Outside the Beltway

Carly Fiorina’s Campaign Is Complaining About CNN’s Debate Rules

Carly Fiorina will most likely be excluded from CNN's prime time debate in September, so of course her campaign is complaining about rules that were established months ago.

Doug Mataconis · Thursday, August 27, 2015 · 16 comments

Other than Donald Trump’s antics and his resulting personal attack on Fox News host Megyn Kelly, the candidate who seems to have benefited from the first Republican debate is former Hewlett-Packard CEO Carly Fiorina. While Fiorina was not included in the main debate on August 6th, her appearance in the early debate that was aired several hours before was widely praised by both Republicans who were watching the debate and several political pundits who said that Fiorina had done a good job of setting herself apart from the six other candidates that were included in the consolation debate, most of whom were rather bland. As a result of that performance, Fiorina has seen her poll numbers rise significantly over the past three weeks. Whereas prior to the debate, Fiorina had been polling nationally in the one to two percent range, with some outlier polls showing her a bit higher, after the debate she has polled at five percent in three polls and nine percent in another, giving her a RealClearPolitics Average of 6.0%. Fiorina has also seen her numbers rise in Iowa and New Hampshire, but it’s fact that she is now in the top ten according the RCP average that is leading to a potential problem for her because the criteria for the CNN debate are slightly different than what Fox News Channel used, and the Fiorina campaign is already complaining:

The first GOP presidential candidate to go to war publicly with the Republican National Committee is not Donald Trump. It’s Carly Fiorina.

Faced with the very real possibility that she will again be relegated to a lower-tier debate, Fiorina’s campaign is going after the RNC and the news organization the committee picked to host the next debate, CNN.

What has ensued is a tense back-and-forth, with Fiorina’s camp charging that the RNC should be doing more to ensure that the debate stage represents the true top 10 candidates, and the RNC saying tough luck, the rules are set.

Fiorina, the only female candidate in the GOP field, has surged in the polls since a widely praised performance in the “happy hour” debate earlier this month. But she has a problem: There haven’t been enough polls to catapult Fiorina from 14th place, where she stood going into that debate, into the top 10 ranking for CNN’s Sept. 16 debate.

That’s because CNN — unlike Fox News, which used only the final five polls released before its debate — outlined criteria this spring in which it said it would average the results of polls released between July 16 and Sept. 10. And of the 10 polls that currently qualify for inclusion in CNN’s average, eight were conducted before the first debate.

The Fiorina campaign’s solution? Since CNN has already said it will use all the polls, it should weight down the older surveys and weight up the post-debate polls — and the RNC should make sure that happens.

“The RNC should ask CNN to treat the polling in July the same as the polling that comes after,” said Sarah Isgur Flores, Fiorina’s deputy campaign manager, in a Medium post. “Because there were nine polls released in the three weeks before the last debate, one would expect 18 polls released in the six weeks between the two debates. If that does not happen, the polling average of those six weeks should be treated as the equivalent of 18 polls. Assuming the numbers remain consistent with current polling, Carly would easily place in the top 10 for the main debate.”

But the RNC says Fiorina’s campaign is trying to change previously disclosed rules it doesn’t like. And the committee’s only role in the process is to make sure the rules are applied fairly and without exception.

The Fiorina campaign’s offensive began Wednesday, one day after a short telephone conversation between two representatives of the campaign, Isgur Flores and campaign manager Frank Sadler, and Sean Spicer, the RNC’s chief strategist and communications director, who is acting as a liaison to the campaigns during the primary process.

The call lasted less than two minutes, and the Fiorina campaign gave no indication it would be going public.

The RNC’s response is the same answer it gave after calls to ban Trump from the stage at the first debate: According to federal law, the committee can’t put its thumb on the scale to help one candidate or harm another. All it can do is hand off the process to partners who pledge to apply the rules fairly.

“All the candidates are well aware that, by law, the media set the criteria,” Spicer told POLITICO. “Candidates — including the Fiorina campaign — had asked that the criteria be well-known before the process. CNN had made the criteria known four months ago.”

With the release of a new poll today by Quinnipiac University, The Washington Post calculates that the candidates who would be invited to the main prime time debate are Donald Trump. Jeb Bush, Scott Walker, Ben Carson, Marco Rubio, Ted Cruz, Mike Huckabee, Rand Paul, Chris Christie, and John Kasich. Fiorina’s polling average under the CNN criteria remains at 1.9%, which puts her in the second debate and behind Texas Governor Rick Perry. This isn’t that much of a change from the analysis that the Post did last week, in that time Fiorina’s average jumped from 1.7% to its current level. In order to be included in the prime time debate next month, Fiorina would have to do well enough in whatever polls are released between now and September tenth to surpass both Rick Perry at 2.1% and Ohio Governor John Kasich at 3.4%. This seems exceedingly unlikely for two reasons. First, Fiorina would have to do much, much better in the remaining polls than the 6.0% she has averaged since the debate. Additionally, it seems unlikely that we will be seeing many polls between now and September 10th. After today’s Quinnipiac poll, the next poll that CNN will consider that will be released is a Monmouth University poll that will come out next week. Other than that, we may not get many more new polls at all. Politico reports, for example, that several polling organizations have hinted that they will refrain from doing any more polling before CNN’s cut-off date. Additionally, the fact that Labor Day Weekend falls just a few days before the cut-off date makes it even less likely that we will see any last minute polling since pollsters tend to refrain from polling during holidays when response rates are likely to be lower than normal.

This doesn’t mean that Fiorina won’t be debating on September 16th, of course. Even if she doesn’t make the main stage debate, she will once again be in the second debate along with all the other candidates with the exception of former Governor Jim Gilmore, who apparently was not invited by the Reagan Library, which is hosting the event. Of course, Fiorina and her supporters would counter that this is small consolation considering that the second debate is once again likely to get lower ratings than the first debate, due both to the fact that Donald Trump will be in the main debate and that the second debate will be aired before most people are home from work. That’s why Fiorina, in addition to criticizing the RNC is also attacking CNN for what she claims is an action that erodes trust in the media. These words are entirely self-serving, of course, but they are to be expected from a candidate in her position.

Conservative bloggers such as Andrew Malcom, Jazz Shaw, and Jonathan Tobin have all argued in favor of finding a way to change the debate rules to allow Fiorina into the main debate. Most of the suggestions that I’ve seen from them and others involve some variation on the idea of only using the polls that have been taken since the August 6th Fox News debate to determine who gets invited to which debate. While this idea makes some sense on paper, they are problematic and would end up being just as arbitrary and exclusionary as the current rules. First of all, it’s not even clear that it would be permissible at this point for CNN and the RNC to change the debate criteria at all. The Federal Election Commission has established rules for how debates must be run for both primary and general elections. In the case of a primary debate, the organization running the debate must use “pre-established objective criteria” in determining who receives an invitation. While the rule is silent about whether changes in criteria are permitted, it would seem clear that a change that was made specifically to allow one person to appear in the debate who otherwise would not have been invited would violate the requirement for “pre-established objective criteria.” In this case, using only post-debate polls would mean that Fiorina gets invited to the main debate while either Chris Christie or Rand Paul gets relegated to the second debate. Either one of their campaigns would arguably have grounds to raise a legal objection to such a change.

Leaving aside the legal issues, though, it doesn’t strike me that CNN’s criteria really need to be changed. While it is arguably true that using polls that go back to July 16th is “unfair” to a candidate like Fiorina who has surged in the four national polls that have been taken since the first debate, the fact of the matter is that any criteria are going to be at least somewhat arbitrary. When Fox News made its final decision on invitations to the first debate, it ended up using five polls taken over the course of seven days. Because of that, former Texas Governor Rick Perry saw himself excluded from the main debate stage because he had started falling in the polls in mid-July, while Ohio Governor John Kasich was included in the main debate because his late entry into the race meant that he got the final pre-debate bounce in the polls. Moreover, when Fox first announced its criteria, it did not even specify which polls it would be considering, which led to a lot of guesswork by pundits, reporters, and campaigns who could not be sure which polls to consider. Fox News’s rules, therefore, were arguably “unfair” to Governor Perry, and while his campaign did make an objection at the time nothing significant came of it. CNN’s criteria at the very least specific which polls they will be considering and the time period over which those polls must be taken. By stretching that time period out over two months, they are arguably getting a much better picture of the state of the race than a handful of polls taken in the month between the August 6th debate and CNN’s cut-off would provide. And, again, no matter which criteria are used some candidate is going to end up being the one who is in 11th place and thus relegated to the second debate.

Expect to hear more complaining from Fiorina and her supporters in the coming weeks. As I said, it isn’t unexpected from a candidate in her position and I suspect that any of the other candidates in the field would do the same thing if they were in her position. There will also likely be another round of comments about the only woman in the Republican field being excluded from the main stage. All of these arguments are irrelevant, though. CNN’s criteria have been established, and it doesn’t appear that they can be changed without legal consequences. Additionally, the criteria themselves seem to be entirely reasonable to me. Absent a miracle, Fiorina will not be on the main debate stage in September. That’s unfortunate for her, but that’s how the game is played. There’s really no use in complaining about it at this point.