Opinion writer

Carly Fiorina. (Photo by Melina Mara/The Washington Post)

CNN claims it cannot legally change its debate criteria in a way that would allow Carly Fiorina into the debate. This is wrong, according to the Fiorina camp’s legal analysis and the former head of the Federal Election Commission, Brad Smith.

CNN’s calculations to determine the top-tier debate invitees would go back before the first debate to July 16, some two months before the second debate. Using that methodology, Fiorina might not make the cutoff, although she’s been in the top 10 of every national poll since the first debate.

Fiorina’s deputy campaign manager, Sarah Isgur Flores, herself a lawyer with experience in campaign law, argues, “CNN’s interpretation of ‘preestablished and objective’ is silly and seems to be just a convenient excuse without a lot of legal merit they’ve decided to hide behind. Fox changed their criteria a week before the last debate and this rule clearly did not apply.” She adds, “The rule CNN is citing was never meant to prevent a news network from adjusting criteria 3 weeks out to reflect changed circumstances–like how many polls are being released or the momentum change for some candidates after the first debate.” She claims, “The purpose behind the rule is obvious (there needs to be a criteria beyond ‘Jeb Bush is in and you are out’) but this is a pretty silly and willful legal misinterpretation by CNN so they can stick to rules that they know will keep Carly off the main stage.”

Smith does not opine on CNN’s motives, and says, “CNN is under no obligation to change the debate criteria.” However, he is emphatic, “There is no rule that says you can’t change the criteria a few weeks out.” He says it is up to CNN to evaluate any risk, but if he were advising CNN he’d tell them to go ahead. Smith has not endorsed Fiorina, given money or worked for the campaign.

Other election lawyers agree. So do some eminent pollsters. J. Ann Selzer, the most esteemed Iowa pollster, recently told the New York Times, “I think they did not have a pollster at the table when they decided this. I think it’s hard to defend, purely from a math perspective.”

Why is CNN digging in? Without accusing the network of bias, one can see why it would not want to incur the wrath of the candidate who got booted when Fiorina was included, nor does it want to field endless complaints. And no big company wants to admit it screwed up. But this is different than a valid legal objection. There is no excuse for hiding behind the law in order to avoid criticism. CNN does not appear willing to back down, but in doing so it is acting in a self-serving fashion, not the interests of primary voters. As for the RNC, it can make clear it won’t sanction further debates with CNN unless CNN rethinks its position.