Gary Johnson Sues FEC, Following Anti-trust Suit Filed Last Week

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Last week, Gary Johnson filed a federal anti-trust lawsuit against the Commission on Presidential Debates for excluding the Libertarian presidential candidate from the three debates scheduled for next month. Now, Gary Johnson is suing the FEC for declaratory relief to compel the FEC to “make dispersement of pre-election general funding as provided by statute.”

The claim is that, under the Presidential Fund Act (“Act”), enacted in the 1960s, funding for presidential candidates is made available equal to an amount provided to the two major party candidates. This amount is based on the ratio of the popular votes received by each party’s candidate the previous general election. These funds come from the donation request that accompanies every federal ballot to help support the Presidential Election Campaign Fund. But, the FEC says only Obama and Romney are elegible for dispersements.

USC 26 Section 9004(a) reads:

(1) The eligible candidates of each major party in a presidential election shall be entitled to equal payments under section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under section 315(b)(1)(B) of the Federal Election Campaign Act of 1971.

(2)(A) The eligible candidates of a minor party in a presidential election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election.
There is hereby established on the books of the Treasury of the United States a special fund to be known as the “Presidential Election Campaign Fund”. The Secretary of the Treasury shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 6096
Every individual (other than a nonresident alien) whose income tax liability for the taxable year is $3 or more may designate that $3 shall be paid over to the Presidential Election Campaign Fund in accordance with the provisions of section 9006(a). In the case of a joint return of husband and wife having an income tax liability of $6 or more, each spouse may designate that $3 shall be paid to the fund.

Accordingly, the major party candidates will receive over $92 million dollars of public funds. Johnson contends that the .81% of the vote received by Libertarian candidate Bob Barr in 2008 entitles his campaign to $747,115.34. The lawsuit demands that the FEC distribute these funds to the campaign while the FEC maintains that the Johnson campaign is ineligible.

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