Gary Johnson

Judge Quashes Gary Johnson/Jill Stein Debate Lawsuit

The party-controlled Commission on Presidential Debates is not a 'public forum,' District Court judge rules


After sitting on the case for months, Judge Rosemary Collyer of the U.S. District Court for Washington, D.C. this morning shut down a legal challenge by Libertarian Party presidential nominee Gary Johnson and presumptive Green Party presidential nominee Jill Stein to be included in this fall's presidential debates. In denying the plaintiffs' appeal to the Commission on Presidential Debates' motion to dismiss, Collyer ruled that Johnson and Stein have no standing to make antitrust and First Amendment challenges to the CPD's rules (which require a third-party candidate to average 15 percent support in five national polls in the run-up to debates), because the "Defendants here are private parties."

Johnson and Stein had sought to change the qualifying standard for debate inclusion to be getting on enough state ballots to have a mathematical possibility of winning the election—an arduous task on its own, as anyone who has worked in third-party ballot access can tell you. Since getting into the presidential debates has been the linchpin of Johnson's campaign strategy, today's news certainly comes as a kick in the teeth. "It's the most important political litigation in the last 50 years," Judge Jim Gray, the 2012 L.P. vice presidential nominee and 2016 honorary chairman of the Gary Johnson-affiliated Our America Initiative (which is driving the lawsuit), told me three weeks ago.

Judge Collyer clearly did not see it that way, writing with a barely concealed sneer:

Plaintiffs in this case have not alleged a non-speculative injury traceable to the Commission….Plaintiffs' alleged injuries are wholly speculative and are dependent entirely on media coverage decisions. The alleged injuries––failure to receive media coverage and to garner votes, federal matching funds, and campaign contributions—were caused by the lack of popular support of the candidates and their parties sufficient to attract media attention. It is obvious that Defendants did not cause Plaintiffs' alleged harms[.]

The lawsuit, which was based on events from 2012 (when Johnson wound up with 0.99 percent of the popular vote, Stein with 0.36 percent), is arguably much more germane in 2016, when Johnson is currently polling at around 9 percent and Stein at 4 percent, and the two major-party nominees are historically disliked. When a Libertarian Party ticket allows CNN to win the evening's demo ratings on cable news, something different is in the water. But the question now moves mainly (though not yet totally!) to the realm of public pressure, not legal action.

Reason will have more reaction and analysis in this space later.

NEXT: Huge Ratings Uptick for CNN's Second Libertarian Town Hall, As 1.6 Million Tune In

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  1. Being silent and unseen is working out well for Hilary, as it happens.

    1. Given what a complete fool Johnson makes of himself every time he’s given a major TV forum, that’s probably the ideal strategy for him too.

    2. Two things to note. Number one, this judge is a FISA judge. I think that’s interesting. Number two: her analysis is valid from a libertarian perspective. However, notice that her analysis could also be used to throw out all antitrust lawsuits and even, for example, legal tender laws if you replace “media coverage decisions” with “customer decisions.”

      1. You beat me to pointing out that Collyer is a sitting member of the secret FISA court — the court that rubber stamps Federal Government access to telecom and internet data (both metadata and actually communicated data).

        I hope that the judicial bias is noted and included in the appeal.

  2. 20+ million viewers every 4 years.

    But no, it’s not a public forum.

    1. Clearly. And the commission is private.

    2. This year the margib of error will be thr point of contention. 12% with a 3% margin of error is 15%… But so os 18%… What will the CPD do?

      1. What will the CPD do?

        If Johnson is between 15-18% with a 3% margin of error, they’ll decide that you need to be within 15% + margin of error. Because FYTW.

      2. They simply pick polls wehre the average is much lower. Its a moving target.

  3. If the debate stage was a bathroom, and Johnson was transgendered, the same judge would have bent over backwards to call it a public pissing forum.

  4. It’s like Citizen’s United all over again.

  5. Sit on it for months, and then quash it with little time left for appeals.

    Delay justice to deny justice.

  6. If Johnson and/or Stein manage to get enough votes to make people notice (which I think is the very most that can be expected) it will be interesting to see how the “major” parties react. I strongly suspect that they’ll look at ways to jigger the campaign laws to make sure it doesn’t happen again. “Darn it, those crazy fringe parties are stealin’ our votes!!!”

    1. It will be simple. Just bump up the poll requirement from 15% to 25%

      1. I’m not thinking of the debates here but the actual election. If third parties get enough votes to get attention, I expect the “major” parties to go to work on things like ballot access laws.

        1. What do you mean, “go to work on”? They’ve already done a number on them. Why in the hell should I have to collect signatures to be on a ballot? Fuck that. If I’m eligible and make the request, I should be on the ballot. Imagine how much less powerful the parties would be if they didn’t control ballot access already.

          1. True, but if I understand correctly the LP managed to jump those hurdles and get on the ballot in all 50 states (if they didn’t they got damn close). So I figure the hurdles will just be raised that much higher.

            1. Currently on 36 states, with the other 21 in process:


              Greens: 24 states, 3 write-in initiatives, 27 in process:


              1. Constitution Party: 18 on ballot, 2 write-in initiatives, 8 nothing in process, 29 in process:


          2. Why in the hell should I have to collect signatures to be on a ballot? Fuck that. If I’m eligible and make the request, I should be on the ballot.

            “But, but, suppose everyone thinks they should be on the ballot?? It’ll be chaos!”

            Someone will make that very stupid argument.

            1. So? Let’s say there are 1000 people on the ballot. There is no reason why we need paper ballots at this point. Make it so everyone votes from their home computer using public-private keys. Then you just do a page search to find your candidate and click his/her box. Not only can you then have as many candidates as wanna be on the ballot, but you would be able to verify that your vote was counted.

              1. Not only can you then have as many candidates as wanna be on the ballot, but you would be able to verify that your vote was counted.

                That last part is why it’ll never happen.

              2. 404 Page Not Found

        2. Perot did not have a lasting influence on either party.

    2. It’s a much more complicates system, but the Australian government attempted to change election law to destroy minor parties.

      1. *Sigh* “complicated”

  7. It’s almost like they chose a percentage high enough to make it almost impossible for a third-party candidate to appear. Nah.

    1. 5 or 10% seems more reasonable, even though I think the requirements should be almost nothing.

      1. I would settle for 5%. In some parliaments that’s enough to ensure a seat at the table.

        1. Very true. I think 5 is a good agreeable term.

  8. Royal Crown Cola can just fuck right off.

    1. It was ever thus.

  9. As this “judge” was appointed by an R (G. W. Bush), she must bow to her masters. If she rules against her own party, it would severely hamper her chances of getting a better kush appointment at a later date. If anyone truly believes we have a “Justice System” here in the US, I have a bridge for sale. This is the one area, IMHO, that the Founding Fathers fucked up. How can anyone claim that we have 3 branches of government for “checks and balances” when the other 2 branches “cherry picks” who comprises that third branch? The judicial branch of our government is nothing more than the “bitch” of the other two branches, to do their bidding at a moments notice.

    1. I don’t know what to think of direct election of judges. Populism could lead to awful judges.

      The current system is sh1tty, but that’s because of judges who are deferential. And that applies to both sides.

      1. It would be better at first, then much much worse. The Supreme Court would be bad. Districts might improve.
        I’m not sure how to fix that.

        1. The Supreme Court would be bad.

          Imagine Obama running for SCOTUS.


        2. There shouldn’t be a supreme court in the first place. There should be separate courts for each area of law. There is no way a judge can have expertise in all the different areas of law.

      2. I agree, Injun. I don’t have the answer to a better system, but that doesn’t mean I can’t look at the one we have and declare that it is broke. The platform of both parties center around appointing SCOTUS, but I must ask, if we already know the prejudicial biases of the nominees, are they really judges? And how can they “fair and impartial”?

      3. Direct election would only serve to throw more innocent people in jail. Think of all the reports of prosecutors and judges colluded to suppress evidence just so they could point out in their re-election campaign that “They locked up a record number of criminals! They’re TOUGH ON CRIME! And their opponent wants murderers running free in the streets!”

        Yeah, thanks, but no thanks.

    2. This is the one area, IMHO, that the Founding Fathers fucked up. How can anyone claim that we have 3 branches of government for “checks and balances” when the other 2 branches “cherry picks” who comprises that third branch?

      Well, the FF didn’t really create the judiciary as a third branch of government. Article Three simply states:

      “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.”

      It didn’t actually define or describe the courts, they were created by the Judiciary Act of 1789.

      Most of the framers would have seen the three branches as: executive, House of Representatives, Senate.

    3. Absolutely agree. Under a free market system, judges would be “elected” by people choosing to go to good judges. Bad judges would get less business over time. Having people elect judges is a step in the right direction. The system we have now is akin to having one of the sport teams in a match bringing the referee. A judge cannot be expected to rule impartially against the government when he was was chosen for the job by the government.

      1. Popular judges wouldn’t necessarily be good judges.

        1. I disagree. A judge is different from a legislator. A judge would have much less incentive to pander to his/her “customers.”

          1. that is what already happens. supreme court justices were supposed to have a lifetime appointment to keep politics out of the court…. but now they front load all that in the appointment process…. you won’t get nominated for the court, if you don’t fit the target ideology.

        2. I wonder if there are any studies of judicial quality of states with direct election of judges (which encompasses most states) and states in which judges are appointed by the executive and/or legislative branches.

      2. But in the case of criminal law, you don’t get to “shop around” for a judge. They own the monopoly on whether or not you get to go free or get your civilly-forfeited stuff back.

    4. My $0.02

      Why are so few judges willing to strike down laws or bitch slap congress and the POTUS?

      Judges who do will get weeded out. Fed judges are appointed by the prez and confirmed by the Senate.

      To use an analogy: as a a judge, you are doing QA work on the people who do your performance reviews and promotions. It’s a giant conflict of interest.

      One idea is to have fed judges confirmed by people not part of the fed gov. Say the 50 governors vote to confirm.

  10. Just like party primaries aren’t public and we don’t spend any tax dollars supporting them….

    oh wait….

    1. True for caucuses, but not for primaries . . . .

      1. What? Primaries are publicly funded.

        1. we don’t spend any tax dollars supporting them…

          True for caucuses, not true for primaries.

          So I was sort of agreeing with the implied /sarc in the original post, but in a totally confusing way.

  11. *Grimaces, spits, tunes up wood chipper*

  12. Can a federal judge be recalled? Asking for a friend…

  13. Maybe the Libertarian Party should start a Libertarian News Network, or Freedom News Channel. It would take some time, but eventually they might carry as much weight as other networks. They’ll probably pass MSNBCs’s viewership in a couple of years.

    1. We could have Robby Suave in front of a camera, reading quotes from the commentariat.

      1. It’s “Libertarian News Network,” not “Freak Show Network.”

        /ha ha, just kidding, kind of

  14. How is dying a private organization for 1 st Amendment violations not worthy of a sneer?

    There was no principled basis for the Libertarian Party to participate in the lawsuit based on the arguments being made. If the argument was that the Commission had excluded Johnson contrary to their stated rules, maybe, but that was not it.

    1. Agree it was not strictly principled. The argument being made was anti-trust against an established duopoly, which libertarians generally oppose, the idea being that if you’re an innovative upstart, you can break a monopoly.

      But if you look at the duopoly’s behavior, it’s not in the private arena. Ballot access laws and other impediments are in the public sphere and have government force behind them. So I can see a case for intervention, although I can see why it’s paradoxical for the LP to use it.

      1. The major parties collusion on setting ballot access laws is a legitimate issue for a lawsuit, but that does not make a lawsuit on this issue using these arguments intellectually defensible. Going off on the judge for rejecting it is Reason delving into Team politics.

  15. Then Johnson and Stein should have their own debate. They won’t get as much coverage, but they’ll get some, even if it’s just on Youtube.

    1. I’m hoping the CNN townhalls help Johnson break 15% and get into the debates. There’s no other way he can make it on stage.

      The cynical side of me thinks that CNN is doing this at the behest of the Democrats to splinter the GOP vote, but at this point, Trump’s loss is the likely outcome, and I’d like to see Johnson have a chance for 2nd place, or hopefully 1st place finish.

      He’s the best of the lot, and will probably come across as a good alternative to the corruption of Hillary and lunacy of Trump.

    2. I think they did that last time. I don’t think anyone watched it. 😐

  16. Since getting into the presidential debates has been the linchpin of Johnson’s campaign strategy, today’s news certainly comes as…

    …absolutely no surprise to anyone with an IQ over 10.

    How can anyone possibly think that the system is rigged?

  17. So this is the one area that “public accommodation” doesnt apply?

    1. Somehow.
      You’d think this would be one that clearly is. Not like there’s another commission for presidential debates to go to

    2. Johnson is a white cis hetero male.

      If he was any further higher on the victimhood scale, he could have claimed discrimination.

    3. GayJay need to put on a dress and say the debate is a Basic Human Right.

  18. That’s fine, it would have been hypocritical to force your way onto television that way anyway while allegedly advocating for more liberty.

    That’s not to say I agree with the CPD, I think the 15% threshold is ludicrous, but it’s their right as a group of individuals to be ludicrous.

    1. If the CPD was like a debate committee for who sits on the homeowner’s association a mile away from me, I wouldn’t give a damn.

      The problem is that these f***ers are keeping out choices in a public election.

      They straddle a murky public/private divide, and I can see the arguments from both points of view.

      1. They are not keeping out choices. Johnson is still on the ballot, but neither he nor anyone else has a right to participate in the major parties joint press conferences outside if the rules they create for themselves.

        1. Agree, and hence it will be an intractable Catch-22 of media coverage and electoral viability.

          1. The media coverage / electoral viability wall is a big problem because we aren’t voting for American Idol, a private undertaking, but for public office which affects all of us whether we like it or not.

    2. Agree that it’s the CPD’s party to invite anyone they want.
      The bit about how invitees to their party aren’t allowed to debate elsewhere is the troubling bit. Nice fig leaf

  19. Couldn’t what ever network that is televising these (circuses?) ‘debates,’ just insist on having the Johnson on stage?

    1. Interesting. Do we start letter writing?

  20. The war party covering its ass.

    1. Which party? The…..oh, silly me.

  21. Gee, where’s my shocked face.

  22. This will stop when a third party candidate refuses to be excluded from the debates and either forces his/her way in or occupies the venue ahead of time with a large number of armed supporters. Unfortunately, neither Johnson nor Stein seems willing to do such a thing.

    Of course this would attract all sorts of attention from the media, as well as the SS, FBI, and other alphabet soup agencies. I expect that this would either go down like the Bundy standoff of 2014 where the armed supporters got what they wanted, or there would be a large battle and the debate would not occur at all. Both are positive outcomes in my view.

  23. It remains astounding that the media allows the Reps/Dems to stage a private debate and does not charge them to give it national coverage.

    The Commission on Presidential Debates is not corrupt, nor do they break the law, they do exactly what it is they were created to do. But our ‘powerful free press’ seems to have made a collective decision that ‘there is nothing we can do about it’ so they pretend it is a public debate.

    Is there no one in the media who thinks the fact that not one of the CPD’s ‘National Sponsors’ for the last seven election cycles has paid a single penny for the privilege might – just might – be a bit abnormal? If it’s free to be a ‘National Sponsor’, why did three of them withdraw their ‘sponsorship’ in 2012, immediately before the first debate?

    Although I despise the CPD, and consider it to be the most anti-democratic institution in modern US history, it is the media which has abdicated all responsibility for our democrdacy.

    1. It remains astounding that the media allows the Reps/Dems to stage a private debate and does not charge them to give it national coverage.

      I think this is a good point. Are the debates on broadcast TV?

      1. I’ll add to that. If networks give free airtime to Team Red and Team Blue via the debate, that should be considered ‘donations in kind’

  24. Proving that Donald Trump is right and President Obama is wrong: the election is indeed rigged.

    Just not against Trump in this instance.

  25. This decision is from a government court, ruling on a government election.

    There is a libertarian solution:

    Boycott the State.

  26. This decision is from a government court, ruling on a government election.

    There is a libertarian solution:

    Boycott the State.

  27. The lawsuit was a success in revealing the duopoly that controls with an iron hand public debate on the future of our nation. I am not a fan of the appellants but need no protection from their ideas. Censorship by government is unconstitutional and repugnant by private parties pretending to inform the public and being no more than an elaborate fraud.

  28. Defendants here are private parties.

    Private parties that control the government. Ah, the hairs that we split.

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