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Here’s the Legal Argument Against the CPD that Gary Johnson is Taking to SCOTUS

Former presidential candidate Gary Johnson – who was excluded from participation by the Commission on Presidential Debates – will be the lead speaker at a rally on the steps of the Supreme Court on Thursday, October 26, at 5 p.m. ET.

Johnson, the Libertarian Party presidential candidate in 2012 and 2016, had been polling between eight and 10 percent at the time of the first presidential debate in September 2016. His exclusion made it much harder to mount a successful political challenge to Donald Trump and Hillary Clinton. Ultimately, Johnson and his running mate, Gov. Bill Weld, obtained 3.28 percent of the vote.

Although Johnson’s political contest finished on election night 2016, as the Honorary Chairman of Our America Initiative he is continuing his legal challenge to the Commission on Presidential Debates and their arbitrary 15 percent polling threshold for inclusion.

He brings a strong legal team that is anchored by Bruce Fein. A legendary constitutional lawyer who served in the Reagan Administration, Fein was a major player in constitutional controversies including the repeal of the “Fairness Doctrine,” the impeachment of Bill Clinton, and the challenging of surveillance conducted by the National Security Agency.

Gary Johnson brings a novel argument against the CPD that may appeal to the Supreme Court

The legal process to ask the Supreme Court to take a case is called a petition for writ of certiorari. This cert petition is not being filed this week, but will be filed later. A party that has lost a case in one of the courts of appeal files this petition, and – most of the time – the Supreme Court has complete discretion as to whether they take the case.

The lawsuit, Johnson v. Commission on Presidential Debates, was first brought in September 2015 by Gary Johnson, Green Party presidential candidate Jill Stein, and their respective running mates and political parties for the presidential contest in 2012.

As it happened, both Gary Johnson and Jill Stein were the presidential candidates for their parties in 2016, as well, although they ran with different running mates.

The lawsuit, filed in the U.S. District Court for the District of Columbia, led to a decision against Johnson and Stein that was issued on August 5, 2016 – just over a month before the CPD would announce its participants in the 2016 presidential debates.

At the time, many polls showed the Libertarian Party ticket of Johnson-Weld polling in the double digits, and the Johnson campaign reacted to the ruling by urging the CPD to “make the right and fair decision to invite him to participate in the upcoming debates.”

An appeals court ruled against Johnson, but the Supreme Court can still hear the case

Even after the 2016 exclusion, Johnson and his legal team pressed on with an appeal to the D.C. Circuit Court of Appeals. Oral arguments were held in April, and the three-judge panel issued a decision against Johnson on August 29, 2017.

In the opening paragraph of the decision, written by Janice Rogers Brown, the court declared:

Their Complaint presents novel claims under antitrust law and familiar First Amendment allegations. The district court dismissed the Complaint, finding Plaintiffs lacked … standing….

“Novel” is often a word of praise – but not so in lower-court decisions. Federal district courts and appellate courts feel bound to follow precedent, and are loathe to consider, let alone rule in favor of, arguments that bring a level of analysis that has not previously be present in other decisions.

The core of the argument that Fein made on behalf of Johnson is that the Commission on Presidential Debates is collusive restraint of trade on the presidential campaign and electoral politics markets. The CPD is explicitly organized and operated to exclude third-party candidates, for this reason, Johnson’s attorneys argues for a judicial remedy for this illegal exclusion.

But the majority disagreed:

The injuries Plaintiff claim are simply not those contemplated by the antitrust laws.

The majority’s failure of imagination stems from their inability to see how rules surrounding the political marketplace could by governed antitrust laws. A third judge, TK Pillard, believed that Johnson and Stein have standing to challenge the CPD on antitrust grounds, but still concurred in the judgement.

Johnson’s legal team is hoping the Supreme Court will be more inclined to their “novel” argument

Fein is among the most well-qualified constitutional law attorneys, and well-suited to prepare a cert petition in this case. Rather than seek an en banc appeal at the circuit court, the legal team will bring its novel argument – antitrust law needs to apply to all markets, including the political marketplace – directly to the Supreme Court.

Fein is no stranger to constitutional maneuverings. Under President Reagan, Fein served as an associate deputy attorney general from 1981 to 1982 and as general counsel to the Federal Communications Commission.

In addition to the repeal of the FCC’s so-called “Fairness Doctrine,” Fein organized a judicial nominee vetting group to promote federal judicial appointees philosophically sympathetic to the “original meaning” theory of constitutional interpretation.  This led to an important shift in the federal judiciary’s culture away from a freestyle approach and towards an originalist approach toward the Constitution.

More recently, Fein represented the father of Edward Snowden to assist in resolving Espionage Act charges based on Snowden’s disclosures of the National Security Agency’s dragnet surveillance of the entire United States population without a warrant.

He also drafted the class action complaint filed by Rand Paul and Freedom Works against President Obama and James Clapper, Director of National Intelligence, challenging the constitutionality of the National Security Agency’s warrantless and suspicionless collection and search of telephony metadata.

Gary Johnson will be holding a rally on the steps of the Supreme Court

As part of Gary Johnson’s push to have the Supreme Court hear his case he will be holding a rally on the steps of the court on Thursday, October 26, at 5 p.m. ET. The event will be streamed live from his Facebook page. When available, the stream will be embedded below for viewing:

This above article is Sponsored Content of Our America Initiative


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