Last November, I blogged some questions about the future of the Commission of Presidential Debates. And my instincts were right. We learned today that the Biden and Trump campaigns have privately back-channeled with one another about an alternative debate format. More at the New York Times. There are lots of political reasons for each campaign to do this–both have grievances with the CPD and apparently have the leverage to jettison it (aging candidates looking to have greater control over timing and conditions)–and have agreed to a debate hosted by CNN on terms they prefer.

To get around campaign finance restrictions, CNN has listed “pre-established objective” criteria to participate in the debate. And here’s where things get complicated.

Let’s start with a recent statement from CPD about why they hold debates after September 1:

Equally importantly, federal law requires any general election debate sponsor to have pre-published, objective criteria by which to decide who qualifies to participate in the debates. Nomination by a major party is not sufficient in and of itself. The CPD’s 2024 Candidate Selection Criteria, published in November, 2023, include the requirement to appear on a sufficient number of state ballots to have an arithmetic chance of winning the Electoral College. Three states do not close their ballots for independent candidates until September 6.

With this framing, let’s look at the criteria. CNN has announced its criteria, which resemble the CPD criteria, but there important differences to highlight. Uncontroversially, candidates must be constitutionally eligible (although CNN restricts this to Article II, Section 1 of the Constitution).

Next, CNN announced, “a candidate’s name must appear on a sufficient number of state ballots to reach the 270 electoral vote threshold to win the presidency prior to the eligibility deadline.” This resembles the CPD criteria.

But, it’s worth noting that on June 27, 2024, Biden and Trump will appear on the ballot in exactly zero states.

That’s because neither party has held its nominating convention. So neither candidate can appear on the ballot.

Now, all states allow the state-party affiliates of the Republicans and Democrats to submit the names of the candidates (or some other slightly more complicated mechanism) after the nominating convention. So they’ll appear on the ballot in all states (with the recent dispute in Ohio being an outlier, for now). And of course, we anticipate (1) they will secure the nomination at the convention and (2) they will appear on the ballot in all fifty states. But, on June 27, neither of those are formally true.

This is not a problem for the CPD, which measures ballot access after September 6. But this is important as CNN tries to write rules that will be neutral, in some form.

Relatedly, it is a rule that might stifle Robert F. Kennedy Jr. He has some ballot access (and has made good progress). Whether he will reach 270 by mid-June is an open question. But importantly, he doesn’t have to, and he’s actually developed a strategy of waiting to submit petitions to head off legal challenges:

The campaign is waiting to submit petitions in states where it said it has collected enough signatures to qualify until the deadlines in those states draw closer in hopes of reducing opportunities for legal challenges from Democrats and Republicans, a second campaign official told CNN.

Perhaps this changes Kennedy’s strategy. But it’s worth a contrast to the fact that, formally, both Biden and Trump flunk CNN’s criteria.

Finally, the polling threshold. CNN requires candidates “receive at least 15% in four separate national polls of registered or likely voters that meet CNN’s standards for reporting.” That window is between March 13 and June 20. CPD requires average of the five most recent polls reaching 15%. Right now, Kennedy hit 16% in two eligible polls (CNN, Quinnipiac). He would only need to hit 15% in two more polls in the next month.

On Kennedy, I’ll restate what I wrote in November: “In my judgment, there is nearly zero change that Kennedy carries even a single electoral vote–independent candidate support is often higher in polls than in reality, and it erodes significantly when voters actually cast ballots. That said, the criteria might well allow him to get on stage, if such criteria continue forward.”

So, the format might have been initiated by the campaigns to try to keep Kennedy off stage, but the criteria may well be more favorable to him, if he can hit the ballot access threshold. But it raises an odd question about whether Biden and Trump themselves meet this criteria, or whether challenges might arise to CNN hosting the debate. I don’t have firm answers–these issues aren’t litigated much (you can see a 2016 dispute over Fox’s GOP primary criteria here and here, which I wrote about here), but set up some uncertainty if there are legal challenges from the Kennedy campaign in particular. That said, there are plenty of other things to discuss and dispute about the politics of the debates, which I’m sure will get far more attention than the niche (!) legal issues.

UPDATE: ABC has also announced it will host a debate. It has posted the criteria here. The criteria are similar to CNN, but the date of the debate (September 10) avoids the ballot access concerns.