On Monday, August 18th, it was revelead to LPKY -- 2 days after the deadline of Midnight on August 16th -- that KET had created new criteria beyond what they had used in the past. An Open Records Request reveals what was happening behind the scenes. What we learned was defintely worth sharing.
You can read the actual emails at the end of this entry; as a warning, they're VERY large files.
The old criteria was "simply" being ballot-listed. While saying "simply", you must understand that this isn't an easy task, and is only required for candidates who aren't running as a D or an R. Non-D/R US Congressional candidates need 400 signatures (minimum; 600 or more is required to be "safe") and non-D/R US statewide candidates, including US Senate, need 5000 signatures (minimum; 7500 or more is required to be "safe"). Understand that the market value of a signature is, at minimum, $2 per signature. While volunteer signatures are preferred, the practical reality is that petitioning takes a special type of personality -- a different personality type than a candidate for office. The late Gatewood Galbraith didn't do all of his own petitioning, for instance, and he ran for office multiple times over the course of 3 decades.
So typically, this is simply another fee to get listed on the ballot in the form of busy-work shrouded in "public interest" of keeping frivilous candidates off of the ballot. That's the irony, as you'll see in a moment.
KET decides to get selective
In January, KET began to talk about creating criteria to keep certain candidates from participating in their televised forums. They did so because 2 legal candidates for office in 2012 were perceived to be "using the process to air antiabortion ads."
Let's state that again: KET was seeking to filter what you could learn about your options based on their criteria. Or, to quote them this time around, they had 'at least one eccentric candidate on the ballet [sic] who we would prefer not to invite. To address this we are drafting "pre-established objective criteria"...'
Before going on, it's important to look at KET's mission statement, at which they fail 5 of the 9 on their list.
- Learning — They fail to educate voters as to all of their options.
- Equity — They're specifically creating a "separate but equal" qualification.
- Fairness — They intentionally concealled the new criteria.
- Integrity — They intentionally sought to filter out particular candidates to get a desired result.
- Diversity — Their new policy is specifically "un-inclusive" of non-D/R candidates.
The original version of the new criteria to be included in either the Primary Election or General Election shows weren't bad: be ballot-listed or a write-in and meet any one of four other criteria to be included (5% OR $10,000 OR website OR public candidacy) in either the Primary Election or General Election shows. Their counsel told them that they needed objective criteria from the outset, and that they couldn't filter based on viewpoint. Discussions continued within KET.
In February, KET officially invited Grimes and McConnell, as well as other D and R primary candidates, to participate in the Primary and General election shows (the latter only upon the criteria that they won their respective primaries).
KET seems to have partially-applied this new criteria to the Primary - they did not invite Republican Chris Payne to participate, but two other candidates who were polling under 5% and hadn't raised money were invited. Grimes and McConnell both declined to appear on the program, in what is a very common practice of the "established" candidates refusing to even acknowledge or participate in anything that includes the "frivilous" candidates.
In early March, David Patterson was nominated, in accordance with our state party Constitution by registered Kentucky Libertarians, as the LPKY's candidate for US Senate; our version of a primary. Mid-march, Patterson's media coordinator reached out to KET and other media outlets to inform them that Patterson was in the race, and that media inquiries should be directed toward him. KET was therefore informed of Patterson's entrance into the race.
After McConnell and Grimes had won their respective primaries, they were immediately invited again to participate in KET's General Election program on May 22nd. No criteria was presented to them in their invitation; simply winning their primary. And the "everybody else" criteria continued to shift after this. Remember that both David Patterson (L) and Ed Marksberry (I) had both publicly declared that they intended to be on the November ballot and were actively collecting signatures in order to make the November ballot.
During this same period of concern, there was a lot of talk within KET about "getting" the debate everyone in the media wanted; the Grimes-McConnell debate. They become very concerned with being able to get that debate. There was concern about "getting" that debate, as it seems they thought there would only be one such event. We're not sure why they thought that, but it was quite obvious that they did. They talked about KET accomodating Grimes and McConnell at ANY time that both would agree to meet, no matter what.
The requirements changed after Grimes and McConnell were invited to the primary. Remember that no such invitation was made after Patterson won the Libertarian primary in March. The threshold for the minimum amount of money was raised from $10,000 to $50,000; then again to $100,000. The polling percentage minimum went up from 5%, to 10%, to 15%, and then back down to 10%. And that's funny too.
The criteria is set back from 15% to 10%, after internal dicussion about wanting to be able to include a "Gatewood-like" candidate in the future, if they "want to", so they discuss results from previous elections by non-D/R candidates over the past decade. Gatewood managed to crack 10% one time. So they set the criteria from 15% to 10%. This sets the stage that if you run for office repeatedly for 30 years, you might be able to get on KET once. Maybe.
In early June, KET re-iterated their invitation of Grimes and McConnell. "In early February, KET invited Sen. McConnell and Sec. Grimes to appear on Kentucky Tonight during their respective primary races in April and during the General Election campaign on October 13, 2014, should they win their primaries." (emphasis added). In an internal email, they specifically discuss that Ed Marksberry (who eventually abandoned his candidacy due to the petitioning requirement) and David Patterson (Libertarian) were not invited; KET "did not and will not invite David Patterson (Lib) and Ed Marksberry (Ind) to the Oct 13 program, because they did not meet our pre-established criteria.". Of course, this version of the criteria were determined only 14 days prior, and long after Grimes and McConnell had been invited.
LPKY State Chair announced publicly on June 28th that the LPKY had raised almost all of the money required to finish out the ballot access drive.
As media spins up in mid-July on Patterson's campaign getting the financing required to complete their petition drive, KET once again amends their criteria in mid-July that their qualifications must be met by a newly-defined deadline: midnight on August 16th. They still do not publish this amendment, or any part of their new criteria.
Keep in mind -- they've never communicated ANY of this to Patterson campaign. They had discussed broadcasting these new criteria and had decided against it, instead making it an "as asked" response to include the criteria.
On Saturday, August 16th, State Chair Ken Moellman asked KET if they were going to invite Patterson to the debate. They responded with their last revision of their criteria on Monday, August 18th at 5:42PM.
Immediately after the deadline passed (how did they know about the deadline?) the McConnell campaign wrote KET to accept the KET debate offer via the AP (which KET claimed in the media to not know about before hand, as well), and to clarify that the event was still only between Grimes and McConnell. KET responded in the affirmative.
Patterson's campaign released a joint press release with LPKY condemning the new requirements, and especially the lack of communicating those requirements. Patterson's campaign says that the rules seemed aimed specifically at him. KET claims this isn't the case, and makes the incorrect claim that Gatewood would have qualified. Despite KET's talking points, after adding the August 16th cut-off, they actually eliminate the one time Gatewood would have qualified without the new deadline; he didn't poll above 10% in that race until August 29th, which is beyond the deadline.
LPKY Chair Ken Moellman filed an Open Records Request on Wednesday, August 20 via email and USPS. KET replied on Monday, August 25th.
The information obtained from the internal communication at KET make it very clear; KET wanted the Grimes vs McConnell debate. They were extremely worried that some other organization might get it.
The only limit on the ever-raising criteria was that maybe, someday, there might be a Gatewood-like candidate they'd want to invite. Otherwise, they were quite content to filter anyone and everyone non-D/R out completely. As there was only one other ballot-qualified candidate, the ever-changing criteria specifically filtered David Patterson, and only David Patterson. That's why it felt that way; it was that way.
On Friday, September 12th, the ACLU of KY wrote a letter to KET condemning the shifting criteria, and asking to have the 2nd set of criteria restored. Their response? 'A spokesman for KET says that going back on the rule change now could be viewed as "subjective" and open the network up to allegations that has violated Federal Communication Commission rules regarding such programming.' And we agree -- changing the criteria along the way very likely runs afoul of the law. Unfortunately for them, they've done it numerous times already this year.
What comes next is yet to be determined.
The not-so-pre-established debate criteria timeline
Before 2014 - Criteria was "be ballot listed".
January 27th - The "original" new criteria - Legal resident of KY, legally qualified candidate, objective indicia of a campaign, 5% in independent poll. Determined from 2010 email discussion of the matter. Standards are supposed to be applied to Primary and General election.
January 31st - Discussions begin. Using "objective indicia of a campaign" is determined to be subjective. Revisions begin.
February 4th - KET invites some D/R candidates to Primary forum, without applying their criteria. Informs participants that the Primary Election winners will be invited to October debate no matter what.
March 1st - David Patterson wins Libertarian Party primary.
March 5th - The first major revision of the criteria - Legal candidate for office (ballot-listed or write-in) and meets ANY ONE of the 4 following criteria: made public campaign statements; campaign has active website with relevant material; candidate has accepted $10K; OR candidate is polling 5%. Incumbents are exempt from any criteria.
March 13th - KET receives notification from Patterson campaign that David Patterson won Libertarian primary, and gives contact information to establish contact.
March 20th - KET has meeting to examine revising criteria again. Handwritten notes show moving the Incumbent Exception to the "one of these" section.
March 20th - First version of KET debate invite press release.
March 21st - Copyedit of criteria.
April 18th - KET personnel thinks Republican Sterling is crazy.
May 21st - State-sponsored primary election for Ds and Rs, and KET is worried about coverage of Grimes and McConnell campaigns, and worried they may not be the first to invite them to appear together.
May 22nd - KET emails Grimes and McConnell campaigns. Draft: "With the General Election now underway, and as you discuss joint appearances with your opponent, we hope that you will include KET in the negotiations." Actually sent: "With the general election now underway, and as you discuss joint appearances with your opponent, we hope that you will consider KET with our long tradition of fair and trusted candidate forums and election coverage."
May 22nd - KET changes criteria for inclusion in General Election forum. Now must be ballot-listed or write-in, and meet ALL of the criteria (which changed): made public statements; maintains active website; raised $100,000; AND polls 15%
May 22nd - KET personnel "concerned that we get this on the record today since this will eliminate the write in and other candidate from the forum. It was agreed by the group yesterday that we should do that."
May 29th - KET worried League of Women Voters might get debate instead of KET.
June 5th - Grimes accepts KET debate. KET asks internally to confirm they "did not and will not invite David Patterson (Lib) and Ed Marksberry (Ind) to the Oct 13 program, because they did not meet our pre-established criteria." (emphasis added). Internal response "That's correct ... They did not meet our criteria for invited candidates for the US Senate Race."
June 10th - KET personnel concerned they might have to let a "nut" on the air (write-in candidate Randsall).
June 11th - KET wants to amend the US House program criteria.
June 12th - KET legal counsel expresses concern that KET's criteria aren't right.
June 16th - Meeting minutes show KET is revising criteria for US Senate debate again.
June 16th - KET personnel concerned that new criteria would prevent a candidate "like Gatewood Galbraith" from participating in the future. KET personnel compare results for races that contained more than D/R candidates over the past decade. KET discusses thresholds with legal counsel and he suggests threshold of between 5% and 10%. KET lowers percentage requirements from 15% to 10%. They also decide they need to add a date.
June 28th - LPKY publicly soliciting donations to reach goal to get Patterson on the ballot.
July 9th - KET worried about Farm Bureau event being a debate.
July 10th - Concern that McConnell won't accept debate. Hopes "both" accept.
July 16th - KET comes up with final version of criteria.
July 17th - Centre college offers to host debate. KET worried.
July 17th - Patterson campaign sends press release about completing ballot access drive.
July 18th - KET decides "The senatorial race will supersede [sic] all other invitations and scheduled programs. If the [sic] agree to appear together, we will provide coverage regardless of time and date."
July 23rd - KET sends out release announcing who will appear on KET debate programs -- why send before the deadline if the criteria are reasonably able to be met?
July 28th - KET forwards July 17th Press Release around internally. KET sends memo about David Patterson's website.
August 15th - Deadline arrives.
August 16th - LPKY inquires about inclusion of candidate.
August 18th - KET shares criteria for first time with LPKY.
August 18th - McConnell camp verifies it's only McConnell vs Grimes. McConnell campaign accepts KET debate.