Tuesday, August 09, 2016

The monopoly power of the Commission on Presidential Debates

The Green Party and the Libertarian Party have joined forces to sue the Commission on Presidential Debates but the case was tossed by a federal judge. Here is the opinion document, Gary E. Johnson, et al. v Commission On Presidential Debates. There are a few accounts of this lawsuit in the press, notably at the Washington Post and at Reason Magazine.

I suppose we could have expected this outcome since, as the court notes, the Commission on Presidential Debates (CPD) was founded by the the leadership of the Republican and Democratic parties in 1987. The plaintiffs argue that the CPD is a de facto monopoly and is operating as a gatekeeper. The opinion states that the plaintiffs had no standing due to the distinction of the CPD being a private forum.

It would be easy to assume the debates were run and maintained by a public institution. The CPD tries to give the appearance of being "non partisan" but the people who founded the CPD appear to to have had other plans. This lawsuit demonstrates that the two major parties were forward thinking and obviously were not thinking about keeping things "democratic" when they wrote the rules. The founders decided to keep it private to avoid lawsuits like this and to maintain the authority to set the rules. Setting the bar at 15% of an average of polls before the election is high enough to keep out even the most popular third party candidates, and low enough to seem reasonable. That would seem to partly explain why Bernie Sanders ran as a Democrat - there is no other way he could get the free press coverage that the major parties enjoy now, much to our detriment.

According to the Washington Post, one of the reasons for dismissing the suit included a lack of popular support for the political parties represented by the plaintiffs. Well, yeah. What do you expect when the press refuses to give decent coverage to third party candidates? It's important to remember that the press, the mainstream media, whatever you want to call them, is 90% owned by 6 parent corporations. Those giant corporations have no interest in third party candidates, and neither do their biggest advertisers.

The Post never once mentioned in this article, the issue of public versus private forums. I was lucky enough to find interest in this lawsuit from another article posted by Reason Magazine. In that article, the issue of of public forums is a sub-headline, meaning, we know that we get to the meat of the issue right there, front and center, before we even start reading the article. Reason Magazine's author, Matt Welch, said he detected a bit of a sneer in the language of the opinion. As if the judge were saying, "Go ahead. Appeal me. I dare ya!" Welch also notes that the judge was perfectly content to sit on the case for months, biding her time before the election.

After reading the opinion I think it might be useful to take a different tack on this issue. Unfortunately, that would require a new lawsuit, on similar grounds with a new set of arguments.

In my past, I had a small business helping people to file Freedom of Information Act and Privacy Act requests with the federal government. The gentleman who was kind enough to teach me how to do this work also knew a great deal about common carriers. A common carrier, in more familiar terms, is a taxi, an airplane or a boat for hire by the general public. A common carrier is someone who puts his private property out for hire to the public. Common carriers like taxis, airlines and boats are not allowed to discriminate against traffic, and must treat everyone equally.

But there is something else to common carriers that I think is demonstrated well in an old Supreme Court case known as Munn v. Illinois. This case was introduced to my by teacher and friend back in the day as a rather important case relating to the topic of licensing and how maritime law (the law of the sea) plays a role in our modern lives with automobiles. I read the opinion a few times back then because I thought it might come in handy some day, as well as being a fascinating story in and of itself.

The story can be summarized as follows. A group of men were charged with the offense of operating a grain elevator without a license. I know, kinda like operating an automobile without a license, right? The grain elevator was situated between a lake and a railroad, and provided for intermediate storage of shipments of grain from across the lake the railroad and vice versa.

The court determined subject matter jurisdiction based on the idea that, although the grain elevators were privately owned, the public soon became dependent upon them. An interruption in grain elevator service, or even well-time price hikes, could interfere with other businesses dependent upon the grain elevators. The court therefore determined that the grain elevators were subject to regulation by the government. What we see here is that it didn't matter if the grain elevators were private or not, they were still subject to regulation because the public became dependent upon them. The court ruled that the organization operating the grain elevator was a common carrier.

The court in Johnson v. CPD, determined that since the CPD is a private forum, it was not subject to regulation by the state due to protection by the First Amendment. The court even went so far as to say that state run debates were protected under the First Amendment. The court acted as if the First Amendment has the last word on whether or not the state can intervene to provide relief to the plaintiffs. The court says that the First Amendment bars the court from any intervention because that would be an infringement of the freedom of the press.

I take a different view. I consider the CPD to be a common carrier, just like an internet service, a taxi or an airplane. Common carriers must treat all traffic equally. Common carriers must raise no barriers to traffic to proceed. Common carriers do not get to set the rules for traffic. The state does that.

We know that third parties are not being treated fairly by the press and we can surmise that the two major parties are working with the press to hinder third parties at all levels of government. We saw that with the release of the DNC emails by Wikileaks. We can surmise that what happened at the DNC is just the tip of the iceberg and that such behavior has been an ongoing enterprise for years if not decades.

For the court to intervene and require the CPD to allow third party candidates to join the debates is not an infringement of the First Amendment for one simple reason. Such action does not restrain the expression of the candidates in the debates. The debates are not just a forum, they are a conduit that allows information to pass. That information is the expression of public policy ideas by the candidates.

The debates become a public forum because it makes no sense to hold another debate by another organization. That's like privatizing the sewer and allowing more than one company run the sewer lines all over town (the metaphor here seems appropriate, doesn't it?). Even if it were practical to stage other debates, the CPD assumes the right to disqualify candidates if they participate in "unsanctioned" debates. The CPD may even strip credentials from members of the press who wish to cover their debate if they choose to cover a presidential debate run by another organization to ensure their de facto monopoly. It's a private club and most of us are not in it.

The rules of the CPD effectively kill off all other competition and allow the complicity of the press to remain, unquestioned. This is why we must become the press with social media. And if social media subdues our message through technical means, then we may have to build our own social media networks, peer-to-peer DNS systems, or other measures to ensure that the people can share information freely.

We're in this situation because of our lack of participation in politics. The government we have is a reflection of our level of participation in politics. It's too late to appeal the ruling in time for the election since an appeals court can sit on the case for a few more months. It's worth noting that with our greater participation in politics, there might have been a different judge to render a decision more favorable to third parties. But there is something else we can do. We can bury the CPD in public outrage. How?

Well, for one, they have a Twitter account, @debates. We can tweet messages to them, day and night, imploring them to allow the Green Party and the Libertarian Party into the debates. We can contact the leadership, too. We can let the press know that we're onto their game of collusion with the two major parties designed to deny third party access to the halls of power.

According to the CPD:
“The public would like to take part in a civil discussion, both online and in-person,” McCurry and Fahrenkopf said. “Our goal is to make the tools available so that the debates can reach all Americans, particularly those who will be voting for the first time.”
The establishment politicians in power know now that we're hungry for alternatives.  Let's make the debates available to all political parties and level the playing field. Let's call the media out for running interference and their collusion between the CPD and the Democratic and Republican parties. It's time for third party candidates to have a real shot at the presidency.
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