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Burden of Proof

Election 2000: Debating Debate Exclusion

Aired October 3, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: It's finally here. The first debate between candidates of different parties. But why are there only two candidates debating in Boston tonight?


PAT BUCHANAN (REF), PRESIDENTIAL CANDIDATE: You've got a situation that the American people are not permitted to hear a candidate whose campaign they're paying for, because a couple of political hacks are fronting for the establishment parties in Washington and freezing them out.

RALPH NADER, GREEN PARTY PRESIDENTIAL CANDIDATE: At the present time, the debate commission has that monopoly by Al Gore and George W. Bush because other institutions have given it that monopoly by default.


ANNOUNCER; This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

All week long, we'll be celebrating our 5th anniversary. But today, we turn our attention to the University of Massachusetts at Boston, where crews are preparing for tonight's first debate between Vice President Al Gore and Texas Governor George W. Bush.

GRETA VAN SUSTEREN, CO-HOST: But part of today's story centers on those who have not been invited: third party candidates. Most notably: Reform Party candidate Pat Buchanan, who has received more than $12 million in matching federal funds, taxpayer monies, but he's not invited.

COSSACK: Joining us today from Boston to discuss the debate about debate exclusion or inclusion is Jenny Backus, press secretary for the DNC. Here in Washington: Cliff May, communications director of the RNC; Tim Haley, campaign manager of the Pat Buchanan campaign; and Trevor Potter, former commissioner of the FEC.

VAN SUSTEREN: And in our back row: Kevin Moss (ph), Elizabeth Crowder (ph), and Marcy Caruso (ph).

Let's go first to the phone, we are joined on the telephone by Phil Donahue.

Phil, you are a supporter of Ralph Nader. Why should your candidate be part of the debates tonight?

PHIL DONAHUE, RALPH NADER SUPPORTER: Well, first of all, let's -- with apologies to James Carville it's the debate, stupid. It is not possible to overstate the importance of these four events, one veep and three presidential face-off here. And to just review what Ralph Nader has been reminding audiences all over these countries, these major parties may on this occasion have stepped over the line. They have taken control of our most important presidential campaign moments: the debates. They have not only taken them over, they have sold them. They sold them to major corporations, including AT&T.

Can you imagine how enthusiastic AT&T is to have Ralph Nader on that stage?

It also allows, Greta, these candidates to continue to debate an agenda that is essentially thin beer. They are not going to touch what they call third-rail issues.

For example, Ralph Nader wants public financing. Let's take all the money, all the millionaires, all the corporations out of our campaign process for all public offices.

Then our candidates don't have to spend night, after morning, after day on the phone, and standing in front of fireplaces on Park Avenue. It is an endless, mindless, numbing process that is totally consuming, and it doesn't allow our public servants to render public service.

COSSACK: Phil, let me interrupt you a second because I want to go to Tim Haley now for a moment.

Tim, as a representative of the Buchanan campaign, your group filed a lawsuit to get into the debates. You lost. But yet Pat Buchanan has $12.5 million of taxpayer money. How do you reconcile the issue of somehow he has ended up with taxpayer money and he is not allowed to address the taxpayers.

TIM HALEY, CAMPAIGN MANAGER, PAT BUCHANAN CAMPAIGN: Clearly, Pat Buchanan should be in these debates. We are the only third party that has received taxpayer money, and we should be in there.

I mean, the latest poll out says -- the last time a third-party candidate was included in the debates, 67 percent of the American public said they were going to watch the debates.

VAN SUSTEREN: Why did you lose in court? What is the legal ruling?

HALEY: The legal ruling says that they don't feel they have the authority to overrule the Commission on Presidential Debates and the Federal Election Commission.

VAN SUSTEREN: To cut to the chase, the fix is in. HALEY: They give deference to the commission, that's correct. They felt our arguments were good...

COSSACK: They said there's no jurisdiction, but in effect, they are saying we are not going to look at it.

VAN SUSTEREN: All right.

HALEY: Greta is exactly right, the Commission on Presidential Debates is made up of Republicans and Democrats, to the exclusion of third party candidates. And literally, hundreds of millions of dollars are being spent by corporations for the benefits of these two candidates, in promoting their candidacies tonight to the detriment of Pat Buchanan and Ralph Nader.

VAN SUSTEREN: Jenny, your candidate is the vice president, Al Gore. What is the Gore campaign's view of the fact that Pat Buchanan has gotten $12.5 million worth of taxpayer money, and a lot of the American people in July in a poll wanted to hear from him, but your candidate hasn't exactly come out and said: Let everybody participate.

JENNY BACKUS, DEMOCRATIC NATIONAL COMMITTEE: I think that the commission set up a very reasonable threshold, which is 15 percent of the vote.

VAN SUSTEREN: That's changed, though, is it not? That's changed, in the year 2000, is that right?

BACKUS: Yeah, that's for this year, 15 percent of the vote, taking in reasonable polls, looking at the numbers that are coming in. I think that the American people are going to see two very significant differences between candidates tonight. I think that they are going to be treated...

COSSACK: Jenny, why can't they see -- Jenny, why can't they see four real differences between candidates tonight? I mean, why, when we are giving one of these candidates $12.5 million of our money, why don't we get to hear what he has to say?

BACKUS: Well, again, because I think that there was a reasonable threshold set forth. If you can get 15 percent of the people of this country to say that they are going to vote for these candidates. If not, if you have the two candidates who have the most realistic chance of winning, having a discussion of the issues, and laying out the clear differences between them and their parties, I think that's going to be to the advantage of the American people.

I mean, Al Gore has a very different view of the American people than George Bush does, a very different view...

VAN SUSTEREN: Let me ask Cliff something.

Cliff, I suppose this is one of the rare times that the Gore and Bush campaign may agree, excluding Pat Buchanan and Ralph Nader from this debate. How do you -- this is troubling, the fact that we give Pat Buchanan this money and Ralph Nader has been out there. Are the two campaigns afraid to hear from these two candidates? I mean, why not let them come up on the stage and talk?

CLIFF MAY, REPUBLICAN NATIONAL COMMITTEE: I think one of the questions is you do need to have some kind of threshold, whether it be 15 percent in the polls or 10 percent, you need some way because -- let me point out here..,

COSSACK: It is a self-defeating prophecy. They are never going to...

VAN SUSTEREN: Wait a second, you guys set the rules.

MAY: If you include Pat Buchanan at 1 percent, why not Harry Brown and the Libertarian Party at a half a percent? How are you going to say who is going to be in the debates? What is the criteria? There has to be some criteria because, as you know, there are dozens of people doing this.

VAN SUSTEREN: This is floating criteria, the year 2000 criteria is different from '96.

MAY: If you want to talk about what the best criteria is I think that's a good discussion to have, the criteria that was set in this case was 15 percent, and these two candidates didn't come anywhere close to it.

But Phil Donahue made an interesting point, he said: We want to see some candidates talking about third-rail issues. Governor Bush is talking about third-rail issues. The big third-rail issue has been Social Security, and he's shown leadership on that.

COSSACK: Look...

VAN SUSTEREN: Let me ask you a question, if the rules have been changed for the year 2000. Under the 1996 rules as to who could participate in the debate and who could not, would Pat Buchanan qualify?

HALEY: Absolutely. And the reason is is because they were polling the panelists, such as yourself, the opinion makers saying who should be in the debate. The opinion makers are saying Pat Buchanan should be in the debates, and they are saying that Ralph Nader should be in the debates.

To say that we are going to talk about the third issues, we are debating -- George Bush is spending $2.4 billion a day of our taxpayer money when he is on the campaign trail, and Al Gore is spending $2.8 billion a day. What is the debate?

VAN SUSTEREN: Trevor, does the FEC have any role in who gets to debate?

TREVOR POTTER, FORMER COMMISSIONER, FEDERAL ELECTION COMMISSION: It really doesn't. The Debate Commission, as it is called, is a private group. It is just a nonprofit organization that was set up by the former chairmen of the two parties to provide a forum for this when the League of Women Voters stopped...

VAN SUSTEREN: The two parties are the keys words, the Democrats and the Republicans.

The Republicans and Democrats. The FEC put in a regulation saying you may not make party nominations status, i.e. Republican and Democratic nominee, your sole criteria. You have to come up with some other preexisting reasonable criteria, which is why the commission this year came up with the 15 percent.

VAN SUSTEREN: Let me be a little bit of the cynic. You put on the commission, the Republicans and the Democrats, and they set the criteria but anyway...

COSSACK: That's why we not invited to the debate either.

VAN SUSTEREN: Up next, a look at the legal issues which could be debated tonight, and how election 2000 could affect the tilt of the U.S. Supreme Court.

But first, as we celebrate our 5th anniversary here on BURDEN OF PROOF, an inside look at Roger, and his views on practicing law, and hosting a television program.


COSSACK: Live television is very different because every day you don't know what exactly is going to happen. That was most of what I loved about practicing law, I both a prosecutor and a defense lawyer, and you never knew what was going to walk in the door.

So everyday was a day that you sat down and you never knew what the phone was going to bring, or what was going to walk through the door. I'm a guy who loves to read. I love stories. So the notion of what's going to be brought forward is always exciting to me.



VAN SUSTEREN: Tonight, in Boston, Massachusetts, Texas Governor George Bush and Vice President Al Gore will face off for the first of three scheduled 90 minute debates. Questions posed to the candidates are designed to distinguish their viewpoints on government, public policy and the law.

Let me go back to the phone to Phil Donahue who is joining us.

Phil, is there a legal question you think should be posed to the two who are invited to the debates tonight?

DONAHUE: I would ask them where -- from whence came the power to exclude everybody else in this show that is produced by major parties in league with their corporate sponsors? Incidentally, the debate is taking public money for the purpose of putting this debate on at U- Mass. In other words, corporate money is not enough, they have got to have public money as well.

VAN SUSTEREN: You know what, Phil, your question unfortunately was answered by a court, and when they shot down Pat Buchanan's request.

Let me go to Jenny.

Jenny, do you think that there is a question that should be asked of both of them, as to United States Supreme Court tonight?

BACKUS: Absolutely. I think that this is where the American people are really going to see a very big difference between the two candidates. It is sort of tied to two things. First of all, there's the Supreme Court. Now, we know that the Christian Coalition is already out there advertising in some of the battleground states about what they want on the court. But I think, for a lot of people, they want to make sure that there's a court that is going to be there that will protect a woman's right to choose, that is going to uphold environmental health and safety standards, that is going to protect things like the tobacco class-action lawsuit.

Governor Bush has a very different view of what courts should do. He doesn't -- he thinks his two favorite judges are Antonin Scalia and Clarence Thomas.

VAN SUSTEREN: Well, -- I always thought it was unfair, Jenny, to name names because you vet these people as to who should be on the Supreme Court. But who do you think that your candidate sees -- you are saying Bush likes Scalia, who do you think your candidate thinks is ideal in the past?

BACKUS: What do you think my candidate thinks...

VAN SUSTEREN: Who is his hero, who does he admires on the court?

BACKUS: His models have been Brennan, I think Thurgood Marshall, those are some of the people that he has named as model justices, people who keep the public concern out there, but also keep an honor for the role of the court.

But another important point tied to the court has been the neglect that's happened to the courts, and this is happening in George Bush's Texas right now, because George Bush's Republican Party has refused to confirm any federal judges, and that's causing a huge backlog and a delay in justice along the border. Just yesterday I read that they are not taking any new drug cases in some of those circuits in California and Texas because the courts are so backed up because they can't get judge approved. It is happening in Florida, Bob Graham has talked about that.

I think that is a very different view of our courts and our court system, and I hope that comes up tonight as well.

COSSACK: Jenny, I have to ask Cliff May, I guess -- we try and follow the equal time rule around here, I guess you get to give me some time now, and tell me what your candidate will do about the Supreme Court.

Let me sort of shape the question a little bit. Do you really see extremes on either way? I mean, let's talk specifically about the one issue that people seem to be concerned about with your client, which is what kind of judges would he be looking for, in terms of this right to privacy and Roe versus Wade? Is he looking for judges that are going to do away with Roe versus Wade?

MAY: Well, he is not my client, he is my candidate, but I will answer the question as best I can.

COSSACK: Did I say client?

VAN SUSTEREN: You called him a witness instead of a guest, too. I am kidding.

MAY: I think Governor Bush has made it pretty clear, he is going to try to appoint justices who will protect most of all the Constitution and constitutional system that we've had in America for a long time, not justices who will think: You know, this is my personal policy preference, I'm going to enact it, no matter what the law of the land is, what the Constitution is, no matter what the Congress says. That's the way...

VAN SUSTEREN: Cliff, are you talking about activism?

MAY: I am talking about judicial activism.

VAN SUSTEREN: Let me tell you one thing. Let me play the game with you. When you talk about judicial activism, you usually talk about liberals, but let's talk about judicial activism, as it relates, for instance, to Justice Scalia, who invents exceptions to the Fourth Amendment and endorses them. That is just as activist. They are both up to their eyeballs, whether it is conservative or a liberal, that's just a slur...

MAY: Well, I hope that's not true. But I do know that Governor Bush believes that we should have justices who do not engage in activism, who do not legislate from the bench, but who rather defend the law of the land, and our constitutional system, which has stood us in good stead for a very long time.

By the way, the other thing is, and Senator Thompson has talked about this, others, our judicial system, our system of justice, has taken a terrible hit over the past few years, it needs to be renovated and restored, it has been utilized for political purposes egregiously.

COSSACK: Speak for Pat Buchanan and tell me if Pat Buchanan became president of the United States, or had some influence as to who the justices should be, would we see nine Antonin Scalias?

HALEY: Well, hopefully we would, yes. Clearly, he is clearly an exceptional justice. But I don't think Jenny has so much to worry about Governor Bush. I think Jenny needs to look at Governor Bush's record down in Texas. He has appointed four Supreme Court justices in Texas, three of them have been pro-abortion. And so, therefore, when he says he has no litmus test, that is clearly the case.

VAN SUSTEREN: The lines just keep shifting here.

BACKUS: I completely disagree on that point. I mean, look at the Republican platform, which Governor bush endorsed, it is some of the strongest anti-choice language that you have seen out there. And if you really want to talk about Texas judges, let's see how George Bush feels about federal judge when one has to step in and take over the running of the Medicaid system in Texas because George Bush wasn't covering kids for health insurance.

COSSACK: And Jenny, I am going to interrupt you here because we are going to take a break. Hold off, guys.

Up next, who sent a videotape of Bush practicing for debates to the Gore camp? The FBI wants to know. I want to know. And Greta wants to know.

Before we take our break, an inside look at BURDEN OF PROOF and our 5th anniversary, and Greta's take on the impact of the law on next month's presidential election.


VAN SUSTEREN: CNN has allowed BURDEN OF PROOF to be a player in every single major story. Take the year 2000, the major story is the elections, and no other network has sent a legal show to the elections. But, CNN did because they realize this is not just about a horse race, it is not just about who wins and who doesn't, it's about real issues.

This is about who is going to be on the United States Supreme Court? What president is going to be in the White House selecting what nominees for the United States Supreme Court? It's about appellate judges. It's about trial court judges. It's about abortion, which is a Supreme Court decision emanating from the United States Supreme Court, which is, of course, just right behind me.

It's about lawmakers, because people who sit in Congress are lawmakers. It's all about law.

But what the legal show does is it looks at the issues through a different prism. We look at it from a different viewpoint. So one of the advantages of a legal show is that we allow the viewers to see different views, different sides of the same issue.



COSSACK: In little more than eight hours, the first of three presidential debates will take place in Boston, Massachusetts.

Meanwhile, federal agents continue to investigate the origins of a videotape showing Governor Bush practicing for the debates. It was sent to an adviser for Vice President Gore.

Well, Trevor, would FEC get involved in something like this...


COSSACK: ... and if not, why not?

POTTER: Well, it's not even clear that we have a violation of law here.

COSSACK: Well, that's our next question, Greta and I were just going to find out.

POTTER: Well, we know that we've got a great political story, but the question is whether this is illegal; if somebody did it.

Was it stolen material, which we don't know yet. That's undoubtedly what the FBI is looking at; there's a federal dirty-trick statute that says you can't misrepresent yourself as an agent of a campaign and do something that injures the campaign; but it's not clear that someone was misrepresenting themselves as an agent of the campaign.

So the FBI's first question has got to be, do we even have a law that's been broken?

VAN SUSTEREN: You know, it's interesting, Trevor, that we're, you know, I think what happened, I mean -- let's assume that someone lawfully had the tape, and then sent it. And let's assumes it doesn't violate any law, it doesn't violate the dirty tricks, it's not misrepresenting -- you know where the person is going to get hooked, I think? Is if the person makes, whoever is investigated makes a misstatement, a lie, a falsehood to the FBI agents -- always the follow-up that gets you. It may not be the initial conduct.

POTTER: It's always the cover-up and, as we know from the last couple years, making a false statement to a federal agent is, in fact, a crime.

COSSACK: Certainly is; 18USC 1,001.

Cliff, let me ask you your interpretation of this whole, perhaps, scandal.

MAY: Yes, I mean, we don't know all the facts. We do know that somebody in the Gore campaign said and had an e-mail, and swore in an affidavit saying that the Gore people had a mole in the Bush campaign.

Now, they're saying that's not true, but this guy has been suspended, but suspend with pay. I don't quite understand that. If I had somebody on my team doing that, I'd suspend them -- I'd fire them for saying that, whether it was true or not.

VAN SUSTEREN: You know what though, let me tell you something...

MAY: We don't know the truth; and we don't know if that's connected or not to the tapes, but it's disturbing to me.

VAN SUSTEREN: Cliff, I'll tell you what's disturbing to me about both campaigns. It's, and maybe, actually, the blame is on the media; but Bush got blamed for the rat, and I thought that was terrible.

I mean, you know, I don't think Bush -- and Gore gets blamed for this. Rather than, sort of, looking at, you know, who really did what -- you know, we should be looking simply at who did what and not blaming the candidates.

But let me go to Jenny...

MAY: But I agree with you; and I'm not making that blame. The only thing I wonder, because it's a mystery to me, is why they would suspend this person with pay -- why do they still have him on payroll?

VAN SUSTEREN: Well, because maybe...

COSSACK: It may not be a crime.

MAY: But crime or not, it's clearly a breach of ethics to say, we have a mole in the campaign, if you don't or if you do.

VAN SUSTEREN: But you know what, it would be worse if they suspended the person without pay and the person had nothing to do with it. Then they jumped the gun.

But let's go to Jenny -- Jenny, I see you shaking your head, do you want to respond?

BACKUS: Well, I mean, Cliff just absolutely ducked the question here.

But let's go back to the clear answer on the issue of the tape, which is definitely something that's very troubling and very disturbing. I think the Gore campaign acted absolutely professionally, ethically and morally right when they contacted the FBI right away and turned it over to them; and we're going to see where the facts lead us in this case.

But what you saw from Cliff, right there, is what I think you've been seeing from the Republican Party and George Bush a lot in this campaign, which is an attempt to change the subject; to talk about process, to talk about all the different political tricks, and I think the voters are turning off of it.

Let's talk about the differences on the issues...

VAN SUSTEREN: Well, let me interrupt both of you and say that the thing that I have is how quick we are to, sort of, take the paintbrush and blame the two candidates for something that may be a single person's bad conduct -- if, indeed, a single person even did -- but today I guess...

BACKUS: I didn't blame the two candidates at all. I'm waiting to see where the FBI goes. Our candidate isn't attacking the FBI like the Republicans.

COSSACK: Jenny gets the last word.

VAN SUSTEREN: I guess, Jenny, you get the last word because that's all the time we have.

Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," send in the questions you'd like asked of the candidates. Send your e-mail to host Bobbie Battista and tune- in at 3:00 p.m. Eastern time.

COSSACK: And tune in to BURDEN OF PROOF all this week as we celebrate our fifth anniversary. We'll have a special inside look at the past five years on Friday.

And tomorrow, our guest will be former independent counsel and former Federal Judge Ken Starr. Join us tomorrow for another special anniversary edition of BURDEN OF PROOF; and we'll see you then.



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