Lawsuit highlights difficulty of third-party involvement in debates


The participants if this year’s presidential debates are set – Republican nominee Mitt Romney will face off against President Obama in a matchup that’s been obvious for months. But there are still other presidential candidates, and one in particular is keen on elbowing his way into the debates.

Libertarian candidate Gary Johnson earlier this month filed a lawsuit against the Commission on Presidential Debates, claiming that the organization’s practices violate antitrust laws and alleging collusion between the commission and the country’s two dominant political parties.

In the suit, Johnson and his campaign accuse the commission, along with the Republican and Democratic national committees, of a “conspiracy” to meet in secret and create the rules for the debates, excluding third-party candidates and participating in what the lawsuit contends is a “restraint of trade” violating the Sherman Anti-Trust Act.


The CPD has been attacked before for its stance toward lesser-known nominees, most prominently in 2000 for its decision to exclude third-party candidates from even being members of the audience at the debates. Green Party candidate Ralph Nader sued the commission for allegedly violating the Federal Election Campaign Act. Nader’s contention that the CPD violated the law’s stipulation that it not “endorse, support or oppose political candidates or political parties,” was eventually shot down by a D.C. Circuit Court in 2005.

DEBATE QUIZ: Who said it?

Johnson has been approved to appear on the ballot for 47 states and Washington, D.C., with pending efforts in Oklahoma, Michigan and Pennsylvania, giving him a pool of 495 potential electoral votes, well above the commission’s requirement of 270 for admission into the debates.

But where Johnson falls short of the debate prerequisites is in national polling. The commission, drawing from five undisclosed polling sources, mandates that candidates reach at least 15% of the prospective vote nationwide in order to appear onstage. Johnson, in a recent CNN/ORC poll, is the preferred candidate of 3% of likely voters and 4% of registered voters. Gallup doesn’t include Johnson or other third-party candidates in its regular questionnaires, though a separate poll conducted between Sept. 6-9 placed just 1% of voters behind his campaign.

Joe Hunter, communications director for Johnson’s campaign, said the decision is ultimately “up to the court; we certainly expect them to move quickly. If a debate occurs without resolution, then the harm will have been done.”

And without being able to count on the debates to raise his profile, Johnson is instead relying on social media (the candidate held a second “Ask Me Anything” event on the popular site Reddit earlier Wednesday), radio advertisements and a series of tours, most recently of campuses ranging from New York University, Duke and UC Berkeley. Johnson also plans a response to the debates in lieu of on-stage participation.


When asked during the question-and-answer event what individuals can do to aid him with his debate efforts, Johnson emphasized the necessity of grass-roots promotion.

“The most effective thing that anyone can do is to go out and sell your immediate family, friends, and coworkers to the fact that there is a legitimate third choice. Perhaps the only choice,” Johnson said.

Johnson’s lawsuit isn’t the only ongoing challenge to the current debate structure. An online petition calling for independent fact-checkers to be present at all debates providing “real-time review” of the candidates’ exchanges has quickly gathered nearly 230,000 signatures, amid a campaign that has seen increased attention paid to organizations like and PolitiFact.

Given the short amount of time before the first debate on Wednesday, it’s unlikely that Johnson’s lawsuit will result in his inclusion, though it does serve as an example of one of the many hurdles set before candidates aiming for the presidency without the backing of either the Republican or Democratic establishment.

The CPD has yet to reply to a request to comment.

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