Debating the Right to Debate: The Third Party’s View

By Grayson Lowery

Does the First Amendment guarantee presidential nominees the right to speak at a presidential debate? Gary Johnson and Jill Stein certainly thought so. The Libertarian and Green Parties recently brought an action against the Commission on Presidential Debates (“Commission”) “claiming that the rules that bar their participation [to privately-sponsored presidential debates] violate antitrust law [and the First Amendment].” The plaintiffs stated that by exclusion, they are “denied the free, enormous coverage . . . and they are marginalized in the minds of most people in the U.S. and the media, and considered to be less than serious, peripheral, and perhaps even frivolous candidates.” In essence, plaintiffs know that without such coverage, any voter likely to cast their vote with a third party fears that they are wasting their vote.

Judge Rosemary M. Collyer dismissed the lawsuit stating that because the Commission is a private nonprofit, and not a government entity, the First Amendment argument did not apply. The plaintiffs alleged, “[P]residential debates, elections, and politics are ‘markets’ that are harmed by Defendants’ failure to invite Plaintiffs to participate in presidential debates.” Judge Collyer was not persuaded. Her opinion cited Brunswick Corp. v. Pueblo Bowl-O-Mat where the Supreme Court found that antitrust laws were not designed to protect those competing but rather to protect competition as a whole. While the plaintiffs argued that the “markets” of politics were harmed, the court found that politics as a whole was not a commercial market, like those regulated by antitrust law. The court went on to cite cases that found that “[w]hen a case involves political opponents and political objectives, not commercial competitors or market place goals, antitrust laws do not apply.”

In one of the most controversial elections to date, should those who are unhappy with their choices have the opportunity for alternative candidates to debate with Clinton and Trump? Is it the “right” thing for the Commission to invite a candidate who was consistently polling in double digits—like Johnson—to the presidential debate? Is it right, just, or fair for the Commission to require that any contender who wants to debate must have at least 15% support? Many might say that such a clause in the contract between candidates and the Commission makes sense. If a candidate is so behind in any poll, do their arguments or explanations of their ideas really matter? In an election where many are turning from their parties, these new voices could have been met with great welcome; however, because third party candidates are almost always incredibly behind in the polls, their voices may never reach a presidential debate. It would seem that the Commission’s standards may actually further the idea that there are only two candidates for which an American could elect into office.

Should the plaintiffs’ argument prevail, the court would be promoting policy that would cause any private entity that incidentally produces commercial activity to be considered a market to be governed by antitrust laws. Furthermore, a private entity that provides a public service would be considered a public forum in which First Amendment rights must apply. This court, as well as many courts before it, says this is not the way things should be. While this is certainly the opinion of the past and present, such ideology presents many questions when decisions and ideas have a powerful impact on society as a whole. The application of the First Amendment rights of private organizations and antitrust laws may have been misdirected; when dealing with issues that have such a profound impact on American society there should be different standards that govern nationally publicized campaign issues.