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Birther attorney takes on new cause

This article is a different take on an Obama conspiracy theory, but a conspiracy is alleged and Barack Obama is involved. I present this story, not for the purpose of talking about eligibility disputes, but as a theoretical exercise in argument and the evaluation of evidence.

I remember Orange County attorney Paul Rolf Jensen from his representation of Terry Lakin, and in particular his appearance on CNN’s Anderson Cooper 360 show. Jensen flat out lied about Hawaiian vital statistics statutes, and that forever left a negative impression with me.

This new lawsuit, however, is one that I am more sympathetic too. Jensen argues on behalf of the presidential and vice-presidential candidates Gary Johnson and James Gray respectively, that the Commission on Presidential Debates conspired with the Democratic and Republican parties to exclude his clients from the upcoming debates. The case is filed as an anti-trust action.

Since presumably none of us has a strong predisposition about whether Jensen is right on the law or not, perhaps we can debate this as a test case about how one should resolve such questions on the Internet while waiting for the real court to make the real decision.

One of the “authorities” raised by Jensen in the complaint is Nancy M. Neuman, former president of the League of Women Voters, and readers will want to examine the context of her citation. To save you some time, I have these two links (if you have something better, leave a note):

The CPD rules require a candidate poll 15% of the vote to participate, and these additional criteria:

The CPD’s first criterion requires satisfaction of the eligibility requirements of Article II, Section 1 of the Constitution.  The requirements are satisfied if the candidate:

a.          is at least 35 years of age;

b.          is a Natural Born Citizen of the United States and a resident of the United States for fourteen years; and

c.          is otherwise eligible under the Constitution.

Hmm, I wonder why some birther isn’t suing the CPD to keep Obama out of the debate? 😈

Here’s the complaint:

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48 Responses to Birther attorney takes on new cause

  1. avatar
    John Potter September 25, 2012 at 4:08 pm #

    Here’s a link to the commission’s site, specifically, their posted “candidate selection criteria”

    http://www.debates.org/index.php?page=candidate-selection-process

    Recalling how Nader was tragicomically snubbed, I’d like to think the case has merit. Not very inclusive to seal off the town square. I also note the town of the site … seems not to acknowledge that they are presenting “the” Presidential debates. That is to say, “here’s what it takes to be in our debates. This doesn’t hinder you from participating in some ‘other’ debates *wink, wink* !”

    The major parties—er, the commission uses the 15% polling ‘floor’ to exclude minor parties. Similar to Okieland’s method of keeping minors off our precious ballots.

  2. avatar
    John Potter September 25, 2012 at 4:52 pm #

    To add a bit to my criticism, I certainly understand that criteria need to be in place to maintain order and put on useful debates. There were more than 200 filed candidates this cycle. Can’t have a 200-way debate. However, by limiting the debate to candidates that have a ‘realistic’ chance of winning (as defined by the PDC in a very literal way), they are shelter the candidate from outside voices, maintaining an oppositional us v them tone (which protects candidates from addresses issues objectively!), shutting out alternate viewpoints, and most critically, ensuring that major party candidates will not be upstaged.

    In short, they’re maintaining the status quo, ensuring that candidates w/o a realistic chance won’t suddently develop one.

    There is great intelectual value in independent outside viewpoints. I see nothing wrong, and everything right, in giving 2 or 3 leading alternative candidates, even they are only polling 1% each, a chance to speak. Their presence would lend credibility and keep Mr. Red and Mr. Blue more honest.Maybe even trip them up into speaking their mind.

  3. avatar
    Slartibartfast September 25, 2012 at 5:45 pm #

    That seems like a great idea—maybe we should invite commie Mikhail to watch and see how one investigates the law in good faith.

    Doc C: Since presumably none of us has a strong predisposition about whether Jensen is right on the law or not, perhaps we can debate this as a test case about how one should resolve such questions on the Internet while waiting for the real court to make the real decision.

  4. avatar
    Loren September 25, 2012 at 6:44 pm #

    John Potter:
    To add a bit to my criticism, I certainly understand that criteria need to be in place to maintain order and put on useful debates. There were more than 200 filed candidates this cycle. Can’t have a 200-way debate.

    I can think of one possible standard off the top of my head that would balance order with accessibility:

    a candidate must be on the ballot in enough states to have the mathematical possibility of securing enough electoral votes to win the election.

    I’m pretty sure that still limits the field to just 4-5 candidates. Of course, that would also create the incentive for minor candidates to make concerted efforts to get on all the high-elector states, which could cause the number to multiply. If that happens, there could be a secondary qualification for the debates: a candidate must meet the same standard as it takes to qualify for FEC matching funds.

  5. avatar
    Slartibartfast September 25, 2012 at 7:01 pm #

    Do you intend to exclude the major party candidates who don’t qualify for matching funds (like, I believe, President Obama and Mitt Romney)? If I understand correctly, both had to turn down matching funds in order to engage in the spendathon that has been unfolding.

    Loren: If that happens, there could be a secondary qualification for the debates: a candidate must meet the same standard as it takes to qualify for FEC matching funds.

  6. avatar
    Andrew Vrba, PmG September 25, 2012 at 7:13 pm #

    I always thought that birthers were incapable of doing anything that didn’t involve, eating, sleeping, pooping, and being fanatically devoted to ousting that scary black man in the White House by any means necessary.

  7. avatar
    G September 25, 2012 at 7:25 pm #

    Excellent points!!! I agree.

    It is quite an accomplishment for any of these lesser-known candidates to even poll at 1%, so I would consider that a valid threshold to winnow the field to only serious possibilities and to give them a FAIR shot at conveying their platform, message and positions and see if they can earn stronger support from there.

    In addition, I agree with Loren’s point that the candidate should also have a theoretical path towards 270 EVs. He is correct that alone will winnow the field down to only a handful of additional candidates.

    Including write-in access, the only third party candidates this cycle that would qualify are these four:
    – Libertarian: Gary Johnson
    – Green: Jill Stein
    – Constitution: Virgil Goode
    – Justice: Rocky Anderson

    I for one do feel that both the media and the major two parties are constantly conspriring to prevent fair access to ballots, debates and coverage for these third-parties and I am against that on principle.

    I think all 4 of those listed above deserve a shot to be seen and heard by the American Public. If the media doesn’t want that to take time away from existing debates, then I suggest there should always be another debate (set by mid-September, so viable third party folks had an opportunity to be heard in time to “catch fire” and increase their support).

    If one of them really caught steam, then maybe an increasing 5-10-15% sliding scale threshhold to additionally participate in the October debates.

    http://en.wikipedia.org/wiki/United_States_presidential_election,_2012#Third_parties_nominations

    If we had such a fair system, I think there is a distinct possibility that the right lesser party candidate COULD end up replacing a real clod stinker candidate on a major party as the 2nd most viable option (like a Romney) and America would be better off with a race between the two best options and not just stuck with whatever the 2 largest parties throw at them.

    It requires a lot of serious committed effort and resources to get onto enough ballots in enough states to be potentially viable. I say anyone who demonstrates that they can do that DESERVES to be heard by the American public. Considering what that effort entails, I highly doubt that that we’d see much of an increase in those minor parties or Independents who make that threshold, from what we already have. Maybe it would double from the current four. Perhaps. But I highly doubt you would see that feat be accomplished by much more than that.

    So that alone is a great winnower in the field to determine who is serious and legit. Provided that their names are at least included in polls, the minimum initial threshold of 1% I think would be a sufficient secondary winnowing qualifier to achieve debate status. I think a lot of people don’t realize that, outside of the “super-star” examples, these Indy/3rd party candidates rarely even get anywhere close to the 1% threshold…and are usually stuck at or below a tenth of even that…if they are lucky.

    John Potter:
    To add a bit to my criticism, I certainly understand that criteria need to be in place to maintain order and put on useful debates. There were more than 200 filed candidates this cycle. Can’t have a 200-way debate. However, by limiting the debate to candidates that have a ‘realistic’ chance of winning (as defined by the PDC in a very literal way), they are shelter the candidate from outside voices, maintaining an oppositional us v them tone (which protects candidates from addresses issues objectively!), shutting out alternate viewpoints, and most critically, ensuring that major party candidates will not be upstaged.

    In short, they’re maintaining the status quo, ensuring that candidates w/o a realistic chance won’t suddently develop one.

    There is great intelectual value in independent outside viewpoints. I see nothing wrong, and everything right, in giving 2 or 3 leading alternative candidates, even they are only polling 1% each, a chance to speak. Their presence would lend credibility and keep Mr. Red and Mr. Blue more honest.Maybe even trip them up into speaking their mind.

    Loren: I can think of one possible standard off the top of my head that would balance order with accessibility:
    a candidate must be on the ballot in enough states to have the mathematical possibility of securing enough electoral votes to win the election.

    I’m pretty sure that still limits the field to just 4-5 candidates. Of course, that would also create the incentive for minor candidates to make concerted efforts to get on all the high-elector states, which could cause the number to multiply. If that happens, there could be a secondary qualification for the debates: a candidate must meet the same standard as it takes to qualify for FEC matching funds.

  8. avatar
    G September 25, 2012 at 8:15 pm #

    I think one of the problems here, which I fault the third-parties themselves for, is that they don’t seem to take enough initiative to try to compensate for the stacked-deck set against them.

    If I were a serious third-party, I would hold my primary process much earlier than the others, and fight immediately after that to get ballot access, demand to be added to polling lists and try to seriously gather whatever funding and media attention they can get.

    They should realize that they need a larger lead-time, if they wish to seriously have a chance to introduce themselves and build up support. They also need to not make stupid moves, like refusing to take donations larger than $200…. in their situation, whether their principles disagree with the current campaign financing environment or not, they need to take whatever they can get to legitimately compete, even if they wish to reform the system in principle. They can’t improve the system if they can’t win…or at least accomplish what Slarti has suggested under the Open Forum – angle for trading their support for an administrative position that might be able to affect change.

    But the polling organizations and the media are also a big hurdle here – they need to start including these potentially legitimate underdog contenders as choices on a consistent basis and start the process much earlier on. How can one register support levels, if their name doesn’t even come up? How can one build support if the system is conspiring to keep from letting them be heard?

  9. avatar
    Slartibartfast September 25, 2012 at 8:25 pm #

    Um… might I suggest that we move this back to the open thread where it started and leave this for the man who convinced convicted felon and cowardly blue falcon Lakin to throw away his rank, his freedom, and his pension? Just sayin’ 😉

    I’ll answer this on the other thread.

    G:

    […]

  10. avatar
    G September 25, 2012 at 8:40 pm #

    Actually, I thought this thread was more about this:

    Since presumably none of us has a strong predisposition about whether Jensen is right on the law or not, perhaps we can debate this as a test case about how one should resolve such questions on the Internet while waiting for the real court to make the real decision.

    …then it was about wasting time on dog-bite chaser and RWNJ legal bloodsucker, Jensen.

    So I didn’t see anything wrong with a broad debate on the rights and suppression of 3rd parties under this thread, as it does seem to me to be connected to the heart of the lawsuit at hand.

    Slartibartfast: Since presumably none of us has a strong predisposition about whether Jensen is right on the law or not, perhaps we can debate this as a test case about how one should resolve such questions on the Internet while waiting for the real court to make the real decision.

  11. avatar
    G September 25, 2012 at 8:41 pm #

    That being said, I’m happy to read and respond to you on this either here or there. So I’ll make sure to check the Open Thread and follow-up with you again on there. 🙂

    Slartibartfast: I’ll answer this on the other thread.

    G:

  12. avatar
    JPotter September 25, 2012 at 10:23 pm #

    Loren: a candidate must be on the ballot in enough states to have the mathematical possibility of securing enough electoral votes to win the election.

    That’s already one of the PDC’s criteria.

    They only have 3:

    1. Article II, Section 1 eligibility (birthers…? hello? birthers? when the all-out boycott and spiptball barrage of the PDC commence?)

    2. Electoral possibility of winning.

    3. 15% polling.

    The first is a no-brainer. A lively debate about the particulars of the eligibility, but the eligibility itself is a must.

    The third is cowardice.

    The 2nd seems logical, but if no candidate wins the electoral college, the election goes to Congress itself, and is then open to coalitions, etc., opening the door for a candidate who theoretically had no chance.

    I think polling is an OK standard, but that it should be much lower.

    So, does the case have a leg to stand on? Are these debates a monopoly? They may be enjoying unfair advantages. Politcal entrenchments. Sweetheart media connections. In theory, anyone could stage a debate. Good luck.

    What has to be proven? That the major party colluded to create and control the PDC, and structure it to exclude all other parties?

    Seems obvious, but how to document?

  13. avatar
    Loren September 25, 2012 at 10:42 pm #

    Slartibartfast:
    Do you intend to exclude the major party candidates who don’t qualify for matching funds (like, I believe, President Obama and Mitt Romney)?If I understand correctly, both had to turn down matching funds in order to engage in the spendathon that has been unfolding.

    Just because Obama and Romney declined to accept matching funds doesn’t mean they didn’t *qualify* for them. I believe a candidate qualifies simply by raising at least $5,000 in at least 20 different states.

    It’s a nicely objective standard to measure voter support across a sizable swath of the country.

  14. avatar
    Loren September 25, 2012 at 11:01 pm #

    JPotter:
    I think polling is an OK standard, but that it should be much lower.

    A lower threshold is better than nothing, but polling is still a method that is inherently stacked in favor of the major party candidates.

    For one thing, polls (especially early on) are heavily dependent on name-recognition. That’s why Trump and Palin could poll so high in the primaries even when they weren’t candidates. Third party candidates are never given comparable news coverage and they don’t have hundred-million-dollar budgets, and so they invariably lack name recognition. By general election time, a major party candidate is guaranteed to have already been given multiple prime-time appearances simply by virtue of their own televised party primary debates.

    Second, polling standards require that the candidates actually be listed as options by the polling companies. Gary Johnson had this problem throughout the GOP primaries, when they set a minimum standard for participation, but his name was consistently left out of the polls. (Unrelatedly, the GOP started breaking its own rules late in the primaries when Rick Perry’s polling number plummeted, but they wanted to keep him in the debates anyway.)

    Third, relying on general public response is somewhat self-fulfilling. Candidates need media attention to be seen as serious contenders, but being left out of the debates makes them automatically seem non-serious. Jesse Ventura won his governor’s race largely because he was allowed into the debates despite polling pitifully, but then voters liked him so much that she shot to #1.

    Finally, something like a fundraising standard puts more power with the candidate’s own campaign rather than with the media and/or general public. It’s not only completely objective and less subject to outside forces, but it’s something that can be achieved through concerted effort if a candidate is committed enough and has a minimal level of support. Trying to achieve certain polling numbers nationwide, on third-party budgets, prior to the debates, is a really tough proposition. Unless you set the number in the low single-digits.

  15. avatar
    Wile September 25, 2012 at 11:30 pm #

    Loren: ….Jesse Ventura won his governor’s race largely because he was allowed into the debates despite polling pitifully, but then voters liked him so much that she shot to #1….

    And this would lead me to think that it might be a good idea to actually have the debates…before the voting has already started.

  16. avatar
    G September 25, 2012 at 11:30 pm #

    Well said. I agree with your assessment and strongly share having a problem with where the bar is set on that 3rd criteria – WAY too high!!! Particularly when many polls don’t even ask about these additional candidates…or only start to mention them towards the tail end of the cycle, which gives them too little time to build and grow to such unreasonable thresholds.

    JPotter: That’s already one of the PDC’s criteria.
    They only have 3:
    1. Article II, Section 1 eligibility (birthers…? hello? birthers? when the all-out boycott and spiptball barrage of the PDC commence?)
    2. Electoral possibility of winning.
    3. 15% polling.
    The first is a no-brainer. A lively debate about the particulars of the eligibility, but the eligibility itself is a must.
    The third is cowardice.
    The 2nd seems logical, but if no candidate wins the electoral college, the election goes to Congress itself, and is then open to coalitions, etc., opening the door for a candidate who theoretically had no chance.
    I think polling is an OK standard, but that it should be much lower.

  17. avatar
    G September 25, 2012 at 11:33 pm #

    That sounds correct to me. I also agree that is a reasonable and objective standard threshold criteria, as any serious candidate should be able to achieve that low $5 K mark across 20 states, if they expect to contest for this office…

    Loren: Just because Obama and Romney declined to accept matching funds doesn’t mean they didn’t *qualify* for them .I believe a candidate qualifies simply by raising at least $5,000 in at least 20 different states.

    It’s a nicely objective standard to measure voter support across a sizable swath of the country.

  18. avatar
    G September 25, 2012 at 11:39 pm #

    Great points Loren! I strongly agree with everything you’ve pointed out here. Particularly about the name-recognition dilemma that 3rd party candidates face an uphill battle against.

    Quite frankly, I *do* consider a lot of these barriers to be a form of institutional voter suppression against those 3rd parties and their candidates.

    (My only quibble with you here – Jesse Ventura remains a he. He did not have a sex-change operation during the course of his campaign… 😉 )

    Loren: A lower threshold is better than nothing, but polling is still a method that is inherently stacked in favor of the major party candidates.

    For one thing, polls (especially early on) are heavily dependent on name-recognition.That’s why Trump and Palin could poll so high in the primaries even when they weren’t candidates.Third party candidates are never given comparable news coverage and they don’t have hundred-million-dollar budgets, and so they invariably lack name recognition.By general election time, a major party candidate is guaranteed to have already been given multiple prime-time appearances simply by virtue of their own televised party primary debates.

    Second, polling standards require that the candidates actually be listed as options by the polling companies.Gary Johnson had this problem throughout the GOP primaries, when they set a minimum standard for participation, but his name was consistently left out of the polls.(Unrelatedly, the GOP started breaking its own rules late in the primaries when Rick Perry’s polling number plummeted, but they wanted to keep him in the debates anyway.)

    Third, relying on general public response is somewhat self-fulfilling.Candidates need media attention to be seen as serious contenders, but being left out of the debates makes them automatically seem non-serious.Jesse Ventura won his governor’s race largely because he was allowed into the debates despite polling pitifully, but then voters liked him so much that she shot to #1.

    Finally, something like a fundraising standard puts more power with the candidate’s own campaign rather than with the media and/or general public.It’s not only completely objective and less subject to outside forces, but it’s something that can be achieved through concerted effort if a candidate is committed enough and has a minimal level of support.Trying to achieve certain polling numbers nationwide, on third-party budgets, prior to the debates, is a really tough proposition.Unless you set the number in the low single-digits.

  19. avatar
    G September 25, 2012 at 11:52 pm #

    That is a very sensible idea, although I understand why debates were originally scheduled to take place in the month prior to the election and how early voting periods have evolved as a valid need, separate to this consideration…

    However, people (or at least the media) are not going to want to give up on having a serious of home-stretch October debates.

    Nor do we want to curtail early voting.

    …So there is a dilemma here. Maybe have additional debates earlier on – during summer or September (the voters benefit by having candidates directly address issues in front of each other, instead of merely slinging claims and accusations on the trail, safe from their audience getting any direct rebuttal) .

    That would also push back and impact when the conventions take place… but those are really just glossy pieces of rehearsed performance art these days anyways, so I don’t see why that would be a problem.

    I mean, the process has already become nearly a two-year campaign effort…so it is not like the candidates aren’t fully committed and stumping during these time frames anyways.

    The only problem here is getting the candidates to agree to additional debates. There is already a lot of haggling and negotiations that take place, simply to agree to the existing debate number, format and structure.

    But yeah, I’d be for adding additional early debates in the general election process…

    Wile: And this would lead me to think that it might be a good idea to actually have the debates…before the voting has already started.

  20. avatar
    MattR September 26, 2012 at 3:18 am #

    IANAL, but I think Jensen is misrepresenting what Ms Neuman from the League of Women Voters was concerned with. From the article Dr. C linked to above, “… Between themselves, the campaigns had determined what the TV cameras could take pictures of,” Neuman said. “They had determined how they would select who would pose the questions. They had determined that the press would be relegated to the last two rows of the hall. They had determined that they would pack the hall with their supporters. They had determined the format.” It is true that micro-managing a debate limits what the voter hears and it can be argued that it is an attempt to hoodwink the voters. It is also true that limiting the debate to the two major parties has the same effects. But that does not mean that they are the same thing and evidence that the two parties were trying to do the former does not mean that they were also trying to do the latter.

    Can we have a new open thread focusing on the politics of adding third parties to the debates? There was some good stuff above and I’ve like to add my two cents, but I think this thread should focus on the legal arguments being made.

  21. avatar
    Dr. Conspiracy September 26, 2012 at 8:26 am #

    In the small context I would agree with you. Newman’s comments were not about who got to participate in the debate and they were not directed at the CPD, but in the larger sense it is in context. She was objecting to the two major parties controlling the debate parameters.

    MattR: IANAL, but I think Jensen is misrepresenting what Ms Neuman from the League of Women Voters was concerned with.

  22. avatar
    brygenon September 26, 2012 at 12:32 pm #

    Loren: I can think of one possible standard off the top of my head that would balance order with accessibility:

    a candidate must be on the ballot in enough states to have the mathematical possibility of securing enough electoral votes to win the election.

    Loren, I’ve admired your work, but hey, good luck with that.

    The suit is nonsense. There are exactly two criteria for a newsworthy debate: Mitt Romney and Barack Obama. Both show up and you got a presidential debate. Just one declines and you got a stump speech. Who else shows up doesn’t matter.

    In the suit, they’re not even named as parties.

    You can come up with better rules? Give yourself a gold star. No one cares. Let’s see you come up with Mitt and Barack on the same stage at the same time. The defendants in the suit don’t decide the rules for a debate. Obama and Romney do. They’ll show up or not depending on which they think maximizes their chance to win the election, as well they should.

    Anti-trust law is complex, but this case is not. If the plaintiffs win — counterfactual reasoning of course — and the Court orders the Commission on Presidential Debates to invite Johnson and Gray, then the CoPD will host a debate no one watches between those nobodies. Why a lawsuit? The no-chance candidates can debate each other all they want. Obama and Romney won’t sue for an invitation.

    Reality. Deal with it or not.

  23. avatar
    MattR September 26, 2012 at 2:10 pm #

    Dr. Conspiracy:
    In the small context I would agree with you. Newman’s comments were not about who got to participate in the debate and they were not directed at the CPD, but in the larger sense it is in context. She was objecting to the two major parties controlling the debate parameters.

    It seems to me that conflating those two issues is a problem. Again, IANAL, but I am pretty sure that fast food companies could come together to create joint health standards that limit the products they can offer, but they are not allowed to reach agreements about setting prices. IMO, this lawsuit is saying that we know they do the former and that is proof enough that they are also doing the latter. (Even if I got this wrong and setting the health standards violates anti-trust law, it is still not evidence that they are also violating anti-trust law by fixing prices)

  24. avatar
    Dr. Conspiracy September 26, 2012 at 3:07 pm #

    I’m not sure what you mean here, as the federal government sets health standards, not the industry. That’s what is different here; the Commission on Presidential Debates is a creature of the two major parties, not a public agency. Also, at least my weakly-informed understanding is that anti-trust is not only about price fixing, but about restraint of trade in general.

    My uninformed opinions aside, I haven’t seen any legal arguments made yet on either side of the question. I guess I need to get started reading up on anti-trust law.

    MattR: Again, IANAL, but I am pretty sure that fast food companies could come together to create joint health standards that limit the products they can offer, but they are not allowed to reach agreements about setting prices.

  25. avatar
    MattR September 26, 2012 at 4:01 pm #

    Dr. Conspiracy:
    I’m not sure what you mean here, as the federal government sets health standards, not the industry. That’s what is different here; the Commission on Presidential Debates is a creature of the two major parties, not a public agency. Also, at least my weakly-informed understanding is that anti-trust is not only about price fixing, but about restraint of trade in general.

    My uninformed opinions aside, I haven’t seen any legal arguments made yet on either side of the question. I guess I need to get started reading up on anti-trust law.

    It’s not the greatest example, but I was thinking if McDonalds and BK created a trade group that came up with standards on top of those imposed by the government (in terms of fat % or sodium or advertising restrictions or whatever). That would roughly mirror what the CPD is/does. My argument would be that even if that qualifies as anti-trust because it is restraint of trade it is not proof that they are also violating anti-trust by fixing prices. IMO, that is what Jensen is arguing.

    There may be a legal argument to be made that one violation lowers the bar in searching for others or it can be used in other ways to prove that the other violations exist and were intentional, but Jensen never makes one. Instead he conflates the issues and pretends that the League of Women Voters was concerned with the exclusion of third party candidates. It strikes me as rather birther-esque the way he claims that the evidence says something it doesn’t. Or maybe my bias is showing because I know it is a birther attorney.

  26. avatar
    Dr. Conspiracy September 26, 2012 at 5:34 pm #

    Trying to start a legal discussion…

    The suit is brought under The Sherman Act 15 U.S.C. 1–7. Here is the Wikipedia article on that Act:

    http://en.wikipedia.org/wiki/Sherman_Antitrust_Act

    Section 1 of the Act says:

    “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”

    The Commission on Presidential Debates is a non-profit, 501(c)(3) corporation as defined by Federal US tax laws, whose debates are sponsored by private contributions from foundations and corporations. The head of the CPD today is the former chairman of the Republican National Committee.

    To me, one essential question regarding the applicability of the act is whether or not what the CPD does is “restraint of trade” and whether we’re talking about trade at all.

    Jensen argues that because the President and Vice President receive a salary, trade is involved and he cites two cases in support:

    Goldfarb v. Virginia State Bar, 95 S.Ct. 2004, 421 U.S. 773, 44 L.Ed.2d 572 (1975)
    and American Medical Ass’n v. U.S., 130 F.2d 233 (1942)

    Question: are these cases on point? (not sure the citations are correct, but that’s what’s in Jensen’s document)

  27. avatar
    MattR September 26, 2012 at 5:59 pm #

    Dr. Conspiracy: To me, one essential question regarding the applicability of the act is whether or not what the CPD does is “restraint of trade” and whether we’re talking about trade at all.
    Jensen argues that because the President and Vice President receive a salary, trade is involved and he cites two cases in support:

    Goldfarb v. Virginia State Bar, 95 S.Ct. 2004, 421 U.S. 773, 44 L.Ed.2d 572 (1975) and American Medical Ass’n v. U.S., 130 F.2d 233 (1942)
    Question: are these cases on point? (not sure the citations are correct, but that’s what’s in Jensen’s document)

    Notice that Jensen phrased it as “The services to be rendered by the candidates elected to these offices, for money, is “commerce” within the reach of the Sherman Act, 15 U.S.C. 1, and actions to conspire or contract to prevent plaintiffs from election by excluding them from the debates is actionable “restraint of trade” under the rule of Goldfarb v. Virginia State Bar, 95 S.Ct. 2004, 421 U.S. 773, 44 L.Ed.2d 572 (1975) and American Medical Ass’n v. U.S., 130 F.2d 233 (1942)” It sounds like Jensen is reaching his own conclusion that the election itself qualifies as commerce under the Sherman act because the President and VP receive a salary and that he is using those two cases to argue that the actions of the CPD qualify as “restraint of trade” based on his assumption that it is commerce that can be restrained. I took a quick read through both cases and I don’t see anything obvious that would indicate that the electoral process is considered commerce. (EDIT: I do see how those cases could support the idea that the CPD was restraining trade if it is accepted that the election is commerce and the plaintiffs claims about the CPD’s actions are accurate) Or am I misreading things as a non-lawyer?

  28. avatar
    John Potter September 26, 2012 at 7:32 pm #

    Dr. Conspiracy: My uninformed opinions aside, I haven’t seen any legal arguments made yet on either side of the question.

    We were all working on motive and intent 😉

  29. avatar
    Scientist September 26, 2012 at 7:38 pm #

    brygenon: Anti-trust law is complex, but this case is not. If the plaintiffs win — counterfactual reasoning of course — and the Court orders the Commission on Presidential Debates to invite Johnson and Gray, then the CoPD will host a debate no one watches between those nobodies. Why a lawsuit? The no-chance candidates can debate each other all they want. Obama and Romney won’t sue for an invitation.

    I’m not sure. Romney is behind and seems to be falling further behind. While the chances the debate will change that dynamic are small, there really isn’t anything else on the horizon for him. So would he really skip the debates? And if Romney goes, could Obama not go? That would be very risky.

  30. avatar
    John Potter September 26, 2012 at 7:48 pm #

    Scientist: So would he really skip the debates?

    Heck no, they are his last chance. One that he will fail miserably at.

    However, if Obama implodes in the debates (highly unlikely), or on the campaign trail, or in his duties, rMoney is there to win by default. He outspent a reality TV show sideshow, and is now waiting in the wings in case of another’s failure. He should be so proud.

  31. avatar
    Paul Pieniezny September 26, 2012 at 7:55 pm #

    brygenon: Anti-trust law is complex, but this case is not. If the plaintiffs win — counterfactual reasoning of course — and the Court orders the Commission on Presidential Debates to invite Johnson and Gray, then the CoPD will host a debate no one watches between those nobodies. Why a lawsuit? The no-chance candidates can debate each other all they want. Obama and Romney won’t sue for an invitation.

    IANAL, but something there does not sound right. I know it is the reality, but still believe this hinders newcomers to a degree that stifles democracy.

    Your description is interesting. IANAL, but it looks like there is indeed collusion (Obama and Romney and there is a trade involved here. Not politics or electioneering but media coverage.

    The claim that electioneering is a trade has a further problem. There is the spectre of the political question.

  32. avatar
    Scientist September 26, 2012 at 7:55 pm #

    I don’t get the restraint of trade argument. The movie industry is certainly engaged in interstate and foreign commerce and winning an Oscar can be worth millions. Yet, the Motion Picture Academy gets to set rules about who is eligible for which Oscars, I don’t see the difference between that and the Debate Commission setting eligibility rules for who can participate. Personally, I wouldn’t mind seeing minor party candidates as long as the numbers stay reasonable (say no more than 5 or 6). But the Commission can make whatever rules they want.

  33. avatar
    Dr. Conspiracy September 26, 2012 at 8:46 pm #

    My opinion is that Goldfarb is not on point. The case dealt with the fees lawyers charge. If Jensen wants to apply this decision, it would seem at the very least that he should provide some rationale.

  34. avatar
    Dr. Conspiracy September 26, 2012 at 8:56 pm #

    Interestingly, this is what the court said in American Medical Ass’n v. U.S., 130 F.2d 233 (1942):

    In United States v. American Medical Association,[1] we held that the term “in restraint of trade” as used in Section 3 of the Sherman Act, 15 U.S.C.A. 3, had its genesis in the common law; that the practice of medicine was recognized by the English cases as constituting trade

    Yes friends, the English Common Law shows it scaly humps again.

    The AMA case did involve a professional association, not a traditional business, so I guess Jensen gets some points for the citation.

    Question for the lawyers here: If a legal brief cites a case, but fails to expand on how it applies, does this mean that the writer doesn’t know?

    Scientist: I don’t get the restraint of trade argument.

  35. avatar
    brygenon September 26, 2012 at 10:26 pm #

    Scientist: I’m not sure. Romney is behind and seems to be falling further behind. While the chances the debate will change that dynamic are small, there really isn’t anything else on the horizon for him. So would he really skip the debates? And if Romney goes, could Obama not go? That would be very risky.

    Ah, I wasn’t clear. Were the CPD ordered to invite the no-chance candidates, Obama and Romney would still debate each other. It just wouldn’t be at the CPD’s debates.

  36. avatar
    brygenon September 26, 2012 at 11:22 pm #

    Paul Pieniezny: IANAL, but something there does not sound right. I know it is the reality, but still believe this hinders newcomers to a degree that stifles democracy.

    Whacked as our two-party system has become, third-party presidential candidates are not a realistic option. Some alternative parties have members in state legislatures, but with zero governors and zero members of the U.S. congress, they’ve got a lot of building to do before their nominations for the presidency are more than symbolic.

    There’s another plausible way to build a serious third party: defection. A dozen governors and senators could conspire to form a party that would have credibility from day one.

    While I kind of like the idea of an effective third party, the reality after Citizens United v. FEC is that the super-PACs would own it too. The two-party system is not destroying our democracy. The money is.

  37. avatar
    Dr. Conspiracy September 27, 2012 at 2:35 am #

    The US Constitution was not written with political parties in mind, far from it. Also they didn’t intend for “we the people” to have any say whatever in the election of the president. The original idea was that the state legislatures should pick some folks that they thought were worthy folks of wisdom and discretion, and that the electors would pick a President (or failing that, Congress). Now the electoral college are just tokens in regionally biased popular election scheme.

    Under the present law, three viable candidates would always throw the election to the House of Representatives.

    brygenon: Whacked as our two-party system has become, third-party presidential candidates are not a realistic option

  38. avatar
    Scientist September 27, 2012 at 7:24 am #

    brygenon: Ah, I wasn’t clear. Were the CPD ordered to invite the no-chance candidates, Obama and Romney would still debate each other. It just wouldn’t be at the CPD’s debates.

    My point is, supposing a court requires CPD to invite Johnson and a couple of others (doubtful it would happen, but hypothetically). Romney, being desperate, says he’ll show anyway (I think he might, since the debates are the last straw he has left). Could Obama really boycott? I don’t think so. He could of course propose that Romney and he debate 1-on-1 in some other forum, but suppose Romney says no?

    Dr. Conspiracy: Under the present law, three viable candidates would always throw the election to the House of Representatives.

    Not true. Or true only if the 3rd candidate’s support is concentrated in a limited number of states. Perot got almost 20% of the vote in 1992, a number any 3rd party would kill for, but it was spread throughout the country and he got 0 EVs.

  39. avatar
    Keith September 27, 2012 at 7:44 am #

    Paul Pieniezny: and there is a trade involved here

    Of course “there is a trade involved here”.

    Just ask the TV networks how much money they make off political ads!

  40. avatar
    The Magic M September 27, 2012 at 9:26 am #

    Paul Pieniezny: IANAL, but something there does not sound right. I know it is the reality, but still believe this hinders newcomers to a degree that stifles democracy.

    Has happened in Germany.

    In the past, the two major public networks (ARD and ZDF) used to invite the heads of the major political parties to a discussion after every major election (the so-called “elephant round”). Back then, the qualifier was “having made the 5% cut in parliament”. This meant the four major parties (CDU/CSU, SPD, FDP, Green Party) were invited.

    Now the first issue came when the FDP didn’t make the 5% cut after one general election.
    Of course the networks (typically stacked with party representatives) didn’t want to leave out one of our founding parties, so they modified the rule to include any party which was present in at least one state parliament. This helped to re-include just the FDP.

    Then the big boo-boo happened when the NPD (ultra right-wing, near-Nazi) made it into one state parliament. Technically they would have had to be invited, but the rules were changed again to prevent that.

    Now I’m all in favour of not giving Nazis free airtime on national TV, but the way the “establishment” tried to protect the status quo of the four big parties was troublesome.

  41. avatar
    G September 27, 2012 at 11:27 am #

    I don’t see any realistic scenario where Obama would try to boycott debates – period.

    While the major two parties do fight to prevent third parties from being heard, I don’t think Obama himself would have any fear about defending his positions in a debate with any of them.

    Scientist: My point is, supposing a court requires CPD to invite Johnson and a couple of others (doubtful it would happen, but hypothetically). Romney, being desperate, says he’ll show anyway (I think he might, since the debates are the last straw he has left). Could Obama really boycott? I don’t think so. He could of course propose that Romney and he debate 1-on-1 in some other forum, but suppose Romney says no?

  42. avatar
    G September 27, 2012 at 11:28 am #

    That is a very good point and would be a very credible way to start a new party.

    brygenon: There’s another plausible way to build a serious third party: defection. A dozen governors and senators could conspire to form a party that would have credibility from day one.

  43. avatar
    The Magic M September 27, 2012 at 12:21 pm #

    G: I don’t think Obama himself would have any fear about defending his positions in a debate with any of them

    No politician should. I could imagine birthers dreaming that Obama would “fear questions about his birth certificate” from some “all-in” crazy underdog, but on the contrary, I think he would welcome them as this would require one hell of a tap-dance from Romney – and we all know he isn’t very good at improvising. 😉

  44. avatar
    HellT September 27, 2012 at 4:56 pm #

    “Jesse Ventura won his governor’s race largely because he was allowed into the debates despite polling pitifully, but then voters liked him so much that she shot to #1.”

    No, Ventura won because he was a radio show host doing the traditional local election year stunt, that of running for office. A lot of people thought it would be positively hilarious to flip the bird to the established political parties and candidates by voting for the joke candidate. They didn’t vote FOR Jesse, they voted AGAINST politics as usual. The look on Ventura’s face on election night when he was declared the winner showed how unprepared he was for an actual victory, because for him it was only a ratings stunt.

    And what did Minnesotans get by electing a third-party governor? They got a Republican administration appointed by Jesse that ran the state for him while he ran about posturing and prancing and doing the celebrity thang, ’cause he didn’t know nuthin’ ’bout runnin’ no state, and he didn’t want to know, either. Google Pam Wheelock. She – an influential Republican – was his top aide and the virtual governor during his tenure.

    When a third-party candidate wins, they are forced to work with the politicians of the mainstream party that most closely approximates their political views, because they are on their own. They lack the strength in numbers to accomplish meaningful change on their party’s agenda. So, lacking a coalition of elected party supporters to work with, the supposedly maverick politician has to choose. He can maintain his political principles by keeping his distance from the majority parties – which renders him nearly powerless. Or he can throw away his principles and work with those same mainstream parties and candidates that he railed against when offering himself to the citizenry as an alternative.

    So voting in third party candidates doesn’t accomplish much, since they never get elected in sufficient numbers to have any meaningful political impact. And historically, when enough of them began getting elected to make a difference, the two major parties strategically co-opted major parts of the third party’s platform, and most of the third party’s supporters, knowing it’s their best shot to have those things come to pass, obligingly vote mainstream. And the third party disappears into history.

  45. avatar
    Keith September 27, 2012 at 7:08 pm #

    HellT: And historically, when enough of them began getting elected to make a difference, the two major parties strategically co-opted major parts of the third party’s platform, and most of the third party’s supporters, knowing it’s their best shot to have those things come to pass,

    Which is, IMHO, the purpose of 3rd parties in American Politics.

  46. avatar
    G September 27, 2012 at 7:55 pm #

    Agreed. I see this as their purpose and see the value to it. It is one of the important historical factors for driving platform and composition change of the major two-parties throughout our history. Particularly at times of upheaval and generational shifting.

    Keith: HellT: And historically, when enough of them began getting elected to make a difference, the two major parties strategically co-opted major parts of the third party’s platform, and most of the third party’s supporters, knowing it’s their best shot to have those things come to pass,

    Which is, IMHO, the purpose of 3rd parties in American Politics.

  47. avatar
    JPotter September 27, 2012 at 9:53 pm #

    Dr. Conspiracy: Under the present law, three viable candidates would always throw the election to the House of Representatives.

    Doc, your standards of viability must be very high indeed! We’ve had a 4-way election, in which all 4 secured electoral votes, yet there was an outright winner.

    Admittedly, that was awhile ago.

  48. avatar
    brygenon September 27, 2012 at 10:38 pm #

    G: I don’t see any realistic scenario where Obama would try to boycott debates – period.

    There are dozens, hundreds, probably thousands of groups that would love to host presidential debates, if only Obama and Romney would not “boycott” them. The presidential debates are the ones that get Romney and Obama on the same stage at the same time. Who hosts doesn’t matter.

    While the major two parties do fight to prevent third parties from being heard, I don’t think Obama himself would have any fear about defending his positions in a debate with any of them.

    Of course he could but he’s busy trying to win an election.