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.


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.