The U.S. Court of Appeals for the D.C. Circuit, the federal appeals court based in Washington, D.C., made short work of a lawsuit brought by former third party presidential candidates Jill Stein and Gary Johnson, who argue their exclusion from televised presidential debates is unlawful.
The suit was brought in 2012 after Stein and Johnson were excluded from televised debates between former President Barack Obama and Gov. Mitt Romney. The pair argues that their exclusion violates federal anti-trust law and the First Amendment, to the extent their exclusion may represent viewpoint-based discrimination. They claim their absence from the debates costs them campaign contributions and free media.
A three judge panel of the D.C. Circuit was not convinced, and conveyed as much in an opinion written by Judge Janice Rogers Brown. The opinion was joined by Judge Laurence Silberman. Judge Nina Pillard joined in part and concurred in part.
“Every four years, we suffer through the celebration of democracy (and national nightmare) that is a presidential election,” Brown wrote in her opinion. “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.”
She goes on to make fairly short work of the anti-trust claim, concluding that the case had practically nothing to do with anti-trust law. Anti-trust laws exist to prevent the emergence of monopolies and preserve market competition. This case presented no issue of economic competition, as it strictly concerned an electoral contest. In other words, politicking is politicking, not a commercial market, and anti-trust law doesn’t apply.
“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,” Brown wrote. “Square peg, meet round hole.”
But Brown saved the most cutting analysis for the First Amendment claim, which she tersely concluded could not even be considered by the court. She explained that the Stein and Johnson campaigns had failed to state an actual legal claim, a failure she attributed to a poor attempt to navigate around unfavorable case law. She further explained that the Romney and Obama campaigns and the Commission on Presidential Debates are not government entities, meaning the First Amendment is not applicable against them. Brown wrote:
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.’ 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.
The opinion will be one of Brown’s last for the D.C. Circuit. She announced her retirement earlier this year, affording President Donald Trump his first appointment to the powerful appeals court.
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