candidates the express exemption exception for nonpartisan activity designed to encourage individuals to vote and register to vote is the issue here in order to get nonprofit organizations to stage remands decisions in this case are arbitrary capricious and contrary to law for a number of reasons they disregard and misrepresent critical evidence the reasoning is contrived and protects you all and in the context of the  rejected its own general counsel's recommendation to find problems a certain reason to believe that the statute was being violated then in two million two thousand and four the f e c dismissed complaints involving the current rule that we a reason to believe that the regulation was being violated and that it was a reasonable person could easily disagree with the f e c is credibility findings and that an ordinary person might easily find reason to  believe then we have this case and in this case what happens nearly fifteen years later the f e c initially simply ignores the people of the petition and the administrative complaint and only back to after opponents brought a lawsuit to have any eligibility requirement to keep to a minimum showing in the polls potentially yes the issue here is that since fifty percent is too high but five percent would be ok i think there's nothing in the record that would indicate that lowering the polling threshold by sufficient amount would create the kind of problem that we see with the fifteen percent threshold there are other how how he how his five percent or whatever you know whatever the number is five percent two percent how how is it any less  priest stablished in advance and how assuming it were and how is it any less subjective the reason that it could be worse objective and to be clear we're not advocating any particular polling threshold that the evidence shows that fifteen percent in particular is so high that no one other than a self funded billionaire who's not previously one is a democrat a republican couldn't cheat and here you're making an argument that the rule is overly restrictive but i'm not sure you're making an argument that the rule is objective and one percent is fifteen percent just as five percent would be five percent well i think respectfully or i think you have to take it in the context of this particular organization and its history the c p p and i think the history of it starting back at the beginning it was as as the record makes clear it was founded the then chairman of the republican and democratic parties they announced that the purpose was to create a permanent framework for debates between the two parties nominees and then mr perelman coffee remains the chairman of the organization this continues to be stacked and has been for the last three decades with many other partisans who are actively involved in in the politics of those two parties including donating money and acting to help the campaigns the nominees who participate in the debates and so i think you have to take the fifteen percent not just as a question in a vacuum of whether fifteen percent might otherwise be objective but consider the history the partisanship of the rule well the fifteen percent rule has never specifically come to this court as such the only court decision that directly addresses an argument that the fifteen percent is not objective is the district court's decision in buchanan and working with gallium do with the district court's decision you care of upholding the fifteen percent as i understand there was no appeal over was we time and one of the things that opponents have done here and which the district court recognized in its initial opinion is presented abundantly additional evidence of what has happened in the year since including not only the fact that no one else evidence in the record at the time and we presented an abundant evidence that in the ensuing fifteen years of both partisanship on the part of the c p p the fact that no one has little did as well as these two expert  submissions and a ton of other evidence demonstrating that fifteen percent is simply not objective in the sense that it is clearly in light of all the circumstantial evidence preclude because the fact the mere fact that it may in many election cycles preclude the participation of independents is not inconsistent with the statute well i think that's correct in the sense that it's it ties into the for the soprano a of the regulation which provides that the organization essentially has to be truly nonpartisan and cannot you can't support the rect and i think it w ould not be up here challenging the fifteen percent rule if this organization was truly nonpartisan and there was an extensive decades long evidence that the people who run it and have chosen this will in the face of all  evidence suggesting that it's designed to exclude and independent have continued to to adopt it and i would point out there are many other ways to do this and as for example the amicus fair vote has pointed out other countries  many states in this country have rules that keep debate participants to a manageable number and yet allow multiple candidates on the station we're not advocating any particular way of doing that  fifteen percent support in five major poses is not the only criteria that's the criteria that we're not challenging the other criteria other criteria is that the individual has to have registered enough of debate sponsoring organizations to take reasonable measures to limit the number of debate participants they have to be truly objective that's the issue and indeed if the core if the c p d were to drop the only requirement and just candidates would exclude him do you know what the criteria was for i don't remember off the top i have my recollection is that they were actually fairly subjective criteria i think they were subject  were not at issue in that case it was just a pure st amendment case against the media and indeed justice stevens pointed out in his dissent that that there was this debate this rule that would have applied if they were under under ordinary standards of review because scrutinize this more more stringently i take it you are not claiming that under ordinary standards you know that that's not intended to express any  but it's we're not really in a position to point to all the evidence that refutes it because it's outside the administrative record one of the questions informational i read someplace that may have been your brief or may get to seventy one number goes down to way below ten ok so below ten did you say typically yes in fact in the last few elections cycles i think it would have resulted in maybe two or three additional candidates beyond the two major party nominees the most the last twenty years the most number of candidates that i'm aware of that's been on an on the ballot in enough states to achieve to seventy was the year two thousand when there were i think a total of five years thank you  morning or honors i'm hearing word on behalf of the federal election commission may please the court the commission is not unsympathetic to the challenges that rd party and independent candidates face however the supreme court has held that it is not an acceptable governmental objective to level the playing field or to otherwise the time to equalise can evade financial resources supreme court has not found that these are merely an important goals it is found them to be illegitimate goals let's let's focus on the statutory question whether this organization supports the party was a record and the actual conflict of interest policy but you are going or in terms of assessing whether or not it is important to have for an organisation to have these types of documents two things st is that whether or not they have prophylactic policies in place does not insult evidence whether or not they were acting in a biased or other otherwise inappropriate manner that would not that is not a basis for the commission to find reason to believe a nd your honor is that the presidential debate commission went far beyond what the supreme what the there also was a longstanding informal agreement amongst the board members that they were going to act an official capacity in any campaign but if you're looking at right there for example of board members campaign contributions it is crystal clear if the donation is coming from back particular individual board member versus the commission on presidential debates there was no evidence in the record that the  commission of presidential debate itself was making campaign contributions there also is no evidence of in the record that would be the commission on presidential debates otherwise endorsed supported or for parties because it's support for the two major parties and you don't disagree as a legal matter that were the presidential debate commission and in fact supporting let's see equally both the major parties that that would be having a debate itself that is compliant with f e c regulations is not did so and deemed to constitute supporting the major parties but that's a much more complicated question a question that before us what  what i'm asking is if there were evidence for example that the board works and let's do what's best for the major parties and let's set rules that make sure that we don't have anybody else on the debate commission decision no way indicate otherwise that's expressly what they're looking at they're looking at what is the activity that may contribute tributed to a new organization itself to determine whether or not  single particular party so right now and for a long time you have an independent member in the river but then you don't have a quorum right not not currently to that your honor but in part because their their arguments are broader you know there's this capable repetition be baiting review exception the problem is that he's got that exception it's been applied by the supreme court only exclusively when the two proponents or opponents are the same but here the two for two thousand and twenty  don't know whether it's going to be the same or not there's no question there's been no specific declaration addressing two thousand and twenty just to get the timing as far as i know however generally they have alleged that they will continue for their point we're making here is that the statements and act political activities of the people who own the c p d are evidence of the organization as a whole partisan just as when it when taken in the context of its history hell was founded and so forth and the only conflict of interest policy which council mentioned which is in the record is the financial policy and as the a miki from the nonprofit sector have pointed out that's not sufficient just generally  and in terms of good governance but particularly in a context like this one and no one is arguing that people can't participate in partisan activities the question is whether people who are so active in partisan activities should be running an organization that completely reforms it's leadership and it's paul so you know so in other words if you prevail there's no presidential debate this you know i disagree with that your honor there's no reason that presidential debates for example couldn't  organization more about that other organizations like the media itself or the league of women voters to host their own presidential debate that would be great but i think the point of this is that the c b d has sort of  taken over this role if you will partly because it is dominated by those who wish to exclude candidates other than the do major party nominees and it has as its chairman admitted institutionalize