Gary Johnson v. Commission on Presidential De
2017 U.S. App. LEXIS 16486
| D.C. Cir. | 2017Background
- Gary Johnson (Libertarian) and Jill Stein (Green) qualified for enough state ballots in 2012 to have a mathematical chance at the Electoral College but were excluded from nationally televised general-election debates.
- The campaigns alleged the Obama and Romney campaigns entered an MOU specifying debate structure and that the Commission on Presidential Debates (CPD) would follow it; the MOU set a 15% national polling threshold for non-major-party inclusion.
- Plaintiffs sued the CPD, its officers, the two major-party committees, and the major-party candidates under the Sherman Act (Sections 1 and 2) and asserted First Amendment claims for viewpoint discrimination and burdens on association/voting.
- Plaintiffs alleged monetary and electoral injuries (lost publicity, fundraising, matching funds, and lost prospective salaries) and sought injunctive relief, invalidation of the 15% rule, dissolution of the CPD, and treble damages.
- The district court dismissed under Fed. R. Civ. P. 12(b)(1) and (6) for lack of Article III standing, lack of antitrust standing/antitrust injury, and failure to state a First Amendment claim; the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury, causation, redressability) | Johnson/Stein: exclusion caused concrete, particularized injuries (lost exposure, funds) traceable to the MOU/CPD and redressable by relief. | Defendants: injuries speculative, dependent on media and nonparty decisions; court relief could violate CPD First Amendment rights (redressability problem). | Court: acknowledged pleaded injury but expressed grave doubt about redressability because injunctive relief could infringe CPD’s First Amendment rights; avoided deciding Article III fully and affirmed dismissal on other grounds. |
| Antitrust standing / antitrust injury | Plaintiffs: MOU is an unlawful agreement to monopolize the “presidential debates/campaign/electoral” markets and excluded them from competition. | Defendants: political debates/campaigns are not trade or commerce; plaintiffs identify harms to political candidacy, not commercial competition or an identifiable economic market. | Held: plaintiffs lack antitrust standing — their alleged harms are political (loss of votes/exposure), not the commercial injury antitrust laws protect. |
| Merits: failure to plead a cognizable antitrust violation | Plaintiffs: alleged duopoly control and exclusion that entrenches market power over debates and electoral politics. | Defendants: no identified relevant commercial market or anticompetitive effect in trade/commerce; mere political impact of activity is insufficient. | Held (concurrence view): even assuming Article III standing, the complaint fails to state an antitrust claim because it does not allege restraint/monopolization of trade or a defined commercial market. |
| First Amendment claim / state-action requirement | Plaintiffs: 15% polling rule was adopted to suppress third-party viewpoints and thus burdens speech and association. | Defendants: actions are by a private nonprofit (CPD); plaintiffs do not plausibly allege state action or governmental coercion; remedies may implicate CPD’s own First Amendment rights. | Held: First Amendment claim dismissed for failure to plead state action and as insubstantial/foreclosed; court declined to invent a constitutional theory not pled. |
Key Cases Cited
- Perot v. Federal Election Comm’n, 97 F.3d 553 (D.C. Cir. 1996) (court noted injunction forcing debate inclusion could raise CPD First Amendment problems)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Art. III standing elements: injury, causation, redressability)
- Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983) (distinguishing Article III standing from statutory/antitrust standing)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards on a motion to dismiss)
- Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977) (antitrust protects economic competition)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (jurisdictional/standing rules and limits on deciding merits under guise of standing)
- Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (private speaker’s First Amendment editorial control)
- Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) (compelled access violates private publisher’s First Amendment rights)