Gary Johnson Campaign Sues Debate Commission For Violating Anti-Trust Laws

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. 

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  • pmains||

    1) Set up your own national polling outfits.
    2) Conduct fraudulent national polls, more or less in the manner of CBS.
    3) ???
    4) Gain admittance to the debates.

    I'm sure there's a flaw in my plan. Perhaps there's some fine print defining what a national polling organization is.

  • pmains||

    Derp. Just reread it.

    five selected national public opinion polling organizations

    Selected by the CPD, I assume.

  • Robert||

    So after they're selected, bribe them to fake the results. There's no law saying they have to report truthfully.

  • Robert||

    Better yet, bribe the CPD itself.

  • Mo||

    I really, really want Johnson and Gray in the debates. However, isn't the LP against anti-trust laws?

    I'm not making the "but libertarians still drive on roads" argument, but it's still fruit from a poisoned tree. Not that I care, I hope they school the CPD.

  • Proprietist||

    The CPD is a private non-profit, funding purportedly by private money. While I wish they'd change their standards, they have the right to exclude whoever they wish.

    Not only that, but even if the suit wins, couldn't Romney and Obama just agree to host their own debate, find a news company to broadcast it and leave anyone they want out of it?

  • Mo||

    I agree 100%. This is a freedom of association issue and Johnson should lose on principle. However, my desire to see Johnson smoke Obamney in a debate hopes they win.

  • ant1sthenes||

    But if they are selecting candidates based on arbitrary measures, shouldn't their debates be considered political advertising and subject to all regs appertaining thereunto? I mean, if they decided to run a debate between Barack Obama and Jill Stein (?) and exclude Romney, no one would buy that it wasn't just political advertising would they?

  • Robert||

    There are so many loopholes in what's considered political adv'tg. that they can always couch it as "news" according to the interpret'ns of recent decades.

  • Proprietist||

    They're a 501(c)(3) so actually he might have a better claim by suing that they should lose their non-profit status.

    501(c)3s are subject to limits or absolute prohibitions on engaging in political activities and risk loss of status as tax exempt status if violated. Organizations described in section 501(c)(3) are prohibited from conducting political campaign activities to intervene in elections to public office.

    I think they could prove that CPD has created rules that implicitly campaign against minority parties and give preferential treatment to majority parties. It would be a more logical lawsuit than anti-trust.

  • Robert||

    couldn't Romney and Obama just agree to host their own debate, find a news company to broadcast it and leave anyone they want out of it?


    In effect that's exactly what they've done. This is all about labels y appearances. Nobody forces the news organiz'ns to cover any such event. And if they did, nobody would be forced to watch or listen to it.

  • Emmerson Biggins||

    Ya. He is wrong to do this. I mostly don't care because I think the lawsuit is more about the publicity of the lawsuit than any actual attempt to win the lawsuit. Least that's what I'm telling myself.

  • Loki||

    ^^THIS^^ There's no way the suit could be settled in time for it to matter this election cycle. It's more about publicity and pointing out to the public the injustice of the rigged game of 2 party politics.

  • ||

    And this is a bad thing how?
    Highlighting the protectionist racket of R's and D's would seem to be in the best interest of any third party.

  • 16th amendment||

    Are libertarians generally against the Sherman anti-trust act? I thought they were because the free market would naturally break up large entities, provided that entities did not use government rent-seeking to solidify their power. The law uses vague language "unreasonably restrains trade". The use of an adjective puts power into the hands of the executive department who will write more specific regulations, and the courts which will interpret what is and what isn't reasonable. And now a libertarian is using the act to his advantage!

    Anyway, the debates are next week, so there's no way he'll get into the debates. Though in four years maybe someone else will.

  • The Derider||

    Yeah, the Libertarian party using the Sherman Anti-trust act to attack a private company is loaded with delicious irony.

  • The Derider||

    "You have to remember, the core of the anti-trust laws is not to protect competitors but to protect competition," Gray said.

    Hey, these guys are starting to make some sense! Hmm... my California ballot is pointless anyway...

  • 16th amendment||

    Actually maybe antitrust is good. We need it to break up the government monopoly on: (1) education, (2) charity, maybe other stuff too.

  • The Derider||

    Are those private schools and Goodwills I drive by daily just figments of my imagination?

  • ant1sthenes||

    True. It's anti-competitive behavior, not monopoly, that is the problem (families aren't charged the real price of tuition to keep competitors down, which is dumping, and state subsidies or tariffs are often considered anti-competitive to begin with).

  • 16th amendment||

    Well these institutions would be bigger if government charity did not exist.

  • robc||

    so there's no way he'll get into the debates

    Sure there is, the judge issues a restraining order allowing him into the debates until the case is settled.

    This is very common.

  • 16th amendment||

    The restraining order is to prevent a proposed change from going into effect -- ie. to keep the status quo until the case is settled. Thus an injunction against shutting down drilling in the gulf until the case is settled. So an injunction would be to let the current 15% rule stay in place, and the debate to continue with just Romney and Obama, until the case is settled. OK, I'm no lawyer, so maybe I'm wrong.

  • ant1sthenes||

    Are you suggesting the duoparty doesn't use rent-seeking (is it still rent-seeking if you actually control the government?) to give themselves illegitimate advantages?

  • The Derider||

    Duopoly isn't perfect competition, but it's not the same thing as a monopoly, either.

  • Robert||

    They could seek an injunction against the debates, possibly put them off until after the election.

  • Proprietist||

    I think logically they should seek an injunction against CPD until their status as 501(c)(3) is reviewed, since this is a campaign event for certain preferred political parties, which it seems 501(c)(3) status should prevent.

  • CE||

    That makes sense. Shut 'em down if they're not going to fight fair.

  • Adam330||

    The main problem with this plan is the judge will be either a D or an R. In either case, he will be predisposed to rule against Johnson.

  • Enjoy Every Sandwich||

    Boy: Hey Billy! Hey Joey! Come on in. There's plenty of room. Sorry, not you, Homer.
    Homer: Why not!?

    [boy points to sign, "No Homers Club"]

    Homer: But you let in Homer Glumplich!
    Homer Glumplich: [pops head out window] Hyuck hyuck!
    Boy: It says no Homers. We're allowed to have one.

  • CE||

    So what's there logic for excluding a two-term governor who will be on the ballot in 47-50 states? That he's not qualified?

    Saying he doesn't poll high enough to be included before 99 percent of those polled have even heard from him is assuming the conclusion or begging the question or something.

  • 16th amendment||

    What about Feinstein not agreeing to debate Emken, let alone third parties.

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