court has ruled that public broadcasters can exclude candidates from their debates, but they cannot exclude candidates solely on their political views. On Thursday, Van Tatenhove listened as attorneys for both sides argued for more than seven hours over more than 1,000 pages of emails between KET officials, attorneys and campaign staffers. The emails are key to Patterson’s case. He says they show KET officials changed the criteria for appearing in the debate in the middle of the election cycle specifically to exclude Patterson and other third party candidates.
Patterson argued he met the original criteria, but did not meet the updated criteria because he has not raised at least $100,000 and has not had at least 10 percent of support in public, independent polling.
"One of the things that gives me pause is the rules changed in the middle of the game," Van Tatenhove told attorneys near the end of the hearing.
KET attorney Chris Brooker argued the public broadcaster set criteria for the primary election on May 20 and updated it for the general election because it is "a new game after the primary."
"What’s important is those criteria be objective, and they were," Brooker said.
Patterson’s attorney Chris Wiest argued the criteria were not objective because they required candidates to have raised at least $100,000, excluding candidates who have pledged not to accept campaign donations because they don’t like all of the money in politics.
"They have the effect to say you have to have money to participate in a debate," Wiest said.
But Van Tatenhove suggested several times the criteria had nothing to do with the candidates’ viewpoints but were more a way to gauge the seriousness of a candidate’s campaign.
"I understand the argument KET ought not to be limiting views. But you lose the effectiveness … if you have too many (candidates) appearing side by side at the same time," Van Tatenhove said.
Patterson, a police officer from Harrodsburg who will appear on the ballot in November as a Libertarian, testified that he is a noninterventionist and that he disagrees with McConnell and Grimes on their willingness to use military force to combat the Islamic State group in Iraq. He said not having his voice in the debate would deprive people a choice whether "they relate more with me than with the other candidates."
Bill Goodman, host of KET’s Kentucky Tonight program where McConnell and Grimes will appear on Monday, testified that everyone at KET is devoted to the trust the broadcaster has with the public. When someone challenges that trust, he said, "I take it personally."
Responding to allegations that KET officials excluded Patterson because of his views, Goodman said, "That has not occurred. It will not be a reason to exclude someone from our programs."
Van Tatenhove said he would issue a ruling soon.