Court Rejects Antitrust Claims Against Presidential Debates

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By Kenneth P. Doyle

A federal appeals court rejected claims that excluding minor party candidates from presidential campaign debates violated antitrust laws, saying the excluded candidates’ arguments were the wrong fit ( Johnson v. Commission on Presidential Debates, D.C. Cir., No. 16-7107, 8/29/2017).

“Antitrust laws protect market ( i.e. economic) competition,” said an Aug. 29 ruling written by Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia CIrcuit. “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.”

Brown’s ruling was backed by two other appellate judges on a three-judge panel, Cornelia Pillard and Laurence Silberman.

Pillard wrote a concurring opinion, however, disagreeing with some of Rogers’s reasoning on First Amendment issues involved in the case and whether the plaintiffs had legal standing to bring an antitrust suit. Pillard said she believed there was standing to bring antitrust claims in the case but said she would dismiss those claims on their merits.

Challenge to FEC Rule Ongoing

The antitrust lawsuit against the private, nonprofit Commission on Presidential Debates (CPD) was filed on behalf of Libertarian candidate Gary Johnson and Green Party candidate Jill Stein. The suit originated in 2012 after Johnson and Stein were excluded from the fall presidential debates that year.

Johnson and Stein also ran again in the 2016 presidential race and were again excluded from the fall presidential debates. A separate lawsuit launched before last year’s debates still is making its way through the courts.

The ongoing case involves a challenge to Federal Election Commission rules allowing the presidential debates commission, known as CPD, to exclude candidates supported by less than 15 percent of voters in national polls. The 15 percent threshold has allowed CPD to exclude everyone except the major party nominees from presidential debates held during the general election campaign in recent election years, the challengers say.

The 15 percent threshold also was at issue in the antitrust case just decided by the D.C. Circuit appeals court. Attorneys for Johnson and Stein said the threshold set an illegal barrier to competition from minor party candidates against the major party nominees.

FEC Refused to Change Rules

The FEC refused to change its debate rules or take enforcement action against CPD, the sponsor of all general election presidential debates since the 1980s. CPD raises millions of dollars in corporate and other funding to produce the quadrennial debates—funding that could be illegal under campaign finance laws, if found to improperly favor certain candidates over others. The FEC says it has allowed this funding under its current debate rules in order to help educate voters.

The current FEC rules require only that the debate sponsor use “objective criteria,” such as standing in public opinion polls, to determine who should be invited to a debate; the debates can’t explicitly be limited to candidates from the major parties.

The challenger of the FEC debates rule, a nonprofit organization called Level the Playing Field (LPF), is joined in the ongoing court case by the Libertarian and Green parties and by businessman Peter Ackerman. The plaintiffs have pushed for a federal district court court in Washington to set an accelerated schedule to resolve the case by the end of the year, arguing that independent candidates need ample time to decide whether to compete in the 2020 elections. U.S. District Court for the District of Columbia Judge Tanya Chutkan issued a scheduling order this month calling for briefing in the case to be completed by mid-November.

The CPD has argued in a court filing that changing the FEC rules to require the presidential debate sponsor to invite a minor-party or independent candidate would violate the commission’s First Amendment right to sponsor a debate. Challengers “seek to have the government require the CPD (and any other sponsor of general election presidential debates) to invite to participate in its debates at least one candidate who is unable to muster even fifteen percent in the polls,” the CPD filing said. “The sponsorship of a presidential debate involves political speech, and when regulating such speech, the government must tread lightly.”

One of the debate challengers, Ackerman, a financier who heads Rockport Capital Ltd., has been involved in earlier efforts to field a presidential candidate as an alternative to the Democratic and Republican nominees. Ackerman has said the lawsuit challenging the FEC debate rules represents the best chance in years to change the presidential debate system, suggesting the debates commission and the FEC have been too heavily influenced by the Democratic and Republican parties and have failed to keep up with changing public sentiment.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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