Libertarian presidential candidate Gary Johnson has filed a lawsuit against the Commission on Presidential Debates on the grounds that the commission is violating the Sherman Anti-Trust Act.
The Commission on Presidential Debates (CPD) has formally invited only Mitt Romney and Barack Obama to the debates while excluding all others, including Johnson.
According to the commission’s criteria for inclusion, Johnson meets two out of its three required metrics. The first is that the candidate be of age and constitutionally eligible to serve as president. The second is that the candidate be on the ballot in enough states to actually win the Electoral College.
Johnson falls short in the third category: a show of support of at least 15 percent in recognized polls. The CPD specifies:
The CPD's third criterion requires that the candidate have a level of support of at least 15% (fifteen percent) of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations' most recent publicly-reported results at the time of determination.
It’s pretty much impossible for Johnson to meet the third and final part of the commission's demands. He hasn't been included in enough national polls even to register a minimum level of support. The CPD does not specify which national polling outfits they actually use to determine that 15-percent threshold.
The lawsuit, filed in a U.S. District Court in California, argues that Johnson is seeking a job in the presidency and that other parties are colluding to prevent that from happening by barring him from the presidential debates. From the filing:
The acts of the defendants, as alleged above, to conspire and contract among and between themselves to monopolize the field in the race for president and vice-president harm the American electorate generally, and plaintiffs, particularly.
Johnson’s vice presidential pick, Judge Jim Gray of California, is planning on arguing the case before the court as soon as they give a date for a hearing. Gray says the anti-trust argument is strong that Democrats, Republicans, and the commission are conspiring to restrain trade and competition.
"I believe in this," Gray said in a phone interview. "It is something I think will be historic. I am very confident the ruling will stand up as historical precedent."
This approach of suing on anti-trust grounds is very different from previous attempts by candidates including Ralph Nader and Pat Buchanan, which largely focused on free speech and FEC violations.
The court has not issued a date for the hearing.
"You have to remember, the core of the anti-trust laws is not to protect competitors but to protect competition," Gray said.