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.

The Pennsylvania ban on out-of-state circulators for general election petitions has already been struck down. Trent Pool, a professional petitioner who lives in Texas, has his own lawsuit, trying to strike down the Pennsylvania ban for primary petitions. All the briefs have been filed as of January 26, 2017. The case is Benezet Consulting v Cortes, 1:16cv-74.

The state is trying to defend its ban by saying it is only protecting the interests of the two parties that hold primaries in Pennsylvania, the Republican and Democratic Parties. But Pool counters that by showing that the major parties have no bylaws banning out-of-state circulators from circulating primary petitions, nor have they intervened in this lawsuit. Furthermore, as Pool points out, he is a member of the Texas Republican Party, and therefore it is nonsense for the state to claim that if he had been allowed last year to circulate a petition to get Rand Paul on the Republican presidential primary ballot, he would have been “raiding” the Republican Party.

The upcoming April special election for U.S. House in the Kansas 4th district has put the spotlight on the three pending lawsuits against Kansas voter registration restrictions. The existence of the special election may cause one or more of these cases to be decided more quickly than otherwise. See this story.