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Johnson v. Commission on Presidential Debates

United States Court of Appeals, District of Columbia Circuit

August 29, 2017

Gary E. Johnson, et al., Appellants
Commission on Presidential Debates, et al., Appellees

          Argued April 21, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01580)

          Bruce E. Fein argued the cause for appellants. With him on the briefs were W. Bruce DelValle.

          Lewis 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 an appearance.

          Before: Brown and Pillard, Circuit Judges, and Silberman, Senior Circuit Judge.



         Every 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.


         Gary 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 general-election debates.

         They 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.

         Any 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.

         The 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.

         Plaintiffs 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.

         The 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 ...

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