Gary Johnson

Dismissal Upheld by D.C. Appeals Court in Gary Johnson Lawsuit Regarding Presidential Debates

Johnson's lawyer vows to fight on with the case, claiming today's decision does not properly address their complaints.

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Libertarian Party presidential candidate Gary Johnson, former Green Party candidate Jill Stein, and others challenging the practices of the Commission on Presidential Debates (CPD) had a bad day today. Judge Janice Brown concluded in a decision today from the D.C. Circuit Court of Appeals that an earlier decision from D.C. District Court Judge Rosemary Collyer to dismiss their lawsuit was correctly decided.

I reported on the oral arguments in the case of Johnson v. Commission on Presidential Debates before a three-judge panel of the Court that included Brown back in April. (Another judge on the panel, Cornelia Pillard, concurred with Brown.)

Brown found wanting arguments that practices keeping third party candidates such as Johnson and Stein out of the debates violate their First Amendment rights and antitrust laws. They were challenging an agreement between the Romney and Obama campaigns giving the CPD sole power to host debates between them in 2012 as:

an unlawful agreement to monopolize and restrain competition in violation of sections 1 and 2 of the Sherman Act….The Complaint also alleges exclusion of Plaintiffs from the debates "because of hostility towards their political viewpoints" in violation of their First Amendment rights to free speech and association…They sought invalidation of the 15 per cent polled-support requirement [for candidates to appear in CPD hosted debates], injunctive relief dissolving the Commission and enjoining further collusion between the two major parties, and treble damages.

Brown was neither convinced by this somewhat novel attempt to apply antitrust law to political markets, nor by the First Amendment argument. The Court ordering the CPD to allow certain people into the debates, or to admit people under certain criteria the CPD did not choose, would violate the CPD's own First Amendment rights, Brown reasoned.

Further, when it comes to Johnson and his co-plaintiff's First Amendment complaint:

the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants…. There may be First Amendment injuries we could invent for Plaintiffs, but those claims were not presented in the Complaint.

As for those antitrust arguments, Brown is dismissive:

antitrust standing requires a plaintiff to show an actual or threatened injury "of the type the antitrust laws were intended to prevent" that was caused by the defendant's alleged wrongdoing…..Plaintiffs, however, define their injuries as millions of dollars in free media, campaign donations, and federal matching funds—injuries to them as individual candidates in a political contest for votes. Square peg, meet round hole….

This conclusion—that an antitrust violation must involve injury to commercial competition—is supported by Plaintiffs' inability to define a commercial market in which they operate. Instead, they discuss the "presidential campaign market," "the electoral politics market," and the "presidential candidates market…."

While these terms may capture what political scientists call a "political economy," the phrase is merely a term of art. Short of alleging Americans are engaged in a widespread practice of selling their votes—which the Complaint does not do—the "market" Plaintiffs identify is no more regulated by the antitrust laws than the "marketplace of ideas" or a "meet market." The injuries Plaintiffs claim are simply not those contemplated by the antitrust laws.

Johnson lawyer Bruce Fein said in an email today that "We will be filling a motion for rehearing or rehearing en banc" from the D.C. Circuit Court of Appeals on Brown's decision.

Among the problems with the decision, Fein wrote, was the judge "decreed rather than explained why campaigning for the presidency could not be a trade or business within the meaning of the antitrust laws by presuming a counterfactual Chinese Wall between politics and business. Could two candidates for the presidency fix the prices of merchandise they sell to raise campaign money outside the antitrust laws under her 'reasoning?'"

Fein also notes Brown ignored their argument in the case that "the Super Bowl of Politics—presidential debates—was so central to our political dispensation that it justified application of the First Amendment notwithstanding the absence of state action—as the U.S. Supreme Court did in the company town case of Marsh v Alabama and the white primary case of Terry v. Adams."

Instead, Fein wrote, she "mindlessly asserted that our First Amendment claim automatically failed because we did not allege state action as if Marsh and Terry had never been decided."

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82 responses to “Dismissal Upheld by D.C. Appeals Court in Gary Johnson Lawsuit Regarding Presidential Debates

    1. Yeah, Janice Brown is supposed to be this awesome Randian libertarian. Hilarious.

      1. It just goes to show you that you can’t trust libertarians in positions of power. It’s like putting a priest in charge of a brothel.

        1. Wouldn’t it be more like putting a brothel in charge of a priest?

      2. It reads like a Randian libertarian decision.

      3. I’d still take her body of work over that of just about anyone else out there when it comes to “libertarian” judges.

        1. That’s not saying much.

      4. She’s more of a libertarian in her pinky finger than that pathetic, “bake my gay wedding cake, slave”, Hillary-loving fugazi is in his entire body.

    2. Tell me Gay Jay clutched his side while uttering, Et tu, Browne’

  1. Oh look, Reason credulously repeating ridiculous arguments because TEAM.

    Could two candidates for the presidency fix the prices of merchandise they sell to raise campaign money outside the antitrust laws under her ‘reasoning?’

    It’s unlikely that two candidates would represent a dominant share of the market in such merchandise, so yes, they could. The bumper sticker and pin market is pretty friggin huge.

    Oh, and DRINK

    1. Oh look, Reason credulously repeating ridiculous arguments because TEAM.

      Also known as reporting the story.

    2. “Oh, and DRINK”

      Oh, and the return of fucking stupid.

  2. Johnson’s lawyer vows to fight on with the case

    You know who else vowed to fight on even in the face of obvious defeat?

    1. John Paul Jones?

    2. Captain Jason Nesmith?

    3. Adolf Hitler?

    4. Tony?

      1. Thank you for that – –

    5. Hillary Clinton?

    6. Captain Kirk?

    7. The Japanese Empire?

    8. Napoleon?

  3. This was always pointless. The entire purpose of the Ruling Party Committee for Pretending to Hold Debates is to make damned sure that no future Ruling Party hack ever has to face another Ross Perot. If Johnson had won the suit, the Ruling Party would simply have stopped putting on these Potemkin shows at all. While that would be an improvement, it wouldn’t make much practical difference.

    -jcr

    1. Ross Perot? We don’t want another Ralph Nader. If it hadn’t been for him, Al Gore would still be president, and the whole country would feel like Portlandia.

    2. Ah! Another Argument from Revelation of What The Future Portends.

    3. Libertarianism dodged a near-fatal bullet when this goofball was kept out of the sight of millions of voters.

      Be very thankful.

  4. Looks like she came down on the side of those who hold her career in hand. Wotta surprise.

    1. Given that she’s close to retirement, I doubt that figured into the calculations.

    2. It might have helped if the lawsuit was not predicated on media being collective resource every candidate has a right to.

      Sorry, the arguments the plaintiff’s made deserved to lose.

      1. I was thinking the same thing, and it appears that even the Judge said there might be good arguments but those theoretical good arguments weren’t the one’s presented. As reported in this blog post, I would tend to agree with her.

  5. Maybe, like Taney, she decided the Constitutional issues had to be decided correctly no matter whose ox was gored?

  6. The CPD is a private organization, and the presidential debates that they organize are private events. They have the right to invite whomever they want, for whatever reason they want. If you don’t like it, organize your own debate. It is incredibly un-libertarian to sue a private organization to force them to include you in their events. The judge was right to throw the lawsuit into the chipper.

    1. So control of every institution of government is what makes it a ‘private organization’?

      1. Got a cite for that claim?

        1. A cite? You don’t think the Democratic Party and the Republican Party control every institution of govt and have for decades? Who do you think created and owns the CPD?

          1. So you don’t have a cite for that.
            Imagine my surprise; you’re certainly living down to your rep.

            1. A cite for what? Are you seriously contesting the control of govt by the D/R parties? If so – you’re a fucking idiot.

            2. Well, since you’re too lazy to Google, Here ya go, skippy:

              Since its creation in 1987, the CPD has been led by two co-chairmen: one Republican
              (former Republican National Committee Chair Frank Fahrenkopf, Jr.) and one Democrat (originally former Democratic National Committee Chair Paul G. Kirk, Jr., and then in 2009
              Michael D. McCurry, former press secretary to President Bill Clinton). (AR 2360, 2885?86
              ? 11, 2363). The CPD is “bipartisan” by its own description: the press release announcing its
              formation stated that it was a “bipartisan . . . organization formed to implement joint sponsorship
              of general election presidential and vice-presidential debates . . . by the national Republican and
              Democratic committees between their respective nominees.”

              This is from
              UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF COLUMBIA

              Case No. 15-cv-1397 (TSC)
              LEVEL THE PLAYING FIELD, et al.,(Plaintiffs)

              v.

              FEDERAL ELECTION COMMISSION,

              (Defendant)

              http://ballot-access.org/wp-co…..2.1.17.pdf

              Don’t say I never gave you anything.

              1. The Democrats and Republicans are political clubs, not a branch of government, sorry.

                1. They are not a branch of government. They CONTROL all the branches of government.

    2. The CPD is a private organization, and the presidential debates that they organize are private events.

      Hmm. Maybe the CPD should make the debates pay-per-view.

      1. What? And starve to death?

        1. So… win/win?

    3. The FEC already does regulate debate sponsors in various ways, including as to their candidate inclusion criteria.

      1. “The FEC already does regulate debate sponsors in various ways, including as to their candidate inclusion criteria>

        And? How does this relate to the issue?

    4. The League of Women Voters is a private organization too, and they did a whole lot better job of running the debates, until the 2 major parties colluded to form their own private organization to decide how the debates would be run. All of which had nothing to do with Johnson’s case.

      1. The problem is:

        No one other than a candidate can ever get standing to have the courts adjudicate that collusion

        Congress will never investigate/deal with that collusion since virtually all incumbents depend on party support

        The President is now effectively part of that collusion.

        So all three federal branches are corrupted. Which means the only solution is an Article V convention or violence.

    5. MISSING THE POINT.

      The problem isn’t what this private group is conniving and excluding – it is their right. It is that they are executing their scam in cahoots with media outlets which use public airwaves to effect the scam. All broadcasters are regulated by the FCC as well as the cable TV nets, radio etc…the CPD is using the public goods to monopolize. Why aren’t the media companies being called out on this?

  7. These courts go to the highest bidder. When slavery was that bidder, it was ethical, legal and right to kidnap brown people from sanctuary cities up north and whip them on cotton plantations. When the Federal Reserve Banks paid the piper, it became a felony to hand copies of the 13th Amendment to youngsters standing in line for their turn as WWI cannon fodder. La Suprema Corte upheld the Volstead Act making light beer a felony when the Glucose Trust deemed it expedient. La Suprema Corte is a child of its time…

  8. Empty puddles and the echo of droplets
    ——————————————-
    Foreborn upon the soil of wounds
    and heave, the changelets
    clustered forcing their
    dancing wishes ‘tween
    thick times of copies.

    Cut, dashed, swollen the
    void cave horizontal with
    torn eyelids and swift
    forgottens slid startled
    and darting into the wood
    shattered. Hammers thudding.

    So shadowed with beams
    wallowing in the staid
    muted mists the peevish
    soldier hoisted webs
    of bedraggled connivance
    across the thronging masses
    his heels digging.

    Into the arrogant vestibules of rich
    offspring spring the art of wars
    Death, old marchings, and marbled
    calls echoing across maddened tombs
    where the toads heavy with wart
    gather and observe the valleys
    of fools create the tornadic hells
    spin mass tombs and futures forgotten

    … finally the peevish soldier fell among the echoes
    of a gray rain
    under his burden
    into a hollow earth
    unrepentant and
    rife with middle fingers

    1. I thought you were dead.

  9. The earth just wants to spin, bro.
    Doesn’t give a shit about hell on earth.
    IF it did it would fucking punch the
    necks of dictators into the asshole of
    space which includes shit judges
    who have been educated into a strange
    special lordship of utter fucking bullshit
    ivy-league morphed their minds into believing
    the poop plastering their toilet bowls is
    super whale puke. Fuck their Harvard thigh crepes.

  10. Godammit, AC, you’re going to convince me that poetry be taken seriously!
    “So shadowed with beams
    wallowing in the staid
    muted mists the peevish
    soldier hoisted webs
    of bedraggled connivance
    across the thronging masses
    his heels digging.”
    Digging, indeed; mine were.

    OT:
    Traveling in Asia recently and the hotel featured the English-language news from the Chi Com network: CGTN.
    Natch, any conflict in mainland China is ignored, the features include China’s claim to the oil-bearing tidal islands in the South China Sea, a gripe with ROK over siting US anti-missile missiles there, absolutely no comment regarding the Nork imbecile, but we get a story on the hoo-hah in Jackson Hole:
    “What to Expect at the Jackson Hole Summit”
    https://www.bloomberg.com/news/ videos/2017-08-21/what-the-jackson- hole-summit-might- signal-about-qe-video
    And the focus, amusingly from the Chi Com network, is on ‘income inequality’; the top 1% has annual incomes ~$13M, while the remaining 99% have to exist on a paltry ~$93K.
    We’ll ignore the fact that the 1% are not residents; they are tourists who find it cheaper to buy a property rather than pay hotels, but still: $93K/year! Poor, poor dears!

    1. Dear Sevo, you loving lilted superhero, one should instruct the jackson hole summit attendees that property cannot be purchased in the China, only leased.

      1. AC, I took some photos out the window of a highrise; the surrounding area was demolished single-story residences. Acres of it. With a highrise in the middle of empty land.
        Yes, those residences were claimed and demolished by the government because the residents are prohibited from owning that land. And that highrise was a statement of government power; nothing else.
        Why build a highrise if there are acres of empty land around other than government hubris?
        Keep on keepin’ on AC; wonderful to see your work again.

        1. So where is Howard Roark when he’s needed?

  11. Methinks, in a primary system, established parties are favored. I do not argue that the Libertarian Party isn’t active, but its candidates more often than not splinter off GOP votes, which, no matter what the party chair claims, isn’t as big tent as the left. What seems to work best for the party, politically, is embedding, which arguably fits Rand Paul, and to some extent Trump. Does changing primary rules erode the two party system, or do we cling to canvasing registered voters. which doesn’t work? I don’t know, but the Commission obviously follows primary percentages.

    1. The commission follows public opinion polls. Public opinion follows the media. The media follow the 2 best known candidates.

      Other countries have debates that include minor candidates. France wasn’t afraid to hear alternative viewpoints. Some states demand fairness in electoral debates for all qualified parties (and not based on polls.) The US national government doesn’t require it, so the 2 major parties make sure it doesn’t happen.

  12. All I know is that I the black and white “Let Me Debate” poster, Johnson looks quite a bit like Steve McQueen. I never noticed a resemblance before. It makes me wonder if the artist manipulated Johnson’s image.

    We could certainly have used a Great Escape from ever-growing government. And I think Malcolm X once said something about a ballot or a Bullitt.

  13. I don’t see the problem with her ruling. He didn’t argue damages but a lack of added benefits. He still ran for President. There is no right to free publicity.

  14. The arguments the plaintiffs made were absurd and against freedom of speech and association. You simply do not have a right to participate in other candidate’s joint press conferences, which is all a debate is.

    The plaintiff’s deserved to lose this case as the precedent it would set is terrible for civil liberties.

    1. There might be something to the CPD taking money from political campaigns which get federal election monies.

      Taking federal money changes how much of an independent non-profit you are.

      1. If CPD is getting funding from the campaigns which may or may not get get federal funding, that does not make CPD federally funded. It is the campaign’s money at that point. Otherwise any organizaton or institution that is paid or donated to by a federal employee, for instance, is subject to federal control.

        1. The campaigns are regulated by taking that federal money and then they want to prevent 3rd parties from debating with them. In other words, they are using a shell non-profit to further their federally regulated agenda.

          That would be different than federal employees using their paychecks to donate to a non-profit. Individual political speech cannot regulated.

          1. Debates are not a legal requirement of elections. They are joint appearances by rival candidates that each campaign agrees to because they think they will benefit more than their opponents. Candidates that are not part of that agreement have no right to the debate podium.

            1. Spoken like someone who’s completely happy with the status quo.

              1. No, just someone who is uncomfortable using the law as a cudgel to break the status quo.

            2. Debates are not a legal requirement of elections.

              That’s rather punctilious. The 1985 Commission on Elections was put together to recommend changes to elections. Their major recommendations were a)stuff that Congress then implemented in law and b)party takeover of the Presidential debate from the LWV (which became the CPD a year later).

              http://nyti.ms/2x68nSI

              http://nyti.ms/2wTmbAU

              The actual laws outside the determination of election day itself only occur at the state level. What the D’s/R’s did in 1985 was stage a putsch to take over the executive branch permanently and jointly. They both de facto agreed that the votes for the only national office (where states are not allowed to legislate – even though they are allowed to force their electors to vote a certain way) are merely a show.

          2. There really is not much to distinguish between a candidates speech and their individusl speech. The FEC cannot force a candidate to make an appearance they do not wish to make.

  15. While the Commission on Presidential Debates is a nonprofit, they receive money from the Democratic and Republican Parties. Those Parties received federal money for elections, so the CPD should set rules to allow 3rd parties.

    1. I thought they did.

      The issue seems to be that Johnson didn’t like the rules they set.

    2. What about retirement communities populated by Social Security retirees? Should the feds set terms for the housing, considering they fund so much of it via SS payments? For instance, they could outlaw seniors-only condos, co-ops, rentals, communities, etc., saying they must be open to all ages if a large enough proportion of the residents are SS retirees.

      1. They do. Well, more correctly, the feds and state agencies set standards and private housing companies either follow those standards or their residents are denied housing money. This is related to social security disability.

        For most SS beneficiaries they can use their Social Security as they see fit and can donate that to political parties if they wish.

  16. Seems like a straightforward decision under the laws as written. Maybe you could stretch the First Amendment case to quasi-governmental actors, but libertarians are normally against stretching laws to limit the freedom of private associations.

    It’s not like there’s a dearth of information available about the candidates. Just go to their websites.

    The real problem with the debates is the 15 percent threshold. It keeps out everyone the 2 major parties wants out, and effectively paints everyone excluded as “fringe” before the great majority of voters begin considering candidates.

    1. There has indeed been such stretching under state free-speech laws via the Pruneyard decision to force shopping malls to have provisions for petitioning, leafleting, etc. The reasoning is that as large privately-owned shopping centers displace traffic from traditional public fora like street corners in business districts, there is no longer as much freedom to communicate facts & opinions as arguably required by the wording of most state constitutions, unless the private land include provisions for such public fora. That’s the funny thing about the wording of the free-speech wording of most of the state constitutions: they apparently provide broader protection against the state for speech than the US Const.’s 14th amendment, but at the price of such breadth’s possibly over-riding property rights.

    2. Actually the real problems go much deeper than the 15% rule which is simply an arbitrary exclusion designed to ‘look reasonable’:

      Memorandum of Understanding with the Campaigns re 1988, 1992, 1996, 2004, and 2012 ‘debates’ – http://bit.ly/2wosWaR

      These prohibit campaigns from appearing at any other debates and prohibit them from appearing on any media where another candidate is present.

      Also if the media ‘encourage’ any other debates, then they get blacklisted from appearing as moderators at the CPD ones. Likewise for any other financial sponsor – and you can bet that that one then also gets referred back to the D/R fundraising side where donors get blacklisted from the crony meetings.

      Those are much more formal contracts of collusion and in the case of the media restrictions is essentially a restriction on freedom of the press.

  17. I don’t get why everyone is obsessing about the mechanics. The fraud here is the execution of the CPDs agenda by the media companies that are supposed to act in the public interest…of course they are mostly rent-seekers. Simmilar, the FCC is asleep at the wheel – where are they in allowing this fraud? The focus should be on taking away the de facto exclusivity in the media platform or forcing them to share.

  18. I am still smarting from the fact that Gary’s VP was virtually endorsing Hillary Clinton for President.

  19. Yeah, I’m prepared to squint really hard and find an exception to what is obviously an orchestrated effort to continue GOP/Dem rule, but I still haven’t seen anything in the fine print yet.

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