Most people have heard of the Supreme Court decision Citizens United v. FEC. “Citizens United” a has become shorthand for everything broken about money in politics, unleashing “Super PACs” that can spend unlimited sums to influence elections.
When I decided to run for Congress, I knew about Citizens United. But I wasn’t aware of another case, decided twelve years earlier, that has done equal, systematic damage to the fairness of our elections.
On its surface, Arkansas Educational Television Commission v. Forbes was a dry First Amendment dispute about a congressional debate. Ralph Forbes, an independent candidate for Arkansas’s Third Congressional District, was excluded from a televised debate sponsored by the state-owned public television network (AETC). AETC claimed Forbes lacked “appreciable public interest.” Station managers didn’t think he could win—which was politically fortunate, given he was a Nazi sympathizer.
In a 1998 6-3 decision written by Justice Anthony Kennedy, the Supreme Court agreed that AETC had done nothing wrong. The debate, the Court held, was a “nonpublic forum,” and the broadcaster’s decision to exclude Forbes was a “reasonable, viewpoint-neutral exercise of journalistic discretion.”
In practice, this means any television network, newspaper, or local media gatekeeper can decide—based on its own subjective judgment of who is “viable” — who gets covered. Because that decision is protected by the First Amendment, excluded candidates have essentially no legal recourse.
Fast forward 28 years. In the 2026 Democratic primary for New York’s 12th Congressional District, media executives held a televised WPIX debate from which they excluded every woman in the race.
From the New York Times to New York Magazine, Politico, and Vanity Fair, coverage was funneled almost exclusively to the top four men. This gatekeeping spilled over into other public forums, including debates at CUNY and the 92nd Street Y. While seven candidates were on the ballot, only four were permitted to make their case to voters on public stages. The justifications ranged from “these are the leading candidates” to “these candidates raised the most money.”
As it turns out, the media’s viability math was wrong. Attorney and anti-Trump commentator George Conway was granted a spot on nearly all of these major debate stages, elevated largely by an arbitrary name-recognition standard.
When the primary votes were counted on June 23, I finished with 7.1% of the vote—over 7,200 New Yorkers who chose my platform. Remarkably, despite being blacked out from that crucial early broadcast, I ended up out-polling Conway, who finished at 6.1%. (The race was ultimately won by Micah Lasher with 39%, followed by Alex Bores at 35%.)
It is impossible to separate these results from the structural media blackout. My forced absence had a material impact on the outcome, transforming an arbitrary corporate metric of “viability” into a self-fulfilling prophecy. This dynamic became starkly apparent after the one debate I did qualify for—the NY1 debate on June 9. The next morning, callers to WNYC’s Brian Lehrer Show explicitly noted they didn’t even know I was running until seeing me on stage.
In 2010, Citizens United struck down limits on independent political expenditures, ruling that political spending constitutes protected speech. Critics argued this would drown out ordinary voters—and it did, fueling an explosion of outside cash.
But there is a crucial distinction: Citizens United did not prevent any candidate from running. It did not keep any party off the ballot. It did not authorize a broadcaster to decide, at its sole discretion, which candidates the public was permitted to see. Citizens United made a bad money problem worse, but it didn’t create the legal architecture to erase candidates from public view.
Forbes did. It made viability a prerequisite for visibility, ignoring the fact that visibility is the only path to viability.
My critique here isn’t sour grapes about the final tally. I know my platform was worthy of being put before voters, just as I recognize the practical challenges of massive primary fields—holding a debate for 60+ candidates is logistically impossible.
Yet these filtering mechanisms routinely lock out quality candidates. Ironically, the Forbes Court acknowledged, almost in passing, that third-party, independent, or non-mainstream candidates have historically been “fertile sources of new ideas and new programs,” noting that many of their challenges “have in time made their way into the mainstream.” And then, in the same breath, the Court handed media gatekeepers a legal framework that makes it nearly impossible for those candidates to break through.
The dissent in Forbes, written by Justice John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg, understood precisely what was at stake. Stevens argued that a state-owned broadcaster occupies a unique position—it is not a private editorial voice, but an arm of the government. Giving it unbounded discretion over which candidates reach the public poses the exact risk of censorship the First Amendment was designed to prevent. He warned that the majority’s framework invited officials to make “ad hoc decisions about political content,” drastically increasing the risk of government propaganda.
None of this is to say Citizens United is good law. It isn’t, and its costs to democratic equality are immense. But it harmed a system that was already tilted. Wealthy interests were finding ways to buy influence long before 2010.
The harm done by Forbes is more fundamental. It operates at the threshold—the very gate a candidate must pass through before the electorate can decide whether to take them seriously. A media platform can look at a campaign, declare “you are not viable,” and turn that assessment into reality. And the Supreme Court declared that completely legal.
That is just as profound a corruption of democratic fairness as any Super PAC, because no candidate can counter a framework that prevents voters from ever knowing they exist.
The conversation we need to have about American democracy cannot just be about campaign finance. It must be about access—who gets to participate in the public forums that define our elections, and who gets to decide. Forbes handed that power to incumbent gatekeepers and left excluded candidates with no legal recourse.
Decades later, we are still living with the consequences—and still failing to name the case that caused them.