Third-party presidential candidate, Gary Johnson, filed a suit in the US District Court for the Central District of California, September 21, against the Commission on Presidential Debates (CPD) and both the Republican and Democratic national committees for, “conspiring…to exclude the presidential and vice presidential nominees of a third party from participating in the only nationally televised presidential, and vice-presidential, debates next month.”  As only one third-party candidate has ever participated in a presidential debate since they began in 1960, it is easy to understand the frustration of these candidates and their supporters.  But, on what legal grounds can they assert their right to participate in these debates?

Ralph Nader, political activist and previous third-party presidential candidate, sued the CPD in 2005 for a violation of the Federal Election Campaign Act which stipulates that the committee shall not “endorse, support or oppose political candidates or political parties.”  However, that suit was quickly shot down by a federal appeals court in the District of Columbia.  Gary Johnson, on the other hand, is taking a much more thought provoking approach to the issue.  His complaint alleges a violation of federal antitrust law, commonly known as the Sherman Act.

Section 2 of the Sherman Act expressly prohibits monopolization, attempts to monopolize, and conspiring to monopolize.  But those alleging this violation must satisfy the jurisdictional requirement that the conduct in question, here the exclusion of third-party candidates from presidential debates, has an appreciable effect on activity which occurs during interstate commerce.  Johnson argues two things: (1) presidents are paid $400,000 annually for their service, which constitutes “commerce” as defined in the Sherman Act and (2) presidents have undeniable power to affect interstate commerce such as through the appointment of the Secretary of Commerce.  Therefore, the Sherman Act applies.

While this supposed colluding by the CPD and national committees to exclude third-party candidates from presidential debates might be “within reach” of the Sherman Act, as Johnson’s complaint says, the argument is just that, a reach.  The reality is that the CPD does not “restrain trade” by excluding candidates from participating in debates.  The CPD does not even select who participates.  The public at large does.  A meager 15 percent support in public opinion polls is all that is required for participation in the presidential debates.  With only 33 days until the November 6 presidential election and some states already beginning early voting, if you don’t have even 15 percent of the vote, no number of presidential debates will help you.