Why? According to Mr. Cobble, the NBC political guru gave him a simple explanation: NBC only wanted the top three candidates: Barack Obama, Hillary Clinton and John Edwards.
The decision on the part of the NBC News executives charged with choreographing the debate—a group which includes NBC News senior vice president Phil Griffin, executive producer of NBC News Specials Phil Alongi and Mr. Todd—was perfectly understandable in terms of pure showmanship.
But, as it turned out, it also left the network’s tightly scripted plans for the debate vulnerable to the whims of the Nevada judicial system and, over the past 48 hours, has publicly exposed the extreme lengths the network will go to protect their prized debate from lousy casting choices.
The political theatrics took the first unexpected turn on Monday morning. With less than 36 hours until the start of the debate, Mr. Kucinich and his lawyer, William W. McGaha, filed a complaint in Nevada District Court alleging that NBC had violated a contractual obligation to include Mr. Kucinich in the debate.
“The exclusion of Kucinich undermines the purpose of the Federal Communications Act and is a blatant violation of the Act because of the media’s obligation to operate in the public interest,” the complaint read in part.
As evidence, the candidate submitted to the court a pair of e-mails the Kucinich camp had received from Jennifer Backus, a political consultant for NBC Universal. The first e-mail from Ms. Backus spelled out the criteria by which candidates would qualify for the debate. The second e-mail was a formal invitation to Mr. Kucinich to attend the debate, noting that Mr. Kucinich had “met the criteria.”
On Monday afternoon, with Mr. Todd looking on from the courtroom, Judge Charles Thompson listened to the arguments, and promptly ruled in the plaintiff’s favor.
Citing the “timing” of Mr. Kucinich’s exclusion, the “importance of the caucuses” and the “obligations of the media,” Judge Thompson ordered MSNBC to include Mr. Kucinich in the debate. Otherwise the judge promised to issue an injunction shutting down the entire show.
“[T]he Court finds that the harm to Plaintiff and the public if this Order is not granted outweighs any conceivable harm to Defendant from granting the Order.”
End of battle, right?
Rather than concede to Mr. Kucinich, NBC promptly issued a terse statement, expressing displeasure with the judge’s decision and promising an appeal, legal fees be damned.
Overnight, the NBC legal team hustled to put together an exhaustive legal argument to further fend off Mr. Kucinich. The next morning, less than 12 hours before modera
tor Brian Williams was to ask his first question, NBC lawyers filed an emergency petition in the Nevada Supreme Court, appealing the ruling.
NBC’s argument for maintaining the purity of a Clinton-Obama-Edwards stage weighed in at a whopping 112 pages, and described the lower court’s ruling as a “brazen violation” of NBC’s “First Amendment rights.”
While the motives for NBC’s original rationale for exclusion might have been simple—a better cast equals better ratings—their legal arguments were a touch more high-minded.
“The government (through the court) is compelling a private media actor to give access to a speaker it has otherwise chosen not to feature,” argued NBC. “Such compulsion is a clear violation of Constitutional dogma.”
It included an affidavit from Mr. Todd, in which the political director offered an explanation as to why MSNBC had decided to dump Mr. Kucinich.
Mr. Todd explained that on Jan. 10, the day after MSNBC had extended their initial invitation to Mr. Kucinich, candidate Bill Richardson dropped out of the race, and as a result—poof!—the rules for inclusion had changed.
“In light of the dwindling numbers of candidates for the Democratic Presidential nomination, new criteria for the Jan. 15 debate were adopted based on these changed circumstances,” Mr. Todd wrote. “The revised criteria required that invited candidates must have finished first, second, or third in either the Iowa Caucus or the New Hampshire primary.”
“NBC requests the issuance of an emergency writ vacating the lower court’s temporary restraining order,” Don Campbell, NBC’s lawyer, concluded, “and authorizing NBC to proceed with tonight’s debate under the format chosen as part of its journalistic discretion.”
Around noon, the Nevada Supreme Court announced that they would be holding a half-hour hearing for oral arguments. Shortly thereafter came the word—Vegas, baby!—that the court would open itself up to television cameras. One way or another, Mr. Kucinich would end up on TV.