Everson's complaint focuses on two points buried in Title 11 of the Code of Federal Regulations. The first stipulates that the host of a debate should not "structure the debates to promote or advance one candidate over another." The second states that "staging organization(s) must use pre-established objective criteria to determine which candidates may participate in a debate."
Early on in the process, Fox determined that only those candidates in the top 10 of an average of the five most recent national polls would be included in the main debate. After receiving complaints about the format, they added a forum beforehand that would include any candidate that had received at least 1 percent in the poll average, even if they weren't in the top 10. As it became apparent that several prominent candidates wouldn't hit that mark -- including the lone woman in the field, Carly Fiorina, and Sen. Lindsey Graham -- Fox reduced the standard to include anyone that appeared "consistently" in national polling.
Everson's complaint centers on that change in standards, and the word "consistently." Former Virginia governor Jim Gilmore, who Everson notes wasn't mentioned by Fox as a likely participant late last month, has only been included in very recent polling. (The Post/ABC News poll conducted July 16 through 19 didn't include him, for example.) It appears that Gilmore will be included in the second-tier forum despite his late addition to the field. Everson notes that an online straw poll from the Republican National Committee has included him (and Gilmore) from the outset, and in an unanswered letter requesting inclusion that he sent to the network, that he's appeared on Fox News as a candidate more often than Scott Walker and Jeb Bush.
"In view of the urgency of this matter," the complaint to the FEC concludes, "Mark Everson asks the Federal Election Commission to intervene on an expedited basis and rule that Fox News Network, LLC (a), has violated 11 C.F.R. §110.13, and (b) should be compelled to include Everson in the August 6, 2015 candidate forum in Cleveland, Ohio."
The effort will likely not be successful. Alan Schroeder is a professor of journalism at Northeastern University who has written extensively about presidential debates. "This comes up every single cycle," he said when we spoke by phone on Monday morning. "More generally in the general election debates." Candidates who don't make the cut try to figure out how to finagle their way onto the stage -- without success.
"There's always a bit of a time lag here. You file your suit; that doesn't mean you're going to get a judgment before the debate takes place," he said, adding that the FEC's by-now-notorious political stalemate makes a quick decision even less likely. "I can't think of any time where a debate sponsor was enjoined from staging a debate or at the last minute forced to add a chair on-stage."
Schroeder points out that this is a natural problem when media outlets are given the ability to set the rules. "The bigger question is this idea of debate sponsorship. When you put the networks in charge, [they] have a different agenda. Their agenda is to make television shows, which may be a different goal than performing the best public service."
"We're kind of in uncharted territory here," he said. "I don't think that there's a template, legal or otherwise, that you can apply. As long as you've got television networks as sponsors, they're going to structure these things the way that they way to and set criteria the way that they want to."
"For candidates, they may not like that," Schroeder said, "but it's sort of a fact of life."
Below is Everson's complaint