On January 31, Gary Johnson and Jill Stein filed their opening brief in the U.S. Court of Appeals, D.C., in Johnson v Commission on Presidential Debates, 16-7107. The issue is whether the federal antitrust laws cover general election presidential debates.

The brief says, “The District Court (which had ruled in favor of the Commission on Presidential Debates) cited Sheppard v Lee (9th circuit 1991) for the proposition that ‘neither the business of conducting the government nor the holding of a political office constitutes trade or commerce within the meaning of the Sherman Act. True enough, but beside the point. Campaigning for the presidency is neither the business of conducting government nor the holding of a political office. It is a private business undertaking…The District Court asserted that calling political activity a market place does not make it so. True. But the District Court’s ipse dixit denying that any politically connected activity can be a marketplace similarly doesn’t make it so. Political activity is a market place when it involves billions of dollars of commerce as alleged in the Complaint…Suppose a presidential candidate sold $100 million worth of ‘Make America Great’ caps to promote his candidacy. It would be illogical to deny that such commerce did not involve a marketplace for caps because a significant or exclusive motivation for the sales was political.”

“The multibillion dollar business of campaigning for the presidency implicates an obvious marketplace: the selling of candidate ideas and characteristics to voters…The buyers in the marketplace respond with campaign donations, endorsements, volunteer work, election-day votes, or all of the above.”

The brief makes an analogy between the newspaper business, which is clearly covered by the anti-trust laws, and campaigning.