Gary Johnson, et al v. Commission on Presidential De, et al
OPINION  filed (Pages: 11) for the Court by Judge Brown, OPINION CONCURRING in Part I and CONCURRING in the judgment (Pages: 6) by Judge Pillard. [16-7107]
USCA Case #16-7107
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2017
Decided August 29, 2017
GARY E. JOHNSON, ET AL.,
COMMISSION ON PRESIDENTIAL DEBATES, ET AL.,
Appeal from the United States District Court
for the District of Columbia
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.
Opinion for the Court filed by Circuit Judge BROWN.
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Opinion concurring in Part I and concurring in the
judgment filed by Circuit Judge PILLARD.
BROWN, 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
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”),
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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
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
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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
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“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
inferences in Johnson and Stein’s favor. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007); Andrx Pharm., Inc. v.
Biovail Corp. Int’l, 256 F.3d 799, 805 (D.C. Cir. 2001).
We begin with Plaintiffs’ antitrust claims, asking first
whether Plaintiffs may properly proceed before this Court on
these allegations. “Federal courts are not courts of general
jurisdiction; they have only the power that is authorized by
Article III of the Constitution and the statutes enacted by
Congress pursuant thereto.” Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986). Accordingly, the Court must
assess Plaintiffs’ standing based on “the specific common-law,
statutory or constitutional claims that [they] present.” Int’l
Primate Prot. League v. Administrator of Tulane Educ. Fund,
500 U.S. 72, 77 (1991).
The “irreducible constitutional minimum of [Article III]
standing” requires that a plaintiff demonstrate three elements:
(1) injury in fact; (2) causation; and (3) redressability. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “The party
invoking federal jurisdiction bears the burden of establishing
these elements.” Id. at 561. But here we also discuss a second
type of “standing” doctrine: antitrust (i.e. statutory) standing.
While Article III standing is a familiar concept common to all
cases, antitrust standing is claim-specific. It asks “whether the
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plaintiff is a proper party to bring a private antitrust action.”
Associated Gen. Contractor of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 535 n.31 (1983) (citing Daniel
Berger & Roger Bernstein, An Analytical Framework for
Antitrust Standing, 86 YALE L.J. 809, 813 n.11 (1977); Earl E.
Pollock, Standing to Sue, Remoteness of Injury, and the
Passing-On Doctrine, 32 ANTITRUST L.J. 5, 6–7 (1966)). We
will discuss each in turn.
Plaintiffs’ injuries are clearly pleaded in the Complaint;
they allege their exclusion from the debates caused them to lose
access to television audiences and resulting campaign
contributions worth hundreds of millions of dollars. This
injury—though shared with many individuals who may have
wished to campaign for the presidency but did not join Mitt
Romney and Barack Obama on the debate stage—is
nonetheless particularized. See FEC v. Akins, 524 U.S. 11, 23–
25 (1998); see also Akins v. FEC, 101 F.3d 731, 736 (D.C. Cir.
1996) (en banc). 1 Each excluded individual was uniquely
Plaintiffs have adopted a litigation strategy attributing their
exclusion to the fifteen percent requirement—presumably reducing
the number of similarly-situated persons to those who had obtained
a mathematical possibility of victory in the electoral college. But see
Philip Bump, So You Want an Independent Candidate for President?
You’re Running Out of Time., WASH. POST (May 5, 2016),
https://tinyurl.com/Bump-Article (“To collect [the requisite]
signatures [to achieve a mathematical possibility of winning the
electoral college], you need one of two things: a lot of organization
or a lot of money. . . . [The cost] varies by state, but if we look at
the upper end of that [price] range, we’re talking about a $5.5 million
investment to get on the ballot in all 50 states.”). Of course,
counsel’s particular litigation strategy—the way they choose to
characterize the effect of the alleged injury—hardly controls our
analysis on this point.
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rejected from the debates, and security would no doubt have
stopped them each individually had they attempted to take the
Things become far more complicated, however, when we
consider whether “a favorable decision” of this Court may
“redress” Plaintiffs’ injury. Lujan, 504 U.S. at 561.
Plaintiffs’ requested relief—whether stated in the form of a
request for injunctive relief or damages—amounts to a request
for a declaratory judgment stating the Commission is not
entitled to exclude particular individuals from its debates. On
this point, we must agree with this Court’s opinion in Perot v.
Federal Election Commission: “[I]f this [C]ourt were to enjoin
the [Commission] from staging the debates or from choosing
debate participants, there would be a substantial argument that
the [C]ourt would itself violate the [Commission’s] First
Amendment rights.” 97 F.3d at 559.
Acknowledging this shortcoming hardly determines the
merits of Plaintiffs’ claims, Concurring Op. 3; it assumes them
and reflects on the permissibility of the resulting remedy. The
district court’s opinion put all parties on notice of the
redressability problem. See Johnson, 202 F. Supp. 3d at 172–
73 (citing Perot, 97 F.3d at 559; Sistrunk v. City of Strongsville,
99 F.3d 194, 199–200 (6th Cir. 1996)). Yet Plaintiffs failed to
address the point. In so doing, they leave us with, at least, grave
doubt as to the constitutionality of any order issued by this
Court aimed to redress Plaintiffs’ injury.
In such circumstances, and where a statutory jurisdiction
could determine the result, the doctrine of constitutional
avoidance permits us to resolve this case on alternative
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grounds, namely antitrust standing. See 13B CHARLES A.
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3531.15, p.338 (3d ed. 2014) (“If
both constitutional and prudential objections are raised to
standing . . . it is entirely appropriate to deny standing on
prudential grounds if that course is easier, or more clearly right,
than to rule on constitutional grounds first.”); see also Kowalski
v. Tesmer, 543 U.S. 125, 129 & n.2 (2004) (assuming plaintiffs
satisfied Article III standing and deciding the case on
prudential third-party standing grounds).
This Court has acknowledged its “jurisdiction does not
turn on antitrust standing.” In re Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d 98, 107–08 (D.C. Cir. 2002) (citing
Associated Gen. Contractors of California, Inc., 459 U.S. at
535 n.31 (“[T]he focus of the doctrine of ‘antitrust standing’ is
somewhat different from that of standing as a constitutional
doctrine.”)). The concurrence, therefore, suggests we cannot
“sidestep” the Article III standing inquiry to resolve this case
on antitrust standing grounds. Concurring Op. 1. But
proceeding directly to clearly-dispositive, non-jurisdictional,
prudential standing analysis is a permissible—even
preferable—course in rare cases where jurisdictional, Article
III standing inquiry yields grave constitutional doubt. See, e.g.,
Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918,
921 n.2 (D.C. Cir. 1989) (“The dissent suggests that our
analysis of standing must proceed from constitutional to
prudential requirements. Although that is the oft-stated
sequence, the rule of avoidance counsels nonetheless that,
where the prudential question is clearly dispositive, we should
not reach out to determine the constitutional issue.”
(citing Water Transp. Ass’n v. ICC, 819 F.2d 1189, 1194 (D.C.
Cir. 1987); Calumet Indust., Inc. v. Brock, 807 F.2d 225, 228
(D.C. Cir. 1986); Pub. Citizen v. Lockheed Aircraft Corp., 565
F.2d 708, 714 (D.C. Cir. 1977)); see also Steel Co. v. Citizens
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for a Better Env’t, 523 U.S. 83, 97 n.2 (1998) (accepting the
proposition that “a statutory standing question can be given
priority over an Article III question”). This more flexible
approach is especially important in cases like this one, where
“constitutional and antitrust standing overlap”—cases “where
the plaintiff has not shown any injury caused by the antitrust
violation.” IIA PHILIP E. AREEDA, ET AL., ANTITRUST LAW
¶ 335a, p. 77 n.7 (4th ed. 2014).
As relevant here, antitrust standing requires a plaintiff to
show an actual or threatened injury “of the type the antitrust
laws were intended to prevent” that was caused by the
defendant’s alleged wrongdoing. Andrx Pharm., Inc., 256 F.3d
at 812; see also Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S.
104, 109–13 (1986) (discussing antitrust standing and the
necessity of “antitrust injury” in suits under the Clayton Act).
To understand the scope of antitrust standing, we focus on
the bedrock principle of this field: antitrust laws protect market
(i.e. economic) competition. Brunswick Corp. v. Pueblo BowlO-Mat, Inc., 429 U.S. 477, 488 (1977). Plaintiffs, however,
define their injuries as millions of dollars in free media,
campaign donations, and federal matching funds—injuries to
them as individual candidates in a political contest for votes.
Square peg, meet round hole.
As an initial matter, this Court has clearly held injury to a
single competitor does not suffice to constitute an injury to
competition. See Dial A Car, Inc. v. Transp., Inc., 82 F.3d 484,
486–87 (D.C. Cir. 1996). Further, and most important, “neither
the business of conducting the government nor the holding of
a political office constitutes ‘trade or commerce’ within the
meaning of the Sherman Act.” Sheppard v. Lee, 929 F.2d 496,
498 (9th Cir. 1991). This conclusion—that an antitrust
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violation must involve injury to commercial competition—is
supported by Plaintiffs’ inability to define a commercial market
in which they operate. Instead, they discuss the “presidential
campaign market,” “the electoral politics market,” and the
“presidential candidates market,” Compl. ¶¶ 1, 11, JA 15, 18,
and identify their product as “information about themselves or
other presidential candidates,” Blue Br. 23. While these terms
may capture what political scientists call a “political
economy,” the phrase is merely a term of art. Short of alleging
Americans are engaged in a widespread practice of selling their
votes—which the Complaint does not do—the “market”
Plaintiffs identify is no more regulated by the antitrust laws
than the “marketplace of ideas” or a “meet market.”
The injuries Plaintiffs claim are simply not those
contemplated by the antitrust laws. Consequently, Plaintiffs’
antitrust claims fail to meet the requirements of antitrust
Finally, we turn to Plaintiffs’ First Amendment claim.
Perhaps in an effort to tack around unfavorable case law, the
Complaint states the Commission’s debates “exert a de facto
influence on the outcome of presidential elections” such that
exclusion from the debate, “in light of proven political realities,
guaranteed [Plaintiffs] to lose.” Compl. ¶¶ 110–11, JA 54.
Plaintiffs therefore allege the fifteen percent polling criterion,
“selected by Defendants with the specific intent of suppressing
the viewpoints of third party or independent presidential
candidates and to boost the political speech of the two major
party nominees,” constitutes an “unreasonable burden on free
speech or political association in violation of the First
Amendment.” Compl. ¶¶ 119–20, JA 56; see also id. ¶ 130, JA
57 (alleging the fifteen percent requirement “imposes a burden
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on voting and associational rights in violation of the First
Amendment”); see generally Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666 (1998).
None of these allegations articulate a clear legal claim, let
alone identify a cognizable injury. To make matters worse, the
Complaint omits entirely any allegation of government action,
focusing entirely on the actions of the nonprofit Defendants.
See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 837–43 (1982)
(discussing the state action requirement).
In Steel Co. v. Citizens for a Better Environment, the
Supreme Court observed that, in some “extraordinary” cases,
federal courts may pretermit the jurisdictional threshold and
dismiss a claim that is “so insubstantial, implausible,
foreclosed by prior decisions of [the Supreme] Court, or
otherwise completely devoid of merit as not to involve a federal
controversy.” 523 U.S. at 89. The First Amendment claim
here fits the bill. Under these circumstances, it would be
improper—and indeed impossible—for the Court to conduct a
meaningful standing analysis. There may be First Amendment
injuries we could invent for Plaintiffs, but those claims were
not presented in the Complaint. See Warth v. Seldin, 422 U.S.
490, 509–10 (1975) (examining the face of the complaint to
determine whether a plaintiff has established Article III
For the foregoing reasons, the judgment of the district
court is affirmed.
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PILLARD, Circuit Judge, concurring in Part I and
concurring in the judgment:
I join Part I of the majority opinion. I write separately as
to Parts II and III because, although I entirely agree that both
the antitrust and First Amendment claims fail, we are a court of
limited jurisdiction obligated to decide the Article III standing
question before assessing the merits of the claims.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-42 (2006);
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528
U.S. 167, 180 (2000). Despite its misleading name, “statutory
standing” is not jurisdictional in the Article III sense, as the
Supreme Court made clear in Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1387 & n.4 (2014).
See also Associated General Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 528 & nn.17-18,
545-46 (1983) (dismissing case for lack of antitrust injury only
after assuming the complaint stated a valid antitrust claim). We
thus cannot sidestep the Article III standing inquiry and dismiss
instead on statutory “antitrust standing” grounds. “It is firmly
established in our cases that the absence of a valid (as opposed
to arguable) cause of action does not implicate subject-matter
jurisdiction, i.e., the courts’ statutory or constitutional power
to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89 (1998). Because I would dismiss both claims
under Rule 12(b)(6) only after determining Article III standing,
I concur in the judgment.
The majority’s exertions to avoid addressing Article III
standing in the ordinary course are puzzling, given that
plaintiffs’ standing appears to be straightforward under the
classic injury-causation-redressability formulation. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The majority
does not dispute that the plaintiffs (“Johnson and Stein”)
identify concrete and particularized injury from having been
excluded from the 2012 presidential and vice-presidential
debates. Maj. Op. at 6 (acknowledging that Johnson and
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Stein’s “injuries are clearly pleaded in the Complaint” and are
“particularized”). The court stops short of holding that Johnson
and Stein’s injury is fairly traceable to the defendants’ actions,
however, see id. at 8 (suggesting they have “not shown any
injury caused by the antitrust violation”), and also denies that,
in the (admittedly unlikely) event that they were to succeed on
the merits of their claims, plaintiffs’ injuries would be
Plaintiffs’ allegations satisfy the latter two standing
inquiries as readily as they do the first. Johnson and Stein
allege that the challenged 15 per cent polled-support
requirement was the direct cause of their injury. Had the MOU
not imposed that 15 per cent threshold, they would have
qualified to participate. See Compl. ¶ 83, J.A. 48. Those
allegations suffice at the pleading stage to state causation. See
Attias v. CareFirst, Inc., No. 16-7108, slip op. at 15 (D.C. Cir.
Aug. 1, 2017) (“Article III standing does not require that the
defendant be the most immediate cause, or even a proximate
cause, of the plaintiffs’ injuries; it requires only that those
injuries be ‘fairly traceable’ to the defendant.”). And the
redressability of Johnson and Stein’s alleged injury flows from
their theory of causation. If they were to prevail, the court
could award compensation for the injuries their exclusion
caused. See Sprint Commc’ns Co. v. APCC Servs., Inc., 554
U.S. 269, 286-87 (2008); see also Cardenas v. Smith, 733 F.2d
909, 914 (D.C. Cir. 1984) (“A damage claim, by definition,
presents a means to redress an injury.”); Renal Physicians
Ass’n v. U.S. Dep’t of Health and Human Servs., 489 F.3d
1267, 1276 (D.C. Cir. 2007) (“[A]t the pleading stage, a party
must make factual allegations showing that the relief it seeks
will be likely to redress its injury.”).
It is that last element of standing—redressability—that the
majority cannot swallow, as it anticipates that any court-
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ordered relief would violate the Commission’s First
Amendment rights. Maj. Op. at 7. I assume the court is correct
on that point. See Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995);
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258
(1974). I disagree only with treating the merits of a First
Amendment defense not yet in issue as an obstacle to standing.
The majority cites a passing suggestion in Perot v. FEC that, if
the court were to enjoin presidential debates or the Commission
on Presidential Debates’ (CPD’s) choice of participants, “there
would be a substantial argument that the court would itself
violate the CPD’s First Amendment rights.” 97 F.3d 553, 559
(D.C. Cir. 1996). Again, I assume as much. But we did not
identify the First Amendment as an obstacle to standing in
Perot—nor, for example, did the Supreme Court in Hurley or
A standing inquiry, especially at the motion-to-dismiss
stage, should not anticipate the merits—neither of the claim
nor, especially, of a potential defense. A conclusion that
appellants’ claims cannot be redressed because of a potential
First Amendment obstacle would be impermissibly “deciding
the merits under the guise of determining the plaintiff[s’]
standing.” Information Handling Servs., Inc. v. Defense
Automated Printing Servs., 338 F.3d 1024, 1030 (D.C. Cir.
2003); see Warth v. Seldin, 422 U.S. 490, 500 (1975)
(observing that “standing in no way depends on the merits of
the plaintiff’s contention that particular conduct is illegal”); In
re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008) (“In
reviewing the standing question, we must be ‘careful not to
decide the questions on the merits for or against the plaintiff,
and must therefore assume that on the merits the plaintiffs
would be successful in their claims.’”). Redressability, like any
other aspect of jurisdiction, “is not defeated . . . by the
possibility that the averments might fail to state a cause of
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action on which petitioners could actually recover.” Bell v.
Hood, 327 U.S. 678, 682 (1946). The majority explains its
order of operations by invoking pre-Lexmark cases for
dismissal on statutory standing grounds “in rare cases where
[the] jurisdictional, Article III standing inquiry yields grave
constitutional doubt.” Maj. Op. at 8. But, as noted above, the
First Amendment concern is not even part of the Article III
standing inquiry; Johnson and Stein’s standing itself raises no
grave or doubtful constitutional question. I would therefore
hold that Plaintiffs have Article III standing to bring their
antitrust claims before I would dismiss them on their merits.
The majority dismisses the complaint on antitrust standing
grounds because plaintiffs do not allege injury to competition,
but rather identify harms to themselves that are “simply not
those contemplated by the antitrust laws.” Maj. Op. at 10. I
agree that the antitrust claim fatally fails to tie the major party
candidates’ alleged collusion to any anticompetitive harm to an
identified commercial market or market participant. The
complaint does not articulate a theory under which trade or
commerce has been restrained by the MOU. It therefore falls
outside the ambit of antitrust regulation, the aim of which is to
promote economic competition. See I PHILLIP E. AREEDA ET
AL., ANTITRUST LAW ¶ 100a at 3-4 (4th ed. 2014); cf. United
States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972)
(“Antitrust laws in general, and the Sherman Act in particular,
are the Magna Carta of free enterprise.”); N. Pac. Ry. Co. v.
United States, 356 U.S. 1, 4 (1958) (describing Sherman Act as
“comprehensive charter of economic liberty”).
The complaint refers to various “markets,” but the defining
competitive dynamic of the activities it so labels is political. It
alleges, for instance, collusion in the “presidential debates
market,” the “presidential campaign market,” the “electoral
politics market,” and the “presidential candidates market.”
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Compl. ¶¶ 1, 11, J.A. 15, 18. That flaw is not repaired by the
complaint’s allegations of various ways in which U.S.
presidential campaigns involve a lot of money. The televised
debates are expensive to stage, generate revenues for venues
and their host localities, and can boost the fundraising of
successful participants. See id. ¶¶ 35-41, J.A. 29-33. But “the
antitrust laws should not regulate political activities ‘simply
because those activities have a commercial impact.’” Allied
Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 507
(1988) (quoting Eastern R.R. Presidents Conf. v. Noerr Motor
Freight, Inc., 365 U.S. 127, 141 (1961)). Nor is antitrust
scrutiny triggered every time someone in an activity that
involves or affects commerce contends that others have agreed
to act in a way that fails equally to enhance the claimant’s
access to money. Not every joint business venture is an
antitrust violation. See Associated Press v. United States, 326
U.S. 1, 23 (1945) (Douglas, J., concurring). To be actionable,
an agreement must unduly restrain or monopolize trade or
commerce. See Standard Oil Co. v. United States, 221 U.S. 1,
The majority and I agree that the complaint fails for want
of any connection between the major party candidates’ alleged
collusion in planning and restricting their joint debates and
anticompetitive harm to an identified commercial market. But
I disagree that the deficiency is only one of antitrust standing.
Because the claim would equally be deficient if the plaintiff
were the government, which need not prove statutory standing,
I would affirm the dismissal as a failure to state a cognizable
violation rather than as a statutory standing shortfall. See
AREEDA, ANTITRUST LAW ¶ 335f at 91.
Part III of the opinion, dismissing Johnson and Stein’s
First Amendment challenge to their exclusion, also puts the
merits cart before the Article III standing horse. I would
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dismiss this claim, too, for failure to state a claim rather than
for want of standing. The constitutional allegations plainly fail
the established “state action” requirement. “It is fundamental
that the First Amendment prohibits governmental infringement
on the right of free speech.” Rendell-Baker v. Kohn, 457 U.S.
830, 837 (1982) (emphasis added). Moreover, a candidate
debate is a forum that, even if run by a public entity, could still
be nonpublic and impose reasonable, viewpoint-neutral access
restrictions without running afoul of the First Amendment. See
Arkansas Educ. Tel. Comm’n v. Forbes, 523 U.S. 666, 677-78
Both of plaintiffs’ claims lack merit. Before so deciding,
however, we must determine whether plaintiffs have standing.
To do so, we must take the allegations of the complaint as true
and assume the validity of the plaintiffs’ legal theory. Mendoza
v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (citing Holistic
Candlers and Consumers Ass’n v. FDA, 664 F.3d 940, 943
(D.C. Cir. 2012)). Under those requisite assumptions (however
ultimately unavailing the claims might be), plaintiffs here have
standing to sue. I join Part I but, because this case presents no
reason to “pretermit the jurisdictional threshold,” Maj. Op. at
11, I concur only in the judgment.
Page 17 of 17
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