Cite as: 523 U. S. 666 (1998)
Stevens, J., dissenting
had carried 15 of the 16 counties within the Third Congressional District by absolute majorities. Nevertheless, the staff concluded that Forbes did not have "strong popular support." Record, Affidavit of Bill Simmons ¶ 5.3
Given the fact that the Republican winner in the Third Congressional District race in 1992 received only 50.22% of the vote and the Democrat received 47.20%,4 it would have been necessary for Forbes, who had made a strong showing in recent Republican primaries, to divert only a handful of votes from the Republican candidate to cause his defeat. Thus, even though the AETC staff may have correctly concluded that Forbes was "not a serious candidate," their decision to exclude him from the debate may have determined the outcome of the election in the Third District.
If a comparable decision were made today by a privately owned network, it would be subject to scrutiny under the Federal Election Campaign Act of 1971 5 unless the network used "pre-established objective criteria to determine which candidates may participate in [the] debate." 11 CFR § 110.13(c) (1997). No such criteria governed AETC's refusal to permit Forbes to participate in the debate. Indeed, whether that refusal was based on a judgment about "newsworthiness"—as AETC has argued in this Court—or a judgment about "political viability"—as it argued in the Court of Appeals—the facts in the record presumably would have
3 Simmons, a journalist working with the AETC staff on the debates, stated that "[a]t the time this decision [to invite only candidates with strong popular support] was made . . . , there were no third party or non-party candidates to evaluate as to the likely extent of their popular support." Record, Affidavit of Bill Simmons ¶ 5. Presumably Simmons meant that there was no other ballot-qualified candidate, because an AETC staff member, Amy Oliver, represented that there was consideration about whether to invite Forbes before he qualified as a candidate. See text accompanying n. 2, supra.
4 See App. 172.
5 See 2 U. S. C. § 441b(a); see also Perot v. FEC, 97 F. 3d 553, 556 (CADC 1996), cert. denied sub nom. Hagelin v. FEC, 520 U. S. 1210 (1997).
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