Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Libertarian candidate Gary Johnson's campaign is urging the commission to allow him into the debates. | Getty Judge rejects third parties’ suit against debate commission

A federal judge has tossed out a lawsuit alleging that the Commission on Presidential Debates violated federal antitrust laws and the First Amendment by excluding third-party candidates.

In a ruling Friday, U.S. District Court Judge Rosemary Collyer dismissed a suit filed last year by the Libertarian and Green parties as well their respective 2012 presidential nominees, former New Mexico Republican Gov. Gary Johnson and Jill Stein. Each also happens to be his or her party's presidential nominee again this year.

Collyer's ruling found little, if any, merit in the suit. She said antitrust law had no relevance to the situation and many of the ills the plaintiffs complained of were of their own making, not the debate commission.

"Plaintiffs in this case have not alleged a non-speculative injury traceable to the Commission," wrote Collyer, who was appointed by President George W. Bush. "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."

Ron Nielson, Johnson’s campaign manager, said the campaign is considering an appeal but is also urging the commission to allow Johnson into the debates.

“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,” Nielson said in a statement. “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.”

In her ruling, Collyer seemed to bless the commission's general policy of requiring that candidates receive at least 15 percent support in national polls to participate in the debates.

"It is obvious that Defendants did not cause Plaintiffs’ alleged harms when the sequence of events is examined: Plaintiffs’ injuries occurred before Defendants failed to invite them to participate in the 2012 debates because the lack of an invitation was due to Plaintiffs’ failure to satisfy the 15% Provision, i.e., the failure to obtain sufficient popular support. Plaintiffs have not alleged a concrete injury traceable to the Commission, and thus they lack standing," the judge added.

Collyer said the situation paralleled a similar, unsuccessful suit filed by New Alliance Party presidential candidate Lenora Fulani after she was excluded from the 1988 debates.

The judge said the First Amendment claims in the suit were invalid because the commission is a private entity and only government institutions have First Amendment obligations. President Barack Obama and 2012 GOP presidential nominee and former Massachusetts Gov. Mitt Romney were also named as defendants in the case, but Collyer found no basis for the claims against them or any of the other defendants.

Josh Gerstein is a senior reporter for POLITICO.