United States District Court, District of Columbia
GARY E. JOHNSON, et al., Plaintiffs,
COMMISSION ON PRESIDENTIAL DEBATES, et al., Defendants.
ROSEMARY M. COLLYER United States District Judge.
Libertarian and Green Parties and their political candidates
sought, and failed to receive, invitations to
privately-sponsored presidential debates in 2012. They now
seek invitations to this year's presidential debates,
claiming that the rules that bar their participation violate
antitrust law. However, because Plaintiffs have no standing
and because antitrust laws govern commercial markets and not
political activity, those claims fail as a matter of
well-established law. Plaintiffs also allege violations of
the First Amendment, but those claims must be dismissed
because the First Amendment guarantees freedom from
government infringement and Defendants here are private
parties. Finally, Plaintiffs fail to allege facts that could
support a claim for intentional interference with prospective
business advantage. Defendants' motions to dismiss will
are the Libertarian National Committee, which controls the
U.S. Libertarian Party; Gary Johnson, the Libertarian
Party's nominee for president in 2012; Gary Johnson 2012,
Inc., a corporation that served as the campaign committee for
Mr. Johnson in 2012; James Gray, Mr. Johnson's 2012 vice
presidential running mate; the Green Party; Jill Stein, the
Green Party's nominee for president in 2012; Jill Stein
for President, the entity that served as Ms. Stein's
campaign committee in 2012; and Cheri Honkala, Ms.
Stein's 2012 vice presidential running mate. Plaintiffs
brought this suit against: the Republican National Committee
(RNC); the Democratic National Committee (DNC); the
Commission on Presidential Debates, a nonprofit corporation
founded by the RNC and the DNC (Commission); Frank
Fahrenkopf, Jr., Commission founder and co-chair; Michael
McCurry, Commission co-chair; President Barack Obama,
Democratic presidential candidate in 2012; and Willard Mitt
Romney, Republican candidate for president in 2012. The
Complaint sets forth four counts:
Count I, combination and conspiracy to restrain interstate
commerce in violation of Section 1 of the Sherman Act;
Count II, monopolization, attempt to monopolize, and
conspiracy to monopolize in violation of Section 2 of the
Count III, violation of First Amendment rights of free speech
and association; and
Count IV, intentional interference with prospective economic
advantage and relations.
[Dkt. 1] ¶¶ 31-141.
support of these claims, Plaintiffs allege that Defendants
have conspired to entrench market power, to exclude rival
candidates, and to undermine competition “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.” Id.
¶ 1. Plaintiffs claim that Defendants intended, and
still intend, to exclude rival candidates and impair
competition in these “markets” and to narrow
voting choices to the candidates from the two major political
parties at the expense of the electoral process as well as
third party and independent candidates. Id.
¶¶ 3-6. Plaintiffs further allege that the
Libertarian and Green Party candidates were excluded from the
debates in 2012 “due to hostility towards their
political viewpoints.” Id. ¶ 1.
the three presidential debates between President Obama and
Mitt Romney in 2012 was watched by more than 59 million
viewers, and each allegedly excluded Plaintiffs Johnson and
Stein by agreement between the Commission, the RNC, the DNC,
and party nominees President Obama and Mr.
Romney. Id. ¶ 34(m). The Complaint
alleges that the presidential and vice presidential debates
have a monetary value of hundreds of millions of dollars.
Id. ¶ 34. Corporate sponsors collectively
contribute millions of dollars in each election cycle to the
Commission. Id. ¶ 35. Further, presidential
debates generate millions of dollars in revenue for the
communities in which they are held. Id. ¶ 37.
Also, the hosts of the debates spend “several millions
of dollars in associated direct and indirect costs, including
payments of millions of dollars to the Commission.”
Id. ¶ 38. For example, for the 2012
presidential debate in Denver, the University of Denver paid
the Commission $1.65 million for production fees.
Id. Republican and Democratic campaigns spend
enormous sums on advertising, rental of office space, staffer
salaries, tee shirts, and entertainment. Id.
¶¶ 40-44. Allegedly, over $2 billion was spent on
the 2012 presidential election, including sums expended by
the campaigns and third parties. Id. ¶¶
contend that televised debates are essential to presidential
and vice presidential candidates, providing candidates with
free national advertising and allowing them to compete
meaningfully and to communicate their message to the
electorate. Id. ¶¶ 45-46. They allege:
To be excluded from the debates is “an electoral death
sentence.” The media gives non-duopoly, non-major party
candidates little or no coverage, and they cannot afford
significant, if any national advertising. Hence, they are
denied the free, enormous coverage received by the duopoly
party candidates through the debates, and they are
marginalized in the minds of most people in the U.S. and the
media, and considered to be less than serious, peripheral,
and perhaps even frivolous candidates.
Id. ¶ 46. Plaintiffs insist that there are no
alternative means for national exposure and that
“[e]xclusion from the debates guarantees
marginalization, a public perception that the excluded
candidates are ‘unserious, ' notwithstanding their
talent, records, capabilities, alignments with the views of
many, if not most, of American voters, and leadership
skills.” Id. ¶ 47.
Commission has sponsored the presidential debates since the
League of Women Voters withdrew in 1988; now it is the sole
sponsor of all presidential debates. Id.
¶¶ 52, 65, 69-70, 100. The Commission allegedly
structured the 2012 debates to promote RNC and DNC candidates
and to exclude other candidates, id. ¶¶
58-63, and plans to do so again in all future debates,
id. ¶¶ 66-67.
year that presidential debates are held, the Republican and
Democratic campaigns enter into a Memorandum of Understanding
(MOU). Id. ¶ 71; see also Compl., Ex.
1 (MOU dated Oct. 2012). In 2012, the MOU was signed by the
general counsel to the Obama campaign and the general counsel
to the Romney campaign. The MOU provided that the Commission
would sponsor the candidates' debate appearances and the
candidates would not appear at any other debate without prior
consent of the parties to the MOU. The MOU also provided that
the parties “agreed that the Commission's
Nonpartisan Candidate Selection Criteria for 2012 General
Election Debate participation shall apply in determining the
candidates to be invited to participate in these
debates.” Id. 73. Those criteria include (1)
evidence of “ballot access”--that the candidate
qualified to appear on enough State ballots to have a
mathematical chance of securing an electoral college
majority; and (2) evidence of “electoral
support”--that the candidate had the support of 15% of
the national electorate as determined by averaging public
opinion polls from five selected national polling
organizations (the 15% Provision).Compl. ¶ 74. The
Complaint asserts that the 15% Provision was designed to
exclude the participation of third party and independent
candidates. Id. ¶¶ 75-76, 85-86.
Plaintiffs allege that they have been injured in their
“businesses of debating in presidential elections,
participating in presidential election campaigns, and
engaging in electoral politics.” Id. ¶
Plaintiffs allege that Defendants have colluded to restrain
commerce and monopolize the presidential debates, elections,
and politics markets by keeping other parties and candidates
out of the debates (and thus out of the electoral
competition) and by fixing the terms of participation in the
debates to avoid challenges to the Republican or Democratic
parties and their candidates. Id. ¶ 89
(alleging violation of Section 1 of Sherman Act);
id. ¶ 104 (alleging violation of Section 2 of
Sherman Act). They further assert that Defendants have
violated the First Amendment by suppressing the viewpoints of
third party and independent candidates, id. ¶
120, and by burdening and stifling the right to associate, to
vote, to form new political parties, and to support third
party and independent candidates, id. ¶¶
122, 123, 128, 130. Finally, they contend that Defendants,
through their anticompetitive conduct, intentionally
interfered with Plaintiffs' expectations of economic
advantages and relationships with debate organizers,
sponsors, contributors, and media outlets. Id.
seek injunctive relief as well as money damages. They ask for
(1) a declaratory judgment that Defendants have engaged in
unlawful restraint of trade in the presidential debates,
elections, and politics markets in violation of Section 1 of
the Sherman Act; (2) a declaratory judgment that Defendants
have engaged in monopolization of these same markets in
violation of Section 2 of the Sherman Act; (3) treble damages
for antitrust violations; (4) a declaratory judgment that the
15% Provision used by Defendants violates the First Amendment
and entitles them to damages for such violation; (5) damages
for Defendants' tortious interference with prospective
business advantage and relations; (6) equitable relief under
Section 16 of the Clayton Act, 15 U.S.C. § 26, including
an order dissolvingthe Commission to dissolve and an
injunction against any further agreement between the RNC and
the DNC that would exclude presidential candidates from
debates; (7) attorney fees, costs, and interest. Compl. at
46-47 (Relief Requested).
have moved to dismiss, arguing that Plaintiffs lack standing
and that they have failed to state a claim under antitrust
law, the First Amendment, or intentional interference.
See DNC Mot. to Dismiss (MTD) [Dkt. 37]; DNC Reply
[Dkt. 47]; RNC MTD [Dkt. 38]; RNC Reply [Dkt. 46]; Romney MTD
[Dkt. 39]; Romney Reply [Dkt. 48]; Comm'n MTD [Dkt. 40];
Comm'n Request for Judicial Notice [Dkt. 41]; Comm'n
Reply [Dkt. 49].Plaintiffs oppose. See Opp'n
Standing and Lack of Jurisdiction
Rule of Civil Procedure 12(b)(1) provides that a defendant
may move to dismiss a complaint, or any portion thereof, for
lack of subject matter jurisdiction. Here, Defendants contend
that Plaintiffs lack standing to allege violations of
antitrust law and thus Counts I and II should be dismissed
for lack of jurisdiction. A plaintiff must have standing
under Article III of the United States Constitution in order
for a federal court to have jurisdiction to hear the case and
reach the merits. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 101 (1998); Grand Council of
the Crees v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000).
Standing is an “irreducible constitutional
minimum.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992).
Plaintiffs assert subject matter jurisdiction, they bear the
burden of showing that such jurisdiction exists. See
Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir.
2008). When reviewing a motion to dismiss for lack of
jurisdiction, a court must review the complaint liberally,
granting the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Barr v. Clinton,
370 F.3d 1196, 1199 (D.C. Cir. 2004). Nevertheless, a court
need not accept factual inferences that are not supported by
the facts alleged in the complaint, nor must a court accept a
plaintiff's alleged legal conclusions. Speelman v.
United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006). A
court may consider materials outside the pleadings to
determine its jurisdiction. Settles v. U.S. Parole
Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005);
Coal. for Underground Expansion v. Mineta, 333 F.3d
193, 198 (D.C. Cir. 2003).
Failure to State a Claim
also contend that the Complaint fails to state a claim. A
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain
sufficient factual information, accepted as true, to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). A court must assume the truth of all
well-pleaded factual allegation and construe reasonable
inferences from those allegations in favor of the plaintiff.
Sissel v. Dep't of Health & Human Servs.,
760 F.3d 1, 4 (D.C. Cir. 2014). Again, a court need not
accept a plaintiff's inferences if they are not supported
by the facts set out in the complaint, see Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994),
and a court need not accept as true a plaintiff's legal
conclusions, see Iqbal, 556 U.S. at 678. In deciding
a motion under Rule 12(b)(6), a court may consider the
complaint's factual allegations, documents attached to
the complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007).
Rule of Evidence 201 provides that a court may judicially
notice a fact that is not subject to “reasonable
dispute because it (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b). A
court may take judicial notice of facts contained in public
records of other proceedings, see Abhe, 508 F.3d at
1059; Covad Commc'ns Co. v. Bell Atlantic Co.,
407 F.3d 1220, 1222 (D.C. Cir. 2005), and of historical,
political, or statistical facts, and any other facts that are
verifiable with certainty, see Mintz v.
FDIC, 729 F.Supp.2d 276, 278 n.5 (D.D.C. 2010). Further,
judicial notice may be taken of public records and government
documents available from reliable sources. Hamilton v.
Paulson, 542 F.Supp.2d 37, 52 n.15 (D.D.C. 2008),
rev'd on other grounds, 666 F.3d 1344 (D.C. Cir.
2012). For the purpose of this Opinion, the Court takes
judicial notice of cited political and statistical facts that
the Federal Election Commission has posted on the web.
See nn.3 & 6, supra. The
Commission's unopposed Request for Judicial Notice [Dkt.
41] will be granted only to the extent that this Opinion
cites judicially noticed material.
argue that their claims are “heavily fact-bound and
implicate testimonies from political, economic, and First
Amendment experts” and thus “[t]his case is
peculiarly unsuited to motions to dismiss.” Plaintiffs
rely on commentators and others who hold the opinion that
presidential debates should be open to all, or at least more,
candidates. See Opp'n at 28-29 (quoting
political pundit and commentator George Will, former Senator
Oliver North, former Federal Election Commission Chair Scott
Thomas, author George Farah, and various journalists). In
support of their reliance on commentators, Plaintiffs
misquote Twombly as stating that “the Court
must assess the plausibility of the Plaintiff's claims
based on experience, the considered view of leading
commentators, common sense or otherwise.” See
Opp'n at 28 n.2 (citing Twombly, 550 U.S. at
566). Twombly does not so credit all
“leading” commentators. Twombly requires
In identifying facts that are suggestive enough to render a
[Sherman Act] § 1 conspiracy plausible, we have the
benefit of the prior rulings and considered views of
leading commentators, already quoted, that lawful
parallel conduct fails to bespeak unlawful agreement. It
makes sense to say, therefore, that an allegation of parallel
conduct and a bare assertion of conspiracy will not suffice.
Without more, parallel conduct does not suggest conspiracy,