I'm just interested in how our self-described libertarians justify this tactic by Johnson. Isn't his gambit here pretty much the anti-thesis of what a libertarian would do?
Let me explain.
The CPD is a private, (non-profit, non-stock) corporation. The RNC and DNC are private associations organized under federal election law. Gary Johnson's theory is that he should have some form of legal recourse if these three private organizations decide that it is in their best interests to exclude him from the debate.
Think of it this way. What if I told you that LiveEvents were holding a big music festival. And they've got Lady Gaga, and Madonna, and Green Day, and the Bieber. And they're thinking about inviting Ted Nugent. Only Lady Gaga and Madonna and Green Day and all the other artists who don't shoot deer with crossbows say, "Yeah, I'm not playing if Nugent plays." Would a libertarian really consider that an antitrust violation? Maybe he'd think less of Lady Gaga and Billie Joe. And you're welcome to think less of "Dumbama and RMoney." But I'd like to think that a thoughtful libertarian would think less of the Nooge if he tried to sue.
His theory is that this type of private agreement violates the Sherman Act. Now, there are some pro-antitrust regulation "libertarians", but not many. Most libertarians believe that freedom of contract is sacrosanct. That government shouldn't be allowed to interfere with a private contract between two associations or two corporations or two people. But wait, it gets weirder. Most libertarians believe that the modern interpretation of commerce and attendant commerce clause of the United States consitution is ridiculously overbroad, and is, in fact, a vehicle that has allowed the government to gain nearly plenary powers. This, they argue, is a bad thing. Yet Johnson's claim relies upon a construction of "commerce" (or "trade") that is so strained that it would make the most ardent defender of Wickard blush. As a final trick, Johnson does not argue that the CPD may not place any restraint on participation of the debates, he simply argues that the restraint they choose should include him and exclude others (such as Roseanne). And that this criteria should be enforced by a government body.
The entire strategy is just baffling coming from a self-professed "libertarian." Citizens Unitedwas a "libertarian" decision. If Gary Johnson wants a greater voice in the election, he can find himself some Koch brothers or a Sheldon Adelson. If one television show won't have him on, he can do what Perot did and buy his own ad time. Or have his own debate. If he feels that the system as it is now actually limits his ability to do so, then I'd be interested in hearing his "libertarian" solution to the problem.