Gary Johnson

The Gary Johnson Debate Lawsuit Has Almost Run Out of Time

Federal judge still sitting on a motion to dismiss as time runs out

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"So, what do you think the chances Gary gets 15 percent?"

This, and variations thereof, was the one question I heard over and over again at Wednesday night's Northeast Ohio Libertarian Party mixer with L.P. presidential nominee Gary Johnson, where 30 or so enthusiastic supporters drank local craft beer, and had Nick Gillespie take selfies of them with the candidate.

Johnson arrived in Cleveland late Tuesday night, has been swamped by media ever since (including an entertaining scrum with Gillespie and I just outside the Quicken Loan Arena this afternoon), and has continued to hammer away at his singular message since the campaign's inception: Get me into the presidential debates, and anything's possible.

Gary Johnson talks to Nick Gillespie outside the Republican National Convention in Cleveland. ||| Matt Welch
Matt Welch

This has always been an uphill slog. Johnson's highest national poll result so far (last week, happily enough for him) has been 13 percent, but he needs an average of 15 percent across five as-yet-unnamed surveys to be determined later by the Democrat/Republican-controlled Commission on Presidential Debates before debate season begins in late September. The difference between Johnson's current average of around 9 percent and the qualifying 15 percent is deceptively small: He's got to nearly double his support. As Sen. Rand Paul (R-Ky.) indicated to a few fans of both politicians at Freedom Fest in Las Vegas last week (according to those fans), Johnson could be polling at 14.99 percent in those five polls, and the CPD would find a way to block him.

That's why the Libertarian and Green parties filed suit last September with U.S. District Court in Washington, D.C., seeking to get the 15 percent requirement waived on antitrust grounds, since the two existing market entrants have created an entity which has created rules designed specifically to blunt competition. In May, as Brian Doherty reported here, the L.P. lawyers filed an opposition to the defendants' motion to dismiss the case. It's now just two months before the first presidential debate is scheduled to be held, and Judge Rosemary Collyer still hasn't ruled on the motion.

"We don't have [another] a month to spare," Jim Gray, honorary chairman of the Gary Johnson-affiliated Our America Initiative (which is driving the lawsuit), told me last week at Freedom Fest. "We have to have this tried by August…because somebody's going to appeal it, so we're really running out of time."

Gray, a retired judge who was the Libertarian Party's vice presidential nominee in 2012, laments that "there isn't much you can do with a federal judge who decides that she's going to keep it on her desk for a while. You know, you can't shake her by the shoulders and say 'Hurry up!'"

Many activists close to Johnson have expressed concern privately to me that the campaign is not maximizing its efforts to pressure Judge Collyer. "I was seriously considering…writing a letter on my own to the judge, with copies to everybody, saying 'Come on, time is important, let's have this set for a hearing, have it set for a trial, and let's get this thing going,'" Gray said. "But I was talked out of it."

Why? Because "it's protocol that you only communicate through the attorneys; parties don't communicate with judges." When I pointed out that, for example, the O.J. Simpson trial contained not a small amount of communication with judges and through the press, Gray said "I have nothing to say."

Gray might not have much to say about the lawsuit's tactical strategy, but he's positively loquacious when it comes to its potential sweep. "It's the most important political litigation in the last 50 years," he said. "You know, Bush vs. Gore maybe not withstanding. But it will be a revolution to get additional voices before the marketplace, before the voters. Who will win? The voters. Who will lose? The established duopoly of the Republicans and Democrats. And if people would just understand that, they would be applauding and demanding that this thing be done."

The lawsuit seeks to establish as the qualifying standard for debate inclusion getting on enough state ballots to have a mathematical possibility of winning the election. And that's no small thing, Gray emphasized.

"You and I could not form a political party now and decide 'OK, you should run for president, I run for vice president, we should be part of the debates,'" he said. "Ballot access is a real formidable task. So if you're serious, then you should have your voices heard. That's the way it was when the League of Women Voters were in charge of debates, that's what the criteria was. They were frozen out, literally, by the Republicans and Democrats. And they left with the statement, We will not be part of the hoodwinking of America. Look it up, that was a public statement from the League of Women Voters, they said this was perpetrating a fraud upon the voters. And they were right."

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  1. If he doesn’t get in his campaign (or his supporting pacs) should buy all the commercial airtime and simply air timed ads to counter the two parties point by point.

    “During the debate you will hear X, but vote with me for Y”

    On every channel the debates are on. Matt, you’re tight with the Koch Bros, right? (Everyone says it!) Get them to pony up the cash,and the ads.

    1. It would seem to me, if the Koch’s (or other libertarian leaning rich folk) actually liked Johnson/Weld, this would be the election to lavish some cash on their campaign. Getting over 15% seems reachable if they could get some more publicity.

    2. Goddamnit, no commercial breaks. How horrible is that? They won’t even be pretend debates- they will have long segments to highlight their policies. Nightmare.

      Pre and post infomercials it is then. How much cash would it take for the networks to cut dire tly to a 30 minute GJ commercial before analysis?

    3. Campaign finance reform kills this idea. Since buying this airtime and creating these spots would be considered an ‘in kind’ donation you’d run into all sorts of byzantine reporting requirements at those amounts.

    4. Captain Foresight? Is that you?

    5. Look, in probability theory a zero probability is absolutely NOT an impediment to a thing happening. The looter gatekeepers the soft machines hired to screw the libertarians are simply not competent to add a column of figures, much less opine on “mathematical possibilities”. On the ballot in enough states to conceivably win in the electoral college makes winning a physical possibility. But having 2% of the vote GUARANTEES a win–if by “winning” we mean repealing moronic usurpations and gutting taxes.

  2. . . . and had Nick Gillespie take selfies of them with the candidate.

    That’s . . . that’s not a selfie.

    1. Unless nick is in the photo… the sentence is ambiguous on that count.

  3. The Dems and Reps have a First Amendment right to hold joint press conferences. They have the right to exclude people they don’t like from those press conferences, just as the St. Patrick’s Day Parade organizers have the right to exclude any group they want.

    Promote an alternative debate – invite Clinton, Trump, Stein, Castle and Johnson. If Trump and Clinton don’t show up, have celebrity supporters (preferably fairly well-known and attractive ones) serve as volunteer replacements.

    1. Won’t do a thing.

    2. They sure do but in your rubric these joint press conferences would be fine if they were privately delivered say over the Internet. However, the parade is on on our dime: FCC-controlled broadcast networks and quasi-controlled cable nets are not private but public-goods (airwaves, cable franchise enabled right of ways), i.e. gov’t regulated monopolies.

      Your solution sounds great in principle but why would the dupolists want to compete with others that bring the others up in visibility at their expense? They wouldn’t.

      Push harder.

  4. This is how I imagine things might have gone down. Judge Rosemary Collyer (an esteemed member of the United States Foreign Intelligence Surveillance Court) went to the local mixer, which included all kinds of judicial and NSA bigwigs.

    “Hey, Rosemary, how are the kids? Oh, that’s great. Wonderful. Oh, so I hear you are on the short list for that vacant position. Don’t tell anyone I told you that. Yeah, just something I heard. Hope you get it. You deserve it. Oh, BTW, I heard you got that silly presidential lawsuit on your docket. What a chore. If I were you, I would put it on the bottom of the pile, if you know what I mean. No worries. Well, talk to you later. Oh, thanks for squashing those Gitmo cases for us. The country owes you one. Toodles.”

    1. You really don’t give a federal judge a lot of credit. She wouldn’t need to be told.

      1. Much like the valuable trained dog described by George Orwell. Without the necessity of even cracking the whip, the dog jumps through the hoop.

    2. “You know, you can’t shake her by the shoulders and say ‘Hurry up!'”
      The process is the punishment.

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  6. I’m the guy in the blue shirt, this was a really nifty experience for me. Thanks, guys.

  7. Perhaps it is not a suit that should have been brought, as it is a political question?

  8. The DC elite control the judge. Here come duh judge, with his pockets lined courtesy of the Clinton Crime Family)tm).

  9. Bob help us. Our best-choice candidate is not competent to face looter pols. All Gary needs do is hire an intelligent speechwriter or debate-prepper, smile, wave and act stoned. The rest of the down-ballot LP candidates can tear up their looter kleptocracy machine opponents and secure us some law-changing votes.

  10. Paddypower bookies put the chances of Gary being attributed 51% by the looters counting the votes at about 1 in 40. Linear proportionality to 15% on that indicates about a 1 in 8 chance. That’s better than the odds of drawing to three of a kind and filling a full house or four-of-a-kind in draw poker.
    If Gary were to get into the debates and simply pretend to not understand any of the questions, folks would imagine he was into some really good stash and we’d have a shot at the pot–or at least enough spoiler votes to seriously cut taxes and repeal victimless usurpation acts. If he were to babble abt forcing bakers to cater plural weddings in Utah or South Texas, that would be about as helpful as Al Smith’s derby in the 1928 campaign.

  11. We can even create playlists of them so it will be very easy to find our videos which we like. We can also download those videos and can watch them offline. Showbox for pc

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