No

In the 

Supreme Court of the United States ________________

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PetitionerV, v.

)('(5$/(/(&7,21&200,66,21, 

Respondent. ________________

ALEXANDRA A.E. SHAPIRO

Counsel of Record 

ERIC S. OLNEY

-$&2%6:2/)

SHAPIRO ARATO BACH LLP 

500 FIFTH AVENUE

40th Floor 

New York, NY 10110 

(212) 257-4880

ashapiro@shapiroarato.com

Counsel for PetitionerV

)HEUXDU\ , 202

On Petition for Writ of Certiorari to the 

United States Court of Appeals 

for the 'LVWULFWRI&ROXPELD Circuit

________________

5(3/<%5,())25PETITION(56

________________
TABLE OF CONTENTS 

 Page 

INTRODUCTION.........................................................1

I. WHETHER THE PARTISANSHIP OF A 

DEBATE-STAGING ORGANIZATION’S 

LEADERS CAN BE ATTRIBUTED TO THE 

ORGANIZATION ITSELF .................................. 3

II. WHETHER DEBATE-QUALIFYING 

CRITERIA THAT DISCRIMINATE 

AGAINST INDEPENDENT CANDIDATES 

CAN BE “OBJECTIVE” ...................................... 6

III. THE QUESTIONS PRESENTED ARE 

EXTREMELY IMPORTANT AND CANNOT 

SPLIT THE CIRCUITS ..................................... 10

CONCLUSION ......................................................... 13
ii 

TABLE OF AUTHORITIES 

 Page 

Cases

Alabama Libertarian Party v. Alabama Pub. 

Television, 

227 F. Supp. 2d 1213 (M.D. Ala. 2002) ................. 11 

Arkansas Educ. Television Comm’n v. Forbes, 

523 U.S. 666 (1998) .................................................. 8 

Becker v. FEC, 

230 F.3d 381 (1st Cir. 2000) .................................. 10 

Desert Palace, Inc. v. Costa, 

539 U.S. 90 (2003) .................................................... 5 

FTC v. Algoma Lumber Co., 

291 U.S. 67 (1934) .................................................... 5 

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) .............................................. 9 

Piccolo v. New York City Campaign Fin. Bd., 

No. 05-cv-7040, 2007 WL 2844939 

(S.D.N.Y. Sept. 28, 2007) ....................................... 11 

Sexton v. Beaudreaux, 

138 S. Ct. 2555 (2018) .............................................. 4 

U.S. Postal Serv. Bd. of Governors v. Aikens, 

460 U.S. 711 (1983) .................................................. 4 

Statutes

52 U.S.C. §30109(a)(8)(A) ..................................... 2, 11 

Regulations

11 C.F.R. §110.13(a) ............................................ 1, 3, 5

Other Authorities

60 Fed. Reg. 64,260-61 (Dec. 14, 1995) ....................... 9
INTRODUCTION 

As the distinguished amici supporting the petition 

attest, the questions presented are exceptionally 

important. That is because these questions bear on 

what choices American voters have for President of 

the United States. No law restricting that office to 

Democrats and Republicans would survive 

constitutional scrutiny. Yet the CPD has effectively 

imposed such a restriction using its monopoly over the 

presidential debates. It has been allowed to do so 

because the FEC has sanctioned the CPD’s violations 

of federal election law, and because the D.C. Circuit 

has misconstrued the relevant legal provisions. 

The FEC does not contest any of this. In fact, its 

opposition fails to rebut the vast majority of 

petitioners’ legal arguments. And what it does say is 

either demonstrably wrong or beside the point. 

First, the D.C. Circuit’s decision conflicts with this 

Court’s decisions and reduces the nonpartisanship 

requirement of 11 C.F.R. §110.13(a) to a nullity: It 

holds evidence of CPD directors’ partisan activities 

irrelevant to whether the organization “endorses,” 

“supports,” or “opposes” political candidates or parties 

in violation of §110.13(a). The FEC does not dispute 

the substance of these arguments. Instead, it claims 

the court of appeals and the agency did consider the 

extensive evidence of CPD leaders’ political activities. 

But it is clear from the face of the D.C. Circuit’s 

opinion (and the FEC’s own decision) that both bodies 

insisted on direct evidence of partisan statements, 

contributions or activity by the organization itself. 

This was a legal ruling, not a factual conclusion. 
2 

Second, in holding that the CPD’s 15% rule is 

“objective” because it uses a percentage, the D.C. 

Circuit defied the regulation’s plain meaning and 

history. The FEC does not dispute that the CPD’s 

criteria systematically bar independent candidates 

from the debates. Nor does it deny that under this 

Court’s longstanding precedent, such a discriminatory 

policy is the antithesis of “objective.” Instead, it raises 

an assortment of red herrings and misstatements: e.g., 

a citation to a dictionary which confirms that 

“objective” means “without bias” and “nonpartisan”; 

and claims about the regulation’s history that are 

belied by the FEC’s own pronouncements in the 

Federal Register. None of these arguments can 

overcome the traditional tools of construction, which 

show that a criterion cannot be objective if it 

systematically excludes independent candidates. 

The importance of the questions raised are selfevident, and as a practical matter this is the only 

vehicle in which they can be addressed. The FEC 

notes the lack of a circuit conflict and asserts that 

these issues could be litigated in other venues. But 

the lawsuits it cites raise issues completely distinct 

from the questions presented. The FEC also 

disregards the statute conferring exclusive 

jurisdiction for the questions presented on the District 

Court for the District of Columbia, 52 U.S.C. 

§30109(a)(8)(A). That statute gives the D.C. Circuit 

the last word on the subject unless this Court reviews 

its decision. This Court should grant certiorari; 

otherwise, the CPD will have free rein to continue 

violating FECA and thwarting American voters’ 

desire for robust political competition in presidential 

elections. 
3 

I. WHETHER THE PARTISANSHIP OF A 

DEBATE-STAGING ORGANIZATION’S 

LEADERS CAN BE ATTRIBUTED TO THE 

ORGANIZATION ITSELF 

No debate-staging organization funded by 

corporate contributions would ever make an explicit 

statement endorsing, supporting or opposing any 

candidate or party. Nor would any such organization 

directly make an illegal organizational campaign 

contribution. That would be tantamount to conceding 

the very partisanship that the regulation forbids. 11 

C.F.R. §110.13(a). But as amici Nonprofit Leaders, 

Scholars and Practitioners explain, any “distinction” 

between the partisan actions of a nonprofit 

organization and its leadership “does not and cannot 

exist,” particularly at an organization like the CPD 

that has no purpose other than staging candidate 

debates. Br. of Nonprofit Leaders, Scholars and 

Practitioners as Amicus Curiae, pp.6, 13. And there is 

similarly no distinction between a board member’s 

“official” and “personal” partisan actions—each 

creates actual and apparent conflicts of interest, 

which is why a “basic standard of governance” for 

nonprofits is to have formal conflict-of-interest policies 

prohibiting both. Id., pp.6, 13-14. 

Thus, as a practical matter evidence of an 

organization’s bias will inevitably take the form of 

circumstantial evidence about the conduct of the 

individuals who run the organization. Unless such 

evidence can be considered, neither the CPD nor any 

other partisan debate-staging organization can ever 

be held accountable for violating the regulation. 

Moreover, this Court has repeatedly held that 
4 

plaintiffs may “prove [their] case by direct or 

circumstantial evidence,” and should not be 

categorically barred from introducing circumstantial 

evidence. U.S. Postal Serv. Bd. of Governors v. Aikens, 

460 U.S. 711, 714 n.3 (1983) (emphasis added); see also 

Pet.21-22. 

The FEC does not deny (or even address) any of 

this. Instead, it insists that neither the D.C. Circuit 

nor the agency actually “imposed any...categorical 

rule” refusing to consider evidence of the CPD leaders’ 

partisan activities. BIO.8. But the D.C. Circuit 

clearly considered such evidence legally irrelevant. 

The court said a full-fledged “organizational 

endorsement” was required to establish partisan bias 

in violation of the regulation. App.7a. Indeed, the 

court chastised petitioners for not identifying “a single 

instance of a donation to a Democrat or Republican 

that was made by the CPD or one of its leaders acting 

in his or her official capacity.” App.9a-10a. Although 

the D.C. Circuit did characterize some evidence as old 

(BIO.7), it dismissed that evidence because it was the 

“personal view” of CPD leadership, rather than an 

organizational endorsement. App.7a. 

The FEC also points to a boilerplate recitation of 

the legal standard in its own decision about whether 

the evidence “demonstrates directly or supports a 

reasonable inference that the CPD has endorsed or 

supported” the major parties. BIO.8 (quoting 

App.92a). While this language arguably pays “lip 

service” to the consideration of circumstantial 

evidence, that is all it does; it does not alter the 

substance of the FEC’s decision, which categorically 

excluded the evidence. See, e.g., Sexton v. Beaudreaux, 
5 

138 S. Ct. 2555, 2560-61 (2018) (reversing judgment 

where lower court “only tack[ed] on a perfunctory 

statement at the end of its analysis” but otherwise 

“essentially...disregarded” correct “standard”); FTC v. 

Algoma Lumber Co., 291 U.S. 67, 73 (1934) (Cardozo, 

J.) (reversing decision that “profess[ed] adherence to” 

the correct legal standard but “honored it...with lip 

service only”). Indeed, the FEC expressly disregarded 

the “mountain” of circumstantial evidence 

establishing the CPD’s partisanship precisely because

it concluded that this evidence did not qualify as a 

direct admission. See App.103a-104a (requiring an 

“official” act of partisanship that a CPD director 

performed directly “on behalf of the CPD” or “as [an] 

agent[] of CPD”). 

For the same reason, the FEC’s attempts to 

dismiss petitioners’ arguments as “factbound” and 

assert that it “reasonably explained why it found 

petitioners’ evidence inadequate” to establish the 

CPD’s partisanship are unavailing. BIO.9. The 

categorical exclusion of circumstantial evidence is a 

legal error, not a factual one. As explained (Pet.21), 

the “law makes no distinction between the weight or 

value to be given to either direct or circumstantial 

evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 

100 (2003). This Court therefore prohibits 

“restrict[ing] a litigant to the presentation of direct 

evidence absent some affirmative directive in a 

statute.” Id. Yet the FEC did just that. Its legal error, 

endorsed by the D.C. Circuit, makes it impossible to 

enforce §110.13(a) against any debate-staging 

organization, no matter how obvious it is that the 

organization supports or endorses parties and their 
6 

candidates in violation of that provision. Only this 

Court can rectify that error. 

II. WHETHER DEBATE-QUALIFYING 

CRITERIA THAT DISCRIMINATE 

AGAINST INDEPENDENT CANDIDATES 

CAN BE “OBJECTIVE” 

 The FEC does not dispute that in practice, the 

CPD’s 15% criterion bars independent candidates 

from the debate stage. By any definition, such a 

discriminatory policy is not “objective.” Indeed, the 

government makes no effort to refute petitioners’ 

principal arguments: 

x That dictionaries define “objective” as 

“disinterested” and “without bias” and 

as synonymous with “equitable,” 

“evenhanded,” “fair,” and “nonpartisan” 

(Pet. 27); 

x That the FEC interprets “objective” to 

mean that a criterion “must...not [be] 

designed to result in the selection of 

certain pre-chosen participants” 

(Pet.28); 

x That this Court has repeatedly held 

that a facially objective law can be 

discriminatory in operation (Pet.28-29); 

x That no truly independent candidate 

has ever satisfied the 15% criterion 

(Pet.30); 

x That an independent would need to 

raise hundreds of millions of dollars to 

stand a chance of polling at 15%, yet 
7 

cannot raise the requisite sums of 

money absent a meaningful chance of 

appearing in the debate (Pet.31-32); 

x That polls are not based on “externally 

verifiable” facts because the CPD 

retains complete discretion over which 

polls to use and selects the polls based 

on the subjective evaluation of a single 

pollster (Pet. 27, 32); 

x That polling is a demonstrably 

unreliable indicator of which candidates 

have a realistic chance at the 

Presidency, and its failings 

disproportionately disadvantage 

independent candidates (Pet.33-34); 

and 

x That the CPD uses polls that do not 

even include independent candidates 

for president, giving them no chance of 

qualifying (Pet.32-33). 

Taken together, these arguments conclusively 

establish that the 15% criterion is not objective. Yet 

rather than address these dispositive arguments, the 

FEC instead offers a handful of inapposite, inaccurate, 

and disingenuous assertions. 

First, the FEC cherry-picks one definition of 

“objective.” BIO.9. But as noted, objective is also 

defined—by one of the very sources on which the FEC 

relies—as “disinterested” and “[w]ithout bias,” and as 

synonymous with “equitable,” “evenhanded,” “fair,” 

and “nonpartisan.” Pet.27. The FEC does not even try 
8 

to argue that the 15% rule is “objective” under these 

definitions, because it plainly is not. 

Second, the FEC’s contention that petitioners 

have “failed to produce evidence” of poll 

“manipulation” by the CPD (BIO.11) misses the point. 

The CPD has complete discretion over what polls it 

will select and when it will select them, allowing it to 

pick and choose polls that will enable it to exclude 

independent candidates. Pet.32-33. In other words, 

“manipulation” is permitted under the CPD’s criterion, 

which is precisely why the criterion itself is not 

objective—it is, by its own terms, subject to 

manipulation. Moreover, the CPD has used polls that 

did not even test the popularity of the independent 

candidates. Pet.32-33. How can a metric be 

“objective” if the debate sponsor can and does choose 

polls that do not even attempt to measure the 

independent candidates’ levels of support? 

Third, based on a single inapposite case, the FEC 

concludes that a 15% polling threshold “accords with 

this Court’s precedents.” BIO.9-10. But that case, 

Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 

666 (1998), has nothing to do with either a 15% polling 

threshold or an FEC regulation. It merely stands for 

the proposition that the First Amendment does not 

require a debate sponsor to “allow unlimited access to 

a candidate debate.” Id. at 676. The Court thus held 

that a debate sponsor could constitutionally exclude a 

nonserious candidate with “no appreciable public 

interest,” who admitted his campaign was “bedlam” 

and listed his headquarters as “his house.” Id. at 682-

683. This petition does not implicate the First 

Amendment, and petitioners do not assert that every 
9 

nonserious candidate for president must be included 

in the debates. Petitioners merely contend that the 

15% polling threshold is impermissibly designed to 

exclude all candidates other than those from the two 

major parties. 

Fourth, the FEC’s claim of consistency “with the 

agency’s longstanding application” of the term 

“objective” is irrelevant and misleading. BIO.10. It is 

true that the FEC has repeatedly refused to find that 

the CPD’s 15% criteria lacks objectivity. But the 

agency’s past failure to accord “objective” its plain 

meaning does not make that erroneous prior 

construction correct. The FEC does not even argue 

that the term is “genuinely ambiguous” after 

exhausting “all the ‘traditional tools’ of construction,” 

so its interpretation is owed no deference. Kisor v. 

Wilkie, 139 S. Ct. 2400, 2415 (2019). Indeed, the 

“history” and “purpose” of the regulation, id., show 

that in its own original “explanation and justification” 

of this regulation the FEC itself interpreted “objective” 

the same way petitioners do. At that time, the FEC 

explained that “objective” criteria “must...not [be] 

designed to result in the selection of certain prechosen participants.” 60 Fed. Reg. 64,260-61 (Dec. 14, 

1995). Thus, under the FEC’s actual “longstanding 

application,” a criterion that works to systematically 

exclude independent candidates is not objective. 

Finally, the FEC’s assertion that the criterion is 

not subjective “merely because it is difficult to reach” 

(BIO.11), proceeds from a false premise. The FEC 

claims George Wallace, John Anderson, and Ross 

Perot satisfied the 15% criterion and that this shows 

independents can meet the threshold. But two of the 
10 

cited examples (Wallace and Anderson) were 

prominent major-party elected officials who became 

well-known by competing for a major-party 

presidential nomination prior to launching their 

independent candidacies. Pet.30. Neither of them 

was truly “independent.” And Ross Perot would not

have satisfied the 15% criterion: He was polling at 

less than 10% at the relevant time, a fact the FEC 

conceded below. See Pet. 10, 30; C.A.App.367. 

In any event, petitioners do not argue that the 

15% criterion is invalid because it is “difficult to 

reach.” The criterion is not objective because it is easy 

to reach for the major party candidates but nearly 

impossible for any independent candidate to satisfy, 

functionally ensuring that only Democrats and 

Republicans are invited to the debates. See Pet.30-34.

III. THE QUESTIONS PRESENTED ARE 

EXTREMELY IMPORTANT AND CANNOT 

SPLIT THE CIRCUITS 

The FEC’s argument that the issues raised here 

can be litigated in other circuits is dead wrong and 

reflects a fundamental misunderstanding of the 

nature of this petition. It does not involve a “facial 

challenge” to the FEC’s “debate regulation” itself, as 

was the case in Becker v. FEC, 230 F.3d 381, 383 (1st 

Cir. 2000). Petitioners are not challenging the FEC’s 

regulation; on the contrary, they seek to enforce that 

regulation.1 Nor is this action a constitutional 

1 The FEC incorrectly asserts that petitioners’ unsuccessful 

petition for rulemaking was a “challenge[] [to] the FEC’s debate 

regulations.” BIO.12. But the rulemaking petition did not 
11 

challenge “to debate criteria in state and local races,” 

as was the case in Alabama Libertarian Party v. 

Alabama Pub. Television, 227 F. Supp. 2d 1213 (M.D. 

Ala. 2002) (First Amendment challenge to Alabama 

TV station’s gubernatorial debate criteria) and Piccolo 

v. New York City Campaign Fin. Bd., No. 05-cv-7040, 

2007 WL 2844939 (S.D.N.Y. Sept. 28, 2007) 

(constitutional challenge to New York City’s mayoral 

debate criteria). BIO.12. Rather, this is a case about 

the application of the FEC’s existing regulations and 

its failure to enforce them. The only way to bring such 

an action is to file an administrative complaint with 

the FEC itself and, if the complaint is dismissed, to 

appeal the dismissal to the District Court for the 

District of Columbia. See 52 U.S.C. §30109(a)(8)(A). 

Thus, absent this Court’s review, the opinion below 

will indeed be the “last word” on the two questions 

presented as to the meaning of the FEC’s regulations. 

The FEC completely ignores the founders’ 

concerns about the dangers of a two-party system. See 

Pet.35-36. Instead, it hyperbolically accuses 

petitioners of seeking to “restructure” America’s 

political “system,” which has been dominated by two 

parties. BIO.12. That is nonsense. The only remedy 

petitioners seek from their lawsuit is an order that 

would require the FEC to do its job and enforce its own 

regulations as written. This request is hardly radical. 

Indeed, it is joined by numerous distinguished amici, 

including Admiral James Stavridis, former Senators 

Joseph Lieberman and Robert Kerrey, Admiral 

challenge the validity of the FEC’s regulations. It merely 

requested that the FEC open a rulemaking to consider modifying

its existing regulations. App.164a. 
12 

Dennis Blair, and former Governor Christine Todd 

Whitman, among others. Yet the FEC has nothing to 

say in response to any of the three amicus briefs 

urging this Court to grant certiorari. 

The legal issues presented here implicate a matter 

of immense importance: who can make a serious run 

for the Presidency. These questions go to the heart of 

American democracy and cannot be raised in any 

forum other than the D.C. Circuit. If this Court does 

not intervene, an unaccountable private debatestaging organization will continue violating federal 

election law. And it will do so to prevent American 

voters from considering any presidential candidates 

other than those nominated by the Democratic and 

Republican parties. The result, as President 

Washington warned in his farewell address, will be 

the “alternate domination of one faction over another, 

sharpened by the spirit of revenge, natural to party 

dissension, which...leads at length to a more formal 

and permanent despotism.” George Washington, 

Farewell Address (Sept. 19, 1796).
13 

CONCLUSION 

For the foregoing reasons and those set forth in 

the petition, this Court should grant the petition. 

Respectfully submitted, 

ALEXANDRA A.E. SHAPIRO

Counsel of Record 

ERIC S. OLNEY

JACOB S. WOLF

SHAPIRO ARATO BACH LLP 

500 FIFTH AVENUE

40th Floor 

New York, NY 10110 

(212) 257-4880 

ashapiro@shapiroarato.com 

Counsel for Petitioners 

February 26, 2021