Federal Judge Strikes Down Third Party Lawsuit against Debate Commission

A challenge to the Commission on Presidential Debates was effectively dismissed in federal court Friday. U.S. District Court Judge Rosemary Collyer ruled that there is little merit to the claim that the CPD is violating antitrust laws and there is no evidence the commission is intentionally working to shut out minor party presidential challengers.

Gov. Gary Johnson, Dr. Jill Stein, the Libertarian and Green Parties, and several affiliated organizations sued the CPD, the sponsors of the fall presidential debates, asserting that the debate commission is acting as a monopoly over the debates, thus violating national antitrust laws.

In addition, by silencing third parties, Johnson and Stein feel that the CPD is abridging their First Amendment free speech rights. They seek to replace current rules for debate admission in favor of nonpartisan criteria that would allow them to debate alongside Donald Trump and Hillary Clinton.

The CPD is officially nonpartisan as a 501(c)(3) nonprofit, but is largely made up of members of the Democratic and Republican parties, including former party chairs, U.S. presidents, and elected officials. Current rules state that candidates must receive at least 15 percent in certain national polls to achieve a podium on the national debate stage.

“Simply removing the arbitrary polling requirement eliminates any potential bias and subjectivity from the decision as to who will be on the debate stage. That is the most straightforward and realistic solution,” Johnson explained in a previous interview with IVN.

After months of inaction on the part of the judge, a ruling was finally handed down Friday morning: The CPD’s motion to dismiss was upheld. The reasons were twofold:

  1. The judge said the “perceived injury” was the plaintiffs’ own doing. In other words, the judge believes it’s not the CPD’s fault that Johnson, Stein, and other third parties can’t get the media attention or support to meet the CPD’s debate criteria.
  2. As a private institution, the judge argued that the CPD doesn’t need to abide by constitutional law, much in the same way that Facebook or Twitter can censor content it deems offensive. Therefore, the CPD has every right to abide by its own rules, and the assertions of Johnson, Stein, and company have little to no merit.

The Judge writes:

“Plaintiffs’ alleged injuries are wholly speculative and are dependent entirely on media coverage decisions. The alleged injuries––failure to receive media coverage and to garner votes, federal matching funds, and campaign contributions—were caused by the lack of popular support of the candidates and their parties sufficient to attract media attention.”

Read the full ruling here.

Ron Neilson, Johnson’s campaign manager released the following statement to IVN:

“We are obviously disappointed with Judge Collyer’s ruling, and from an initial look, our legal counsel sees several serious flaws in the Court’s basis and reasoning. We are exploring our options, with the firm resolve that this case and the larger issue of fair debates are too important to simply allow such an arbitrary dismissal.

“At the same time, with Governor Johnson consistently polling in double-digits, we continue to believe that the CPD should make the right and fair decision to invite him to participate in the upcoming debates. There is clearly an unprecedented desire for alternatives to the Republican and Democratic nominees, and voters deserve an opportunity to see and hear that there are, in fact, other credible, serious choices.

“The CPD could act today to end the two-party stranglehold on the debates, and that is precisely what they should do.”

Note: IVN also reached out to Dr. Jill Stein’s campaign for comment. We will update the article when we get a response.

This does not mean, however, that all challenges to the CPD are dead. Level the Playing Field (LPF) and its CEO, Peter Ackerman, joined by the national Green and Libertarian parties, are still in the midst of a lawsuit against the Federal Election Commission (FEC) for turning a blind eye to what they argue is the CPD’s clearly partisan interests, especially as manifested in the 15 percent rule.

Ackerman is optimistic that a change in “one simple rule… can fundamentally change the way we view our politics in this country.”

Current debate reformers argue that by lowering the requirements put in place by the CPD, voters would be aware of a greater range of options in elections. Since filing its lawsuit, Ackerman and Level the Playing Field have also been joined by FairVote and other organizations eager to add more voices to the national dialogue, citing past elections, faulty polls, and increasing interest in options outside of the Republican and Democratic parties.

By targeting the FEC and not the private CPD, Ackerman and the LPF may have better luck than Johnson and Stein.