[00:00:01] Speaker 00:
Case number 16-7107, Gary E. Johnson and L. Appellant versus Commission on Presidential Debates and L. Mr. Fine for the Appellant, Mr. Loss for the Appellees.

[00:00:39] Speaker 05:
May it please the court, my name is Bruce Fine, and I'm representing the Appalans, including Gary Johnson and Joel Stein, who were presidential candidates in 2012.

[00:00:48] Speaker 05:
With me is my partner, Bruce O'Bally, who's also a member of the Bar Fiscal.

[00:00:53] Speaker 05:
Thank you.

[00:00:54] Speaker 05:
Your Honor, this case comes procedurally in the context of a motion to dismiss under Rule 12B.1 and 12B.6, where all of the factual allegations in the complaint must be accepted as true.

[00:01:08] Speaker 05:
And those factual allegations, which are buttressed by Exhibit 1 to the complaint, are that in 2012, the nominees of the Democratic and Republican parties, Mitt Romney and Barack Obama, in conjunction with the Commission on Presidential Debates, which is the joint venture of the Republican National Committee and the Democratic National Committee, agreed

[00:01:31] Speaker 05:
that the nominees of the two major parties could debate only under the auspices of the Commission on Presidential Debates, meaning, for example, they wouldn't agree to debate if the League of Women Voters wanted to host them, that they would boycott any joint appearances in any format with any other candidate,

[00:01:51] Speaker 05:
and that they would agree on what is commonly called in the briefs a 15% polling threshold as a condition for an invitation to participate in the debates.

[00:02:04] Speaker 05:
In addition to a requirement that a participant have qualified on sufficient state ballots to have a mathematical chance of winning an Electoral College majority.

[00:02:16] Speaker 05:
And as the record shows, if they had stuck with simply the Electoral College threshold, there would have been four rather than two participants in the debate.

[00:02:25] Speaker 03:
Council, I would like to pursue some of the standing issues.

[00:02:30] Speaker 03:
in this case.

[00:02:33] Speaker 03:
There were three requirements for qualification for the debate.

[00:02:40] Speaker 03:
One was a constitutional problem, that is to say you had to meet a certain age.

[00:02:45] Speaker 03:
Two, you had to qualify on enough states to be possible as an election.

[00:02:53] Speaker 03:
And three, 15%.

[00:02:55] Speaker 03:
Why wouldn't somebody be able to challenge the second requirement, the requirement that you be on enough state ballots to qualify as president?

[00:03:11] Speaker 05:
It may well be that they might have standing to do that.

[00:03:13] Speaker 05:
They would have standing to do that.

[00:03:14] Speaker 05:
Not necessarily because Bell v. Hood teaches that if you've just concocted a very frivolous claim, there's a fine line between a 12 v.

[00:03:21] Speaker 03:
6 and a 12 v. gone motion.

[00:03:23] Speaker 03:
Well, perhaps.

[00:03:23] Speaker 03:
But if they would have had standing on that, why wouldn't any human, any citizen of the United States have standing just as your clients?

[00:03:35] Speaker 05:
Well, not everyone runs for president of the United States.

[00:03:38] Speaker 03:
They don't have to do that.

[00:03:40] Speaker 05:
Well, they have to show some kind of injury.

[00:03:43] Speaker 03:
Well, they would show that if I could get into the race, then I would run.

[00:03:47] Speaker 03:
Or I would just announce beforehand, and once I get into the debate, boy, then I would get all the votes.

[00:03:53] Speaker 05:
Well, maybe.

[00:03:54] Speaker 05:
And I think what the Scrap Case teaches is that you could dismiss that on summary judgment in the Scrap Case, and that's how you would handle this.

[00:04:02] Speaker 05:
It's a frivolous complaint.

[00:04:03] Speaker 05:
You move for summary judgment.

[00:04:04] Speaker 05:
There's no facial plausibility to those particular allegations that that, in fact, was going to happen.

[00:04:10] Speaker 03:
It's the same injury, is it not?

[00:04:13] Speaker 03:
So therefore, any American

[00:04:16] Speaker 03:
who wanted to be in the debates and couldn't get in the debates would have the same injury.

[00:04:21] Speaker 05:
Not necessarily for purposes of subject matter jurisdiction.

[00:04:24] Speaker 05:
If you go back to Bell v. Hood, Justice Black says that if the 12b6 claim is so frivolous and you've just concocted it just to get into court, you can dismiss it for lack of subject matter jurisdiction.

[00:04:37] Speaker 03:
No, I would concoct it just to get into the debate.

[00:04:40] Speaker 05:
No, but I'm saying that the claim on the merits is so tenuous that you can dismiss it for lack of subject matter jurisdiction if it's clear there's very little substance that you've in fact suffered an injury that would satisfy a successful attack on the reasonable standard of that particular qualification.

[00:05:04] Speaker 03:
I see your response in that.

[00:05:08] Speaker 03:
What relief are you seeking?

[00:05:10] Speaker 05:
Here, Your Honor, we're seeking damages, and possibly, if we prevailed on the merits, seeking some possible dissolution of the Commission on Presidential Debates, because we are you.

[00:05:21] Speaker 03:
It's a monopoly.

[00:05:21] Speaker 03:
That's an injunction you're asking for.

[00:05:23] Speaker 05:
That would be an injunction down the road, if that was appropriate relief.

[00:05:28] Speaker 03:
Did you explicitly ask for an injunction?

[00:05:30] Speaker 05:
In the complaint?

[00:05:30] Speaker 03:
Yes, Your Honor.

[00:05:31] Speaker 03:
All right.

[00:05:32] Speaker 03:
Now, that would depend on future

[00:05:36] Speaker 03:
under lines that would depend on future plans to get into a debate?

[00:05:42] Speaker 05:
Well, the theory would be, Your Honor, that this is an essential facilities and that because they're so conflicted that dissolving the what we consider the monopoly... But under lines, won't you have to show that you're planning to go into the debates the next time?

[00:05:58] Speaker 03:
You would have to have some showing of that... Well, did you have any such statement in your complaint?

[00:06:05] Speaker 05:
Your Honor, at that particular time, there weren't any debates scheduled.

[00:06:08] Speaker 05:
So we don't know whether there'll be debates in 2020.

[00:06:11] Speaker 05:
It's not like it's part of the official government calendar.

[00:06:15] Speaker 05:
It's up to the CPD to decide the schedule.

[00:06:17] Speaker 03:
But the belief you're seeking has to be something in the future, right?

[00:06:23] Speaker 05:
Correct, Your Honor.

[00:06:24] Speaker 03:
So therefore, you have to underline and show that you have an intention.

[00:06:29] Speaker 05:
If we have to go back.

[00:06:31] Speaker 03:
You haven't alleged that.

[00:06:32] Speaker 05:
Yes, that is correct.

[00:06:33] Speaker 05:
We can't get an injunction for the future unless there's some concrete possibility that we would be having a debate.

[00:06:39] Speaker 05:
We confront this particular issue.

[00:06:41] Speaker 05:
How can we say we have an intent to participate, say, in the 20,020 debates?

[00:06:46] Speaker 05:
They aren't even scattered yet.

[00:06:47] Speaker 05:
They may not occur at all.

[00:06:49] Speaker 05:
How can you have an intent to participate in something that hasn't even been scattered?

[00:06:53] Speaker 03:
Well, then you just undermine your own request for an injunction.

[00:06:55] Speaker 03:
The question is, is your relief too speculative?

[00:06:58] Speaker 03:
I think that's the concern.

[00:06:59] Speaker 05:
That particular form of relief may be too speculative.

[00:07:02] Speaker 05:
I mean, our major effort to get relief is to have an examination on the merits of the reasonableness of the 15% threshold.

[00:07:10] Speaker 05:
We think we have monetary damages.

[00:07:12] Speaker 05:
That's what happened in 2020.

[00:07:13] Speaker 05:
There's nothing speculative about that.

[00:07:16] Speaker 05:
And if we go to the argument that you were presenting, Judge Silberman, it's a very sound one.

[00:07:20] Speaker 05:
Well, what about standing?

[00:07:22] Speaker 05:
One of the arguments made by the district court was,

[00:07:25] Speaker 05:
that we didn't have standing, because our pre-existing flaw was that we didn't satisfy the 15% threshold.

[00:07:31] Speaker 05:
And therefore, there was no injury.

[00:07:33] Speaker 05:
Well, true enough.

[00:07:34] Speaker 05:
But then in that theory, nobody would ever have standing, because they would say the reason why you have an injury is you didn't satisfy the threshold that you claim is ill-deed.

[00:07:42] Speaker 03:
You correctly point out that that conflates the merits with the standing issue.

[00:07:47] Speaker 05:
Yes, Your Honor.

[00:07:48] Speaker 05:
And then there are other elements that come into play with regard to why there is no standing.

[00:07:53] Speaker 03:
What about antitrust standing?

[00:07:55] Speaker 03:
The antitrust standing issue?

[00:07:57] Speaker 03:
That deals only with the antitrust issue.

[00:08:00] Speaker 05:
No, the Article 3 standing issue.

[00:08:02] Speaker 03:
Yes, there's a separate antitrust issue.

[00:08:04] Speaker 03:
No, I'm putting aside Article 3 for a moment and looking at antitrust standing.

[00:08:09] Speaker 05:
The antitrust standing is we argue that the injury to competition as opposed to the injury to the competitors, because we understand that's what you have to allege, is that what is the market out here where you're running for president?

[00:08:22] Speaker 05:
You're distributing information about presidential candidates.

[00:08:24] Speaker 05:
That's what candidates do.

[00:08:25] Speaker 05:
This is what I'm going to do, this is what my opponent's going to do.

[00:08:28] Speaker 05:
And that information market was diminished.

[00:08:30] Speaker 05:
Competition was hurt there.

[00:08:31] Speaker 05:
Because you arbitrarily excluded with the purpose of destroying the ability of rival candidates who had a satisfied a credible Public support standard having information distributed, so it's an output limitation.

[00:08:45] Speaker 03:
If the market is a political market.

[00:08:48] Speaker 03:
No, we argue your honor.

[00:08:49] Speaker 05:
You lose, right?

[00:08:50] Speaker 05:
We argue that.

[00:08:51] Speaker 03:
Yeah, that's correct.

[00:08:52] Speaker 03:
If it's a political market, you lose.

[00:08:54] Speaker 05:
if it has no commercial impact, because if you look at AllyTube and the Superior Court Trial Lawyers Association, they suggest there are oftentimes situations where there's a convergence of commercial and political markets, if you will.

[00:09:08] Speaker 05:
Just because it has a political impact doesn't mean it has a commercial element.

[00:09:11] Speaker 01:
And let's look at the Serial Court.

[00:09:13] Speaker 01:
Okay, but that doesn't quite get you there, does it?

[00:09:16] Speaker 01:
When you're talking about lawyers boycotting, I mean, there's a market of lawyers getting paid for their services.

[00:09:24] Speaker 01:
The market is relatively well-defined, and here your brief defines the market as the multi-billion dollar business of campaigning for the presidency.

[00:09:34] Speaker 01:
Who is buying what?

[00:09:37] Speaker 01:
And which, the price for what is getting affected?

[00:09:41] Speaker 01:
Whose price?

[00:09:42] Speaker 05:
Well, I think if you give me our indulgence a second here with regard to the Superior Court case there, what was being done by the lawyers was to get the government to raise the price.

[00:09:57] Speaker 05:
It wasn't bribery.

[00:09:58] Speaker 05:
It wasn't saying the government in quid pro quo.

[00:10:01] Speaker 05:
The government will negotiate a deal with the trial lawyers.

[00:10:05] Speaker 05:
They got the government to act.

[00:10:07] Speaker 05:
That was political action, but it had a commercial element to it.

[00:10:10] Speaker 05:
It's like arguing the government should raise the minimum wage.

[00:10:13] Speaker 05:
It's political action, but it has a commercial element to it, just as it did in Superior Court.

[00:10:18] Speaker 05:
And to your specific question, Judge Pollard, what is the market?

[00:10:24] Speaker 05:
The recipients of the presidential information, what do they get?

[00:10:30] Speaker 05:
Well, they can make contributions.

[00:10:33] Speaker 05:
They can donate time.

[00:10:35] Speaker 05:
They can otherwise speak on behalf of a particular candidate.

[00:10:41] Speaker 05:
It's not wholly dissimilar to asking, what does a student get in a university?

[00:10:45] Speaker 05:
They get exposure to ideas, right?

[00:10:47] Speaker 05:
So what do they do with the ideas?

[00:10:49] Speaker 05:
Well, they pay tuition.

[00:10:51] Speaker 05:
It costs them to get into the university.

[00:10:54] Speaker 05:
But they get educated.

[00:10:56] Speaker 05:
They have access to information.

[00:10:57] Speaker 05:
They can use it in a whole host of ways that they may choose to do so.

[00:11:01] Speaker 01:
So they're buying a product which is an education and a degree that comes with it.

[00:11:05] Speaker 01:
Who is buying what here?

[00:11:08] Speaker 05:
Well, if you notice that in our brief, we cite a known large campaign contributor, Betsy Devote.

[00:11:18] Speaker 05:
She's now the Secretary of Education.

[00:11:21] Speaker 05:
And the Devotees gave large sums of money to candidates.

[00:11:24] Speaker 05:
And they interviewed her and said, well, what are you getting?

[00:11:26] Speaker 05:
What's in it?

[00:11:27] Speaker 05:
What are you getting for your donations?

[00:11:29] Speaker 05:
Well, we're getting the policies that we want.

[00:11:32] Speaker 05:
We expect, and she used the term, that's our return on investment.

[00:11:35] Speaker 05:
Now, it's certainly true, Your Honor, that if it was just bribery, if they said, hey, here's the money.

[00:11:42] Speaker 05:
We're selling you our presidential information.

[00:11:45] Speaker 05:
Give us money in exchange, and we'll use it.

[00:11:48] Speaker 05:
Then you run into FEC issues and whether you can make contributions or things like that.

[00:11:53] Speaker 05:
But we don't think that it's disqualified from a market that has commercial objectives and goals.

[00:12:00] Speaker 05:
simply because the recipients, the immediate recipients of the information aren't engaged in a transaction that we call commerce, but sometimes it is.

[00:12:10] Speaker 05:
Donald Trump hats.

[00:12:11] Speaker 05:
The candidates sell merchandise.

[00:12:14] Speaker 05:
It's a commercial transaction.

[00:12:16] Speaker 05:
Donald Trump made billions of dollars.

[00:12:17] Speaker 01:
That's not the objective of your suit.

[00:12:20] Speaker 01:
What is the commercial objective and goal?

[00:12:24] Speaker 01:
It's that a candidate can spend a year

[00:12:27] Speaker 01:
being paid by a committee that is a sum of the public donations?

[00:12:35] Speaker 01:
That Canada can have a gap year on the?

[00:12:38] Speaker 05:
No, I think let's take the analogy to the Superior Court case.

[00:12:43] Speaker 05:
What was the goal in Superior Court?

[00:12:45] Speaker 05:
That the court characterized as commercial.

[00:12:48] Speaker 05:
The goal was to get the government to enact a law that would height the compensation for criminal justice attorney appointees.

[00:12:56] Speaker 05:
for services.

[00:12:58] Speaker 05:
Goals of presidential candidates all the time have similar goals.

[00:13:01] Speaker 05:
We want to increase the minimum wage.

[00:13:03] Speaker 05:
We want to decrease taxes.

[00:13:05] Speaker 05:
We want to open up oil pipelines that have commercial objectives.

[00:13:10] Speaker 05:
Under superior court, those are commercial goals, and the way you execute them is getting government to act.

[00:13:16] Speaker 05:
And what superior court teaches is that if the goal, even if it requires the government to act, has a commercial element to it, the means by which you get to the goal, that is the means by which you are able to get into office or pressure the government, then is subject to the antitrust laws.

[00:13:34] Speaker 05:
And that's the gist of what our argument is here.

[00:13:37] Speaker 05:
The means by which you're deciding or involved in campaigning for the president, including especially,

[00:13:43] Speaker 05:
presidential debates become subject to the antitrust laws.

[00:13:47] Speaker 05:
And I want to underscore, Your Honors, that at this particular stage, there has been no examination of whether or not the 15% threshold is reasonable, unreasonable.

[00:13:57] Speaker 05:
We have never got there to say you're out, no matter whether the threshold could be 60% or 55%.

[00:14:05] Speaker 05:
I see I have over a step my time.

[00:14:07] Speaker 05:
I wanted to reserve three minutes.

[00:14:09] Speaker 05:
I don't know whether I can come back with your indulgence, Judge Brown, to respond.

[00:14:16] Speaker 02:
We will decide how much rebuttal time you get.

[00:14:18] Speaker 05:
OK, thank you.

[00:14:26] Speaker 04:
Good morning.

[00:14:27] Speaker 04:
Good morning.

[00:14:27] Speaker 04:
I'm Lou Loss.

[00:14:28] Speaker 04:
I'm counsel for the Commission on Presidential Debates, Frank Ferencough and Mike McCurry.

[00:14:34] Speaker 04:
I'm speaking today on behalf of my clients, as well as the other appellees, Barack Obama, Mitt Romney, the Republican National Committee, and the Democratic National Committee.

[00:14:43] Speaker 04:
With me today at council table is my colleague Uzoma Nkwanda.

[00:14:49] Speaker 04:
I think that the legal defects and significant legal principles that preclude this suit from going forward are particularly clear.

[00:15:03] Speaker 04:
well addressed by the district court, and we certainly had ample opportunity in our briefing to review them.

[00:15:10] Speaker 04:
So I think in addition to responding to any questions that the court has, I'd like to focus in on two points.

[00:15:17] Speaker 04:
The first is the one that the court expressed some interest in in its questioning and that Mr. Fine was just addressing.

[00:15:25] Speaker 04:
It seems to us extremely clear that this is a political lawsuit.

[00:15:32] Speaker 04:
Actions that are being challenged are core political decisions that are also quintessential speech by the First Amendment.

[00:15:45] Speaker 03:
How do you distinguish a trial lawyer's case?

[00:15:48] Speaker 04:
The trial lawyer's case, it was a commercial boycott of providing services that had as a goal inducing some political action to provide higher wages for those folks.

[00:16:01] Speaker 04:
But those lawyers were engaged in a commercial boycott.

[00:16:07] Speaker 04:
The decisions that are being challenged here and there.

[00:16:09] Speaker 03:
What is your response to his point that all political demands include a, all political programs include a range of economic questions?

[00:16:23] Speaker 03:
Well.

[00:16:25] Speaker 03:
Like Ben Wade and so forth.

[00:16:28] Speaker 04:
I think it's in the North case where the Supreme Court addressed this and it would undercut democracy if folks couldn't come together in common cause to try to persuade their government to adopt a particular policy.

[00:16:49] Speaker 04:
It would infringe the First Amendment for the government to interfere with that kind of political speech.

[00:16:55] Speaker 04:
And the case law is very clear that in order to fall within the ambit of the antitrust laws, the conduct that's at issue has to be commercial conduct.

[00:17:06] Speaker 04:
All of the commercial aspects of campaigning for the presidency that are collected very well

[00:17:12] Speaker 04:
by appellants are incidental and those aren't the decisions that are at issue here.

[00:17:19] Speaker 03:
In other words, your distinction between the trial lawyer's case and this case is the trial lawyer's case, the overwhelming objective is economic.

[00:17:28] Speaker 03:
It has a political aspect, but its objective is economic.

[00:17:32] Speaker 03:
Absolutely.

[00:17:32] Speaker 03:
In this case, the overwhelming objective is political.

[00:17:35] Speaker 03:
It has some ancillary economic aspects.

[00:17:38] Speaker 03:
That's your point?

[00:17:39] Speaker 04:
Exactly.

[00:17:40] Speaker 04:
Thank you, Your Honor.

[00:17:42] Speaker 03:
Now, what about the Article III question?

[00:17:45] Speaker 04:
Well, I think there's a significant standing problem here as the district court found and as the district court found in Filani and this court found in Filani on appeal.

[00:17:58] Speaker 03:
Let's assume every American citizen has the same injury.

[00:18:07] Speaker 03:
Is that still so?

[00:18:12] Speaker 03:
it's not abstract.

[00:18:15] Speaker 04:
Well, I think there are multiple problems from a standing perspective.

[00:18:19] Speaker 04:
The first is, I don't think every citizen or these appellants have a cognizable legal injury under the McComb case.

[00:18:26] Speaker 04:
Their fundamental grievance is that they were not able to compete on what they would call a level playing field.

[00:18:32] Speaker 03:
Well, no, wait a minute.

[00:18:33] Speaker 03:
You would be better off studying everybody at the same time.

[00:18:36] Speaker 03:
I don't really puzzle.

[00:18:39] Speaker 03:
Wouldn't you be better off saying everybody has the same thing and then argue as a generalized grievance?

[00:18:43] Speaker 03:
If everybody has it, nobody does.

[00:18:45] Speaker 04:
Right.

[00:18:46] Speaker 04:
I was going through all three elements.

[00:18:47] Speaker 04:
I do think it would be a generalized grievance.

[00:18:50] Speaker 04:
And if everybody has it, that shows the absurdity of permitting this case to go forward.

[00:18:55] Speaker 04:
Your hypo also highlights that these appellants have not argued they would have won the presidency.

[00:19:03] Speaker 04:
They're not going to try to show, in this case, where to go forward, but for their exclusion from the debates.

[00:19:07] Speaker 03:
Well, they're not going to do that, because that makes it strictly a political case, and then they're out.

[00:19:13] Speaker 04:
But my point is going to be that their injury was the same that every candidate, every citizen would be able to argue.

[00:19:21] Speaker 03:
The other 200 people certainly who wanted to run for president would be in the same position.

[00:19:28] Speaker 03:
But I think maybe everybody is in the same position.

[00:19:30] Speaker 03:
Because if I wanted to be in the debates, I would have made a lot of money.

[00:19:36] Speaker 04:
Well, we'd be happy to consider your candidacy.

[00:19:41] Speaker 03:
It would seem that... Is there an age limit for the president?

[00:19:44] Speaker 04:
I don't think you're too young, Your Honor.

[00:19:46] Speaker 01:
It would seem that the appellants here have a much more focused claim, though.

[00:19:53] Speaker 01:
They're saying it is the... I mean, you have to look for standing at what they're challenging, and therefore, were they to succeed on the merits, what would they gain?

[00:20:03] Speaker 01:
Not what someone else in a broader

[00:20:06] Speaker 01:
with a broader claim and a lower threshold would get it.

[00:20:10] Speaker 01:
And that seems to me that's what distinguishes this case from Filani.

[00:20:13] Speaker 01:
It's one thing to say, well, if the nonprofit status of the debate-sponsoring organization were removed, then maybe, and maybe, and maybe.

[00:20:20] Speaker 01:
Whereas here they're saying, oh, we're after, is get rid of that 15% threshold.

[00:20:25] Speaker 01:
And there's only a very small group of candidates who would additionally be part of the debates were that to happen.

[00:20:32] Speaker 01:
And the likelihood seems quite high, in contrast to Falani, that the debates would go on with the slightly larger field.

[00:20:41] Speaker 01:
And so that's, I think, their case on what reduces the speculativeness.

[00:20:45] Speaker 01:
And what's your response to that?

[00:20:48] Speaker 04:
There are several.

[00:20:50] Speaker 04:
If you look at footnote eight of our brief, we list some of the candidates in the last 20 or 30 years who have achieved ballot access sufficient to have a theoretical electoral college majority.

[00:21:03] Speaker 04:
I think you'll see when you review that list of names that there are a number of names that it's really hard to imagine that the major party candidates would have agreed to share the stage with candidates who enjoyed such modest public support.

[00:21:17] Speaker 04:
Further, and let me just say as a policy matter, the CPD has spent countless hours on these candidate selection criteria trying to figure out the best way to do it.

[00:21:28] Speaker 04:
And we have looked hard at exactly this approach.

[00:21:31] Speaker 04:
What if he just went with

[00:21:32] Speaker 04:
the standard that these opponents.

[00:21:36] Speaker 04:
The problem is while gaining ballot access in enough states have a theoretical college majority is no small accomplishment.

[00:21:45] Speaker 04:
A, it says nothing about public interest in the actual candidate.

[00:21:50] Speaker 04:
It's an organizational and financing undertaking.

[00:21:54] Speaker 04:
B, if you made that ticket into the televised general election debates, many more candidates would actually go out and accomplish that.

[00:22:04] Speaker 04:
It would be completely unworkable.

[00:22:06] Speaker 01:
You might not win, I mean they might not win on the merits, but for purposes of standing, it seems like even the handful in footnote eight, and they do point to precedence with Perot being in and Anderson being in, that there's gonna be some coverage.

[00:22:27] Speaker 04:
Let me address the Anderson example because I think it's instructive and it actually shows how speculative it is to think that

[00:22:35] Speaker 04:
they would get the relief that they seek from a standing perspective.

[00:22:40] Speaker 04:
In 1980, the League of Women Voters sponsored the debates and used the same 15% standard that is challenged here.

[00:22:49] Speaker 04:
At the time of the first presidential debate, John Anderson satisfied it.

[00:22:53] Speaker 04:
He was invited to participate in the debates.

[00:22:56] Speaker 04:
President Carter refused to participate in that debate.

[00:22:58] Speaker 04:
This is a matter of public record.

[00:23:00] Speaker 04:
So there was a debate just between Governor Reagan and John Anderson.

[00:23:04] Speaker 04:
Later, after the debate, also somewhat contrary to what opponents would have you think happens if you participate in a debate, John Anderson's support fell dramatically.

[00:23:15] Speaker 04:
He did not qualify for participation in the next debate.

[00:23:18] Speaker 04:
So it is highly speculative to think that even at 15%, that they necessarily would result in a, there's some question, there's some questioning.

[00:23:29] Speaker 04:
Isn't that going with the merits, not standing?

[00:23:32] Speaker 04:
Well, I think history shows us that it's speculative to think that a major party candidate would agree to participate in a candidate.

[00:23:39] Speaker 03:
Well, wait a minute.

[00:23:39] Speaker 03:
If I understand their case, it is not the likelihood of winning an election that is their damages.

[00:23:49] Speaker 03:
It's the economic consequences that have been kept out of the debate, the economic consequences which would flow from selling hats and things like that.

[00:24:01] Speaker 04:
But it all hinges on them being in the debate with the leading candidates.

[00:24:07] Speaker 03:
Right.

[00:24:08] Speaker 03:
That doesn't have to do with their chances of winning the election, does it?

[00:24:13] Speaker 03:
Totally agree.

[00:24:14] Speaker 03:
So it seems to me that someone who has, say, 30% on the polls but has not qualified in enough states to be elected

[00:24:33] Speaker 03:
I think that's a helpful question.

[00:24:35] Speaker 04:
Right.

[00:24:36] Speaker 04:
That is true.

[00:24:39] Speaker 03:
Because if I had 30%, I would say, look, I may not be qualified in enough states, but boy, would I cause a lot of trouble and would I be able to sell a lot of hats if I had 30%.

[00:24:52] Speaker 03:
So I want to challenge the reasonableness of the other standard.

[00:24:59] Speaker 01:
And it seems to me you would have standing, a person in that position would have standing.

[00:25:03] Speaker 01:
They would lose, perhaps, on the merits, which is a separate question.

[00:25:06] Speaker 01:
I mean, I'm just reading the cases and thinking about, there's no question raised about standing in Arkansas Educational TVB Forbes, in Johnson versus FEC.

[00:25:17] Speaker 01:
Even if you think about the St.

[00:25:20] Speaker 01:
Patrick's Day parade case, Hurley, nobody said, oh, you don't have standing because if you joined the parade, we might not have a parade.

[00:25:28] Speaker 01:
You could make that argument, but it seemed that the criterion that was being challenged was directly the hurdle to keeping, that kept that party out, and we have a similar kind of structure here, so I just, you know, I wonder if you could square with those, or sell it breezy, or there are just so many cases where we have a similar structure.

[00:25:50] Speaker 01:
I think I can't.

[00:25:51] Speaker 04:
You might note that we haven't moved to have the case dismissed as to the First Amendment claim on standing grounds.

[00:25:56] Speaker 04:
And the cases to which you refer were constitutional cases, First Amendment cases.

[00:26:01] Speaker 04:
And our understanding of the case law, and certainly Johnson versus FCC bears this out, is that were there a violation of the First Amendment, that creates its own cognizable injury.

[00:26:14] Speaker 03:
What about redressability?

[00:26:16] Speaker 03:
Now here's what I find a little puzzling.

[00:26:19] Speaker 03:
If an order were issued,

[00:26:26] Speaker 03:
to allow the planets to be in the next debate or damages for not having been in the last debate.

[00:26:37] Speaker 03:
There is a question whether this would encroach upon the First Amendment rights of Romney and Obama.

[00:26:46] Speaker 03:
Is that a redressability issue for standing?

[00:26:50] Speaker 03:
Do you understand my question?

[00:26:53] Speaker 03:
In other words, if it is determined

[00:26:56] Speaker 03:
that an order directing the new debate or the old debate to include the plaintiffs would interfere with the First Amendment rights of Romney and Obama, which you could argue.

[00:27:12] Speaker 03:
Does that go to redressability for standing on First Amendment?

[00:27:18] Speaker 04:
I think it does, and I think it also... Would you like that argument?

[00:27:21] Speaker 03:
Well, it doesn't matter, because if it's a standing issue, we raise it on our own.

[00:27:25] Speaker 04:
I think, yeah, and it's true as to the Commissioner of Presidential Debates as well.

[00:27:30] Speaker 04:
We have First Amendment rights, as the Court recognized in Perot, and it would encroach upon the CPD's First Amendment rights.

[00:27:36] Speaker 03:
Is that a merits issue, or is that a standing question, because it reflects on the jury's adjustability of the Court?

[00:27:43] Speaker 03:
I wasn't sure of the answer to that.

[00:27:46] Speaker 04:
I think it is sometimes difficult to sort out when it is a merits question and when it is a standing question.

[00:27:53] Speaker 03:
No, I knew it was difficult.

[00:27:55] Speaker 04:
I expected help from you.

[00:27:58] Speaker 04:
I will tell you this.

[00:27:59] Speaker 04:
When the law is as clear as this law is with respect to the First Amendment rights of the Appalachians, I think it is appropriate to address it as a standing question and not solely as a merits issue.

[00:28:11] Speaker 04:
The final point that I wanted to make is this.

[00:28:20] Speaker 04:
Mr. Fine said in his presentation that the relief they actually seek in response to Judge Silberman's questioning is they just want the reasonableness of these criteria to be reviewed.

[00:28:31] Speaker 04:
They don't get to jump over all these important legal principles under the First Amendment and the antitrust laws to get that review.

[00:28:38] Speaker 04:
Now, that doesn't mean there is nowhere they can go.

[00:28:41] Speaker 04:
In fact, the Federal Election Commission regulates the sponsorship of presidential debates and other debates for federal office.

[00:28:49] Speaker 04:
They have regulations governing candidate selection criteria.

[00:28:54] Speaker 04:
And there is a procedure for any person agreed to file a complaint with the Federal Election Commission and then to obtain judicial review if they wish at the conclusion of the FEC's process.

[00:29:05] Speaker 04:
In fact, the Libertarian Party and the Green Party, appellants here,

[00:29:11] Speaker 04:
have filed such a complaint.

[00:29:13] Speaker 04:
The FEC has addressed it once.

[00:29:15] Speaker 04:
It went up to the district court.

[00:29:17] Speaker 04:
It was remanded.

[00:29:17] Speaker 04:
The Federal Election Commission just recently addressed it again.

[00:29:21] Speaker 04:
It includes a reasonableness review of the 15% criterion.

[00:29:26] Speaker 04:
And if they wish, the parties in that case can seek further judicial review.

[00:29:32] Speaker 04:
There is an avenue open for them.

[00:29:34] Speaker 04:
And important legal principles need not be bent beyond their breaking point to accommodate the desire for some review.

[00:29:41] Speaker 04:
Thank you very much.

[00:29:44] Speaker 02:
Thank you, Council.

[00:29:46] Speaker 02:
Mr. Fine had no time left.

[00:29:49] Speaker 02:
We'll give you two minutes.

[00:29:50] Speaker 05:
Thank you, Your Honor.

[00:29:51] Speaker 05:
Appreciate it.

[00:29:51] Speaker 05:
Just to respond to the last remarks from my opponent here, it seems to me inconsistent to say on the one hand, the First Amendment protects absolutely.

[00:30:00] Speaker 05:
the right of the CPD and Obama and Romney decide the debate format.

[00:30:04] Speaker 05:
And then on the other hand saying, but the FEC, acting under statute, can challenge and penetrate the First Amendment right.

[00:30:10] Speaker 05:
The Constitution trumps the statute, whether it's an antitrust law or an FEC.

[00:30:13] Speaker 03:
Well, what about the concern?

[00:30:16] Speaker 03:
Suppose we conclude that President Obama and Governor Romney had a First Amendment right.

[00:30:28] Speaker 03:
to debate as they wish, without excluding others.

[00:30:33] Speaker 03:
And does that go to the redressability, which is one element of standing?

[00:30:42] Speaker 05:
I think it goes to the merits, Your Honor, but I want to point out... Why doesn't it go to redressability?

[00:30:48] Speaker 03:
Because the question is, if they don't... Even if we concluded that you might have a First Amendment claim,

[00:30:55] Speaker 03:
If we conclude that Romney and Obama have a First Amendment claim not to debate by themselves, then aren't we faced with a redressability question for you, therefore a standing question for you?

[00:31:16] Speaker 05:
Well, yes, but it merges into the merits, Your Honor, because you have to decide the First Amendment issue on the merits.

[00:31:21] Speaker 03:
It does.

[00:31:24] Speaker 03:
That's why I'm puzzled.

[00:31:25] Speaker 05:
And I think, Your Honor, that the Associated Press case addresses your question thoroughly.

[00:31:31] Speaker 03:
Not really.

[00:31:31] Speaker 05:
In Associated Press, the argument was made by forcing Associated Press to permit members to come in, have access, and to present APUs.

[00:31:38] Speaker 03:
That was strictly a commercial case.

[00:31:40] Speaker 05:
No.

[00:31:41] Speaker 05:
If you look at Justice Black's opinion, and we've reproduced it in our brief,

[00:31:46] Speaker 05:
He doesn't ever mention the word commercial there.

[00:31:49] Speaker 05:
He says it's the First Amendment values that are at stake in deciding that they're not going to accept that authority of AP to say, you can kick everybody else out because you're involved in his words, news and views, like news and IDs.

[00:32:03] Speaker 05:
And he says that's the reason why you have no First Amendment right to say you don't want to deal and sell your AP news to anybody but your members and you can automatically veto anyone else.

[00:32:13] Speaker 05:
And his passage, he never even hints at commerce being the touchstone of his decision.

[00:32:19] Speaker 05:
With regard to the statement that was made that the Commission is involved in trying to elicit what public interest there would be in the participants, the fact is they don't use a public interest standard to calculate the 15 percent.

[00:32:31] Speaker 05:
As we point out in our brief, in the year 2000, almost two-thirds to three-quarters of the members of the public said they wanted Ralph Nader and Pat Buchanan in the debates.

[00:32:40] Speaker 05:
In 1996 after Ross Perot got 19% of the vote in 1992 after he participated in debates and rose from 7% to 19%.

[00:32:52] Speaker 05:
the two major party nominees said, you're out.

[00:32:55] Speaker 05:
You can't come in, even though he had 19%.

[00:32:58] Speaker 05:
So the standard isn't just voter interest.

[00:33:01] Speaker 05:
We allege the standard is, what can strengthen the dominance of the two major parties and make certain that there's as little encroachment as possible on the major party nominees and running for the president?

[00:33:13] Speaker 05:
And I think, Your Honor, you're also correct in noting that

[00:33:16] Speaker 05:
Our grievance isn't purely, it's not we didn't win the election.

[00:33:22] Speaker 05:
Also, you know that even if you just capture substantial support, you can have an influence on those economic issues that you addressed that are part of every campaign.

[00:33:32] Speaker 05:
For example, Ross Perot, he didn't win in 1992, but he injected balanced budgets.

[00:33:38] Speaker 05:
And those who are around here during the Clinton administration, he made balanced budget a cornerstone of his agenda.

[00:33:45] Speaker 05:
And he would tout it as a major accomplishment.

[00:33:48] Speaker 05:
And that was there because Ross Prove was permitted to participate in those issues.

[00:33:54] Speaker 05:
But I appreciate your honor for the extra time, and thank you.

[00:33:58] Speaker 02:
Thank you, Mr. Fine.

[00:33:59] Speaker 02:
The case will be submitted.