Jessica Karmasek Oct. 14, 2015, 2:23pm


WASHINGTON (Legal Newsline) - Former New Mexico Gov. Gary Johnson and Dr. Jill Stein, who are seeking the 2016 presidential nomination for the Libertarian and Green parties, respectively, are challenging their exclusion from the general election presidential debates.

Johnson and Stein, along with the Libertarian National Committee, the Green Party of the United States, former Judge James P. Gray and anti-poverty advocate Cheri Honkala, filed their lawsuit in the U.S. District Court for the District of Columbia Sept. 28.

Gray is a former judge of the Orange County Superior Court in California and was the 2012 Libertarian Party vice-presidential nominee and Johnson’s running mate.

Honkala was the 2012 Green Party vice-presidential nominee and Stein’s running mate.

Both, like Johnson and Stein, claim they were excluded from the 2012 debates because of the “policies, practices and agreement by and between” the Commission on Presidential Debates, the Republican National Committee, the Democratic National Committee and the GOP and Democratic presidential candidates at the time, Mitt Romney and Barack Obama.

The other named defendants in the 48-page complaint include Frank J. Fahrenkopf Jr., the former chair or co-chair of the RNC and founder of the commission, and Michael D. McCurry, former press secretary for the Clinton Administration and current co-chair of the commission’s Board of Directors.

The lawsuit argues that the exclusion of qualified candidates from the general election presidential debates by the commission violates federal antitrust laws.

The legal challenge maintains that the commission, a private 501(c)3 organization created in 1987 by the RNC and DNC, intentionally limits participation in the nationally-televised debates to the Democrat and Republican nominees -- placing other national parties’ nominees at an unfair disadvantage.

“The overall objective was and continues to be the entrenchment market power in the presidential debates market, the presidential campaign market, and the electoral politics market of the two major political parties by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency,” the lawsuit states.

“That objective was achieved in 2012 when the individual Plaintiffs were arbitrarily excluded substantially because of hostility towards their political viewpoints from presidential and vice presidential debates between the nominees of the two major parties organized and conducted by Defendants on Oct. 3, 2012, Oct. 11, 2012, Oct. 16, 2012 and Oct. 22, 2012, respectively.”

The plaintiffs contend the commission excludes other candidates by imposing “arbitrary polling criteria” and “colluding with the two old parties” to refuse participation in any nationally-televised debates or in Democratic and Republican nominees’ joint appearances not sponsored by the commission.

The lawsuit’s proposed remedy: include all candidates in presidential debates who are legally qualified to serve -- American born and 35 years or older -- and whose names appear on enough states’ ballots to potentially secure a majority in the Electoral College.

In 2012, the challenge notes, that threshold would have allowed participation by not only Obama and Romney, but also Johnson and Stein.

“For over 25 years, the Commission on Presidential Debates has used millions of dollars in tax-deductible contributions from big corporations to rig the rules, keeping Americans from hearing from anyone but the two old parties in debates,” said Nicholas Sarwark, chair of the National Libertarian Committee.

“If two teams got together to make sure that only they could make it to the Super Bowl, people would be outraged at the cheating. With this lawsuit, we’re standing up for the right of Americans to have fair debates between all candidates who are on enough ballots to become President.”

The lawsuit is funded by Our America Initiative, a not-for-profit advocacy organization, through their Fair Debates project.

It was filed on behalf of the plaintiffs by OAI’s attorney Bruce Fein, who served as associate deputy attorney general and general counsel to the Federal Communications Commission under the Reagan Administration.

“A majority of Americans today do not believe that either the Republican or Democratic parties represents them. Yet, through the Commission on Presidential Debates, the two major parties have seized and maintained control over the televised debates voters see every four years, and have gone to great lengths to insure that no candidates other than their own have the opportunity to appear on the debate stage,” OAI Senior Advisor Ron Nielson said in a statement.

“This lawsuit seeks to change that, and give the American people a chance to see that there are other real choices.”

Johnson, who served as New Mexico’s governor from 1995 to 2003 as a member of the Republican Party, announced in 2014 that he would run again for the Libertarian Party presidential nomination in 2016. He also serves as OAI’s honorary chairman.

Stein, an American physician, was a gubernatorial candidate in Massachusetts in the 2002 and 2010 elections. She announced in June that she again would seek the Green Party’s presidential nomination in 2016.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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