Jill Stein. Photo: Matt Johnson via Wikimedia Commons

Gary Johnson and Jill Stein haven’t forgotten the 2012 election, but the D.C. Circuit thinks it’s time to move on.

In an opinion Tuesday, Judge Janice Rogers Brown upheld a lower court’s dismissal of the two third-party candidates’ claims that their exclusion from the 2012 debates violated antitrust law by limiting competition in the “presidential debates market.” Brown wrote in the opinion that antitrust laws protect “market (i.e. economic) competition” and the plaintiffs’ claims that they were denied millions in free media and campaign contributions did not constitute commercial harm under the Sherman Act.

“Plaintiffs … 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.”

Stein was a Green Party candidate while Johnson ran as a Libertarian.

Bruce Fein of the D.C. firm Fein & DelValle represented the third-party candidates. He said he was disappointed the court refused to “grapple” with the issues and didn’t offer a clear explanation as to why the business of campaigns couldn’t be considered “market competition.”

Fein said he will ask the court to rehear the case en banc, and if unsuccessful, he’ll consider petitioning the U.S. Supreme Court.

“[The opinion] says, ‘well, this isn’t a commercial market.’ Well I understand that’s your conclusion but you haven’t explained why,” Fein said. “[Campaigns] estimate billions of dollars’ worth of branding value, and that’s not commerce? Why not?”

Lewis Loss, a partner at Loss, Judge & Ward in D.C., argued for the defendants, which include former President Barack Obama, Mitt Romney and the nonprofit Commission on Presidential Debates. Loss did not immediately respond to a request for comment.  

Johnson and Stein filed a lawsuit in 2015 challenging the 2012 agreement between the nonprofit Commission on Presidential Debates and then-presidential candidates Romney and Obama. The agreement said any candidate could participate in the planned presidential debates if he or she were constitutionally eligible to be president; qualified to appear on enough state ballots to have a chance at securing an electoral college majority in the election; and achieved a level of support of at least 15 percent in polls by selected polling organizations. Stein and Johnson satisfied the first two requirements, but not the last.

The commission maintained the same rules for the 2016 election. The district judge, U.S. District Judge Rosemary Collyer of the District of Columbia, dismissed the case in August 2016, rendering its potential implications for their chances to participate in the 2016 debates moot. Johnson and Stein were again excluded.

The candidates alleged there was a conspiracy among the two major parties to “entrench market power … by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency.” They also claimed the 15 percent rule was designed to keep them out of the debates and suppress their political viewpoints, in violation of the First Amendment.

But the court ruled that, in addition to failing to show they suffered harms consistent with antitrust law, Johnson and Stein failed on the First Amendment argument as well, because the commission is a nonprofit organization rather than a governmental one.

“None of these allegations articulate a clear legal claim, let alone identify a cognizable injury,” Brown wrote. “To make matters worse, the complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit defendants.”

Judge Cornelia Pillard wrote a concurring opinion, disagreeing slightly with the court’s decision that Johnson and Stein did not have standing because a decision in their favor, which would amount “to a declaratory judgement” that the commission couldn’t exclude individuals from its debates, would likely violate the commission’s First Amendment rights. Pillard wrote that, by deciding the permissibility of the remedy, the court jumped the gun and essentially decided the merits of the case.

“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,” Pillard wrote. “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.’”

Brown, who retires Thursday, also took a swipe at the entire presidential election process in her opinion.

“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,” Brown wrote.