Washington, DC – Attorneys for presidential candidate Gov. Gary Johnson, the Libertarian Party, 2012 Green Party candidate Jill Stein, the Green Party and their respective vice-presidential candidates have filed a 55-page brief in the U.S. District Court for the District of Columbia opposing motions to dismiss their anti-trust lawsuit against the Commission of Presidential Debates (CPD), Gov. Mitt Romney, and President Obama.
Bruce Fein, attorney for the Plaintiffs, explained that campaigning for the presidency is a multi-billion dollar business whose objectives include not only winning but attracting sufficient votes to influence the national political agenda. He added: “Frank Fahrenkopf, co-chair of the CPD, has touted presidential debates as ‘the Super Bowl of politics,’ whose advertising or brand value to Obama and Romney in 2012 approached $1 billion each.” Fein noted that independent experts have placed the value of free media earned by candidate Donald Trump in the 2016 presidential race to date at a staggering $2 billion.
Johnson and the other plaintiffs in the lawsuit claim that participation in presidential debates is an “essential facility in the multi-billion dollar business of campaigning for the presidency; that presidential debates cannot be duplicated because the defendants agreed in writing in a Memorandum of Understanding to boycott all debates of joint appearance events with rivals outside CPD’s sponsorship; that defendants acting in concert arbitrarily denied
Johnson and Stein access to presidential debates by establishing a 15% polling criterion to cripple competition in the business of campaigning for the presidency; and, that presidential debates can be conducted to optimize voter education by abandoning the 15% criterion but requiring debate participants to have qualified on enough state ballots to have a mathematical chance of winning an Electoral College majority. Applying that standard historically would have resulted in presidential debates with four to seven candidates, including Johnson and Stein in 2012, and would have enriched voter education.
The United States Supreme Court has lectured: “Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. In short, the primary values protected by the First Amendment—‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’—are served when election campaigns are not monopolized by the existing political parties.”
Fein argued that Citizens United v. FEC “changed the business of campaigning for the presidency as profoundly as the internal combustion engine changed the business of transportation or the Internet changed the business of communications. The decision unleashed limitless corporate, union, and other funds into presidential campaigns that shattered all prior business models.”
Fein amplified based on antitrust precedents: “Freedom to campaign for the presidency, including participation in presidential debates, means freedom for all and not for some. Freedom to campaign for the presidency, including participation in presidential debates, is guaranteed by the Constitution, but freedom to combine to keep others from campaigning or participating is not. Freedom from government interference under the First Amendment does not sanction repression of that freedom by private interests.”
Fein further noted that “the CPD was born in original sin intending to limit presidential debates to the nominees of the Republican and Democratic parties” by “hijacking their sponsorship from the League of Women Voters.”
The CPD, Gov. Romney and President Obama earlier this year filed motions to dismiss the lawsuit. In a filing this week, the plaintiffs responded to those motions and urged the Court to allow the case to proceed."
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