Once again, a lawsuit brought by the Libertarian and Green Parties against the RNC, DNC and The Commission on Presidential Debates seeking injunctive relief to allow them to participate in the upcoming Presidential debates was dismissed without any hearing on the merits of the case by a Federal District Court Judge yesterday.

[Gary] Johnson and one of his rivals, presumptive Green Party nominee Jill Stein, sued the commission last September, alleging violations of antitrust law and the First Amendment. Johnson and Stein are seeking spots on the all-important presidential debate stage this fall. But federal judge Rosemary M. Collyer threw out the lawsuit on Friday.

The complaint filed by the Green and Libertarian parties made three alleged claims. One, that excluding them violated the antitrust laws, specifically Sections 1 and Section 2 of the Sherman Act. Two, that excluding them from the debate violated the 1st Amendment. Three, that the RNC and DNC and the Commission on Presidential Debates, "through their anticompetitive conduct, intentionally interfered with Plaintiffs’ expectations of economic advantages and relationships with debate organizers, sponsors, contributors, and media outlets."

Here are brief summation of the judge's treatment of those claims:

But Judge Collyer said Johnson and Stein's antitrust claims "fail as a matter of well-established law." And she said the First Amendment argument did not apply because the commission is a private nonprofit, not a government entity.

As for the third claim, the Judge wrote:

The claim that Defendants would not permit the Libertarian and Green party candidates to be part of the presidential debates is a “refusal to deal” allegation, one that is insufficient to plead an intentional interference claim as a matter of law.

Some historical context is require to understand why the judge dismissed this lawsuit out of hand. The presidential debates used to be sponsored by The League of Women Voters. The League withdrew from sponsoring the presidential debates in October 1988, for the reasons stated in their press release dated October 3, 1988:

"The League of Women Voters is withdrawing its sponsorship of the presidential debate scheduled for mid-October because the demands of the two campaign organizations would perpetrate a fraud on the American voter," League President Nancy M. Neuman said today. "It has become clear to us that the candidates' organizations aim to add debates to their list of campaign-trail charades devoid of substance, spontaneity and honest answers to tough questions," Neuman said. "The League has no intention of becoming an accessory to the hoodwinking of the American public." Neuman said that the campaigns presented the League with their debate agreement on

September 28, two weeks before the scheduled debate. The campaigns' agreement was negotiated "behind closed doors" and vas presented to the League as "a done deal," she said, its 16 pages of conditions not subject to negotiation. Most objectionable to the League, Neuman said, were conditions in the agreement that gave the campaigns unprecedented control over the proceedings. Neuman called "outrageous" the campaigns' demands that they control the selection of questioners, the composition of the audience, hall access for the press and other issues. "The campaigns' agreement is a closed-door masterpiece," Neuman said. "Never in the history of the League of Women Voters have two candidates' organizations come to us with such stringent, unyielding and self-serving demands."

As you well know, the League's withdrawal was of no concern to either of our two major parties. The RNC and DNC jointly formed a "non-profit" organization, the "Commission on Presidential Debates" that assumed the role formerly undertaken by the League, i.e., sponsorship pf all Presidential debates. Since that occurred no third party candidate, with the exception of Ross Perot, has ever been permitted to appear on the debate stage with the nominees of the two "major" parties that effectively dominate our political system at all levels.

You can read the full text of the Judge's opinion at this link. I can tell you that as a matter of law I was not surprised by this result. Other pasts legal challenges by third party candidates excluded from the debates were consistently denied by the federal courts, whose judges are, of course, selected by Republicans and Democrats. I could break down the nitty-gritty of the legal minutia the Judge's opinion cited as justification to dismiss this lawsuit, but that would not be a productive use of my time. I strongly suspect that we will ever see any court allow any lawsuit by a third party demanding inclusion in the Presidential debates to succeed. Under the law, a judge can always find a justification for the party he or she wants to rule in favor of. In short, even the judicial branch of the government supports the control of the political system by the reigning duopoly.

This is why we need federally funded Presidential debates, or at the very least a crowd-sourced, non-partisan, people-funded debate to which all viable candidates (using criteria less likely to exclude third parties) would be invited. Since the ratings of the Libertarian Party Town Hall were quite high for its time slot, and I suspect the Green Party Town Hall on August 17th will do at least as well, I am of the opinion we could find one network that would be willing to put on such a debate (or I like to think that is the case). Otherwise, absent taking control of the Presidential debates out of the hands of the two major parties, we will never see third party candidates allowed into the their exclusive little debate club of two.