Presidential Debate

The Commission on Presidential Debate's 15 Percent Polling Criterion Must Go, Argues Lawsuit from Gary Johnson

A hearing in Johnson's case was held today in the D.C. Circuit Court of Appeals, insisting that the Debate Commission in collusion with the major parties are violating antitrust law when it comes to "political markets."


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."

NEXT: France Election Preview: Terrorism, Socialism, Nationalist Socialism, and the Prospects for Economic Liberalization

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  1. Just go away, GayJay.

    You’re so incompetent you couldn’t even get Hillary elected like you were supposed to.

    1. Jesus fuck, yes.

    2. Eat my ass, cuck. This lswsuit was filed during the election. America needs to buck the two-party system where we just elect a different flavor of statist every couple years.

      But whatever. Enjoy your next 7 years of that “bone spur” having, orange ass faggot trying to start WWIII. And enjoy the next 8 years of these proggy socialists trying to lock you up for saying the sky is blue.

  2. I think getting so fixated on the debates was his biggest error. It was like he was running for the debates rather than for the presidency.

    1. His biggest error was not being a libertarian.

      1. My favorite part was when he and his running mate gushed over “how nice a person” they thought Hillary Clinton was. What were they thinking? She’s a criminal and dishonest ? and the two of them were tripping over themselves to tell Americans how much they liked her? One of the strangest fucking things I ever saw in politics. I never heard either of them enunciate a clear definition of Libertarianism, or even of economic and personal freedom. They were, at the same time, the most experienced and the least lucid of Libertarian candidates I can remember.

        1. GayJay/Weld’s job was to elect Hillary. When it was obvious they were failing, Evan McMullin entered the race.

    2. He was off track long before that. He and Weld seemed to be aiming to attract centrist Democrats, possibly the stupidest imaginable strategy for the campaign.

      1. Was it even centrist Democrats? I would have been semi-okay with Gary sounding like Jim Webb. He was, at points, trying to sound like Bernie.

  3. Good luck to them.

  4. “Libertarian” candidate sues to force a private organization to invite someone to its debates. Of course he never cared much for freedom of association to begin with anyway. As much of an embarrassment as the entire LP is, GJ may be an embarrassment to them. How sad is that?

    I don’t even see how a libertarian could argue that it would be a violation of rights for the CPD to just explicitly invite only the Republican and Democrat. This antitrust argument (using a law libertarians are against) is utter poppycock — politics isn’t trade. At least the nonprofit status argument (another law that libertarians are against) had some coherence.

    Of course the free market solution would be to hold an alternative debate with whatever invitation standards GJ finds acceptable, find someone to broadcast it and an audience to watch it, and outcompete the CPD’s debates in the ratings. Might be tough to find an audience for GJ vs Jill Stein, but nobody said winning in the marketplace was easy.

    1. I’m not sure what world you are living in, but it’s not this one.

    2. It’s not just that using the Sherman act is disturbing, nor that the argument that campaigning is commercial activity is poppycock?it’s not poppycock, it’s disturbing too! If a campaign is run for commercial purposes, it means voters & especially donors are complete suckers?or that they’re thoroughly corrupt! If the idea of a political campaign is jobs for campaign workers & income for suppliers of the campaign’s goods & services, then what are the donors contributing for? It’s either an inefficient charity or it means donors hope to reap in graft & favors more than they donate. If it were about education & propaganda, that could be done much more efficiently by directly buying the time, as LaRouche used to.

  5. Few months away, and this site has become buggered beyond belief.

    Staffers, pretenses are important. Ask Munoz. He knows.

    So, I was troll-lol-lolling through old posts (nostalgia, shaddup), and found this:

    Friend of mine was a police officer in a large city, and one day got called to a grade school because of a boy (of course..) who had brought a toy plastic soldier… The figure was perhaps two inches tall. One of the TEECHURS saw it, or otherwise became aware of it, and called the cops… my friend happened to be the responding officer. He got there, not sure what to expect. When the teacher told him what had happened, he asked to see the “offending” article. He handed it back, told the teacher “that is NOT a firearm, it is a small plastic depiction of one as part of larger item. Since its not a firearm I cannot take any action… before I leave here I will radio in and inform them of the outcome of my contact, and tell them if anyone else calls from this school about some boy with a gun, to refuse to send anyone. And if a second call comes in, we will come and arrest, and charge, the person making the call for filing a false report with the police department/emergency services.

    Dude. For real-for real? Give us a name, precious, I’d like to send him tit pics and cheers. Positive reinforcement is an essential element in human development.

    1. Also, links are broken. Why are links broken? I assume Robby is stealing development funds to pay for fruit, underage poon and hair product, but confirmation would be sweet.

      Ed is probably the weak link. Let’s lean on him and find out.

  6. Libertarians are evidently sandwiches fashioned from a million stalls racing and hugging old connections like billion dollar rockets alert for scientific cum cocks.

  7. Can we all get a face smashed into smithereens and jest?

  8. While I understand wanting to be in the debates, at the same time, trying to use the government to use force you let you in strikes me as unlibertarian. Then again, he also thinks it should be used to force bakers to make cakes, so it’s not inconsistent.

    1. Turnabout is fair play. Fuck the CPD. They deserve a bullet in the head, not a lawsuit.

  9. Mencken got it right decades ago — “an advance auction on stolen goods”
    It shouldn’t be regulated, it should be expunged.

  10. “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.”

    I guess “arbitrary” here means “barrier to me getting what I want”. You have no right to someone else’s microphone, even if they theoretically offer you a way to access it. I think the precedents that this will set should the plaintiffs win are terrible for freedom of association and freedom of speech.

    1. At this point I’d rather see the whole shithouse go up in flames. Fuck the CPD. They deserve a bullet in the head, not a lawsuit.

    2. Actually, he does have a right to that microphone if he’s a viable candidate. Making any poll number a condition for inclusion is ridiculous — poll responses are in no way binding, and start out manifestly unfair to the lesser known candidates. Start polling AFTER the first debate, not before.

  11. Yes, Gary blew a golden opportunity, but this is still an incredibly important issue. Ross Perot had a major impact on the election, in large part, due to the debates.

  12. Why the fuck should anyone give a flying flaming fuck or a rolling doughnut what Gay Jay says or does?

  13. France had a presidential debate with 11 candidates and the Republic somehow survived (for now at least).
    Why do we have to be stuck with 2 guys?

  14. I agree that he should’ve been allowed at the debate. But he would’ve stumbled, been incoherent, and actually been a detriment to the liberty movement if he had.

    He was given multiple opportunities to promote his candidacy and was mostly a disaster at every turn.

  15. If any of the various law suits work it could open the door for a really good candidate such as Rand Paul to switch to the Libertarian party. I though Gary was good but the mistakes hurt him.

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