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Johnson v. Commission On Presidential Debates

United States District Court, District of Columbia

August 24, 2016

GARY E. JOHNSON, et al., Plaintiffs,

          AMENDED OPINION[1]

          ROSEMARY M. COLLYER United States District Judge.

         The 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 be granted.

         I. FACTS

         Plaintiffs 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 Sherman Act;
Count III, violation of First Amendment rights of free speech and association; and
Count IV, intentional interference with prospective economic advantage and relations.

         Compl. [Dkt. 1] ¶¶ 31-141.

         In 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.

         Each of 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.[2] 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. ¶¶ 40, 44.

         Plaintiffs 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.

         The 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.[3]

         In each 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;[4] 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).[5]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. ¶ 90.

         Accordingly, 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. ¶¶ 134-141.

         Plaintiffs 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).

         Defendants 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].[6]Plaintiffs oppose. See Opp'n [Dkt. 45].


         A. Standing and Lack of Jurisdiction

         Federal 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).

         Because 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).

         B. Failure to State a Claim

         Defendants 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).

         Federal 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.

         Plaintiffs 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 facts:

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, ...

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