The presidential monopoly

On April 21, former presidential nominees Gary Johnson of the Libertarian Party and Jill Stein of the Green Party had a hearing before the U.S. Court of Appeals for the D.C. Circuit, appealing a dismissal at the district court level. They are suing the Commission of Presidential Debates (CPD), the Republican and Democratic Parties, and Barack Obama and Mitt Romney over their exclusion from the televised presidential debates in the 2012 election.

Minor candidates have usually been excluded from televised presidential debates. Reform Party nominee Ross Perot was included, twice. Independent candidate John Anderson was included in 1980. Otherwise, they have been excluded. The CPD claims in its mission statement that it is non-partisan, but the plaintiffs contend it is actually bipartisan.

Minor candidates must poll 15 percent or more in presidential polls to be in the televised debates. This has proven to be a difficult barrier. Participation in the debates is necessary for name recognition, so they are in a Catch-22. They can’t get to 15 percent without being known. They can’t get known because they’re not in the debates.

The CPD is a private organization. The district court dismissed the case over lack of standing to sue a private organization.

Johnson and Stein and their attorneys have devised a new legal theory to get around this jurisdictional problem. They contend that a presidential campaign is as much a business as a political activity. They are suing the defendants under the Sherman Anti-Trust Act, contending that they have formed a monopoly that is depriving the plaintiffs of not only a political but a business opportunity in restraint of trade. They are trust-busting the Democrats and Republicans!

One of their attorneys, Bruce Fein, said, “When you run for President you have commercial goals. … [T]he 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. The output or product produced by competitors in the business of campaigning for the presidency is information about themselves or other presidential candidates. … 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. … This was to be accomplished by limiting public information about credible presidential candidates through an exclusionary 15 percent national polling criterion for participation in presidential debates.”

Johnson and Stein and the other participants could stand to gain triple damages under the Sherman Act, if they prevail. Right now, they are just asking the D.C. Circuit to overturn the dismissal and remand the case back to district court.

They are asking that the sole criteria for minor party candidates entering the presidential debates be that they are on the ballot in enough states that they could theoretically win the electoral college vote and be elected president.

It’s actually easier for an independent candidate to get on the ballot in a presidential race than an organized political party. Each state runs its own elections, and the requirements for ballot access vary from state to state. The minor parties regularly spend about half of their campaign funds just to get on the ballot, mostly by funding mass petition drives. The Libertarian Party is generally on close to or all 50 state ballots. The Greens usually appear on about 40 ballots. Both parties regularly appear on enough ballots they could theoretically win a presidential election.

The 2016 election with two flawed major party candidates caused increased media attention to the minor parties. They hope the D.C. Circuit will rule they have a fighting chance to improve their odds in 2020.