Antitrust Law Daily Wrap Up, ANTITRUST—D.D.C.: Libertarian, Green Parties’ presidential debate conspiracy, monopolization claims rejected, (Aug 8, 2016)

By Greg Hammond, J.D.

The Libertarian and Green Parties and their political candidates lacked standing and failed to state an antitrust claim against the Republican National Committee (RNC), Democratic National Committee (DNC), and the Commission on Presidential Debates (CPD) for purportedly conspiring 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, the federal district court in Washington, D.C. has determined. The Parties’ conspiracy and monopolization claims were therefore dismissed (Johnson v. Commission on Presidential Debates, August 5, 2016, Collyer, R.).

The Libertarian and Green Parties claimed that the RNC, DNC, CPD, and others exercised duopoly control over presidential and vice presidential debates in general election campaigns for the presidency, in an effort to exclude rival candidates and undermine competition in the presidential debates market, the presidential campaign market, and the electoral politics market of the two political parties. The Parties further claimed that the RNC, DNC, and CPD 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. The RNC, DNC, and CPD moved to dismiss the conspiracy and monopolization claims.

Article III standing. The court granted dismissal of the antitrust claims, finding first that the plaintiffs failed to allege a non-speculative injury traceable to the CPD. The alleged injuries—that to be excluded from the debates was an "electoral death sentence" and that exclusion from CPD-sponsored debates deprived the plaintiffs of free national advertising that was essential to the Libertarian and Green Party campaigns—were deemed wholly speculative and were completely dependent on media coverage decisions, according to the court. Rather, the injuries were caused by a lack of popular support of the candidates and their parties sufficient to attract media attention.

Antitrust standing. The plaintiffs also failed to allege that they suffered an antitrust injury, according to the court, and therefore lacked antitrust standing. The Libertarian and Green Parties claimed that they were harmed through loss of publicity, campaign contributions, and salaries the individual candidate plaintiffs would have received as President or Vice President. However, harm to individuals was not antitrust injury, the court stated. Further, mere allegations that presidential debates, elections, and politics were "markets" were insufficient to allege injury to competition in any particular market.

Injury to commercial market. Lastly, the court concluded that the plaintiffs failed to state an antitrust claim because they failed to allege an injury to competition in a commercial market. The court noted that the plaintiffs’ claims were based on competition among candidates for political office. However, presidential debates were quintessential political activities. Although the plaintiffs pointed to the millions of dollars that campaigns spend on elections and the revenue generated by communities that host debates, such commercial activity did not convert the debates and campaigns from political to commercial activity, the court concluded.

The case is No. 1:15-cv-01580-RMC.

Attorneys: Bruce Fein (Fein & Devalle PLLC) for Gary E. Johnson. Lewis Kleiman Loss (Loss, Judge & Ward, LLP) for Commission on Presidential Debates. Charles H. Bell, Jr. (Bell, McAndrews & Hiltachk, LLP) for Republican National Committee. Robert Felix Bauer (Perkins Coie LLP) for Democratic National Committee.

Companies: Commission on Presidential Debates; Republican National Committee; Democratic National Committee

Cases: Antitrust DistrictofColumbiaNews