Antitrust Lawyer Blog Commentary on Current Developments

Democrats and Republicans Work Together – But Get Sued For Monopolizing The Presidential Debates

Believe it or not, but on September 25, 2012, the Democrats and Republicans got sued in United States District Court for the Central District of California. They are accused under the antitrust laws of monopolizing the market for televised presidential debates in the United States by controlling the field of candidates in the race for president and vice president.

Third party Libertarian presidential candidate and former Governor of New Mexico, Gary E. Johnson, and Libertarian candidate, James P. Gray, a retired judge of the Superior Court of the State of California for Orange County, sued the Democratic National Committee, the Republican National Committee and the Commission on Presidential Debates for conspiring to restrain the Libertarians from participating in the electoral process by denying them access to the presidential and vice presidential debates scheduled for October 3,11,16 and 22. Plaintiffs seek to enjoin the debates until such time that they are permitted to participate in the only televised presidential and vice presidential debates in the country.

The plaintiffs allege in their seven-page complaint that the present conspiracy was “born” in October of 1988 when the Committee on Presidential Debates was organized for the purpose of hosting the 1988 presidential and vice presidential debates. Since October 1988, this 24-year conspiracy has raged and to this day the Democrats and Republicans “continue to secretly meet and have secretly met, in Washington, D.C., and in other places throughout the country, to devise rules for the presidential and vice presidential debates” and to exclude competing candidates and rival third parties.

In 2012, Governor Johnson and Judge Gray allege that the Democrats, Republicans and the Presidential Commission acted in “concert and agreement one with the other” to establish “rules for the forthcoming debates that will exclude the plaintiffs from participating in these debates.” National polling data are the key components to implementation and maintenance of this long running conspiracy. Working in a concerted and bipartisan manner, mutually agreed upon specific debate rules were passed by both Democrats and Republicans that limit participation in the debates to those candidates with a “level of support of at least 15% (fifteen percent) of the national electorate as determined by five selected national public opinion polling organizations, using the average of those organizations’ most recently publicly-reported results at the time of the determination.” By agreeing to these exclusionary rules, the plaintiffs are denied an opportunity to participate in the debates and the “defendants are conspiring and contracting to restrain plaintiffs form participating in the electoral process.”

To show the required impact on interstate commerce, plaintiffs allege that the office of the president pays a yearly salary of $400,000 and the office of the vice president pays a yearly salary of $230,000. Plaintiffs further allege that the “services to be rendered by the candidates elected to these offices, for money, is ‘commerce’ within the reach of the Sherman Act, 15 U.S.C. Sec. 1, and actions to conspire or contract to prevent plaintiffs from election by excluding them from the debates is actionable ‘restraint of trade’….” Further, plaintiffs allege the “powers of the presidency both directly and indirectly most profoundly impact interstate commerce.” Indeed, the President appoints the Secretary of Commerce whose actions directly impact interstate commerce and the President has the power to veto any such act of congress that may regulate any aspect of interstate commerce, or alternately, to sign such acts that impact commerce into law.

Plaintiffs, Governor Johnson and Judge Gray, seek a TRO, preliminary injunction and permanent injunction halting all debates in order to “restore competition and a level and honest playing field amongst those persons seeking the presidency.” Plaintiffs also want the costs of their lawsuit.

Stay tuned for the first debate scheduled for October 3 to see if the plaintiffs prevail.


Robert W. Doyle, Jr.

(202) 589-1834
rdoyle@dbmlawgroup.com