Electoral politics is like a market, argues Bruce Fein, the lawyer for Gary Johnson (the 2012 and 2016 Libertarian Party candidate for president) and other plaintiffs in an ongoing lawsuit against the Commission on Presidential Debates (CPD), the Republican and Democratic Parties, and 2012 major party candidates Barack Obama and Mitt Romney.
The collusive behavior of those defendants against the L.P. and other third parties to keep them out of the electoral politics market amounts to a violation of antitrust law.
Fein argued that point, and others, in an hearing this morning at the D.C. Court of Appeals. He appeared before a three-judge panel of Judges Janice Brown, Laurence Silberman, and Cornelia Pillard. (Johnson's loss in district court was reported on last August, and more details about the plaintiffs arguments were explained when the case was filed in 2015.)
The CPD itself has officials who brag that its debates are the Super Bowl of politics, so Fein speculates on the value of appearing in it in terms of the value of commercial time bought during a Super Bowl broadcast, estimating that the injurious actions of the CPD and its two-party pals cost his clients up to a possible billion dollars.
"When you run for president you have commercial objectives," Fein said in a phone interview this morning after the hearing, giving examples of manipulating the minimum wage, permitting or not permitting pipelines, raising or cutting taxes. And they are trying to actuate those commercial objectives through government action. "If the objective has a commercial goal, then the process by which you get into government or get government to enact economic changes should be subject to antitrust law," Fein says.
As argued in Fein's appeals brief, "the concerted actions of Mr. Obama, Mr. Romney and the CPD were intended to cripple or destroy competition in the multi-billion dollar business of campaigning for the presidency….This was to be accomplished by limiting public information about credible presidential candidates through an exclusionary 15% national polling criterion for participation in presidential debates, i.e., an output limitation agreement."
The full list of plaintiffs Fein represents in this case also includes Gary Johnson 2012, Inc.; Libertarian National Committee; James P. Gray; Green Party of the United States; Jill Stein; Jill Stein for President; and Cheri Honkala.
Fein noted that the CPD's 15 percent criteria (adopted in 2000, and no non-major-party candidate has met it since then, which Fein thinks is exactly the point) remains ill-defined, amounting to a "we know it when we see it standard" impossible to objectively interpret. For example, why shouldn't it apply to face-to-face polls in which a third party candidate was compared only to the incumbent? The appeals brief insists that the polls by which Romney qualified generally pitted him only against Obama.
His clients, Fein says, would prefer a truly cut and dried objective criteria: being on enough state ballots to literally win an electoral college majority. That would have resulted in 2016 in four such candidates on the CPD debate stage, "not an unwieldy number."
"The other side claims we are arguing for an absolute right for any candidate to participate, which is a misrepresentation."
Fein found many aspects of the District Court opinion from Judge Rosemary Collyer dismissing their case troublesome, including what he calls a "catch-22." What's that catch? That Collyer thinks that Johnson and the other parties had no standing to sue the CPD and its co-defendants, since the injury wasn't caused by the criteria imposed by the defendants, but rather by their failure to poll high enough to meet the criteria. And anyone who did meet the polling criteria obviously would have no standing to sue. So to Collyer, as Fein sees it, no one would ever have any standing to sue over the polling criteria.
The appeals brief also tried to counter Collyer's insistence that no antitrust issue was implicated in the CPD's behavior toward third party candidates:
The District Court…erred in denying Appellants Sherman Act standing on the theory that the multibillion dollar business of campaigning for the presidency is indistinguishable from holding public office or conducting government. To the contrary, that business of running a presidential campaign is indistinguishable from the newspaper industry which is covered by the Sherman Act. The harm to competition caused by Appellants' unreasonable exclusions from the presidential debates was the loss of public information about the qualifications of credible presidential candidates essential to the fairness or legitimacy of the presidential electoral process and the national political agenda. Contrary to the District Court, the multibillion dollar business of campaigning for the presidency involves both politics and commerce. They are not mutually exclusive.
The three-judge panel today seemed "exceptionally well-prepared," Fein says, and left him with "guarded optimism" that Collyer's decision to throw out their suit will be overturned and it can proceed in lower court again. Questions from Judge Silberman today, Fein thinks, indicate he has some grasp of the notion that seeking political office has its commercial side, and that Collyer's standing conclusion contains the unreasonable catch-22 mentioned above.
Fein hopes that the necessary savvy about how and why politics works for judges on the D.C. Appeals Court will help them understand that the surface meaning of the debate inclusion criteria—keeping a manageable number on stage—may well be hiding sinister exclusionary intent.
"I think once a significant, non-trivial element [of electoral politics] is commercial, in comes the Sherman Antitrust Act," Fein says. Fein grants, as per an opinion Collyer cited in her decision dismissing the case, that holding government office or conducting government business may not be "trade or commerce" under the Sherman act, but that the act of campaigning for office is.
As the brief insists:
The output or product produced by competitors in the business of campaigning for the presidency is information about themselves or other presidential candidates. They hope the information will elicit donations, volunteer services, votes, or other support from the public. The allegedly illegal concerted actions of Romney, Obama and the CPD constituted an output limitation agreement, i.e., an agreement to limit the output of presidential candidate information. That objective would be effectuated by unreasonably excluding Johnson and Stein from the 2012 presidential debates; boycotting presidential debates except those sponsored by the CPD; and, boycotting joint media appearances with Johnson or Stein.
While the wheels of federal Appeals Court panels can grind at their own unpredictable speed, Fein thinks an opinion is likely to come within the next three months. A victory for Johnson's side would mean, since it is an appeal of a motion to dismiss, not that Johnson has won the case, but merely that the original suit can proceed in district court, and the CPD and others, including Mitt Romney and Barack Obama, would be open to discovery demands from the plaintiffs.
At that point Fein has some hope that maybe the CPD and Romney and Obama might not want to go through discovery and the expense of further court battles, and that they "may decide it isn't worth it" to keep fighting Johnson and his co-defendants and come to some settlement. (He also realizes that nothing requires the CPD and the major party candidates to have public debates at all if they feel forced to invite the likes of the L.P. and Green parties.)
While not the ultimate decider on such matter, Fein speculated that the CPD abandoning its arbitrary and restrictive "polling 15 percent in five polls of our choice" standard might be a satisfactory conclusion to the suit, and that "we are not here to feather our pockets; we are trying to help the American political system out of stagnation." (Johnson and the other plaintiffs, if they win not just this appeal but also the suit itself, would be eligible for treble actual damages caused by CPD and its co-defendants' actions.)
Ron Nielson, Johnson's former campaign manager and speaking for Johnson, said in an email today that "There are several parties involved in this lawsuit, so it isn't appropriate for us to speculate regarding a possible settlement. I would simply say that our fundamental objection has always been the arbitrary use of polling thresholds to exclude otherwise qualified candidates from participating in the debates. Any acceptable outcome has to address that arbitrary exclusion, and prevent it from happening in the future."