Few institutions in American politics wield more power over our presidential election than the Commission on Presidential Debates. It is disparaged by critics as a two-party cabal designed to keep third-party candidates off the stage. Indeed, the private, non-profit organization is co-chaired by prominent members of the Republican and Democratic parties.
Long the target of protests and lawsuits, the commission remains the target of Gov. Gary Johnson’s Our America Initiative long after the last votes have been counted from the 2016 election.
Constitutional scholar Bruce Fein, famous for his role in drafting the articles of impeachment against Richard Nixon, continues to serve as lead counsel for the lawsuit against the commission. It alleges that the commission violates the Sherman Antitrust Act, the federal law that prohibits collusion and anti-competitive practices in support of monopolization.
The lawsuit was filed in 2015 with Johnson, Green Party candidate Jill Stein, and both the Libertarian and Green national party committees as plaintiffs. Many previous lawsuits have sought to attack the CPD as a violation of campaign finance regulations. The antitrust argument is a new and original angle of attack.
Johnson excluded from the Clinton-Trump debates
In last year’s presidential contest, Johnson was excluded from the first debate with Donald Trump and Hillary Clinton even though polling at between 8 to 10 percent of the vote. His campaign noted at the time that that was higher than Ross Perot was polling at the time when he was included in the 1992 debates. (The difference was that both the George H. W. Bush and Bill Clinton campaigns consented to Perot’s inclusion.)
However, the commission seemed determined to prevent such a third party from future inclusion. After Perot, they adopted a rule requiring polling of at least 15% in order to merit debate inclusion.
This creates a chicken-or-egg conundrum, as it is extremely difficult for a candidate to secure that level of support before their inclusion in the debates is confirmed. Indeed, no third-party candidate in history would have meet that 15 percent threshold – including some who went on to win electoral votes.
Taking action for the health of American democracy
Fein considers the lawsuit to be critically important, not just for third-party candidates, but for the overall health of America’s political system. He told The Jack News, “Our political culture will stagnate and die if the two major parties continue to marginalize rivals by arbitrarily excluding them from presidential debates, the Super Bowl of politics. The Clinton-Trump debates were as empty of ideas as a vacuum tube is empty of air.”
The lawsuit, currently managed by Johnson’s 501(c)(4) organization Our America Initiative, is currently before the D.C. Circuit Court of Appeals. Last August, District Court Judge Rosemary Collyer dismissed the suit, saying that antitrust law had no bearing on politics.
But Fein suggested that an unfavorable ruling at the trial court level was not unusual, particularly when making an argument of this sort about the antitrust laws. Lower courts will often defer to higher courts instead of breaking new ground themselves.
Under the banner of “Fair Debates,” OAI is continuing to fundraise and raise awareness for this project. The potential payoff is significant. In addition to changing the face of American presidential elections, the damages that could accrue to the plaintiffs under the Sherman Act might run into the multiple millions of dollars.
America’s strictly entrenched two-party-only system is an outlier on the international stage. Nations like Canada and the United Kingdom may have two dominant political parties, but debates featuring up to six or seven parties and their candidates are not uncommon.
(Photo of supporters of Libertarian presidential candidate Gary Johnson rally in front of the Commission on Presidential Debates on September 30, 2016, in Washington, by Mark Wilson/Getty Images)