By Skip Oliva
The Libertarian Party has never done the larger libertarian movement much good. The party’s 2008 presidential ticket jumped ship and endorsed Mitt Romney. And the 2012 ticket of Gary Johnson and Jim Gray has now stooped to filing a federal antitrust lawsuit–not the most libertarian of tactics–in order to force their way into the upcoming presidential debates. It’s a pathetic move that insults the thousands of people deprived of their property and liberty by the scourge that is the Sherman Act.
Johnson’s lawsuit is pure nonsense. He claims the Commission on Presidential Debates and the Democratic and Republican National Committees have “conspired” to “restrain trade” by excluding Johnson. “The office of president, to which Governor Johnson aspires,” the lawsuit argues, “pays a salary of $400,000 per year.” This makes the presidential debates “commerce” under Section 1 of the Sherman Act. Really, Gary? I think I can hear some lawyers at the Federal Trade Commission laughing at you.
“The Sherman Act was enacted in 1890 to prevent conspiracies such as the one alleged herein.” No, it wasn’t. The Sherman Act was adopted to punish more efficient competitors in industry and agriculture who displaced politically connected but less efficient firms. There isn’t a single shred of evidence to suggest the law’s framers intended to apply it to political activities like a presidential debate. (Indeed, presidential debates were unheard of in the 19th century.)
Johnson’s lawsuit claims the defendants “continue to secretly meet” to conspire against him by passing exclusionary debate rules. This ignores the fact the Commission and the two major parties are private, non-governmental entities. Private groups are not only free to meet and exclude outsiders, they have an absolute right to do so under the First Amendment. Johnson is effectively trying to employ antitrust to overrule the right of free association.
Even by antitrust standards, Johnson’s case is meritless. Antitrust requires some sort of “relevant market.” Johnson claims the debate participants “monopolize the field in the race for president and vice president,” which harms not just him but “the American electorate generally.” First of all, antitrust deals with consumers, not voters. The two are not interchangeable. Second, exclusion from the debates does not “monopolize” the race itself. Johnson will still appear on the ballot in most states and he has every opportunity to get his message across to the voters. If there’s anything monopolistic here it’s the restrictive access laws that hinder or prevent Johnson from appearing on the ballot–none of which are a subject of this lawsuit.
There is no “right” to appear in a presidential debate. Nor is there a right to force your opponents to make a joint public appearance with you, which is exactly what Johnson seeks here. What if Johnson prevails in the lawsuit and Mitt Romney decides he won’t appear in any debate unless it’s one-on-one with Obama? Will Johnson sue Romney to compel his attendance?
I’ve already had some Johnson defenders claim the antitrust lawsuit is justified “to combat the dirty tricks perpetrated by both major parties.” This is an “ends justify the means” argument. It goes against the LP’s own mantra as “The Party of Principle.”
Read the rest here.