So held the District Court for the District of Columbia in Johnson v. Commission on Presidential Debates, No. 15-1580 (RMC) (D.D.C. August 5, 2016). There, the Libertarian and Green Parties challenged decisions of the Commission on Presidential Debates to allow only the Democratic and Republican candidates for president to participate. The plaintiffs alleged that the Commission and other defendants conspired 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 of the two major political parties by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency.”
Not surprisingly, the district court dismissed the claims, ruling that the plaintiffs lacked both standing and antitrust standing. The court also ruled that presidential debates and elections are not markets and do not involve commercial activity within the scope of the Sherman Act. The Sherman Act is malleable, but not that malleable.