Third Parties

The Libertarian Party's Arguments for Suing to Get Into Presidential Debates

Positing a "market" in elections and campaigns, the Debate Commission and major parties are alleged to be illegally colluding and creating barriers to entry.

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I blogged the other day about early reports on a lawsuit, that will likely be officially filed tomorrow, in which the Libertarian and Green parties (and their last presidential candidates) are suing the Commission on Presidential Debates (CPD), along with the Republican and Democratic National Committees, and Barack Obama and Mitt Romney to boot (as well as some others associated with CPD).

Among other goals (mostly involving compensation for damages alleged), the suit seeks to eliminate the "getting 15 percent in a national poll" criteria for debate access, and to dissolve the CPD itself.

I noted that in the article about the suit in the Washington Post I quoted and commented on, lawyer Bruce Fein didn't mention that previous suits had been filed to achieve the same thing by 2012 L.P. candidate Gary Johnson.

Here are those suits, one based on antitrust grounds, the other on "breach of contract" grounds.

Johnson's vice presidential candidate Judge Jim Gray (a plaintiff in this suit) contacted me to let me know they don't think those earlier suits are relevant to how this one will go because, rather than losing on the specific merits of the argument, the earlier suits had been thrown out on technical jurisdictional questions.

The California court they filed in decided that the CPD didn't have enough of a nexus of business in California to make that the right place to sue. (The Party apparati were still technically suable, but the campaign let the suit drop as it was too late to actually affect the 2012 election by then, Gray says.)

Gray has also provided me with an advanced copy of the most recent version (possibly not final) of the suit. 

Here's what seem to be their argument. The CPD, the political parties, and the other defendents are accused of acting illegally to:

entrench the power of the two major political parties by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency of the United States.  That objective was achieved in 2012 when Plaintiffs were arbitrarily excluded from presidential and vice presidential debates between the nominees of the two major parties…

They further maintain that their plaintiffs are trying to illegally dominate what the suit calls "cognizable 'presidential elections market' [and] cognizable 'political campaign market' for purposes of the antitrust laws." This suit, they say:

challenges the per se illegal continuing horizontal boycott of Plaintiffs by the RNC and the DNC, utilizing their jointly created and maintained Commission [on Presidential Debates], as the barrier to entry in each of the above-referenced cognizable markets.  The boycott has been conceived and executed with the direction, assistance, and collusion, over the course of many years, of several co-conspirators and affiliated people, including [Frank F.] Fahrenkopf, [Michael D.] McCurry, Obama, Romney, and other presidential candidates of the Republican and Democratic Parties. 

What do they want as a result of the suit?

  1. treble damages based on their losses proximately caused by Defendants' violations of Sections 1 and 2 of the Sherman Act; equitable relief, including dissolution of the  Commission, and an injunction against further barriers, boycotts or other agreements in restraint of trade, in violation of the First Amendment, or in violation of the laws of the District of Columbia between that cause the exclusion from presidential debates of presidential candidates who have obtained ballot access in a sufficient number of states to win an electoral-college majority.   

The third parties also make a First Amendment claim via a callback to a 1953 case Terry v. Adams that they argue establishes a constitutional claim against practices that, though ostensibly private, are vitally connected to elections. (A 15th Amendment challenge involving whites-only practices that limited who got to the ballot in a Texas election was at issue in Terry.)

The organization and conduct of presidential debates by Defendants, including rules governing participation, are subject to the constraints of the First Amendment because of their integral role in electing the President of the United States according to the rationale of Terry…

The fifteen percent (15%) threshold was selected by Defendants with the specific intent of suppressing the specific viewpoints of third party or independent presidential candidates and to boost the political speech of the two major party nominees.

I am unfamiliar with any successful antitrust action based on the concept of the market in politics and elections, and two people connected with the suit say they believe that line of argument to be fresh to this suit. Lawyer Bruce Fein who will be filing the suit has not yet responded to a request for comment on that point; I'll update if he says anything different.

This forthcoming suit discussed above is distinct from a suit already filed in June regarding third party candidates and the debates. That suit was filed against the Federal Election Commission (FEC) by a group calling itself "Level the Playing Field," also with the L.P. and Green Parties as plaintiffs. 

That suit was described by the FEC itself as alleging:

The FEC's regulations on candidate debates provide that tax-exempt 501(c)(3) and (c)(4) organizations may serve as "staging organizations" for federal candidate debates provided that they "do not endorse, support, or oppose political candidates or political parties" 

[and] that the CPD defers to the major parties and their candidates to determine who to invite to the general election debates and that the CPD has no rules that would prevent members of the board of the CPD from engaging in partisan activities…..

the plaintiffs contend in their court complaint that the CPD has violated the [Federal Election Campaign] Act by accepting corporate contributions to defray its expenses and has made impermissible contributions to candidates by offering them free television time….

The plaintiffs' suit follows a rulemaking petition Level the Playing Field filed with the FEC late last year. The petition, which was published for comment in November 2014, asked that the Commission amend its rules on candidate debates to require debate sponsors to use objective, unbiased criteria that do not require candidates to satisfy a polling threshold as the exclusive means of access to participating in presidential and vice presidential general election debates.

The plaintiffs ask the district court to find that the FEC's claimed failures to act on the alleged administrative complaint and the rulemaking petition are both contrary to law….

Time's report on that suit.

NEXT: "Don't talk to law enforcement without consulting [a lawyer] first"

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  1. “the plaintiffs contend in their court complaint that the CPD has violated the [Federal Election Campaign] Act by accepting corporate contributions to defray its expenses and has made impermissible contributions to candidates by offering them free television time….”

    That free television time could be the biggest thing to shake out of this. The parties will find another way to host debates without the third parties getting a fair shake, but if free airwaves get ruled as donations that is going to hit journalists hard. Campaign finance laws would eat the average reporter alive if they had to count all the free advertising they do for their favorite candidate.

      1. In my defense, that happened seven years before I was born.

        I can’t place my finger on it, but there is something different about the quotes in that article compared to modern quotes.

        1. A mere child

          1. Hey if I wasn’t employed I could still be on my parents insurance. If that’s not still a kid, I don’t know what is.

    1. Fairness Doctrine, call your office.

    1. I wish he would have made it a lot farther than this. Not sure I actually wanted him to win, although I would definitely vote for him if he did win the nomination.

      As libertarians, we’re all probably better off if Rand is not president and remains in the Senate. Just imagine a president who will be blamed for every single thing that happens on planet Earth for the next 4 years, by BOTH sides.

      1. we’re all probably better off if Rand is not president and remains in the Senate

        I have made this argument many times. We need to get Amash into the Senate and a couple more libertarians. A solid voting block of 3 or 4 libertarians would have a huge impact on legislation for 30 years.

        1. Yeah, it’s not happened nearly as quickly as I was hoping. There were a few near misses. But 3 libertarians in all of Congress is just not enough to do much good. Rand has fought the good fight, alone, though.

          1. A single representative is useless. But a single senator can halt a bill nearly indefinitely. A block of senators could alter the output of the senate.

            So I will never forgive Gary Johnson for walking away from a shoo-in republican senate seat from Nevada to run a terrible presidential campaign as a libertarian.

        2. That’s essentially my view? a handful of libertarians in the Senate or House with even split between the D’s and R’s and the libertarians could control the Congress by allying with one party or the other for various libertarian-oriented bills.

          That is, until the D’s and R’s ally together to screw over the libertarians.

    2. That’s funny, he told CNN he’d be around longer than The Donald.

      1. He still might be. I don’t think Rand will hang it up quite so fast as a lot of people want him to. A lot of people being mostly the establishment of both parties.

      2. To be fair, i don’t think anyone predicted how fiercely the nativist mouthbreather element would cling to Trump.

    3. Eh, if he’s like his dad, he’s more concerned with using the greater attention paid to a presidential race to get a message out. I assume he knows he won’t win, but if he brings some voters to libertarian think, that makes it a worthwhile cause. Not enough to risk a Senate seat, of course.

  2. This isn’t a lawsuit for winning. This is a lawsuit for PR.

    That is all. Carry on.

    1. I commented on the suit in 2012 that it is bad PR for libertarians because they’re suing using things like the Sherman Anti Trust Act, something libertarians would overturn if they had power.

      1. As an old boss once said, “if you don’t suck on that government teat, your competitor will”.

        Let’s say you sold widgets, and the government passed a law saying widgets can only be sold by licensed widgets dealers. As a libertarian you would be opposed to that law, but you either go get yourself licensed or you go out of business.

        Let’s say you drive a car, but the government owns all the roadz. As a libertarian you are opposed to government roads, but you either get out onto those roads or you stay at home.

        Now let’s say you’re a presidential candidate who wants to roll back all those stupid laws. The government has set up the rules so that you can only succeed if you are a member of a duopoly parter. You are opposed to those rules, but you either play by them or you don’t get into the debates.

        1. I’d love to see the Democrats and Republicans screwed by their own laws.

  3. Effect and affect are basically the same word /grammer nazi

    1. Well, one of this is a noun and the other a verb if that matters.

      /gammer nazi #3

      1. I agree. His affect is all wring.

    2. What is this “grammer” think you speak of?

    3. No, they are not.

  4. Dude that makes no sense at all man.

    http://www.Full-Anon.tk

  5. When the Green party candidate Elizabeth May was barred from debating the other leaders, she agitated to get included. I supported her and wanted to see the Green party present and counted for (if anything to watch them burn in action but this is neither here or there) because, you know, democracy. Why should anyone be excluded?

    Oh. You mean those arbitrary figures on national poll support?

    Well, if the Greens came in with 2% national support does a debate not give them a chance to double that since they will have the exposure they need to get to those arbitrary numbers used as a barriers to entry? Or they can slip further. Either way, people/voters will have seen them and I can’t see how this is anything but a good thing.

    1. The FEC exists for one reason and one reason only. That is to prevent a third party from gaining any traction in the national political market. On that issue, the DNC and GOP agree.

      The CPD is just an extension of that policy.

  6. Does anyone else kinda have the feeling that libertarianism is best represented when it doesn’t make it into the headlines? I realize it’s tough to get noticed if you’re doing nothing noticeable, but whenever libertarianish candidates boil down complex, nuanced arguments into thirty second responses I just want to bury my head in my hands.

  7. They are claiming a right to force the the two major parties candidates to debate them and to force the neworks to give them air time. Debates are not a requirement of the election process and had been handled as a mutual agreement between the candidates (it has been seen as an advantage for the side polling worse to have a debate). Secondly, there have been snide remarks by some writers That the current GOP debates have a “clown car” by the number of candidates participating and that it makes whatever use a debate has for vetting candidate limited by the lack of time. By the argument being made here it does not seem likely that you could have any standards for excluding anyone who calls themself a candidate from a debate, making all debates overcrowded affairs.

    I simply do not see a liberty based argument to force other candidates to debate or forcing the media to provide airtime to a candidate no matter how much you may like what they otherwise stand for.

    1. I thought “fuck you, pay me” was the heart of libertarianism. Have I been misinformed?

    2. They are claiming a right to force the the two major parties candidates to debate them and to force the neworks to give them air time.

      No, they’re not. They’re claiming that the Commission on Presidential Debates operates as an illegal monopoly controlling the elections market.

      Debates are not a requirement of the election process and had been handled as a mutual agreement between the candidates (it has been seen as an advantage for the side polling worse to have a debate).

      No, they’re not. They’re organized by the Commission on Presidential Debates.

      Secondly, there have been snide remarks by some writers That the current GOP debates have a “clown car” by the number of candidates participating and that it makes whatever use a debate has for vetting candidate limited by the lack of time. By the argument being made here it does not seem likely that you could have any standards for excluding anyone who calls themself a candidate from a debate, making all debates overcrowded affairs.

      I simply do not see a liberty based argument to force other candidates to debate or forcing the media to provide airtime to a candidate no matter how much you may like what they otherwise stand for.

      Well I guess it’s a good thing that’s not the relief sought.

      1. Stand back, Nicole. There are more articles he doesn’t read and more wrong conclusions to glean from not reading them.

        1. Here is your knight in shitty armor riding to your rescue.

          1. Still dispelling that rumor, eh? Good for you, little buddy. I’m glad your mainstreaming has been so successful.

            (Go ask a grown-up to explain this insult to you.)

            1. And the substanceless crapweasel remains boring.

              1. Who typed that out for you, little buddy? Some of those are almost grown-up words.

      2. They want an injunction against further barriers, boycotts…that would cause the exclusion of….presidential candidates who have qualified on enough ballots to win the electoral college. I read that to mean that if two such candidates decide to debate each other they must include any other such candidate who wants to participate.

        1. Which is not the same as forcing anyone to debate them or forcing anyone to televise it.

          1. How is it not?

            Debates had been contractual agreements between two or more candidates and whatever media organisations would be involved. How does requiring a debate to include whatever candidate wants to participate not force?

            1. They’re not requiring a debate to include anything. They’re not requiring a debate.

              In fact, they’re asking for dissolution of the Commission.

              1. So the language I paraphrased does not actually mean anything?

                We can go back to the way Republican and Democrat campaigns can go back to the way they used to do things and negotiate the debate formats each election cycle and have no previously agreed upon standard for including third party candidates. If that is the case, it seems a somewhat pointless victory.

                1. No, it isn’t meaningless. It would prevent anyone from doing the same thing all over again.

                  You said: “I simply do not see a liberty based argument to force other candidates to debate or forcing the media to provide airtime to a candidate”

                  That is not what is happening. They are only preventing the media and other entities from colluding to create an illegal monopoly. The federal government is the one who made that monopoly illegal to begin with, not the LP.

                  1. Which means you cannot have an agreement between candidates for a debate that excludes any candidates (based on the plaintiff’s criteria of what a candidate is). Saying it is not force because the federal government made a law is a distinction without a difference. The best you can say about it is it is a passive-aggressive application of force.

                    You can describe it as colluding but I do not see what is wrong about it that the government has authority to prevent it. I do not see how such prevention is compatible with freedom of speech or association.

                    1. Nikki, what kind of monopoly would it be, an opinion monopoly? The state has to be content-neutral. Individuals do not have to be. The only way to break this opinion monopoly is by compelling speech

    3. I don’t see a liberty based argument for elections in the first place, so I’m still conflicted.

  8. Wait… there’s a Libertarian party?

    1. There ain’t no party like a libertarian party ‘cuz a libertarian party is basically a pedantic sausage fest.

      1. There are actually quite a few parties like a commodious spittoon party, because a commodious spittoon party ends at a reasonable hour.

        1. If I don’t get my beauty sleep I can’t be beautiful. You understand.

      2. a pedantic sausage fest

        And…?

    2. Yeah. A bunch of stoned anarchists who can’t get anything done.

      1. A bunch of stoned anarchists who shoot the devil’s lettuce into their penis?

  9. http://www.theonion.com/articl…..-sky-51355

    Ethical Hunter Throws Duck Back Into Sky

    Taking care to restore the bird to its natural habitat in a timely manner, ethical hunter Rick Streeter threw a mallard duck back into the sky Monday shortly after shooting it, sources confirmed. “I’m only into hunting for the sport, so every time I shoot a duck, I make sure to toss him back into his home up in the air once I’m done,” said Streeter after gently lobbing the downed duck skyward.

    1. even the most skilled hunter occasionally fails to release a duck in time, thereby causing the bird to sink down to the bottom of the sky.

      Beautiful.

  10. The LP is a fucking pathetic waste of time, space and resources.
    Gary Johnson should still be actually fighting for liberty within the Republican party as an elected official rather than making stupid statements with the unelectable lp

    1. Because the GOP has been soooooo receptive to individual liberties arguments, which is totally why candidates like Trump and Fiorina and Carson, who are just plain wonderful when it comes to libertarian sympathies, are leading the polls, and party-favored candidates like Trump, Rubio and Cruz also express libertarian sympathies, right?

      Fuck off.

      1. Derpy derp derp. People like Johnspn could have stayed in the gop stayed in elected office and actually made legitmate fights for liberty instead of jerkin it with the lp

        1. jerkin it with the lp

          Awesome album title.

          When it comes down to it, aren’t all presidential elections, really, just a big ol’ game of Soggy Biscuit?

          1. Except that it’s the electorate who’s gotta eat the biscuit, every time.

        2. I enjoy jerkin’ it while an LP is on (usually Al Green). Where do I sign up?

    2. “Gary Johnson should still be actually fighting for liberty within the Republican party”

      The Republican Party hasn’t been about liberty since Jack Kemp was nominated as Vice President.

      The only extent to which the Republican Party is pro-liberty is the extent to which it’s libertarian.

      I’ll concede that getting rid of Boehner was a step in the right direction.

    3. Here we go. Hold on to your panties.

  11. The American people are so fucked up, I wish the problem were merely that they didn’t know about or hear from the LP.

    The future was so bright just 15 years ago. It would take the collective willpower of several generations committed to freedom just to get us back to where we were before Obama and Bush Jr. took office.

    I have more faith in a Protestant revival to change things than I do in the Libertarian Party. We’ve gotta change the American people’s hearts. Changing politicians is the least of our problems. And technology is as much the enemy of liberty as it is liberty’s friend.

    1. “We’ve gotta change the American people’s hearts.”

      We’re doomed, in other words.

      1. We can hope for another religious revival maybe.

        Separation of church and state was a Protestant thing. The Protestant work ethic isn’t a bad thing from a libertarian perspective either.

        https://en.wikipedia.org/wiki/ Protestant_work_ethic# Basis_in_Protestant_theology

        I’m trying to think about something else that brings about cultural change like that.

        I’m disillusioned with technology. Over the long term, it simply represents a way for government to monitor individuals and their activities like they never could before. I had hoped the Snowden revelations would bring about outrage and change, but that’s all diminished to a whimper now. The only thing more horrifying than the idea that the government is sifting through all of our communications is the realization that everyone knows about it now–and hardly anyone cares.

    2. Unfortunately for us, the majority of the American public fall into one of two categories.

      1. Those who are mostly apolitical, do not think about politics and feel it has no effect on them or that it’s just not their affair or that they’re powerless to change it, so it’s better to just watch the latest TV drama and leave politics to politicians.

      2. Insufferable busy bodies who are more worried about what there neighbors are doing than their own lives. So if there’s a choice between more freedom and more ability to control their neighbors through the all powerful state, they’ll choose the latter any day.

      Libertarians are outliers. Most people want nothing to do with freedom and even the ones who would maybe like that, don’t see it as something they need to get involved with.

      1. Don’t forget about group 3: those who thought they could create a “Good Society” through government, and have been watching in horror as the power they accumulated is “stolen” and turned against them.

        1. Isn’t that sort of a subset of group 2?

  12. Granted I have no way of knowing the full story but I would bet money that the Pentagon statement at the end is total bullshit.

    http://www.cnn.com/2015/09/28/…..index.html

    1. +1 implausible denial

    2. I saw this Frontline documentary must have been more than five years ago:

      http://www.pbs.org/wgbh/pages/…..ncingboys/

      I’m sure you can find it on YouTube if you’re so inclined.

      My understanding is that the practice is so widespread and predominant, you’d have to ignore it or throw a huge chunk of the locals in prison.

      There are cultures that have routinely and widely practiced much worse. …much, much, much, much, worse. I read about one in college from Papua New Guinea. There are cultures in North Africa that also practice this kind of thing. The Spartans and the Athenians did this kind of thing.

      I’ve read about subcultures in the Andes where infanticide is apparently still common.

      There’s no way the military could be there for 15 years and NOT ignore it. It’s a widespread practice among warlords in particular in Afghanistan. Some of those have been our allies. How could they NOT have ignored it?

      1. There’s no way the military could be there for 15 years and NOT ignore it.

        From what I understand, they were allowing it to happen on US bases as well.

        Even if we are going to allow the locals to carry one with their barbaric habits and not go all Kitchener on them, we don’t have to allow it on our bases, do we?

        And, I tend to believe the Green Beret when he says that allowing Afghani military to kidnap and rape the locals children was impairing mission effectiveness, which should be all the justification we need (absent, of course, simple human decency) to put a stop to it.

        Were we really so concerned about losing the support of the Afghani Child Rapist Community that we just had to sit back on this one?

        1. Basically we need to gtfo.

    3. Of course we knew. Ask anyone who served there for any amount of time. I once sat in on a source’s debriefing (on a different matter) when the source thought it “VERY IMPORTANT” to talk about the uprising by local villagers against the Taliban because of the “taking of de little boys” by Taliban Commanders. I wish I were making it up.

      It’s culturally accepted. Go into a village out in the middle of nowhere and you’ll find teenage boys with flowers in their hair and mascara on. They are the local “service” for some village elders.

      I gotta be honest, most of the troops would try to ignore it and focus on the mission, but incidents like this would occur on occasion. Normally, it didn’t get raised up to this level. Commanders kept their troops from killing the locals and the locals learned to keep that shit out of sight of Americans.

      Want another one that I saw multiple times nearly get Afghans killed by Americans? Abusing dogs. Feral dogs are EVERYWHERE. It’s amazing how quick the dogs warm up to Gringos, though. Afghans routinely throw rocks at them, kick them, and otherwise mistreat animals. I’ve had to personally intervene to keep some SF troops from killing some locals for throwing rocks at one of the “base” dogs that that troops adopted. As in, SF troops started slapping Afghans around, guns got pulled, etc.

  13. Sounds like a Fairness Doctrine thing. Talk about the marketplace of ideas/speech.

    1. Exactly.

  14. They do get on stage but as republicans never as democrats. Communists and socialists run as democrats and their politics are there for all to see and hear.

  15. I think someone needs to file a RICO lawsuit.

  16. When I was a member of the LP, the “fairness doctrine” was still federal law — but the LP forbade its members to try to use it against exclusions like this one, because that would violate property rights.

    I believe it still does. And both the LP and the other plaintiffs have now demonstrated that their so-called principles are too flexible to really be principles.

  17. Considering a market not just of ideas, but also of elections, one has to wonder what that’d mean for the latter. Let’s say one party gets 70% of the votes. Sounds like a monopoly. What then, break up that monopoly and reassign votes?

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