Lock-Out Suit

Antitrust laws for elections

Are political campaigns "markets" that cannot be duopolized under antitrust law? The Libertarian and Green parties are suing to find out.

The suit, filed in September in the U.S. District Court in Washington, D.C., accuses the Commission on Presidential Debates (CPD), in collusion with the Republican and Democratic parties, of illegally conspiring "to acquire, maintain, and exercise duopoly control of the multi-million dollar market in organizing, promoting, sponsoring, and fundraising" debates, in order to "artificially advantage" the two parties. "The business of campaigning for the presidency and vice-presidency constitutes a cognizable 'presidential elections market' for purposes of the antitrust laws," the suit claims.

The suing parties hope to dissolve the CPD and to receive "treble damages based on their losses" and an injunction against further actions excluding any candidate who could conceivably earn enough electoral votes to win. Antitrust arguments of this nature fall into relatively untried territory.

The plaintiffs also make a separate First Amendment argument, based on the idea that even ostensibly private actions impacting elections can infringe on their right to speech. The Libertarian and Green parties insist the 15 percent polling barrier to third-party debate participation is "an unreasonable burden on free speech or political association" and "was selected…with the specific intent of suppressing the viewpoints of third party or independent presidential candidates."