Third-party candidates are planning to file another lawsuit to force themselves into presidential general-election debates. I’m not a lawyer, but I’m fairly certain that the lawsuit should fail on legal grounds — and I’m confident that it would be terrible for democracy if it won.
The suit, which will be filed by the Green Party and the Libertarian Party, contends that the major parties — which sponsor the events through the Commission on Presidential Debates — are violating speech and antitrust law. I'll defer to others on the antitrust issue, but it seems far-fetched to me. There is no “market” involved here, but an election.
As Dave Weigel reports in The Washington Post, the lawsuit will allege that the debates “artificially advantage the Democratic and Republican Party candidates.” I don’t know what “artificially” means, but, yes, the debates advantage the major parties, in the same way a party advantages its own candidates over independent ones. And in the same way that any two parties — which are private organizations — are free to hold debates, and any two candidates are free to speak when, where and how they wish. Such freedoms are central to the First Amendment, not violations of it. If the government organized such debates, the third parties might have a decent case. But presidential debates are voluntary collaborations involving the parties and the news media, which choose to broadcast and stream them. That’s free speech. The lawsuit, however, is demanding government control over what the candidates and their parties want to do.
Regardless of the correct application of the law, it is in the interest of democracy to allow the two parties to organize debates as they choose. Democracy requires political parties. Of course, a two-party system isn’t the only way to organize a democracy, but it’s what the United States has, and it fits the unusual institutional arrangements set up by the Constitution. As such, I see no problem with the government allowing the two parties to (further) institutionalize their dominant positions through private behavior.
Never miss a local story.
In addition, multiparty, first-past-the-post elections tend to be unstable, with random and sometimes odd effects. That doesn’t serve anyone’s interests, and certainly not those of voters.
Moreover, while the ultimate effect of general election debates is widely overrated, the debates still serve some worthwhile functions. They educate the public at least a little (even if that’s mostly confined to teaching partisans what policies they are for, as opposed to helping people decide the candidate to vote for). And they push candidates to make promises on substance and style, which is healthy for representation, and therefore for democracy.
So the debates work just fine. The courts should leave them alone.
Jonathan Bernstein is a Bloomberg View columnist covering U.S. politics.