Presidential Debate Exclusion Does Not Violate 1st Amendment

WASHINGTON (CN) – The D.C. Circuit upheld dismissal Tuesday of a challenge by former minor party candidates Gary Johnson and Jill Stein to their exclusions from the 2012 presidential and vice-presidential debates.

Johnson, who ran on the Libertarian ticket in 2012, and Stein, that year’s Green Party candidate, filed suit in 2015, claiming that the Obama and Romney campaigns purposefully cut them out from the campaign’s four debates in order to “entrench market power in the presidential debates market, the presidential campaign market and the electoral politics market,” according to their 70-page complaint.

The two candidates, who also ran in 2016, argued excluding them from the debates violated antitrust laws as well as the First Amendment. They particularly took exception with rules the nonprofit that runs the presidential debates put in place requiring, among other things, all debate participants to show at least 15 percent national support in major political polls.

But U.S. District Judge Rosemary Collyer dismissed the complaint in August 2016, ruling they did not have standing to bring the suit, that antitrust laws do not govern political markets and that the First Amendment does not prevent private parties like those that run the debates from leaving out candidates.

Johnson and Stein appealed the decision to the D.C. Circuit, a three-judge panel of which unanimously agreed with Collyer’s reasoning.

While Johnson and Stein argued before the circuit that the debate commission colluded with the major candidates to exclude minor parties from taking the debate stage, U.S. Circuit Judge Janice Rogers Brown wrote the candidates were not able to prove they had standing to challenge the scheme.

“The injuries plaintiffs claim are simply not those contemplated by the antitrust laws,” Brown wrote in an 11-page opinion. “Consequently, plaintiffs’ antitrust claims fail to meet the requirements of antitrust standing.”

Brown, who was appointed by George W. Bush, also wrote that Johnson and Stein did not make a “clear legal claim” in their First Amendment arguments by not raising any allegation that the government was restricting their speech. Without such a claim, Brown said the candidates’ First Amendment case must go the way of their failed presidential campaigns.

“Under these circumstances, it would be improper — and indeed impossible — for the court to conduct a meaningful standing analysis,” Brown wrote. “There may be First Amendment injuries we could invent for plaintiffs, but those claims were not presented in the complaint.”

U.S. Circuit Judge Cornelia Pillard, an Obama nominee, wrote a six-page concurring opinion in the case, saying while she agreed with the final judgment, she disagreed that the candidates didn’t have standing to bring the case, just that their arguments did not have merit.

Bruce Fein, an attorney with the firm Fein Devalle who argued for Stein and Johnson at the D.C. Circuit, said both candidates are “disappointed” in the ruling and have already decided to petition the circuit for a rehearing before an en banc panel of the court.

Fein particularly disagreed with Brown’s contention that the parties did not have standing for their antitrust claims, saying “politics and political campaigns today look like businesses.” He also questioned whether a court stocked with political appointees reliant upon “the status quo” would be able to accurately consider a case trying to challenge the two party system.

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