United States Court of Appeals, District of Columbia Circuit
Gary E. Johnson, et al., Appellants
Commission on Presidential Debates, et al., Appellees
April 21, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01580)
E. Fein argued the cause for appellants. With him on the
briefs were W. Bruce DelValle.
K. Loss argued the cause for appellees. With him on the brief
were Uzoma N. Nkwonta, Robert F. Bauer, Marc E. Elias,
Elisabeth C. Frost, Charles H. Bell Jr., John R. Phillippe,
Jr., and William D. Coglianese. Michael S. Steinberg entered
Before: Brown and Pillard, Circuit Judges, and Silberman,
Senior Circuit Judge.
four years, we suffer through the celebration of democracy
(and national nightmare) that is a presidential election.
And, in the end, one person is selected to occupy our
nation's highest office. But in every hard-fought
presidential election there are losers. And, with quadrennial
regularity, those losers turn to the courts. See,
e.g., Perot v. FEC, 97 F.3d 553 (D.C. Cir.
1996); Fulani v. Brady, 935 F.2d 1324 (D.C. Cir.
1991); Johnson v. FCC, 829 F.2d 157 (D.C. Cir.
1987). Today's challenge concerns 2012 third-party
candidates Gary Johnson and Jill Stein. Their Complaint
presents novel claims under antitrust law and familiar First
Amendment allegations. The district court dismissed the
Complaint, finding Plaintiffs lacked Article III standing,
antitrust standing, and in the alternative, failed to state a
claim for which relief could be granted. See Johnson v.
Comm'n on Presidential Debates, 202 F.Supp.3d 159
(D.D.C. 2016). For the reasons set forth below, we affirm.
Johnson and James Gray ran as the Libertarian Party's
presidential and vice presidential candidates in the 2012
elections, while Jill Stein and her running mate Cheri
Honkala ran on the Green Party ticket. Both slates qualified
on a sufficient number of state ballots to have a
mathematical chance of an Electoral College victory. Each was
nonetheless excluded from the nationally televised
claim that they were excluded pursuant to an agreement
between the Obama for America and Romney for President
campaigns. They allege the parties' agreement, reflected
in a memorandum of understanding ("MOU"),
stipulated to three presidential debates and one vice
presidential debate, and designated dates, locations,
moderators, and topics. Those would be the only four debates
between the major-party candidates, "except as agreed to
by the parties" to the MOU. JA 63. The MOU provided that
the Commission on Presidential Debates
("Commission"), a nonprofit organization, would
host the debates subject to its willingness to "employ
the provisions" of the MOU. JA 64.
candidate, other than the signatories, would be invited to
participate in the debates only if he or she satisfied
certain selection criteria set forth in the MOU. First, the
candidate had to be constitutionally eligible to be
president. Second, he or she must have qualified to appear on
"enough state ballots to have at least a mathematical
chance of securing an Electoral College majority in the 2012
general election." Compl. ¶ 74, JA 45-46. And,
third, the candidate had to have achieved a "level of
support of at least 15% (fifteen percent) of the national
electorate as determined by" averaging the most recent
results of "five selected national public opinion
polling organizations." Id. ¶ 74, JA 46.
Johnson and Stein met the first two criteria, but they fell
short of the 15 per cent polled-support threshold.
third-party candidates, their running mates, their campaigns,
and the parties they represented in the 2012 election
(collectively, "Plaintiffs" for purposes of this
opinion) brought suit, challenging the MOU as an unlawful
agreement to monopolize and restrain competition in violation
of sections 1 and 2 of the Sherman Act. 15 U.S.C.
§§ 1-2. The Complaint alleges a conspiracy with the
overall objective to:
entrench market power in the presidential debates market,
the presidential campaign market, and the electoral politics
market of the two major political parties by exercising
duopoly control over presidential and vice presidential
debates in general election campaigns for the presidency.
Compl. ¶ 1, JA 15. The Complaint also alleges exclusion
of Plaintiffs from the debates "because of hostility
towards their political viewpoints" in violation of
their First Amendment rights to free speech and association.
Id. On appeal, Plaintiffs have abandoned their
further claim of intentional interference with prospective
economic advantage and relations.
allege they were injured "in their businesses of
debating in presidential elections, participating in
presidential election campaigns, and engaging in electoral
politics." Id. ¶ 90, JA 49. They claim to
have lost millions of dollars' worth of publicity,
campaign contributions, and matching funds that ordinarily
would follow participation in the debates, as well as the
salaries they would have earned as President and Vice
President if they had won. Id. ¶ 90, JA 49-50.
They sought invalidation of the 15 per cent polled-support
requirement, injunctive relief dissolving the Commission and
enjoining further collusion between the two major parties,
and treble damages under section 4 of the Clayton Act, 15
U.S.C. § 15. They named as defendants the Commission and
one of its founders, Frank J. Fahrenkopf, Jr.; Michael D.
McCurry, a Commission co-chair; the Republican and Democratic
National Committees; and 2012 presidential candidates Barack
Obama and Willard Mitt Romney. Compl. ¶ 24-30, JA 23-26.
Defendants' interests on appeal are represented primarily
by counsel for the Commission.
district court dismissed the case under Federal Rules of
Civil Procedure 12(b)(1) and (6). It held that Plaintiffs
lacked Article III standing to litigate their Sherman Act
claims because they were based on "wholly
speculative" injuries "dependent entirely on media
coverage decisions" by nonparties. Johnson, 202
F.Supp.3d at 169. The court also found the alleged harm-lack
of media coverage that led to low popularity-preceded their
exclusion from the debates. See id. Plaintiffs had
thus failed to allege injury in fact that was either
traceable to the Commission or redressable in this case. We
review the district court's dismissal de novo,
taking the facts alleged in the Complaint as true and drawing
all reasonable ...