As things stand now, the only woman in the densely populated Republican presidential primary field might not get a spot on the main stage at the next GOP debate.

Carly Fiorina is contesting the decision by CNN, who’s hosting the debate scheduled for September 16. Fiorina claims CNN as well as the RNC were intentional working to keep her off the debate stage.

CNN claims FEC regulations require adherence to debate selection guidelines as they were originally published in May saying, “we believe our approach is a fair and effective way to deal with the highest number of candidates we have ever encountered.”

According to Fox News, RNC Spokesman Sean Spicer* explained they are legally prohibited from interfering with the media’s rules.

The debate stage accommodates the ten highest polling candidates. Based on national polls conducted since the Fox News debate held August 6, Fiorina is polling around 8th place. According to CNN’s qualification guidelines, national polling averages taken between mid-July and mid-September determine which candidates make the top ten.

Would CNN really be tangling with FEC regulations by changing the prime time debate criteria? Probably not. The Wall Street Journal elaborated:

Former FEC chairman Brad Smith said in an interview Friday that the FEC’s rules for debate criteria says only that they must be “pre-established,” not that they cannot be altered.

“If I were CNN’s counsel and the news division asked me if they could change the rules, I’d feel pretty comfortable in saying you can do that,” said Mr. Smith, who is now a law professor at Capital University in Ohio. “It’s not something where the regulation prohibits it.”

CNN did not identify specific FEC guidelines it says forbids it from changing the announced qualification criteria.

Though CNN might not face legal ramifications from the FEC should they alter the main stage debate qualifications, the cable news network could risk inviting a legal contest from whichever candidate would be knocked off the stage to make room for Fiorina.

Of course changing the rules to allow Mrs. Fiorina in would force out a top-10 candidate from the first debate, likely New Jersey Gov. Chris Christie or Sen. Rand Paul (R., Ky.) – unless CNN allowed 11 candidates on the stage. The excluded candidate could invite a legal challenge based on an argument that CNN changed pre-established criteria.

“Taking the position that CNN is taking minimizes their risk,” Mr. Smith said. “This kind of law is a risk management practice. I’d feel comfortable in telling them you can do this.”

The WSJ also pointed out that Fox News changed their debate criteria twice, “first to include the second-tier session, and later to allow candidates to participate even if they were not polling at 1% in national surveys.”

Friday afternoon, CNN issued a statement indicating they were holding fast to their decision to uphold the originally published debate standards:

A CNN spokeswoman said the network won’t change its debate qualification standards before the Sept. 16 debate.

“Our criteria are totally appropriate and we have been absolutely transparent about them throughout. If the Fiorina campaign had an issue with them they could have raised it when we published them in May. They did not,” the spokeswoman said. “Revising the criteria on the eve of the debate at the demand of and solely for the benefit of one particular candidate is not something we have done in the past, and we will not do it now.”

Unless CNN unexpectedly yields, Fiorina might once again debate in the second tier — a scenario that worked quite well for her the first time around.

*We reached out to Spicer for further clarification. At the time this post was published, we had not yet received comment. Should that change, we will update accordingly.

UPDATE: Post title changed after publication to reflect possibility Fiorina might still make the main stage.

Follow Kemberlee Kaye on Twitter @kemberleekaye


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