No. __________ 

In the 

Supreme Court of the United States ________________

/(9(/7+(3/$<,1*),(/'3(7(5$&.(50$1*5((1

3$57<2)7+(81,7('67$7(6DQG/,%(57$5,$1

1$7,21$/&200,77((,1&

PetitionerV, v.

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

Respondent. ________________

On Petition for Writ of Certiorari to the 

United States Court of Appeals 

for the 'LVWULFWRI&ROXPELD Circuit 

________________

PETITION FOR WRIT OF CERTIORARI 

________________

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

1RYHPEHU 9, 2020 
QUESTIONS PRESENTED 

1. Whether the partisan political activities of a

debate-staging organization’s decisionmakers bear 

upon whether the organization “endorse[s], support[s], 

or oppose[s] political candidates or political parties” in 

violation of 11 C.F.R. §110.13(a). 

2. Whether criteria for determining which

presidential candidates are invited to participate in 

general election debates are “objective” under 11 

C.F.R. §110.13(c) if only major party candidates can 

satisfy the criteria. 
ii

PARTIES TO THE PROCEEDING 

Level the Playing Field, Peter Ackerman, Green 

Party of the United States (“Green Party”), and the 

Libertarian National Committee, Inc. (“Libertarian 

Party”) are the petitioners here and were the 

plaintiffs-appellants below. 

The Federal Election Commission (“FEC”) is the 

respondent here and was the defendant-appellee 

below. 
iii

CORPORATE DISCLOSURE STATEMENT 

Petitioner Level the Playing Field is a not-forprofit organization incorporated under the laws of 

Virginia. Petitioner Libertarian Party is a not-forprofit organization incorporated under the laws of the 

District of Columbia. No petitioner has a corporate 

parent or a publicly-held company that owns 10% or 

more of its stock.
iv

RELATED CASES 

Level the Playing Field v. FEC, No. 15 Civ. 1397 (TSC), 

U.S. District Court for the District of Columbia. 

Judgment entered March 31, 2019. 

Level the Playing Field v. FEC, No. 19-5117, United 

States Court of Appeals for the District of 

Columbia Circuit. Judgment entered June 12, 

2020. 
v

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

RELATED CASES ..................................................... iv

TABLE OF AUTHORITIES ..................................... vii

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

OPINIONS BELOW.... .............................................. 4

JURISDICTION ......................................................... 4

STATUTORY AND REGULATORY 

PROVISIONS INVOLVED ........................................ 4

STATEMENT OF THE CASE ................................... 4

A. Background ...................................................... 4

B. Proceedings Before The FEC And District 

Court ............................................................... 12

C. D.C. Circuit Decision ..................................... 16

REASONS FOR GRANTING CERTIORARI .......... 17

I. WHETHER THE PARTISANSHIP OF A 

DEBATE-STAGING ORGANIZATION’S 

LEADERS CAN BE ATTRIBUTED TO 

THE ORGANIZATION ITSELF ................... 19

II. WHETHER DEBATE-QUALIFYING 

CRITERIA THAT DISCRIMINATE 

AGAINST INDEPENDENT 

CANDIDATES CAN BE “OBJECTIVE” ....... 26

A. A Criterion Is Not “Objective” When It Is 

Discriminatory In Practice ............................ 26
vi

B. This Case Is An Excellent Vehicle Because 

The 15% Criterion Is Not Objective .............. 30

III. THE QUESTIONS PRESENTED ARE

EXTREMELY IMPORTANT ......................... 34

CONCLUSION ......................................................... 39 

APPENDICES: 

Appendix A: Opinion of the United States Court 

of Appeals for the District of Columbia Circuit 

(June 12, 2020) ......................................................... 1a 

Appendix B: Memorandum Opinion of the United 

States District Court for the District of Columbia 

(March 31, 2019) ..................................................... 16a 

Appendix C: Factual and Legal Analysis of MURs 

6869 and 6942 (March 31, 2017) ............................ 71a 

Appendix D: Supplemental Notice of Disposition 

(March 29, 2017) ................................................... 123a 

Appendix E: Memorandum Opinion of the United 

States District Court for the District of Columbia 

(February 1, 2017) ................................................ 155a 

Appendix F: Relevant Statutes and 

Regulations ........................................................... 191a 
vii

TABLE OF AUTHORITIES 

Cases

Bethune-Hill v. Virginia State Bd. of 

Elections,

137 S. Ct. 788 (2017) .............................................. 22 

Browning-Ferris Indus. of Vermont, Inc. v. 

Kelco Disposal, Inc., 

492 U.S. 257 (1989) ................................................ 22 

Church of the Lukumi Babalu Aye, Inc. v. 

City of Hialeah, 

508 U.S. 520 (1993) ................................................ 29

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003) .................................................. 21 

Epperson v. Arkansas, 

393 U.S. 97 (1968) .................................................. 29 

Everson v. Board of Educ., 

330 U.S. 1 (1947) .................................................... 29 

Farmer v. Brennan, 

511 U.S. 825 (1994) ................................................ 21 

FEC v. Democratic Senatorial Campaign 

Comm., 

454 U.S. 27 (1981) ............................................ 12, 22 

Griffin v. Illinois, 

351 U.S. 12 (1956) .................................................. 28

Hunt v. Cromartie,

526 U.S. 541 (1999) ................................................ 22 

Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) ...................................... 20, 27 
viii

Korte v. Sebelius, 

735 F.3d 654 (7th Cir. 2013) .................................. 22

Larson v. Valente,

456 U.S. 228 (1982) ................................................ 29 

McCutcheon v. FEC, 

572 U.S. 185 (2014) .................................................. 5 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) .................................. 28 

Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133 (2000) ................................................ 21

Rogers v. Missouri Pac. R.R. Co., 

352 U.S. 500 (1957) ................................................ 22 

Santa Fe Indep. Sch. Dist. v. Doe, 

530 U.S. 290 (2000) ................................................ 29

Shaffer v. Heitner, 

433 U.S. 186 (1977) ................................................ 22 

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

460 U.S. 711 (1983) ................................................ 21 

United States v. Clarke, 

573 U.S. 248 (2014) ................................................ 21

Williams v. Illinois, 

399 U.S. 235 (1970) ................................................ 28

Statutes

28 U.S.C. §1254 .......................................................... 4 

52 U.S.C. §30101 .................................................. 5, 28 

52 U.S.C. §30109 ................................................ 12, 38

52 U.S.C. §30118 ........................................................ 5 
ix

Regulations

11 C.F.R. §110.13 .............................................. passim

11 C.F.R. §114.4 .......................................................... 6 

Other Authorities

44 Fed. Reg. 76,734 (Dec. 27, 1979) ......................... 28 

60 Fed. Reg. 64,260-01 (Dec. 14, 1995) ................ 6, 28

Black’s Law Dictionary (11th ed. 2019) ................... 27

Restatement (First) of Agency §288................... 16, 25 
INTRODUCTION 

This case relates to an issue of paramount 

importance: who can participate in the presidential 

debates held before the general election every four 

years. No one can be elected president without 

participating in these debates, and 76% of Americans 

believe someone who is not a Democrat or Republican 

deserves serious consideration for the Presidency and 

should participate in the debates. Indeed, a plurality 

of Americans identify as independents, and 86% feel 

the two-party political system does not serve the 

interests of the American people.1 Yet for decades, a 

small group of unelected, unaccountable Democratic 

and Republican party insiders have violated federal 

law by using the Commission on Presidential Debates 

to prevent Americans from hearing from an 

independent candidate. The CPD stifles competition 

through a selection criterion designed to create an 

insurmountable hurdle for any candidate other than 

the Democratic and Republican nominees. The result 

is that the only options ever presented to voters are 

the major-party nominees. 

The CPD and its exclusionary debate-qualifying 

criterion violate federal election law. Under the 

Federal Election Campaign Act (“FECA”) and its 

regulations, a debate-staging organization that, like 

the CPD, accepts corporate donations, must be 

nonpartisan: It may not “endorse, support, or oppose” 

any candidate or political party and must use 

“objective” criteria to determine which candidates are 

1 C.A.App.386, 606. “Independent candidate” refers to 

candidates who are either unaffiliated with any political party or 

affiliated with a third party. 
2 

invited to its debates. The CPD has violated these 

provisions ever since it was founded for the express 

purpose of “strengthening the role” of the two major 

parties. It is not nonpartisan; it is bipartisan, 

comprised entirely of Democratic and Republican 

insiders who endorse their own parties’ candidates, 

host partisan fundraisers, donate massive sums to 

Republican and Democratic campaigns, and openly 

support the very Republicans and Democrats who 

appear in CPD-sponsored debates. Some have even 

admitted the CPD’s goal was to “exclude third-party 

candidates” from the debates. And they have erected 

an insurmountable hurdle: a polling benchmark that 

no independent candidate has or could ever satisfy. 

Yet the Federal Election Commission found no 

reason to believe the CPD violates FECA. This Court’s 

intervention is needed because the D.C. Circuit—the 

only Circuit that can review FEC decisions—

misconstrued both prongs of the governing regulation. 

First, the D.C. Circuit held that only an express 

“organizational endorsement” of, or illegal direct 

contribution to, a party or its candidates violates 

federal law. It therefore upheld the FEC’s categorical 

exclusion of (per the district court) a “mountain of 

submitted evidence” of CPD leaders’ partisan 

activities—even though no organization would ever 

formally announce its own violation of the law. The 

D.C. Circuit’s decision defies this Court’s decisions 

insisting that such circumstantial evidence of bias 

cannot be categorically excluded—and gives 

corporate-funded debate sponsors carte blanche to 

violate the regulation but easily evade enforcement. 
3 

Second, the D.C. Circuit held that the CPD’s 

debate-qualifying criterion is “objective” because it 

uses a percentage, restricting debates to candidates 

who have “a level of support of at least 15%...of the 

national electorate as determined by” five unspecified 

polls at an unspecified time. But using a number does 

not make a criterion objective. Plain meaning and the 

regulation’s history dictate that a criterion that 

systematically excludes independent candidates is not 

objective, and as 2020 reaffirms, polling numbers can 

be wildly inaccurate. Experience in three-way 

gubernatorial races shows that independent 

candidates polling below 15% can win the general 

election if they are invited to debates. Yet legitimate 

contenders for the Presidency are excluded and even 

dissuaded from even running by the 15% rule. 

These questions concern a matter of obvious and 

critical importance—who can meaningfully run for 

President of the United States. Without access to the 

debates, independent candidates are barred from 

consideration. The D.C. Circuit and FEC decisions 

violate the regulation they purport to interpret. And, 

by fortifying the two-party duopoly, they defy the 

wishes of the Founding Fathers, who deeply 

mistrusted an entrenched two-party system and 

correctly predicted that it would result in extremism 

that alienates citizens. Because federal courts in the 

D.C. Circuit have exclusive jurisdiction over FECA 

suits, there is no prospect of further percolation of this 

issue. Accordingly, this case is the ideal, and likely 

only, vehicle to address whether the CPD should be 

permitted to defy the popular will and the plain 

meaning of the regulation by willfully depriving the 

American people of choice in presidential elections. 
4 

OPINIONS BELOW 

The D.C. Circuit’s opinion is reported at 961 F.3d 

462 and reprinted at App.1a–15a. The district court’s 

opinions are reported at 381 F. Supp. 3d 78 and 232 F. 

Supp. 3d 130 and reprinted at App.16a–70a and 155a–

190a. The FEC’s enforcement decision is unreported 

and reprinted at App.71a–122a. The FEC’s 

rulemaking decision is reported at 82 Fed. Reg. 

15468-74, and reprinted at App.123a–154a. 

JURISDICTION 

The D.C. Circuit issued its opinion on June 12, 

2020. On March 19, 2020, this Court issued an order 

extending the time to file petitions for certiorari by 150 

days, making the deadline for this petition November 

9, 2020. This Court has jurisdiction under 28 U.S.C. 

§1254(1).

STATUTORY AND REGULATORY 

PROVISIONS INVOLVED 

The relevant statutory and regulatory provisions 

are reproduced at App.191a–195a. 

STATEMENT OF THE CASE 

A. Background 

1. Petitioner Peter Ackerman is committed to

reforming the democratic process in the United States 

and abroad. He has served as Chairman of the Board 

of Overseers of Tufts University’s Fletcher School of 

Law and Diplomacy, and on the Board of Directors of 

the Council on Foreign Relations and multiple 

nonprofit organizations dedicated to promoting 

democracy and human rights. He founded Petitioner 

Level the Playing Field, a nonpartisan, non-profit 
5 

organization which promotes reforms to enhance 

competition and choice in federal elections. 

The other petitioners are the Libertarian Party, 

which has nominated presidential candidates in every 

election since 1972, and the Green Party, which has 

nominated candidates in every presidential election 

since 2000. 

Petitioners are supported by prominent amici 

from the government, academic and non-profit 

communities, including, inter alia, Admiral James 

Stavridis, former governor Christine Todd Whitman, 

former Senator Bob Kerry, and Admiral Dennis Blair. 

See C.A.Dkt.1808275, 1808194, 1808105. 

2. The questions presented relate to the

interpretation of an FEC regulation promulgated 

pursuant to FECA. The statute prohibits corporations 

from making a “contribution or expenditure in 

connection with” federal elections. 52 U.S.C. 

§30118(a). The purpose of this prohibition is to “limit

quid pro quo corruption and its appearance.” 

McCutcheon v. FEC, 572 U.S. 185, 197 (2014). 

However, a safe harbor exempts corporate 

expenditures for “nonpartisan activity designed to 

encourage individuals to vote or to register to vote,” 

which do not raise corruption concerns. 52 U.S.C. 

§30101(9)(B)(ii).

Corporate funding therefore may only be used to 

stage nonpartisan candidate debates. To lawfully 

receive and spend corporate funds, a debate-staging 

organization (1) cannot “endorse, support, or oppose 

political candidates or political parties,” and (2) “must 

use pre-established objective criteria to determine 

which candidates may participate in a debate.” 11 
6 

C.F.R. §§110.13(a), (c), 114.4(f). The FEC has 

confirmed that “pre-established objective criteria” 

cannot be “designed to result in the selection of certain 

pre-chosen participants.” 60 Fed. Reg. 64,260-01 (Dec. 

14, 1995); C.A.App.105, 133, 181, 249. 

3. The CPD has used corporate funding to stage

every general election presidential and vicepresidential debate since 1988. C.A.App.1095. These 

debates were previously sponsored by the League of 

Women Voters, but in 1985, the Democratic and 

Republican parties entered an “Agreement on 

Presidential Candidate Joint Appearances” providing 

that all future debates would be “jointly sponsored and 

conducted by the Republican[s] and Democrat[s].” 

C.A.App.850. The CPD was formed in 1987 to 

implement this agreement and “forge a permanent 

framework on which all future presidential debates 

between the nominees of the two political parties will 

be based.” C.A.App.855 (emphasis added). The CPD’s 

express purpose was “to inform the American 

electorate on the[] philosophies and policies” of “the 

Democratic and Republican parties” and to 

“strengthen the role of [these] parties” in presidential 

elections. C.A.App.850, 854-55. Republican Party 

chairman Frank Fahrenkopf indicated at the time 

that the CPD “was not likely to look with favor on 

including third-party candidates in the debates.” 

C.A.App.857. His Democratic counterpart, Paul Kirk, 

agreed that “the [CPD] should exclude third-party 

candidates.” Id. 

Consistent with its self-described partisan 

purposes, the CPD has always been co-chaired by a 

prominent Republican and Democrat. Fahrenkopf has 
7 

been the co-chair since the CPD’s inception, despite 

remaining deeply enmeshed in the Republican party. 

He has donated over $130,000 to Republican 

candidates, including two (George W. Bush and John 

McCain) who appeared in CPD-sponsored debates. 

E.g., C.A.App.919-26. In 2011 he penned an op-ed 

addressed to Republicans extolling “our great party.” 

C.A.App.929. 

Kirk was the CPD’s Democratic chair until 2009, 

when Michael McCurry, a longtime Democratic power 

broker and former press secretary to President Bill 

Clinton, replaced him. C.A.App.911, 914, 1097-98. 

McCurry donated over $110,000 to Democrats during 

his tenure at the CPD, including Barack Obama and 

Hillary Clinton close in time to their appearance in 

CPD debates.2 E.g., C.A.App.916. 

The chairs have always stocked the CPD’s board 

with equally powerful Democrats and Republicans, 

who have actively supported those parties and their 

presidential candidates while serving as CPD 

directors. C.A.App.911, 1094. For example, Richard 

Parsons donated more than $100,000 to Republican 

candidates and committees between 2008 and 2012 

and gave the maximum contribution to Jeb Bush and 

Hillary Clinton in 2015. E.g., C.A.App.916. Thendirector Howard Buffett contributed to Barack 

Obama’s 2008 presidential campaign in the same 

month that Obama appeared in a CPD debate. 

C.A.App.946. Democratic aide Newton Minow made 

at least 30 contributions to Democrats between 2008 

2 McCurry was replaced by Democrat Dorothy Ridings after the 

2016 election. C.A.App.1286. 
8 

and 2016. C.A.Dkt.1807168, p.12. Former 

Democratic Congresswoman Jane Harman made 55 

contributions during that same period and published 

a 2016 op-ed identifying Hillary Clinton as the 

presidential candidate best “equipped to lead us into 

the future.” C.A.App.395-96. Former Republican 

Senator Olympia Snowe contributed over $8,000 to 

Republican candidates during the 2016 election cycle. 

C.A.App.396. Antonia Hernandez, former counsel to 

Ted Kennedy’s Judiciary Committee, made the 

maximum contribution to Hillary Clinton prior to 

Clinton’s appearance in CPD debates. 

C.A.Dkt.1807168, p.12. And former Republican 

Senator John Danforth, who endorses “whichever 

Republican is on the ballot,” contributed $28,300 to 

Republican candidates in 2016-17. C.A.App.396. 

The CPD has no oversight mechanism to curb this 

overt partisanship. Its conflict of interest rules do not 

address partisan political activities. C.A.App.1075-

78. Nor does the CPD have an institutionalized 

process for nominating or selecting its board members, 

enabling the chairs to pack the board with fellow 

partisan politicos. The CPD now says it has an 

“informal policy...that Board Members are to refrain 

from serving in any official capacity with a political 

campaign.” C.A.App.1297. This “policy,” which 

conveniently surfaced for the first time in this 

litigation, is unenforceable by definition—no one need 

comply with an “informal” policy—and the CPD’s 

leadership casually violates it. C.A.App.407. The 

CPD also claims it enacted a “formal ‘Political 

Activities Policy’” after this litigation was filed, 

App.104a, but has refused to disclose the purported 

policy. Instead the CPD supplied a vague, one-
9 

sentence description, which itself confirms that the 

“policy” prohibits nothing. App.104a-105a. As Amici 

Nonprofit Leaders, Scholars and Practitioners 

supporting petitioners have explained, these 

purported policies are “wholly inadequate to prevent 

actual conflicts of interest, much less the appearance 

thereof.” C.A.Dkt.1808275, p.5. 

4. The CPD’s leadership has made no bones about 

its desire to exclude independent candidates from 

CPD-sponsored debates, and that is precisely what 

they have done. For example, former CPD director 

and Republican Senator Alan Simpson said the CPD’s 

“purpose...is to try to preserve the two-party system,” 

and that independent candidates should “not be 

included in the debates” because they “mess things 

up.” C.A.App.26, 1165. Former CPD director and 

Democratic Representative John Lewis asserted that 

“the two major parties [have] absolute control of the 

presidential debate process.” C.A.App.1165. 

Consequently, the only independent candidate to 

appear in a CPD-sponsored debate—Ross Perot in 

1992—did so at the explicit request of the major party 

nominees, both of whom perceived an advantage to his 

participation. C.A.App.282, 700, 889-90. In 1996, the 

major parties changed their mind about Perot’s debate 

participation, and the CPD accordingly excluded him. 

C.A.App.700. 

In 2000, the CPD adopted new debate-qualifying 

criteria designed to exclude candidates other than the 

Democratic and Republican nominees. These criteria, 

which remain in effect, restrict the debates to 

candidates who have “a level of support of at least 

15%...of the national electorate” as determined by five 
10 

unspecified “national...polling organizations” at an 

unspecified time in the September before the election. 

C.A.App.1118, 1308.3 

This “15% rule” is designed to, and does, 

systematically exclude independent candidates, none 

of whom have been invited to the debates since it was 

instituted. Even Perot, who participated before the 

15% rule, would not have qualified under the rule, 

because he was polling at less than 10% at the 

relevant time. C.A.App.367, 701. 

There are numerous reasons why the 15% rule 

systematically excludes candidates other than the 

major-party nominees. Petitioners’ expert evidence 

shows—and common sense dictates—that only a wellfunded independent challenger could wrest such a 

substantial vote share from the major-party nominees. 

C.A.App.1034-35. Those nominees spend a combined 

$2-3 billion each election cycle, enjoy a default level of 

support from partisan voters, and benefit from the 

widespread media coverage of the major parties’ 

presidential primaries. C.A.App.966. Independent 

candidates, by contrast, must rely on paid media to 

reach voters. Only a self-funded billionaire could 

realistically hope to compete as an independent, 

because participation in the debates is a prerequisite 

for victory, and few donors will fund candidates whose 

participation in the debates is uncertain. 

That is just the first hurdle an independent 

candidate must overcome. The CPD also retains 

3 Participants must also be constitutionally eligible to serve as 

President and must appear on the ballot in enough states to 

garner 270 electoral votes. Petitioners do not challenge those 

criteria. 
11 

complete discretion about what polls to use, when the 

polls are conducted, and when to choose debate 

participants, enabling it to select polls that put 

independent candidates below the 15% threshold. 

C.A.App.1117-18, 1308-09. Indeed, the CPD 

sometimes uses polls that do not even include 

independent candidates. C.A.App.1127. 

Furthermore, polling in three-way races is subject to 

increased error rates. C.A.App.985. This means 

independents effectively need to poll at 25% to ensure 

that their support is measured at 15% by whichever 

polls the CPD chooses. C.A.Dkt.1808105, p.17. And 

independent candidates attract new voters who “are 

politically inactive or even unregistered until 

mobilized by a compelling candidate,” and thus 

undercounted in polls. C.A.App.1044. 

Meanwhile, three-way gubernatorial elections 

prove that independent candidates polling below 15% 

in September can easily come back to win the 

election—if they are allowed to debate. C.A.App.720. 

Indeed, Perot polled at under 10% before the 1992 

debates, but earned nearly 20% of the popular vote. 

C.A.App.621, 873. It is therefore unsurprising that 

the American people strongly favor including more 

than two candidates in the general election debates. 

Barring independents prevents voters from choosing 

among potentially viable candidates for the nation’s 

highest office. See, e.g., C.A.App.761, 786. Yet the 

CPD’s polling hurdle is so prohibitive that its mere 

existence dissuades prominent amici and other 

qualified prospective independent candidates from 

running in the first place, as these amici have 

explained. C.A.Dkt.1808194, pp.9-11. 
12 

5. The FEC is “inherently bipartisan,” FEC v.

Democratic Senatorial Campaign Comm., 454 U.S. 27, 

37 (1981), and has expressly stated that it shares the 

CPD’s “desire to strengthen party organizations,” 

C.A.App.547. Not surprisingly, therefore, the FEC 

has summarily rejected every single one of many 

administrative challenges to the CPD’s partisan 

structure and biased selection criteria. C.A.App.240-

79. Indeed, in response to one such challenge, the

FEC’s own General Counsel concluded based on the 

extensive evidence of the CPD’s partisanship that 

there was “reason to believe” that the CPD violated 

FECA and §110.13. The General Counsel 

recommended that the agency initiate an 

investigation into the CPD, but the FEC still refused 

to act. C.A.App.155-56, 162-63, 181. 

B. Proceedings Before The FEC And 

District Court 

1. Any person may file an administrative

complaint alleging a FECA violation. 52 U.S.C. 

§30109(a)(1). If the FEC finds “reason to believe” that

the party named in the complaint “has committed, or 

is about to commit, a violation,” it must “make an 

investigation.” Id. §30109(a)(2). “Any party aggrieved 

by” an FEC order dismissing an administrative 

complaint may challenge the FEC’s decision (or failure 

to act within 120 days) in the U.S. District Court for 

the District of Columbia. Id. §30109(a)(8). 

In 2014, petitioners filed administrative 

complaints against the CPD, its executive director, 

and the 11 directors who adopted the CPD’s rules for 

the 2012 presidential election. C.A.App.40-42, 81, 

664-739, 1223, 1229. The complaints alleged, inter 
13 

alia, that the CPD violated FECA’s expenditure and 

contribution rules. The complaints were supported by 

800 pages of evidence detailing the CPD leadership’s 

partisan activities and expert analyses quantifying 

the obstacles imposed by the 15% rule. 

The FEC ignored the complaints until after 

petitioners filed a lawsuit challenging the agency’s 

failure to act within 120 days. See Level the Playing 

Field v. FEC, No. 15-CV-961 (D.D.C.), Dkt.1. After the 

action was filed, the FEC quickly dismissed the 

complaint and a related petition for rulemaking.4 Its 

decision dismissing the complaint summarily 

concluded that there was no reason to believe the CPD 

or its leadership had violated FECA, ignoring 

petitioners’ evidence and rotely citing the agency’s 

dismissals of prior complaints against the CPD. 

C.A.App.1218-21, 1243-47. The dismissal of the 

rulemaking—over the dissent of two commissioners—

was similarly conclusory: The FEC said enforcement 

was sufficient to deal with the problems petitioners 

identified—even though the agency for decades 

refused to enforce its regulation against the CPD. 

C.A.App.662-63. 

2. On August 27, 2015, petitioners filed an action 

seeking review of the FEC’s decisions. On February 1, 

4 The petition sought a rulemaking to amend the FEC’s 

regulation and prohibit debate-stagers from using a polling 

threshold as the exclusive means of accessing the presidential 

general election debates. C.A.App.599-631. All of the petition’s 

approximately 1,260 commenters (except for the CPD itself) 

supported opening a rulemaking. C.A.App.661. The questions 

presented in this petition concern only the interpretation of the 

FEC’s existing regulation and do not implicate the denial of the 

rulemaking. 
14 

2017, the district court vacated the decisions as 

“arbitrary and capricious” and “contrary to law.” 

App.183a-184a, 189a-190a. The court held that the 

FEC had relied on a legal standard “contrary to the 

plain text of the regulation” and that the FEC “did not 

provide any indication that it actually considered” the 

“mountain of submitted evidence” supporting 

petitioners’ claims, even though the “weight of [this] 

evidence is...substantial.” App.171a, 175a, 180a, 

183a. Finding that the FEC had “stuck its head in the 

sand and ignored the evidence,” the court remanded 

the matter to the agency to reconsider its decisions. 

App.189a-190a. 

3. On March 29, 2017, the FEC issued new 

decisions reaching the same result. App.71a-154a. 

This time, in addressing the evidence of the CPD’s 

deep partisan ties and favoritism toward the major 

parties, the FEC said that the CPD’s leaders did not 

act in their “official capacity” when they endorsed or 

supported political parties or their candidates. 

App.103a; see also App.103a-104a (“there is no 

indication that they act on behalf of CPD” or “as 

agents of CPD”); App.99a (CPD director statements 

“are not indicative of CPD’s organizational

endorsement of or support for the Democratic and 

Republican Parties”). Rather, according to the FEC, 

those individuals “may wear ‘multiple hats,’” and their 

partisan activities—even when supporting candidates 

who appear in CPD debates—are merely “personal.” 

App.102a-103a.5

5 The FEC also claimed that evidence related to the CPD’s 

founding and earlier operation “d[id] not necessarily reflect the 
15 

The FEC also concluded that the CPD’s biased 

candidate selection rule is “objective.” App.105a-121a. 

The FEC agreed that to be “objective,” criteria cannot 

be “designed to result in the selection of certain prechosen participants,” but concluded that the CPD met 

this standard based on a series of demonstrably 

incorrect assertions. App.107a. For example, 

independent candidates must spend enormous 

amounts on paid media, because unlike major-party 

candidates they attract little news coverage. To 

counter this evidence, the FEC claimed that a 

Westlaw news database showed Libertarian Party 

candidate Gary Johnson received substantial press in 

2016. App.137a. But the FEC counted numerous 

articles about other people named Gary Johnson, 

including athletes, chefs, museum presidents, doctors, 

lawyers, and musicians all named Gary Johnson. As 

another example, the FEC brushed aside one of 

petitioners’ expert reports purportedly because the 

expert limited his analysis to polls conducted “at the 

early stages of the party primary process” App.134a, 

even though the report explicitly incorporated “late 

primary” and “general” election polling data. 

C.A.App.986. 

Petitioners challenged the FEC’s post-remand 

decisions in a Supplemental Complaint filed on May 

organization’s perspective” in 2012—without pointing to any 

evidence that the CPD leaders’ partisan objectives have ever 

changed. App.97a-99a. The FEC also claimed it was “not clear” 

that this evidence reflected “an endorsement of, or support for, 

the Democratic and Republican Parties” (App.95a-96a), even 

though that is exactly what the evidence—such as Fahrenkopf’s 

statement that the CPD “was not likely to look with favor on 

including third-party candidates in the debates”—demonstrates. 
16 

26, 2017. C.A.App.308. On March 31, 2019, the 

district court awarded summary judgment to the FEC. 

App.17a. The court’s opinion restated the FEC’s 

justifications, with virtually no serious attempt to 

evaluate whether they met the legal standard under 

FECA or the APA. App.45a-70a. 

C. D.C. Circuit Decision

The D.C. Circuit affirmed. It did not dispute that, 

as the district court had initially concluded, a 

“mountain of evidence” established the partisanship of 

the CPD’s leadership. Instead, the court held that it 

was “reasonable” for the FEC to conclude that this 

evidence was “not indicative of CPD’s organizational

endorsement of or support for the Democratic and 

Republican Parties and their candidates.” App.7a. 

The court found that “individuals may support 

political candidates when acting in their personal 

capacities, even if they would be prohibited from doing 

so in their professional capacities.” App.10a. The 

court purported to ground this conclusion in the law of 

agency, holding that “for an agent’s statement to be 

attributable to the principal, the ‘speaking must be 

done in the capacity of agent and connected with the 

business of the principal.’” App.10a (quoting 

Restatement (First) of Agency §288 cmt. b). Thus, the 

court concluded, it was dispositive that Fahrenkopf, 

McCurry and other CPD leaders were not acting in 

their “official capacity” when engaging in partisan 

political activity. App.9a-10a. 

The court also held the CPD’s 15% polling 

criterion “objective.” The court agreed that there are 

“many reasons why it might be difficult for an 

independent candidate to achieve the support of 15% 
17 

of the electorate.” App.14a. Yet it found these reasons 

irrelevant and concluded that the polling criterion 

“does not become ‘subjective’ merely because it is 

difficult to reach” for independents. Id.

REASONS FOR GRANTING CERTIORARI 

I. Corporate-funded debate-staging organizations 

cannot “endorse,” “support” or “oppose” political 

parties or their candidates. 11 C.F.R. §110.13(a). 

Partisan activities by the organization’s leaders 

clearly bear on whether the organization itself has 

complied with this regulation. Indeed, this Court has 

repeatedly held that such circumstantial evidence can 

be as probative as direct evidence; that no plaintiff 

should be categorically prohibited from presenting it; 

and that circumstantial evidence is particularly 

important where, as here, the plaintiff is attempting 

to root out dishonesty or unlawful bias that 

defendants will inevitably deny. Yet the D.C. Circuit 

held that abundant evidence of partisan activities by 

the CPD’s leaders was legally irrelevant to whether 

the organization violated the regulation. It held that 

the only acceptable form of proof of the organization’s 

bias is direct evidence: official acts of partisanship by 

or formally on behalf of the organization. 

That holding conflicts with this Court’s decisions 

and reduces the regulation’s nonpartisanship 

requirement to a nullity: It allows people to operate a 

corporate-funded debate staging organization for 

partisan purposes so long as they don’t officially 

declare on the organization’s letterhead or website 

that that is what they are doing, or write a check from 

the organization’s bank account to a campaign. In 

other words, the D.C. Circuit’s decision enables people 
18 

to violate the rule but easily evade enforcement. This 

Court should grant review to prevent that result and 

ensure that the nonpartisanship provision is 

enforceable. 

II. To conclude that the CPD’s 15% criterion is 

“objective,” the D.C. Circuit and FEC turned the 

English language on its head and ignored all 

interpretive guides, including this Court’s precedent 

and the FEC’s stated rationale for the regulation. The 

court reasoned that the criterion is “objective” because 

it is facially neutral and ended its inquiry there. But 

this Court has made clear in other contexts that facial 

neutrality is not the touchstone of objectivity, and the 

FEC itself acknowledged as much when promulgating 

the regulation. The D.C. Circuit also completely 

ignored the subjectivity inherent in the CPD’s 

unilateral power to select which polls to rely on, as 

well as the unreliable and subjective nature of polling 

itself. When applied, the CPD’s 15% criterion 

functionally bars independents from the debates but 

guarantees entry to the major-party candidates. This 

Court should grant review to correct this flawed 

analysis and hold that a facially neutral criterion that 

has severe discriminatory effects cannot be 

“objective.”

III. This petition raises issues of the utmost 

importance to American democracy. Participation in 

the general election debates is a prerequisite to 

winning the Presidency, yet the CPD has barred 

independents for decades, ensuring that only the 

major-party candidates are invited to debate. The 

ensuing major-party duopoly has bred hyperpartisanship that has destroyed public confidence in 
19 

government and brought about the dire consequences 

George Washington warned about in his Farewell 

Address. The Founders never wanted the United 

States to be governed by two warring political parties, 

and most Americans are desperate for alternative 

options. This petition may be the only chance to 

resolve whether an unelected, unaccountable entity 

comprised of career partisan political operatives can 

undermine the American experiment by setting up a 

barricade blocking independent candidates from the 

debate stage. 

I. WHETHER THE PARTISANSHIP OF A 

DEBATE-STAGING ORGANIZATION’S 

LEADERS CAN BE ATTRIBUTED TO THE 

ORGANIZATION ITSELF 

$ No corporate-sponsored debate-staging

organization would formally announce its 

partisanship to the world or make a direct, blatantly 

illegal campaign contribution to a candidate. That 

would be tantamount to conceding a violation of FECA 

and the regulation prohibiting debate-staging 

organizations that “endorse,” “support” or “oppose” 

political parties or their candidates from using 

corporate funds. 11 C.F.R. §110.13(a). Yet the D.C. 

Circuit’s opinion requires exactly this sort of 

unattainable “smoking gun” proof; nothing short of an 

illegal direct campaign contribution by the 

organization, or an announcement on its letterhead 

formally endorsing a political party or candidate, will 

do. App.5a-7a. Indeed, the court went so far as to 

fault 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 
20 

her official capacity,” App.9a-10a—even though FECA 

flatly prohibits direct corporate contributions, and 

there is no way for an individual to donate money to a 

candidate in a corporate capacity. By insisting upon 

proof of an admission or donation no organization 

would ever make, and categorically rejecting 

circumstantial evidence based on the conduct of the 

organization’s leaders, the D.C. Circuit made it 

impossible to prove that a debate-staging organization 

is partisan, no matter how partisan the organization 

truly is. 

Until this litigation, the FEC agreed that 

organizational bias could be established using 

circumstantial evidence. The FEC has adjudicated 

numerous administrative proceedings over the past 

two decades in which the CPD was accused of 

endorsing, supporting or opposing political parties or 

their candidates in violation of 11 C.F.R. §110.13(a). 

See, e.g., C.A.App.240-79. At no point did the agency 

suggest that a formal endorsement would be required 

to substantiate these allegations. Id. To the contrary, 

the FEC conceded that at least some of the same 

circumstantial evidence petitioners presented here 

did “raise[] questions” about whether the “CPD is 

infected with bias against third party and 

independent candidates sufficient to disqualify it as a 

debate staging organization.” C.A.App.266-68. It was 

only after the district court vacated and remanded the 

FEC’s initial arbitrary and capricious dismissal of 

petitioners’ complaints that the FEC suddenly 

reversed course and refused to consider this evidence 

because it concerned conduct by individual CPD 

leaders. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2417–18 

(2019) (“a court may not defer to a new 
21 

interpretation...that creates ‘unfair surprise’ to 

regulated parties”). 

The D.C. Circuit’s affirmance of the FEC’s new 

categorical refusal to consider this type of 

circumstantial evidence squarely conflicts with this 

Court’s precedent. As the Court has explained, “in any

lawsuit, the plaintiff may prove [its] case by direct or

circumstantial evidence.” U.S. Postal Serv. Bd. of 

Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983) 

(emphasis added); see also Farmer v. Brennan, 511 

U.S. 825, 842 (1994) (“inference from circumstantial 

evidence” is one of the “usual ways” to establish 

“mental state”). That is because “[t]he 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). 

Consequently, there is no “circumstance” in which this 

Court has “restricted a litigant to the presentation of 

direct evidence absent some affirmative directive in a 

statute.” Id. 

Circumstantial evidence is essential where, as 

here, the plaintiff is trying to root out bias or 

dishonesty, because a defendant will rarely provide a 

direct admission. As this Court has recognized, 

“circumstantial evidence” can “be quite persuasive” to 

expose hidden motivations such as “discriminatory 

purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 147 (2000); see also United States v. 

Clarke, 573 U.S. 248, 254–55 (2014) (“circumstantial 

evidence” can “suffice” to “rais[e] an inference of bad 

faith”). For example, in the gerrymandering context, 

this Court has recognized that “circumstantial 

evidence” may be a “compelling” way to establish 
22 

“unconstitutional racial” motive, and that “it may be 

difficult for challengers to find other evidence.” 

Bethune-Hill v. Virginia State Bd. of Elections, 137 S. 

Ct. 788, 799 (2017); accord Hunt v. Cromartie, 526 

U.S. 541, 547-49 (1999) (parties can establish an 

“impermissible racial motive” using “only 

circumstantial evidence”). The same is true here—an 

organization like the CPD will never willingly reveal 

its illicit bias, which is why in cases like this, 

“[c]ircumstantial evidence is not only sufficient, but 

may also be more certain, satisfying and persuasive 

than direct evidence.” Rogers v. Missouri Pac. R.R. 

Co., 352 U.S. 500, 508 n.17 (1957). 

Moreover, a non-profit corporation like the CPD is 

“an artificial being, invisible, intangible, and existing 

only in contemplation of law.” Browning-Ferris Indus. 

of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 

284 (1989); Shaffer v. Heitner, 433 U.S. 186, 226 n.4 

(1977) (corporation is “legal fiction”). The CPD can 

exhibit bias, if at all, only “through [the] employees” 

who work there. Democratic Senatorial Campaign 

Comm., 454 U.S. at 33. And it “‘believes,’ if it can be 

said to believe anything, only what the people who 

found, own and/or manage the corporation believe.” 

Korte v. Sebelius, 735 F.3d 654, 701 (7th Cir. 2013) 

(Rovner, J., dissenting). Yet the opinion below 

categorically excludes not just the evidence 

demonstrating the partisan bias of those who run the 

CPD, but additional evidence that their bias has 

corrupted the CPD and led it to adopt exclusionary 

debate-qualifying criteria. 

B. Applying the correct standard, which permits

consideration of this evidence, it is clear that the CPD 
23 

endorses, supports and opposes political parties and 

their candidates in violation of 11 C.F.R. §110.13(a). 

The CPD is led by staunch partisans who endorse 

Republican and Democratic candidates, lavish them 

with high-dollar contributions, served them as aides 

or high-priced consultants, mingle with partisan elites 

at exclusive fundraisers, and oversee hundreds of 

thousands of dollars of contributions to Democratic 

and Republican politicians as paid-for-hire lobbyists. 

These individuals endorse and contribute to their own 

parties’ nominees even when these candidates appear 

in the very debates that the CPD itself sponsors. They 

have confirmed time and again that the CPD’s goal is 

to ensure that only these nominees, and not any 

independent challengers, are invited to the 

presidential debates. 

Fahrenkopf typifies the partisan CPD director. 

He founded the CPD in his capacity as chair of the 

Republican party and declared his intent to “forge a 

permanent framework” to hold “all future presidential 

debates between the nominees of the two political 

parties.” C.A.App.855. He continued at the helm of 

the RNC while simultaneously serving as co-chair of 

the CPD for several years. After leaving the RNC, he 

has continued to serve as a prominent ambassador of 

the Republican party. While serving as co-chair and 

the public face of the CPD, he has (1) contributed 

substantial sums to the same Republicans who 

appeared in CPD-sponsored debates, showing that he 

favors including those particular candidates in the 

debates; (2) assumed Republican campaign roles; (3) 

told a Harvard audience that the “Commission on 

Presidential Debates” helps

“rejuvenat[e]...bipartisanship”; and (4) conceded that 
24 

he is “not likely to look with favor on including thirdparty candidates in the debates.” C.A.App.919-26, 

395, 407, 857. 

This proves not just that Fahrenkopf favors 

Republicans, but that his bias infects the CPD itself. 

Indeed, over the years, the CPD’s leaders have 

admitted that their own partisan preferences are 

intertwined with the CPD’s in precisely this way. One 

director opined that they use the CPD to “try to 

preserve the two-party system,” and to prevent 

independent candidates from being “included in the 

debates.” C.A.App.26. According to another, the CPD 

debates have been “entrust[ed]...to the major parties” 

in a way that “is likely to exclude 

independent...candidates.” C.A.App.1165. And 

multiple directors have admitted that the CPD is “not 

really nonpartisan,” as the FECA regulations require, 

and instead is “bipartisan.” C.A.App.1165. 

It is no accident that the CPD has refused to enact 

a single internal control that might curb its 

partisanship, because any organization that was 

serious about being nonpartisan would take pains to 

ensure that such policies were in place. The CPD 

alone decides who appears in the presidential debates. 

The leaders of an organization with such immense 

influence will be tempted to exclude candidates with 

disfavored viewpoints. But the law prohibits a 

corporate-funded debate-staging organization from 

doing so. The only way to ensure that it will is to enact 

and rigorously enforce policies prohibiting conflicts 

that might compromise the organization’s 

nonpartisan mandate. Indeed, in the nonprofit 

community, it is considered essential that every 
25 

organization have a written, enforceable policy to 

prevent such conflicts. Nonprofit leaders appearing 

as amici below criticized the CPD’s refusal to enact 

any policy because this “contravenes the basic 

standards and practices of good governance that are 

fundamental in the nonprofit community.” 

C.A.Dkt.1808188, pp.7-16. 

Yet the D.C. Circuit agreed with the FEC that, as 

a matter of law, none of this evidence could even 

conceivably inform the FEC’s assessment of whether 

the CPD “endorses,” “supports” or “opposes” political 

parties or their candidates. It relied principally on the 

law of agency, but the law of agency does not support 

its conclusion. The court observed that, “for an agent’s 

statement to be attributable to the principal, the 

‘speaking must be done in the capacity of agent and 

connected with the business of the principal.’” 

App.10a (quoting Restatement (First) of Agency §288 

cmt.b). But petitioners do not claim that the directors, 

as agents, made independently actionable partisan 

statements for which the CPD is liable as principal, 

nor should they need to make any such showing. The 

point is that the CPD directors’ statements—as well 

as their extensive ties to the major parties and 

substantial contributions to partisan causes—are 

circumstantial evidence that the CPD itself supports 

those same causes. After all, the CPD is nothing more 

than a collection of the individuals who operate it. 

Where, as here, an organization that has no purpose 

other than to stage political debates is run by people 

who have dedicated their lives and careers to partisan 

politics, it stands to reason that—without an 

independent board or mechanism of corporate 

governance to override its leaders’ partisanship—the 
26 

organization will behave in a partisan fashion. And 

the CPD’s lengthy track record of excluding 

independents from the debates confirms that the CPD 

has done precisely what one would expect from such 

an organization. In short, it looks like a duck, 

swims like a duck, and quacks like a duck—but per 

the D.C. Circuit, none of that proves it’s a duck. 

If evidence of conduct by an organization’s leaders 

cannot be considered to assess whether the 

organization has complied with the regulation, there 

will be no way to enforce the regulation: it will be 

completely toothless. Given the stakes for American 

democracy, and the inability of any other Circuit to 

weigh in, this Court’s intervention is essential to 

ensuring the debate-staging regulation is enforceable 

as written. 

II. WHETHER DEBATE-QUALIFYING

CRITERIA THAT DISCRIMINATE

AGAINST INDEPENDENT CANDIDATES

CAN BE “OBJECTIVE”

A. A Criterion Is Not “Objective” When It Is 

Discriminatory In Practice 

The D.C. Circuit held that a polling criterion can 

be “objective” within the meaning of §110.13(c) even 

though it systematically excludes independent 

candidates from participating in presidential debates. 

The court expressly found that the consequences of the 

criterion are irrelevant even if they dramatically 

disadvantage independents. It held that even if 

petitioners are “correct” that it is nearly impossible for 

an independent candidate to qualify, the CPD’s 

criterion is nevertheless “objective.” App.13a. The 
27 

court failed to even consider other reasons the 

criterion is not “objective”: the CPD selects polls solely 

based on its subjective whims, and the polls 

themselves are unreliable and based on subjective 

choices made by pollsters. In essence, the D.C. 

Circuit’s view is that it doesn’t matter that the CPD’s 

criteria always result in debates limited to the 

Democratic and Republican nominees because the 

criteria are not explicitly biased. But that reasoning 

is inconsistent with the meaning of the word 

“objective.” 

Like “any law,” a regulation is interpreted using 

“the ‘traditional tools’ of construction” including “the 

text, structure, history, and purpose of a regulation.” 

Kisor, 139 S. Ct. at 2415. As to the text, “objective” 

means “based on externally verifiable phenomena” as 

well as “disinterested” and “[w]ithout bias.” 

OBJECTIVE, Black’s Law Dictionary (11th ed. 2019). 

It is synonymous with “equitable,” “evenhanded,” 

“fair,” and “nonpartisan.” See Merriamwebster.com/thesaurus/objective. Thus, it is not 

“objective” to apply an inherently discriminatory 

criterion even if it is facially neutral, because such a 

criterion is not “without bias” or “evenhanded.” Nor is 

it “objective” to choose polls based on manipulable 

subjective criteria rather than “externally verifiable” 

facts.6 

6 The CPD chooses polls based on “recommendations” from 

pollster Frank Newport, “principally” based on his subjective

“judgment” about “the quality of the methodology employed, the 

reputation of the polling organizations and the frequency of the 

polling conducted.” C.A.App.1121-22. 
28 

The D.C. Circuit not only failed to analyze the 

meaning of the text, but also ignored that the FEC’s 

own stated rationale for its regulation supports our 

textual reading. Corporations are barred from 

contributing or spending money in connection with 

federal elections unless, as relevant here, the money 

is used for “nonpartisan activity designed to encourage 

individuals to vote or to register to vote.” 52 U.S.C. 

§30101(9)(B)(ii) (emphasis added). The FEC has

interpreted this provision to permit corporate 

donations to “nonpartisan organizations” to defray the 

costs of staging “nonpartisan debates.” 44 Fed. Reg. 

76,734 (Dec. 27, 1979) (emphasis added); see also Perot 

v. FEC, 97 F.3d 553, 556 (D.C. Cir. 1996) (explaining

that 11 CFR § 110.13 is the “current version” codifying 

FEC’s original understanding). To ensure that 

corporate-sponsored debates are nonpartisan, the 

FEC enacted the “objectiv[ity]” rule to protect “the 

integrity and fairness of the [candidate-selection] 

process.” 60 Fed. Reg. 64,260-01 (Dec. 14, 1995). The 

agency explained that the chosen criteria “must...not 

[be] designed to result in the selection of certain prechosen participants.” Id. 

This interpretation of “objective” is also consistent 

with this Court’s precedents in analogous areas of the 

law. In other contexts, this Court has recognized that 

a law “may be grossly discriminatory in its operation” 

even where “[o]n its face [it] extends to all...an 

apparently equal opportunity.” Williams v. Illinois, 

399 U.S. 235, 242 (1970). Where access is “contingent” 

upon circumstances only one group can satisfy, a 

facially-objective policy impermissibly “visit[s] 

different consequences on two categories of persons.” 

Id.; see also Griffin v. Illinois, 351 U.S. 12, 17 n.11 
29 

(1956) (“[A] law nondiscriminatory on its face may be 

grossly discriminatory in its operation.”). The Court’s 

First Amendment jurisprudence is instructive. It is 

well-established that, just as the FEC regulation 

requires debate sponsors to select participants 

without partisan bias, the government cannot “‘pass 

laws which aid one religion’ or that ‘prefer one religion 

over another.’” Larson v. Valente, 456 U.S. 228, 246 

(1982) (quoting Everson v. Board of Educ., 330 U.S. 1, 

15 (1947)). “‘The First Amendment mandates 

government neutrality between religion and 

religion...The State may not adopt programs or 

practices...which ‘aid or oppose’ any religion.” Id. 

(quoting Epperson v. Arkansas, 393 U.S. 97, 104 

(1968)). In other words, the government must be 

objective when it comes to religion. 

In this analogous context, mere “[f]acial neutrality 

is not determinative.” Church of the Lukumi Babalu 

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). 

Indeed, “action that targets religious conduct for 

distinctive treatment cannot be shielded by mere 

compliance with the requirement of facial neutrality,” 

because the First Amendment “protects 

against...hostility which is masked, as well as overt.” 

Id. Thus, “[e]ven if the plain language of...[a] policy 

[is] facially neutral” the government cannot “hide 

behind the application of formally neutral criteria and 

remain studiously oblivious to the effects of its 

actions.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 

290, 307 n.21 (2000). 

At the expense of independent candidates, the 

FEC and D.C. Circuit have allowed the CPD to “hide 

behind...[its] formally neutral criteria” for years, 
30 

contrary to the clear meaning of “objective.” This 

Court should grant review to ensure that the 

objectivity requirement is enforced as written. 

B. This Case Is An Excellent Vehicle 

Because The 15% Criterion Is Not 

Objective 

1. History demonstrates that the 15% criterion is

not objective within the regulation’s meaning, because 

no candidate who has not participated in a major party 

primary has ever satisfied, or could ever have satisfied 

it: No independent candidate has hurdled the CPD’s 

15% bar since it was adopted in 2000, and as explained 

(supra p.10), Perot would not have satisfied it. The 

only other examples of purportedly “independent” 

candidates the FEC cited were former Republican 

President Teddy Roosevelt in 1912, former three-term 

Republican governor and three-term Republican 

Senator Robert LaFollette in 1924, former Democratic 

Governor Strom Thurmond (who later served 48 years 

as a major-party Senator) in 1948, former Democratic 

Governor George Wallace in 1968, and 20-year 

Republican Congressman John Anderson in 1980. 

App.107a, 144a; see also App12a-13a. If anything, 

these outdated examples prove petitioners’ point: All 

candidates started as prominent major-party 

politicians and obtained even more national attention 

by competing for the major-parties’ presidential 

nominations before running as independents. 

C.A.App.332-33, C.A.App.367. They are the 

equivalent of, say, Pete Buttigieg running as an 

“independent” after losing the 2020 Democratic 

primary. And the cost of running for President has 

skyrocketed since those historical candidates ran—a 
31 

serious campaign now requires many hundreds of 

millions of dollars to compete, a sum no one can raise 

absent a legitimate chance of qualifying to debate. In 

short, the fact that no independent has satisfied this 

criterion demonstrates that it is not objective. 

Moreover, it is obvious why it is impossible for any 

independent candidate (other than perhaps a selffunded billionaire) to ever hurdle the CPD’s 15% rule, 

and why it systematically excludes independents. To 

make a serious run for President, a candidate needs 

(1) enormous sums of money and (2) to be known to 

prospective voters, because if voters don’t know who a 

candidate is, they won’t tell a pollster they support the 

candidate. Major-party candidates always receive 

extensive media coverage, and voters therefore hear 

about them through such “free” media, starting during 

the primaries. By contrast, the media pay little 

attention to independent candidates, so to become 

known to the public, they must raise and spend huge 

amounts of money on advertising. This creates a 

catch-22 for independent candidates: they can’t be 

known and supported in polls without large sums of 

money, but their ability to garner such financial 

support will be hamstrung because they can’t 

demonstrate to potential donors that they will appear 

in the debates. 

These points are a matter of common sense, but 

petitioners also presented expert evidence 

demonstrating them through quantitative analysis. 

For instance, Clifford Young, a polling specialist, 

showed that, on average, a candidate must obtain 

name recognition of at least 60-80% among the 

American public to poll at 15%. App.11a. And 
32 

Douglas Schoen—a veteran pollster and campaign 

strategist—showed that because independent 

candidates have difficulty attracting earned media, 

they must raise at least $266 million to achieve the 

requisite name recognition. Id. (That was based on 

2014 data; the figure would surely be much higher in 

2020). Although not central to its holding, the D.C. 

Circuit deferred to the FEC’s jerry-rigged critique of 

these data, App.12a-13a; but the FEC ignored or 

misstated the expert reports and relied upon 

demonstrably false assumptions. See 

C.A.Dkt.1807265, pp.46-51; C.A.Dkt.1817426, pp.21-

28. Regardless, the historical evidence shows that no 

genuinely independent candidate has ever hurdled the 

CPD’s polling criterion, which demonstrates that it 

cannot be objective; the expert evidence merely 

confirms some of the reasons why that is so. 

2. As explained in Point II.A, an “objective” 

criterion must be “externally verifiable,” like the 

solution to a math equation or a provable fact. Anyone 

can verify that 1+1=2, or that a company sold 1,000 

widgets. But the mere fact that the criterion includes 

a number—15%—does not make it “objective.” For 

one, the CPD retains complete discretion about what 

polls to use and when to choose debate participants, 

enabling it to manipulate the selection of polls to 

exclude independent candidates. C.A.App.1308-09. 

Thus, even if an independent candidate could reach 

15% support in certain polls, the CPD could still 

exclude them by simply selecting a pollster whose 

methodology resulted in a different outcome. Indeed, 

the CPD has relied upon polls that only asked about 

the major party candidates and made no effort to 

assess the support for their independent competitors. 
33 

See, e.g., NBC/Wall Street Journal Poll, 

https://s.wsj.net/public/resources/documents/WSJNB

CPoll-Mid-October-2020.pdf at p.10 (mid-October poll 

asking only about Biden and Trump). That is 

patently subjective. 

Moreover, horse-race polling itself is unreliable, 

biased, and certainly not “objective.” 

C.A.Dkt.1808105, pp.15-22. One need only look to the 

spectacular polling failures leading up to the 2020 and 

2016 presidential elections to see the difference 

between a poll and a verifiable, objective fact. In both 

elections, pollsters “systemic[ally]” erred in predicting 

which voters would turn out and failed to account for 

“Shy Trump Voter[s],” who lied to pollsters about 

which candidate they supported. Alex Woodie, 

Systemic Data Errors Still Plague Presidential 

Polling, Datanami (Oct. 7, 2020).7 Indeed, polls are 

mere estimates that face significant obstacles to 

accuracy, such as the decreased use of landlines, the 

lack of centralized databases for cell-phone numbers, 

and the likelihood of individuals not answering calls 

from unknown numbers. C.A.Dkt.1808105, pp.16-18. 

Polls frequently have significant margins of error as 

high as 5 to 10 percentage points. Id. 

Even Ann Ravel—the FEC’s Chair at the time the 

agency dismissed the complaints—has acknowledged 

that “the world may have a polling problem, and it is 

harder to find an election in which polls did all that 

well.” D.Ct.Dkt.37, pp.22-23. It is absurd for an FEC 

Commissioner to acknowledge, on the one hand, that 

7 Available at https://www.datanami.com/2020/10/07/systemicdata-errors-still-plague-presidential-polling. 
34 

polls are unreliable indicators of voter support, yet see 

nothing wrong with the CPD’s use of polls as 

supposedly “objective” measures “to identify those 

candidates...who have a realistic chance of being 

elected President of the United States.” 

C.A.App.1308. 

Even worse, polling errors are magnified in threeway races as opposed to two-way races. C.A.App.985. 

And, because the major-party candidates will always 

easily garner 15% support, C.A.App.966, only 

independent candidates are impacted by polling 

errors. Indeed, an independent could be excluded even 

though she did reach 15% support but, due to a 5% 

error rate, only registered 10% in the polls. This is 

particularly likely given that independent candidates 

often bring out new voters who “are politically inactive 

or even unregistered until mobilized by a compelling 

candidate,” and therefore undercounted in polls (much 

like supporters of President Trump). C.A.App.1044. 

Polls are based on subjective decisions by pollsters 

which lead to frequent human error, and any such 

error can only result in harm to independents and not 

major-party candidates. Thus, by any definition of the 

word, the CPD’s polling criterion is plainly not 

“objective.” Accordingly, this case presents an 

excellent vehicle for reviewing whether criteria that 

discriminate against independent candidates can be 

“objective” within the meaning of the debate-staging 

regulation. 

III. THE QUESTIONS PRESENTED ARE 

EXTREMELY IMPORTANT 

It is hard to imagine a topic with greater stakes for 

the United States than ensuring a robust competition 
35 

for the Presidency. And no one can win the Presidency 

or be taken seriously as a presidential candidate 

without participating in the general election debates, 

which are typically viewed by enormous audiences. 

For example, in 2016, the first presidential debate 

drew a staggering 84 million viewers.8 As the only 

presidential-debate sponsor, the CPD is a gatekeeper 

to the White House. Unfortunately, however, it uses 

its vast power to stifle political competition and 

cement the Democratic and Republican parties’ 

duopoly control over the Presidency. 

The pernicious effects of that duopoly and its 

stranglehold over political power in the United States 

have increased exponentially in recent years, as the 

lack of competition has driven each of the major 

parties to partisan extremes. The resulting 

polarization has ground government to a halt and left 

constituents out in the cold. This governmental 

dysfunction is precisely what the Founders warned 

would happen in a two-party system: “George 

Washington...warn[ed] against hyper-partisanship” 

in his farewell address, as he feared it would lead to 

the “alternate domination of one faction over another, 

sharpened by the spirit of revenge” which is “itself a 

frightful despotism.” Lee Drutman, America Is Now 

the Divided Republic the Framers Feared, The Atlantic 

(Jan. 2, 2020).9 Washington worried that parties 

8 See www.pewresearch.org/fact-tank/2020/08/28/5-factsabout-presidential-and-vice-presidential-debates/; see also 

cnn.com/2020/09/30/media/first-presidential-debate-tv-ratings/

index.html (over 73 million watched first Biden-Trump debate).

9 Available at www.theatlantic.com/ideas/archive/2020/01/twoparty-system-broke-constitution/604213. 
36 

“become potent engines, by which cunning, ambitious 

and unprincipled men will be enabled to subvert the 

power of the people, and to usurp for themselves the 

reigns of government.” George Washington, Farewell 

Address (Sept. 19, 1796).10 John Adams also believed 

that “a [d]ivision of the republic[] into two great 

[p]arties...is to be dreaded as the great political [e]vil.” 

Letter from John Adams to Jonathan Jackson (Oct. 2, 

1780).11

A recent prominent Harvard Business School 

study confirms the Founders’ assessment, explaining 

that “[i]n a duopoly” parties only “compete to create 

and reinforce partisan divisions, not deliver practical 

solutions." Katherine M. Gehl & Michael E. Porter, 

Why Competition In The Politics Industry Is Failing 

America (Sept. 2017), at 4.12 In other words, the losers 

in a duopoly are average American citizens. 

The current Congress exemplifies this problem. It 

is comprised nearly entirely of Democrats and 

Republicans, who rarely work together on any 

legislation; the result is typically either gridlock or, 

when one party has full control, controversial 

legislation that lacks broad support but is enacted 

based on pure party-line voting. Unsurprisingly, an 

astounding 80% of the public disapproves of “the way 

Congress is handling its job.” See news.gallup.com/

10 Available at www.founders.archives.gov/documents/

Washington/99-01-02-00963. 

11 Available at www.founders.archives.gov/documents/Adams/06-

10-02-0113. 

12 Available at https://gehlporter.com/wp-content/uploads/2018/

11/why-competition-in-the-politics-industry-is-failingamerica.pdf.
37 

poll/1600/congress-public.aspx. Thus, a plurality of 

Americans (42%) consider themselves political 

independents, see news.gallup.com/poll/15370/partyaffiliation.aspx, and a majority believe the two major 

parties “do such a poor job” of “representing the 

American people...that a third major party is needed.” 

news.gallup.com/poll/244094/majority-say-thirdparty-needed.aspx. 

Expanded debate access is not only what 

Americans want, it is also beneficial to the political 

process: Since the first CPD-sponsored debate in 

1988, the debate that voters deemed most “helpful” “in 

deciding which candidate to vote for” was in 1992, the 

only time an independent (Ross Perot) joined the 

major party candidates on stage. See 

www.pewresearch.org/fact-tank/2020/08/28/5-factsabout-presidential-and-vice-presidential-debates/. 

But in a duopoly, “rivals...understand that...they 

will both benefit from...limit[ing] the power of other 

actors, and increas[ing] barriers to entry.” Gehl & 

Porter at p.4. This has borne out. These days, most 

major-party politicians seem to have only one goal: 

stymy any possible challenge to their own power and 

squash any dissent within their caucus. Whether it’s 

Democrats blacklisting consultants who work with 

primary challengers to “protect all Members of the 

Democratic Caucus,” see cnn.com/2019/03/31/politics/

dccc-primary-challenger-rule/index.html, or 

Republican delegates denying renomination to a 

Congressman because he dared to break from party 

dogma by officiating a same-sex wedding, see cnn.com/

2020/06/14/politics/virginia-5th-district-gopconvention-riggleman/index.html, the major parties 
38 

have closed ranks. This consolidation of partisan 

power leaves no room for independent ideas, 

nonpartisan coalition building, or consensus solutions 

to America’s problems. Unfortunately, the CPD, 

comprised of these very same partisans, works to 

preserve this duopoly, as it caters to the major parties 

and denies the American people what they want: a 

third way forward. 

This petition is the ideal—and perhaps only—

chance for this Court to review the important legal 

questions presented here about the interpretation of 

the FEC’s FECA-implementing debate rule. Because 

FECA permits judicial review only in the District 

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

§30109(a)(8)(A), there is no mechanism for further

percolation of this issue. Absent this Court’s review, 

the opinion below will likely remain the last word on 

the subject, allowing the “great political evil” that the 

Founders warned of to continue unabated. 
39 

CONCLUSION 

For the foregoing reasons, 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 

November 9, 2020 
APPENDIX
1a

APPENDIX A

United States Court of Appeals 

for the District of Columbia Circuit

No. 19-5117

LEVEL THE PLAYING FIELD, et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

Appeal from the United States District Court 

for the District of Columbia (No. 1:15-cv-01397)

Argued February 24, 2020

Decided June 12, 2020

Alexandra A.E. Shapiro argued the cause for

appellants. With her on the briefs were Eric S. Olney

and Jacob S. Wolf.

 Haven G. Ward argued the cause for appellee. With

her on the brief were Lisa J. Stevenson and Kevin

Deeley.

 Before: PILLARD and KATSAS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit 

Judge RANDOLPH.
2a

RANDOLPH, Senior Circuit Judge: The Commission

on Presidential Debates (the “CPD”) is a private

non-profit corporation. For more than thirty years, it

has hosted televised debates among the leading

candidates for President and Vice President of the

United States. The CPD uses several factors to decide

which candidates are eligible to participate in its

debates. At the center of this controversy is the CPD’s

compliance with rules of the Federal Election

Commission (the “Commission”) for determining which

candidates are, or will be, eligible to participate in the

debates.

The Commission’s regulations allow a non-profit

organization to stage candidate debates in federal

elections so long as the organization does not “endorse,

support, or oppose political candidates or political 

parties.” 11 C.F.R. § 110.13(a)(1). The debates must

“include at least two candidates” and cannot be

structured “to promote or advance one candidate over

another.” Id. at § 110.13(b). Staging organizations must

use “pre-established objective criteria” to select eligible

candidates, and for general election debates, cannot

“use nomination by a particular political party as the

sole objective criterion.” Id. at § 110.13©.

The plaintiffs in this case are Level the Playing Field,

a non-profit corporation created to promote

independent candidates for elected office; Peter

Ackerman, a registered voter from the District of

Columbia; the Green Party; and the Libertarian

National Committee, Inc. They argue that the CPD

routinely endorses and supports Republican and

Democratic nominees at the expense of third-party
3a

candidates. They also contend that the CPD uses

subjective and biased criteria for selecting debate

participants.

Although the CPD is by definition involved in

politics, it neither endorses nor opposes candidates for

the Presidency. The government does not fund the

CPD, nor does any political party, political action

committee, or candidate. It is governed by an

independent Board of Directors.

To participate in a CPD-sponsored debate, there are

three requirements. The candidate must be qualified

under the Constitution to be President. The candidate

must be on the ballot of enough states to have a

mathematical chance of winning a majority vote in the

Electoral College. And the candidate must have a level

of support of at least 15% of the national electorate, as

determined by five selected national public opinion

polling organizations, using the average of those

organizations’ most recent publicly-reported results at

the time of the determination.

Plaintiffs began their case with two administrative

complaints. The first challenged the 15% polling

criterion, which the CPD used to determine eligibility

for participation in the debates preceding the 2012

Presidential election. The Commission decided 5-0

(with one recusal) that the CPD’s criterion did not

violate the Commission’s debate rules. The second

complaint asked the Commission to initiate a

rulemaking to change its rules to prohibit debate

sponsors from using public opinion polls as a criterion

for eligibility. The Commission rejected this request by
4a

a vote of 4-2. Based on these votes, the Commission

dismissed both administrative complaints.

Plaintiffs sought review in the district court, alleging

that the dismissal of their complaints violated the

Administrative Procedure Act. For reasons unnecessary

to discuss, the district court remanded both

administrative matters to the Commission for further

consideration of the record. The Commission adhered to

its original decision. On the return of the case to the

district court, the court granted summary judgment in

favor of the Commission. We agree with the district

court’s thorough and well-reasoned decision and,

applying de novo review, we affirm.

I.

Judicial review of decisions by the Federal Election

Commission is highly deferential. Hagelin v. FEC, 411

F.3d 237, 242 (D.C. Cir. 2005). We presume the validity

of the Commission’s decisions and will reverse them

only if they are contrary to law, not supported by

substantial evidence, or are arbitrary, capricious, or an

abuse of discretion. Id.

Plaintiffs urge us to apply a less deferential standard

of review, arguing that the Commission’s decisions

display a “pattern of suspect decisionmaking,” “bias,”

and a “partisan agenda.” But as we have previously

explained, the “arbitrary and capricious and substantial

evidence standards” are “fully adequate to capture

partisan or discriminatory FEC behavior.” Hagelin, 411

F.3d at 243. Indeed, decisions featuring unjustifiable

bias or partisanship are precisely the types of agency

actions that “would work a violation of the arbitrary-
5a

and-capricious standard.” Id. (citation, internal

quotation marks and alteration omitted). Accordingly,

we need not create a new standard of review to assess

the appropriateness of the Commission’s actions in this

case.

II.

Plaintiffs believe that the CPD is an “overtly

partisan” organization whose goal “is to exclude

independent candidates.” They argue that the

Commission refused to recognize this bias, thereby

ignoring the regulations that require debate sponsors

not to endorse, support, or oppose political parties or

their candidates.

As evidence of the CPD’s purported partisanship,

plaintiffs highlight various statements and campaign

contributions made by the CPD’s founders and leaders.

For example, announcing the formation of the CPD in

1987, the Democratic and Republican National

Committees “emphasiz[ed] the bipartisan nature” of

the CPD and noted that the debates would be “partysponsored.” Frank Fahrenkopf, then chairman of the

Republican National Committee and a current CPD

co-chair, indicated that the CPD “was not likely to look

with favor on including third- party candidates in the

debates.” Similarly, Paul Kirk, the chairman of the

Democratic National Committee at the time and a

former CPD co-chair, said he “personally believed that

the [CPD] should exclude third-party candidates from

the debates.”

The Commission carefully considered these and other

statements made when the CPD was created in 1987. It
6a

found the statements to have “limited persuasive value”

for three reasons. First, the Commission reasoned that

decades-old declarations are not particularly probative

of current bias, as organizations can change. Second,

the early statements about the CPD must be

understood in the context of trying to institutionalize

televised debates as a “permanent part of the political

process.” And third, statements made by individuals do

not necessarily reflect an organization’s endorsement or

support. Each of these explanations was reasonable.

Take the first explanation. The record supports 

the Commission’s view that the CPD has changed over

time, making “concerted efforts to be independent in

recent years.” After third-party candidate Ross Perot’s

exclusion from the 1996 debates, for instance, the CPD

“adopted new candidate selection criteria and retained

a polling consultant to ensure” “careful and thoughtful

application” of the new criteria. The Commission also

noted that the CPD “conducts a review after every

presidential election of issues relating to the debates.” 

In light of these changes and ongoing reviews, it was

reasonable for the Commission to believe that

statements made about the CPD in 1987 do not

adequately describe the CPD as it exists today. See

Hagelin, 411 F.3d at 244.

It was also reasonable for the Commission to place

the early statements made by Fahrenkopf and others in

context. For instance, the Commission credited a sworn

declaration from Fahrenkopf explaining that when the

CPD was first created, “the major impediment to”

institutionalizing televised debates “was securing the

commitment of both major party nominees to debate.”
7a

Thus, references to a “bipartisan” and “partysponsored” organization were meant to convey only

that the CPD would not favor one leading political party

at the expense of the other. American politics has, for

most of American history, been organized around two

parties. See Timmons v. Twin Cities Area New Party,

520 U.S. 351, 367 (1997). So it is plausible that leaders

of the newly-created CPD used terms like “bipartisan”

and “party-sponsored” to assure and secure support

from both major parties.

The Commission explained that “even if these

written and oral statements did reflect more current

sentiments, they are not indicative of CPD’s

organizational endorsement of or support for the

Democratic and Republican Parties and their

candidates. ...” The record supports this finding. The

1987 statement announcing the formation of the CPD,

for instance, was released by the Democratic and

Republican National Committees, and not by the CPD.

Paul Kirk’s statement that the CPD should exclude

third-party candidates was based on his personal view,

and he added that “he could not speak for the

[C]ommission.”

Plaintiffs characterize the Commission’s

explanations as “spurious” and attack the affidavits

submitted by Fahrenkopf and others as “boilerplate”

and “meaningless.” But as the district court explained,

that plaintiffs may disagree with the Commission’s

weighing of the evidence presented to it is not enough

for the courts to overturn the Commission’s decisions

as arbitrary, capricious, or contrary to law. See Level the

Playing Field v. FEC, 381 F. Supp. 3d 78, 101 (D.D.C.
8a

2019). The Commission considered plaintiffs’

submissions and articulated reasonable explanations for

assigning the decades-old statements little probative

value.

Plaintiffs also presented the Commission with

contemporaneous evidence of the CPD’s alleged bias. In

2015, for example, Fahrenkopf was interviewed by Sky

News. During the interview he said that the CPD

“primarily go[es] with the two leading candidates” from

the “two political part[ies].” In 2011, Fahrenkopf wrote

an op-ed in which he praised the Republican Party and

described it as “our great party.” And since 1997,

Fahrenkopf has donated tens of thousands of dollars to

Republican congressional and presidential candidates.

Michael McCurry is also a co-chair of the CPD. He

previously served as President Bill Clinton’s press

secretary and as a director of communications for the

Democratic National Committee. Since 2008, McCurry

has given tens of thousands of dollars to Democrats.

Plaintiffs claim that the statements and contributions

made by Fahrenkopf and McCurry are illustrative of the

CPD’s partisan bias.

The Commission rejected this argument, again

providing reasonable explanations supported by the

record. For example, the Commission noted that during

the 2015 Sky News interview, Fahrenkopf was asked

“about the impact of multiple candidates (the

questioner posited seven) on the educational value of

debates.” Fahrenkopf responded by lamenting the

quality of primary debates, which can feature “seven or

eight people on the stage,” and which “people jokingly
9a

say” are “less of a debate than a cattle show.” He then

said: “That’s why in the general election debate, we

have a system, and we . . . primarily go with the two

leading candidates, it’s between the two political party

candidates . . . except for 1992 when Ross Perot

participated in the debates.” The context of the

interview thus makes clear that Fahrenkopf was

expressing a preference for smaller debates where the

candidates with the most support are given more time

to share their views with voters. He was not, as

plaintiffs suggest, admitting that the CPD seeks to

exclude independent candidates to benefit Democratic

and Republican candidates. Considering Fahrenkopf’s

words in the appropriate context, the Commission

justifiably concluded that plaintiffs’ “interpretation is

not dispositive.”

With respect to Farenkopf’s 2011 op-ed and the

donations he and others have made to candidates from

the two major political parties, the Commission stated

that “individuals may wear multiple hats to represent

multiple interests.” And if this is permissible, the

Commission reasoned, it follows that “an individual’s

leadership role in a given organization does not restrict

his or her ability to speak freely on political issues or

make contributions to political committees when he or

she does so in his or her personal capacity.”

Reviewing the record, the Commission found no

evidence that Farenkopf’s 2011 op-ed was written in his

official capacity as a CPD co-chair or was intended in

any way to represent the views of the organization.

Similarly, plaintiffs cannot identify a single instance of

a donation to a Democrat or Republican that was made
10a

by the CPD or one of its leaders acting in his or her

official capacity.

Plaintiffs’ arguments, then, amount to a

disagreement with the Commission’s view that personal

partisan activities do not necessarily reflect the views or

biases of the organization for which a person works. But

again, as the district court held, “such a disagreement

does not discharge [p]laintiffs of their burden to

establish that the [Commission’s view] was arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 381 F. Supp. 3d at 105. Plaintiffs

have not met that burden. The Commission has

consistently maintained that individuals may support

political candidates when acting in their personal

capacities, even if they would be prohibited from doing

so in their professional capacities. See, e.g. FEC

Advisory Op. 2007-05; Advisory Op. 2005-02; Advisory

Op. 2003-10. And this position is well-founded. It is

axiomatic that, for an agent’s statement to be

attributable to the principal, the “speaking must be

done in the capacity of agent and connected with the

business of the principal.” Restatement (First) of

Agency § 288 cmt. b (Am. Law Inst. 1933).

In sum, far from ignoring plaintiffs’ evidence, the

Commission thoughtfully evaluated the record. The

Commission offered detailed explanations in support of

its view that plaintiffs failed to show impermissible bias

against independent candidates or in favor of

candidates from the two major political parties. And

though plaintiffs may disagree with these explanations,

they have failed to show that the Commission’s

decisionmaking was arbitrary or unreasonable.
11a

III.

Plaintiffs also contend that the CPD’s use of a 15%

polling requirement to select debate candidates is

“subjective” and favors major-party candidates. This

threshold, they argue, violates 11 C.F.R. § 110.13(c),

which requires staging organizations to “use 

pre-established objective criteria to determine which

candidates may participate in a debate.” In support of

this claim, plaintiffs presented the Commission with

two expert reports. The first, written by Dr. Clifford

Young, posits that “on average, an independent

candidate must achieve a minimum of 60% name

recognition, and likely 80%, in order to obtain 15% vote

share.” The second, prepared by Douglas Schoen,

suggests that an independent candidate “should

reasonably expect to spend approximately $266,059,803

to run a viable campaign capable of reaching 15%

support in polls by September of the election year.”

Plaintiffs argue that these studies show the 15%

threshold is not objective because, while major party

candidates “benefit from the widespread media

coverage of the presidential primaries,” independent

candidates “have no analogous mechanism for

generating name recognition.” And if an independent

candidate must spend over $260 million to achieve 15%

support, plaintiffs reason, “[o]nly a self-funded

billionaire could realistically hope to compete as an

independent.”

The Commission considered and rejected these

arguments. Evaluating the expert reports, the

Commission found several “limitations that undermine
12a

their persuasiveness.” The Young Report, for instance,

“correlates polling results to name recognition alone,”

but as Dr. Young himself acknowledged, several other

factors affect a candidate’s poll numbers, including

“fundraising, candidate positioning, election results,

and idiosyncratic events.” The Commission also noted

that “neither the Young Report nor [plaintiffs] . . . ever

establish that independent candidates do not or cannot

meet 60-80 percent name recognition.” The

Commission cited as a counter-example a 2016 YouGov

poll, which found that 63% of registered voters had

heard of Libertarian candidate Gary Johnson, while

59% had heard of Green Party candidate Jill Stein.

These critiques of the Young Report are reasonable.

The omission of relevant variables from a statistical

analysis “may render the analysis less probative than it

otherwise might be.” Bazemore v. Friday, 478 U.S. 385,

400 (1986) (per curiam) (Brennan, J., concurring). It is

quite plausible that a factor like the unpopularity of

major-party candidates could lead to a high degree of

support for an independent candidate who has less than

60% name recognition. And the Commission reasonably

relied on a YouGov poll to question the notion that

independent candidates cannot achieve 60% name

recognition. Though the Young Report posited 60%

name recognition was necessary among the American

public and the poll only shows name recognition among

registered voters, the poll still suggests independent

candidates may sometimes earn significant name

recognition. See also Buchanan v. FEC, 112 F. Supp. 2d

58, 74 (D.D.C. 2000) (listing George Wallace, John

Anderson, and Ross Perot as examples of independent
13a

candidates who achieved at least 15% support in

pre-election polling).

The Commission identified many reasons to discount

the findings of the Schoen Report, too. For example, the

Commission found that the $260 million estimate rests

“on the assumption that independent candidates are

unable to attract earned media (i.e., free coverage).”

The Schoen Report also fails to account for the role of

social media, which the Commission notes has “enabled

the ubiquitous sharing of [candidates’] messages among

vast global networks.”

Again, these critiques are reasonable and

well-supported. As the Commission highlights,

Libertarian candidate Gary Johnson received extensive

media coverage during the 2016 presidential election.

And at least some of that coverage was not generated by

the campaign’s spending. See, e.g., Jonah Bromwich, ‘I

Guess I’m Having an Aleppo Moment’: Gary Johnson

Can’t Name a Single Foreign Leader, N.Y. Times, Sep.

28, 2016, available at https://www.nytimes.com/2016/09/

29/us/politics/gary-johnson-aleppo-moment.html. The

Commission similarly cited the example of the 2016

Trump campaign, during which “digital media

reportedly replaced field offices,” “thereby reducing

another traditional campaign cost.”

More broadly, we need not conclusively determine

the validity or persuasiveness of the Young and Schoen

reports to decide this case. Even if both reports are

correct, and it takes a large amount of money and name

recognition for a candidate to be viable, the 15% polling

criterion is not impermissible.
14a

All that is required is that the CPD use a

“pre-established objective criteria” to determine debate

eligibility. 11 C.F.R. § 110.13(c). Plaintiffs have

identified many reasons why it might be difficult for an

independent candidate to achieve the support of 15% of

the electorate. But a threshold does not become

“subjective” merely because it is difficult to reach.

There is no legal requirement that the Commission

make it easier for independent candidates to run for

President of the United States. The Commission thus

acted reasonably in determining that a 15% polling

threshold is an objective requirement.

IV.

In addition to challenging the CPD’s existing criteria,

plaintiffs asked the Commission to initiate a

rulemaking to revise and amend 11 C.F.R. § 110.13(c).

Specifically, they believe the Commission’s rules should

preclude debate sponsors from using any polling

threshold and should instead require the CPD to select

some other unspecified “objective, unbiased criteria for

debate admission.”

The Commission rejected the request to change its

regulations. Our review of a rulemaking denial is

“extremely limited and highly deferential.”

Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007)

(internal quotation marks and citation omitted).

Federal agencies have “broad discretion to choose how

best to marshal [their] limited resources and personnel

to carry out [their] delegated responsibilities.” Id. at

527.
15a

Applying this even more deferential standard, we

affirm the Commission’s decision. Plaintiffs suggest

that the Commission’s rejection of their petition was

arbitrary and capricious “for the same reasons”

they challenge the Commission’s decisions about the

CPD’s neutrality and the 15% polling criterion. Because

we have found that the Commission acted reasonably in

reaching those decisions, we hold that the Commission

did not err by electing not to initiate a rulemaking.

For these reasons, the district court’s grant of

summary judgment to the Commission is affirmed.

So ordered.
16a

APPENDIX B

United States District Court 

for the District of Columbia 

LEVEL THE PLAYING FIELD, et al.,,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Case No. 15-cv-1397 (TSC)

MEMORANDUM OPINION

This case concerns a highly visible element of our

democratic electoral process: the presidential and

vice-presidential debates held every four years by the

Commission on Presidential Debates (“CPD”).

Plaintiffs Level the Playing Field, Peter Ackerman,

Green Party of the United States, and Libertarian

National Committee, Inc. allege that, following this

court’s remand, Defendant Federal Election

Commission (“FEC”) again violated the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706, in dismissing

two administrative complaints regarding the CPD, and

denying a petition to engage in rulemaking to change

the FEC’s regulations regarding debate staging

organizations. (See ECF No. 76 (“Am. Compl.”) ¶¶

76–82.)
17a

Before the court are Plaintiffs’ motion for summary

judgment (ECF No. 83), Defendant’s cross-motion for

summary judgment (ECF No. 90), Defendant’s motion

to strike (ECF No. 92), and Plaintiffs’ motion to

supplement the record (ECF No. 99). Upon

consideration of the pleadings and the Administrative

Record (ECF No. 105), Defendant’s motion to strike is

GRANTED in part and DENIED in part, Plaintiffs’

motion to supplement the record is DENIED, Plaintiffs’

motion for summary judgment is DENIED, and

Defendant’s cross-motion for summary judgment is

GRANTED.

I. BACKGROUND

This is the second round of summary judgment

briefing in this case. Because this court has already

issued a detailed memorandum and opinion (ECF No.

60), for purposes of this ruling, the court will assume

the parties’ familiarity with the underlying record and

recite only what is necessary to resolve the pending

motions.

A. The Court’s February 1, 2017 Memorandum

and Opinion

On February 1, 2017, this court issued a

memorandum and opinion finding that the FEC “acted

arbitrarily and capriciously and contrary to law when it

dismissed [Plaintiffs’] two administrative complaints”

and “fail[ed] to provide a reasoned and coherent

explanation” for its denial of Plaintiffs’ rulemaking

petition. (Id. at 28.)
18a

In granting Plaintiffs’ motion for summary judgment

and denying the FEC’s cross- motion for summary

judgment, the court issued five main directives to the

FEC in reconsidering Plaintiffs’ submissions. The court

ordered the FEC to: (1) “articulate its analysis in

determining whether the CPD endorsed, supported, or

opposed political parties or candidates” (id. at 14); (2)

“demonstrate how it considered the evidence,

particularly, but not necessarily limited to, the

newly-submitted evidence of partisanship and political

donations and the expert analyses regarding

fundraising and polling” (id. at 18); (3) notify the ten

remaining directors, address the allegations made

against them, and consider the evidence presented

against them (id. at 19); (4) demonstrate that it had

considered the full scope of Plaintiffs’ evidence as well

as to explain how and why it rejected the evidence in

deciding that CPD’s polling requirement is an objective

criterion (id. at 23); and (5) engage in thorough

consideration of the presented evidence and explain its

decision regarding Plaintiffs’ rulemaking petition (id. at

27–28).

B. Plaintiffs’ August 11, 2017 

Amended Complaint

On August 11, 2017, Plaintiffs filed an amended

complaint alleging that the FEC’s post- remand

decisions indicate that it failed to comply with any of

the court’s directives, and asking the court to take the

following actions:

Declare that the FEC’s dismissals of Plaintiffs’

administrative complaints were arbitrary,
19a

capricious, an abuse of discretion, and otherwise

contrary to law, and direct the FEC, within 30

days, to find that the CPD has violated 11 C.F.R.

§ 110.13 by staging candidate debates in a

partisan manner and without pre- established,

objective criteria; violated 52 U.S.C. § 30118(a) by

making prohibited contributions and

expenditures; and violated 52 U.S.C. §§ 30103 and

30104 by failing to register as a political

committee and by failing to make required reports

and disclosures; and

If the FEC fails to so act, authorize Plaintiffs to

bring a civil action against the CPD, its executive

director, and the directors who have participated

in these violations of federal election law to

remedy those violations; and

Declare the FEC’s denial of the petition for

rulemaking was arbitrary, capricious, an abuse of

discretion, and otherwise contrary to law, and

order the FEC to open rulemaking to revise its

rules governing presidential debates to ensure

that debate sponsors do not unfairly exclude

independent and third-party candidates from

participating.

(See Am. Compl. ¶¶ 3, 9, 21.)

II. STANDARD

On a motion for summary judgment in a suit seeking

APA review, the court must set aside any agency action

that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. §
20a

706(2). The court’s review is “highly deferential” and

begins with a presumption that the agency’s actions are

valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283

(D.C. Cir. 1981). The plaintiff bears the burden of

establishing the invalidity of the agency’s action. Id.

The court is “not empowered to substitute its

judgment for that of the agency,” Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)

(abrogated on other grounds), but instead must

consider only “whether the agency acted within the

scope of its legal authority, whether the agency has

explained its decision, whether the facts on which the

agency purports to have relied have some basis in the

record, and whether the agency considered the relevant

factors,” Fulbright v. McHugh, 67 F. Supp. 3d 81, 89

(D.D.C. 2014) (quoting Fund for Animals v. Babbitt, 903

F. Supp. 96, 105 (D.D.C. 1995)). “A reviewing court,

however, will accord a somewhat greater degree of

scrutiny to an order that arrives at substantially the

same conclusion as an order previously remanded by

the same court.” Greyhound Corp. v. I.C.C., 668 F.2d

1354, 1358 (D.C. Cir. 1981). “The agency’s action on

remand must be more than a barren exercise of

supplying reasons to support a pre-ordained result.”

Food Mktg. Inst. v. I.C.C., 587 F.2d 1285, 1290 (D.C.

Cir. 1978).
21a

III. ANALYSIS

A. Defendant’s Motion to Strike and

Plaintiffs’ Motion to Supplement

The FEC moves to strike portions of Plaintiffs’

memorandum of law, portions of Plaintiffs’ counsel’s

declaration, and one of Plaintiffs’ expert affidavits

because the materials were not before the agency when

it made its determinations and are not part of the

administrative record. (See ECF 92 (“Def.’s Mot. to

Strike”) at 1.) The FEC also argues that Plaintiffs’ use

of a FEC Commissioner’s pre-decisional statement is

improper. (See id.) Plaintiffs oppose the motion to

strike and move to supplement the administrative

record with the objected to material. (See ECF No. 99

(“Pls.’ Mot to Supplement”) at 1–2.) Because the

arguments in the motion to strike and the motion to

supplement overlap, the court will assess them

simultaneously with respect to each category of objected

to material.

1. Extra-record Evidence

When reviewing agency actions such as FEC’s

decision here, courts review “the whole record or those

parts of it cited by a party.” 5 U.S.C. § 706; Volpe, 401

U.S. at 420 (“[R]eview is to be based on the full

administrative record that was before the Secretary at

the time he made his decision.”). This includes “all

documents and materials that the agency directly or

indirectly considered” before deciding what action to

take. Pac. Shores Subdiv. Cal. Water Dist. v. U.S. Army

Corps of Engr’s, 448 F.Supp.2d 1, 4 (D.D.C. 2006)
22a

(internal quotation omitted). Judicial review is limited

to the record because a court “should have before it

neither more nor less information than did the agency

when it made its decision.” IMS, P.C. v. Alvarez, 129

F.3d 618, 623 (D.C. Cir. 1997) (quoting Walter O.

Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.

Cir. 1984)). Agencies bear the burden of compiling the

materials and documents they considered, either

directly or indirectly, and the compiled record “is

entitled to a strong presumption of regularity.” 

Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010).

When, as here, a party seeks to add materials to the

record that it does not contend the agency actually

reviewed, courts have permitted such extra-record

evidence in at least three “unusual circumstances.” Am.

Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.

2008). These are: (1) when “the agency ‘deliberately or

negligently excluded documents that may have been

adverse to its decision,’” (2) when “background

information [is] needed ‘to determine whether the

agency considered all the relevant factors,’” and (3)

when “the ‘agency failed to explain administrative

action so as to frustrate judicial review.’” City of Dania

Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010)

(quoting Am. Wildlands, 530 F.3d at 1002).

Plaintiffs contend that the extra-record materials

identified in their motion for summary judgment can be

divided into six categories that are permissible under

one of the first two exceptions or for a separate reason.

(See Pls.’ Mot. to Supplement at 2–6.) However, three

of the extra-record materials identified in the FEC’s

appendix—an article regarding a 2018 Senate bid, a
23a

comment made after the 2016 election about the

difficulty of selecting moderators, and an article

concerning Ross Perot’s independent candidacy in

1992—are not encompassed by any of the six categories

delineated by Plaintiffs. For those materials, because

Plaintiffs failed to address them, in accord with Local

Rule 7(b), the court deems the FEC’s motion as

conceded, see Hopkins v. Women's Div., Gen. Bd. of

Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002)

(citing FDIC v. Bender, 127 F.3d 58, 67–68

(D.C.Cir.1997)) (“It is well understood in this Circuit

that when a plaintiff files an opposition to a motion . .

. addressing only certain arguments raised by the

defendant, a court may treat those arguments that the

plaintiff failed to address as conceded.”), and strikes

those portions from the record. (See ECF No. 83 (“Pls.’

Mot. Summ. J.”) at 14, n.22; 16, n.30; 44, n.58.)

i. News Articles Regarding CPD Directors’

Participation and Statements

Plaintiffs seek to supplement the record with two

news articles that they allege demonstrate

noncompliance with CPD’s internal policies. The first

article relays CPD Director Olympia Stowe’s opinion

that President Donald Trump was hurting the

Republican brand. (See Pls.’ Mot. Summ. J. at 14, n.18.)

The second article states that CPD Director Frank

Fahrenkopf co-chaired a fundraiser for Adam Laxalt,

who was reportedly considering entering Nevada’s

gubernatorial race at the time. (See id. at 25, n.35.) 

Plaintiffs argue that the articles fall under the first and

second Dania Beach exceptions, under which

extra-record evidence may be considered because an
24a

agency has deliberately or negligently excluded adverse

documents, and extra-record evidence may be

considered as needed background information. (See

Pls.’ Mot. to Supplement at 2–3.)

Having considered all arguments, the court finds that

neither of the first and second Dania Beach exceptions

apply to these articles. To prove that the articles fall

within the first Dania Beach exception, Plaintiffs

needed to make a “strong showing of [agency] bad

faith.” Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d

46, 55 (D.C. Cir. 2015) (quoting James Madison Ltd. ex

rel. Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996)

(alteration in original). Here, Plaintiffs proffered only

“conclusory statements,” which “‘fall short’ of that high

threshold.” Id. With respect to the second Dania Beach

exception, Plaintiffs argue that the news articles should

be made part of the record because they show “that the

FEC failed to consider all relevant factors when relying

upon the alleged [internal] policies.” (See Pls.’ Mot. to

Supplement at 3.) But under Dania Beach, it is not

enough that Plaintiffs cursorily allege the evidence

shows a failure to consider all relevant factors;

Plaintiffs must demonstrate that the evidence is

“needed” by the court to make that determination.

Dania Beach, 628 F.3d at 590. And in light of the FEC’s

explanation of the manner in which it relied on CPD’s

representation that it had two internal polices, as well

as the voluminous record, the court is confident that

the two news articles are not needed. See e.g., Lee

Mem’l Hosp. v. Burwell, 109 F. Supp. 3d 40, 54 (D.D.C.

2015) (finding supplementation not needed where

agency provided cogent explanation). Therefore,
25a

Defendant’s motion to strike the two news articles is

GRANTED, and Plaintiffs’ motion to supplement the

record with them is DENIED.

ii. News Articles Regarding Media Sources

Consulted by Voters

Plaintiffs next seek to admit four news articles under

the first and second Dania Beach exceptions, arguing

that the articles rebut the FEC’s assertion that an

independent candidate can significantly defray the cost

of her campaign by reaching voters through social

media. (See Pls.’ Mot. Summ. J. at 30, nn.38–40; 31,

n.46; Pls.’ Mot to Supplement at 4.) 

Here again, the court finds that neither the first nor

second Dania Beach exceptions apply. Plaintiffs proffer

no evidence of bad faith, and therefore cannot meet the

first exception. See Dist. Hosp. Partners, L.P., 786 F.3d

at 55 (noting that to meet the first exception, plaintiffs

must make a strong showing of bad faith on the part of

the agency). And the second exception has not been

met because the FEC’s decision explains how it arrived

at its finding that the Douglas Schoen expert report is

undermined, in part, because the report did not

consider the effect of digital and social media on media

exposure avenues available to independent candidates.

The proffered news articles are not needed to determine

whether the FEC adequately considered all the relevant

factors, including the extent to which voters rely on

social media to learn about presidential candidates. See

e.g., Lee Mem’l Hosp., 109 F. Supp. 3d at 54 (finding

supplementation not needed where agency provided

cogent explanation). Accordingly, Defendant’s motion
26a

to strike the four news articles is GRANTED, and

Plaintiffs’ motion to supplement the record with them

is DENIED.

iii. Articles, Books, Videos, and Websites

regarding the 2016 Election

Of the FEC’s two decisions—the initial decision was

issued in 2015 and the second decision was issued in

2017—only the 2017 decision references the 2016

election in its analysis. In response to this reference in

the 2017 decision, Plaintiffs seek to supplement the

administrative record with extra-record evidence

concerning the 2016 election. (See Pls.’ Mot. Summ. J.

at 1, n.2; 4, n.6; 13, nn.12–13 & 15–16; 14, nn.17, 19–21,

& 23; 15, nn.24–26; 16, n.29; 33, n.49.) Plaintiffs argue

that the court should either find that the evidence falls

under the second Dania Beach exception or, at a

minimum, take judicial notice of the evidence for

purposes of background. (See Pls.’ Mot. to Supplement

at 5–6.) The court disagrees.

Plaintiffs’ characterization of FEC as “conducting

[its] own sua sponte analysis of the 2016 race,” (see id.

at 6), is a bit of an overstatement. The FEC’s references

to the 2016 election are cabined largely to three

categories: (1) third party candidates’ name

recognition, media attention, and financial support; (2)

the Democratic and Republican nominees’ spending on

digital marketing; and (3) a potential candidate’s

reported interest in running because of his personal

wealth and name recognition. For each category, the

FEC provides a cogent explanation of its reliance on the

cited materials; thus, supplementation is not needed.
27a

See e.g., Lee Mem’l Hosp., 109 F. Supp. 3d at 54 (finding

supplementation not needed where agency provided

cogent explanation). With respect to Plaintiffs’

alternative argument, because the content of some of

the documents are subject to reasonable dispute and the

court’s focus at this stage is on the documents that can

serve as the foundation for Plaintiffs’ claims, the court

declines to take judicial notice of the documents for

background purposes. Defendant’s motion to strike the

articles, books, videos, and websites is GRANTED, and

Plaintiffs’ motion to supplement the record with them

is DENIED.

iv. Name Recognition Polls Not Mentioned in

FEC’s Decisions

Plaintiffs also seek to supplement the record with a

Gallup and a YouGov poll showing that Libertarian

Party candidate Gary Johnson’s name recognition was

36 percent and 37 percent respectively. (See Pls.’ Mot.

Summ. J. at 27, n.37.) According to Plaintiffs, the polls

show that the FEC erred in relying solely on a

subsequent YouGov poll, which indicated that Gary

Johnson achieved 63 percent name recognition. (Id.) 

Plaintiffs argue that the court may take judicial notice

of the polls or, in the alternative, find that the two polls

fall under the first and second Dania Beach exceptions.

(See Pls.’ Mot. to Supplement at 3–4.) However, none of

these three proposed avenues are appropriate here.

“[J]udicial notice is typically an inadequate

mechanism for a court to consider extra- record

evidence when reviewing an agency action.” Dist. Hosp.

Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15, 32, n.14
28a

(D.D.C. 2013), aff’d sub nom. Dist. Hosp. Partners, L.P.

v. Burwell, 786 F.3d 46 (D.C. Cir. 2015). This general

rule rests on the premise that plaintiffs should not be

permitted to exploit the standard for judicial notice to

circumvent the strict standard for supplementing the

administrative record. See Banner Health v. Burwell,

126 F. Supp. 3d 28, 62 (D.D.C. 2015), aff’d in part, rev’d

in part sub nom. Banner Health v. Price, 867 F.3d 1323

(D.C. Cir. 2017) (“Plaintiffs cannot evade that strict

standard by appealing to the standard for judicial

notice.”). And none of the cases relied upon by

Plaintiffs involved an APA case. See e.g., Atkins v.

Virginia, 536 U.S. 304, 316 n.21 (2002) (reviewing

public opinion polling data in death penalty appeal);

Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015)

(using website to determine when sunset and nautical

twilight occurred on certain day in a habeas case).

Therefore, in accord with other courts in this district,

the court declines to take judicial notice of the two polls

because, as discussed below, Plaintiffs have failed to

prove that any of the Dania Beach exceptions apply. 

See Riffin v. Surface Transp. Bd., No. 16-1147, 2016

WL 6915552, at *1 (D.C. Cir. Oct. 6, 2016)

(unpublished) (rejecting plaintiff’s effort to supplement

the administrative record through judicial notice and

explaining that none of the three exceptions to the rule

against supplementation were met); Silver State Land,

LLC v. Beaudreau, 59 F. Supp. 3d 158, 172 (D.D.C.

2014) (declining to take judicial notice in APA case

where proposed document did not “qualify for

supplementation of the administrative record or

extra-record review”); see also Dist. Hosp. Partners, 971

F. Supp. 2d at 32 n.14 (“[J]udicial notice of an
29a

adjudicative fact not part of the administrative record

generally is irrelevant to the court’s analysis of the

merits. Instead, a court may only consider an

adjudicative fact subject to judicial notice that is not

part of the administrative record if it qualifies for

supplementation as extra-record evidence.”).

With respect to the first Dania Beach exception, in

addition to their conclusory statement that the two

polls undermine the FEC’s argument and were

deliberately or negligently excluded by the FEC,

Plaintiffs cite to a D.C. Circuit decision permitting

supplementation of the administrative record where the

agency relied on a single memorandum from another

program. See Kent Cty., Delaware Levy Court v. U.S.

E.P.A., 963 F.2d 391, 396 (D.C. Cir. 1992). However, in

that case, the agency looked outside of its own files to

support its decision, but neglected to examine its own

files, which contained several documents “relat[ing] to

the position of the agency’s own experts on the question

central to th[e] case.” Id. Thus, the Court found the

agency negligent for failing to review any of its internal

documents and permitted plaintiff to supplement the

administrative record. Id. Here, however, the poll

relied upon by the FEC and the two polls proffered by

Plaintiffs are all external documents. Thus, there is

insufficient evidence to find that the FEC was either

deliberate or negligent in not including them. Moreover,

Plaintiffs seek to introduce a poll that was taken June

2–5, 2016 and another poll taken July 13–17, 2016. And

because the YouGov poll in the record was taken over a

month later, on August 25–26, 2016, it is not directly

contradicted by the polls proffered by Plaintiffs, and it
30a

is not clear that the polls are adverse to the FEC’s

decision.

Lastly, the second Dania Beach exception does not

apply to the name recognition polls, neither of which

provide insight into the FEC’s findings nor assist the

court in determining whether the FEC adequately

considered the relevant factors. C.f. Rhea Lana, Inc. v.

U.S. Dep’t of Labor, No. 14-CV-00017 (CRC), 2016 WL

10932817, at *1 (D.D.C. Dec. 6, 2016) (finding proposed

supplement provided needed background information

where it included letters “shed[ding] light on the basis

for [the agency’s] decision”). The two proffered polls do

not provide insight into the FEC’s decision making

because they do not reflect the thoughts or efforts of

anyone who participated in the FEC’s decision. And the

court can consider any arguments about to what extent,

if any, the FEC erred in relying only on the August

YouGov poll without considering the two earlier polls

that were not before the FEC. Thus, Defendant’s

motion to strike the name recognition polls is

GRANTED, and Plaintiffs’ motion to supplement the

record with them is DENIED.

v. 2008 Polling Data for President Barack

Obama

Plaintiffs also seek to supplement the record with a

Real Clear Politics poll, which they allege plainly shows

that President Barack Obama’s polling received a boost

after the 2008 Iowa caucuses. (See Pls.’ Mot. Summ. J.

at 42, n.55.) Plaintiffs assert that the court should take

judicial notice of the poll, or consider it under the first

Dania Beach exception, which permits consideration of
31a

extra-record adverse evidence when an agency has

deliberately or negligently excluded it. (See Pls.’ Mot.

to Supplement at 5.)

Plaintiffs have again failed to establish that

supplementation is warranted. They submitted this

poll because “[f]or the first time in its decisions, the

FEC disputed whether President Obama’s polling

received a boost from the 2008 Iowa caucuses.” (Id.)

But the FEC’s decision contains no such dispute; it

simply notes that a polling expert found that President

Obama did not “suddenly burst onto the political scene,

polling shows that he was already reasonably

well-known to voters in advance of the 2008 primaries.” 

(A.R. 1934.)1

 Nevertheless, even if the decision did

contain the dispute, Plaintiffs have not shown that the

FEC deliberately or negligently excluded the poll, and

judicial notice is inappropriate where none of the Dania

Beach exceptions have been met. Accordingly, the court

will not take judicial notice of the Real Clear Politics

poll and will not consider it as part of the record in

evaluating the cross-motions for summary judgment. 

Defendant’s motion to strike the Real Clear Politics poll

is GRANTED, and Plaintiffs’ motion to supplement the

record with it is DENIED.

vi. Douglas Schoen Affidavit

The administrative record in this case includes

Douglas Schoen’s expert report and a cover letter

1 In this opinion, the “A.R.” refers to the administrative

record. The entire administrative record is contained in the

“Second Joint Appendix,” ECF No. 105.
32a

advising Defendant that Schoen’s complete data set

could be provided upon request. Plaintiffs now seek to

supplement the record with an affidavit from Schoen

attaching the data set upon which he relied. (ECF No.

83-3.) Plaintiffs argue that the court should consider

the affidavit and attachment under the second Dania

Beach exception, which allows a court to supplement

the record with evidence that provides needed

background information. (See Pls.’ Mot. to Supplement

at 5.)

The court does not need the affidavit and the data set

to determine whether the FEC considered the relevant

factors. Generally, an administrative record need not be

supplemented with underlying source documents where

a document in the record provides detailed findings. See

Dist. Hosp. Partners, 786 F.3d at 55 (finding

supplementation unnecessary because source data did

not constitute critical background information); Todd

v. Campbell, 446 F. Supp. 149, 152 (D.D.C. 1978), aff’d,

593 F.2d 1372 (D.C. Cir. 1979) (“[T]he Court does not

need to examine the raw data in order to determine

whether or not the Commission decision was arbitrary

and capricious or otherwise not in accordance with

law.”); see also James Madison, 82 F.3d at 1095–96

(“[T]he administrative record included detailed

memoranda describing the examiners’ findings and

recommendations, and [the plaintiff] has given no

reason why the district court should have looked

beyond those memos.”). This case does not present any

reason to depart from this general understanding

because the proposed supplement is, as Plaintiffs

concede, “in many respects [] identical to what Schoen
33a

said in his report.” (Pls.’ Mot. to Supplement at 5.) The

duplicative nature of the supplement renders this case

inapposite to the first case—Oceana, Inc. v. Evans, 384

F. Supp. 2d 203 (D.D.C. 2005)—upon which Plaintiffs

rely. Id. at 217 n.17 (supplementing record with

additional information from the creator of a scientific

model because the proposed supplement explained how

the agency misapplied the model). And Plaintiffs’

second case is inapplicable because, contrary to

Plaintiffs’ representations to the court, the scientist’s

declaration in that case was stricken from the record.

See Sw. Ctr. For Biological Diversity v. Norton, No.

98-CV-934 (RMU/JMF), 2002 WL 1733618, at *8

(D.D.C. July 29, 2002) (“In the end, the addition of

Lande’s declaration is a nonstarter, for it cannot be said

to taint FWS’ final decision.”).

Moreover, to the extent Plaintiffs suggest that had

the FEC requested the data set, it would have changed

its finding that there is “no evidentiary basis” to credit

the figures extracted from the data set, Plaintiffs are

mistaken. The proposed data set—a one-page chart,

entitled “National 18 Week Political Strategy

Outline”—does not address any of the three issues

identified in the FEC’s rulemaking decision. It does not

provide information on the underlying data or explain

the circumstances under which a media firm offered

these estimates. And lastly, it does not address or

acknowledge the biases arising from a media firm’s

financial interest in estimating or promoting high

media buy costs.
34a

Accordingly, Defendant’s motion to strike the Schoen

Affidavit is GRANTED, and Plaintiffs’ motion to

supplement the record with it is DENIED.

2. Eric Olney Declaration

In support of their motion for summary judgment,

Plaintiffs submitted a declaration from Eric Olney, an

attorney in this matter. (ECF No. 83-2.) Attached to the

declaration are several exhibits. The FEC does not

object to the exhibits, but, in a footnote, it moves to

strike the portions of the Olney declaration that contain

“arguments by counsel” because arguments should be

confined to the briefs. (See Def.’s Mot. to Strike at 5,

n.2.) In response, Plaintiffs maintain that the

declaration is “limited to a description of conversations

and other acts performed by [the] law firm that could

only be attested to in an attorney declaration.” (See

Pls.’ Mot. to Supplement at 7.)

In moving to strike the portions of the Olney

declaration, the FEC erred in three respects. It made its

motion in a perfunctory manner in a footnote, and

instead of identifying all instances of argument or

providing an example of the objectionable argument,

the FEC referred to the objected to material as

“Portions of Declaration of Eric S. Olney.” Then, in its

reply brief, the FEC again confined its argument about

the declaration to a footnote. While it is understandable

that the five-page limit on the FEC’s reply brief may

justify relegating the argument to a footnote, the FEC’s

opening motion had no such page limitation and should

have, at the very least, provided the court with an

example of the objectionable argument. Accordingly,
35a

the court declines to guess which portions of the

declaration contain argument. See Hutchins v. District

of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999)

(stating that the court “need not consider cursory

arguments made only in a footnote”); Huntington v.

U.S. Dep’t of Commerce, 234 F. Supp. 3d 94, 101

(D.D.C. 2017) (deeming arguments made in footnote as

forfeited and addressing only arguments made in

briefs). Defendant’s motion to strike unidentified

portions of the Olney Declaration is DENIED.

3. Commissioner Ellen Weintraub’s Remarks

In July 2015, the FEC held an open meeting during

which it discussed Plaintiffs’ rulemaking petition.

Plaintiffs’ motion for summary judgment includes

remarks made by Commissioner Ellen Weintraub

during the discussion. (See Pls.’ Mot. Summ. J. at 8,

n.8.) The FEC moves to strike Plaintiffs’ use of the

remarks because they constitute pre-decisional

deliberations and are thus not properly considered part

of the administrative record. (See Def.’s Mot. to Strike

at 8–10.) Plaintiffs contend that the remarks are

properly before the court to show institutional bias. 

(See Pls.’ Mot. to Supplement at 7.) The court agrees

with the FEC.

When reviewing an agency action, the agency’s

opinion and its pre-decisional deliberations are and

should be handled differently. “Agency opinions, like

judicial opinions, speak for themselves.” Checkosky v.

SEC, 23 F.3d 452, 489 (D.C.Cir.1994). “Rendered at the

conclusion of all the agency’s processes and

deliberations, they represent the agency’s final
36a

considered judgment upon matters of policy the

Congress has entrusted to it.” PLMRS Narrowband

Corp. v. F.C.C., 182 F.3d 995, 1001 (D.C. Cir. 1999).

Accordingly, courts should review the agency’s opinion

with a view to determining whether the agency acted

within the scope of its legal authority, explained its

decision, relied on facts with some basis in the record,

and considered the relevant factors. Fulbright, 67 F.

Supp. 3d at 89. In contrast, predecisional deliberations

are not final. Until the agency issues its opinion,

commissioners are free to change their positions and

the bases of their positions. See Checkosky, 23 F.3d at

489 (“Up to the point of announcement, agency

decisions are freely changeable, as are the bases of those

decisions.”). Pre-decisional deliberations will not be

effective if commissioners are concerned that “any slip

of the tongue during an agency’s decisionmaking

process could be fatal.” PLMRS Narrowband Corp., 182

F.3d at 1001. Indeed, if commissioners’ remarks were

regularly deemed fair game for the administrative

record, there could be a chilling effect on “candid and

creative exchanges regarding proposed decisions and

alternatives,” “lead[ing] to an overall decrease in the

quality of decisions.” Ad Hoc Metals Coal. v. Whitman,

227 F. Supp. 2d 134, 143 (D.D.C. 2002). Thus, “[w]here

an agency has issued a formal opinion or a written

statement of its reasons for acting, transcripts of agency

deliberations at Sunshine Act meetings should not

routinely be used to impeach that written opinion.” 

Kan. State Network v. FCC, 720 F.2d 185, 191 (D.C. Cir.

1983).
37a

In this case, Commissioner Weintraub’s remarks

were made during pre-decisional deliberations; thus,

the presumption is against inclusion in the

administrative record. In an attempt to rebut the

presumption, Plaintiffs rely on a Third Circuit decision

involving the termination of an employee’s Employee

Retirement Income Security Act benefits. See Kosiba v.

Merck & Co., 384 F.3d 58, 67 (3d Cir. 2004). Contrary

to Plaintiffs’ representations, Kosiba is not in any

material way comparable to this case. In Kosiba, the

district court found that the denial of benefits was not

arbitrary and capricious. Id. at 61. The Third Circuit,

when remanding the case, noted that the district court

could supplement the record with “evidence of potential

biases and conflicts of interest that is not found in the

administrator’s record” in order to determine whether

a standard above the arbitrary and capricious standard

should be applied. Id. at 67 n.5. The procedural posture

and questions presented by the FEC’s motion to strike

are patently different from those presented in Kosiba,

and therefore that case provides no basis for the court

to supplement the record with Commissioner

Weintraub’s pre-decisional remarks. Defendant’s

motion to strike Commissioner Weintraub’s remarks is

GRANTED, and Plaintiffs’ motion to supplement the

record with it is DENIED.

B. Plaintiffs’ and Defendant’s Cross-Motions

for Summary Judgment

Following this court’s remand, the FEC reconsidered

the allegations in both of Plaintiffs’ complaints as well

as those in Plaintiffs’ petition for rulemaking. The FEC
38a

subsequently issued two decisions again finding

Plaintiffs’ allegations unpersuasive. Plaintiffs now

challenge the underpinnings of each decision.

1. FEC’s Dismissals of Plaintiffs’ Administrative

Complaints

The FEC’s Factual and Legal Analysis opened by

explaining that the FEC uses the “plain meaning” of

“endorse, support, and oppose” when determining

whether the CPD qualifies as a staging organization

that does not endorse, support, or oppose political

candidates or political parties. (A.R. 7213.)

The FEC then analyzed evidence that it had

previously reviewed in prior actions. In so doing, the

FEC first relied on sworn declarations, from the

individuals or organizations quoted in Plaintiffs’

complaint, in which the individuals affirmed that the

“statements attributed to them do not fairly or fully

reflect their respective views on the participation of

independent candidates in CPD debates.” (A.R. 7216.)

The FEC further found that even if the quotes in

Plaintiffs’ complaint were not cherry picked and indeed

once represented the organization’s perspective, “it

would be inappropriate to rely on documents and

statements that are more than 30 years old to ascertain

CPD’s present support or opposition to candidates and

parties,” because organizations change over time. (A.R.

7217.) And the CPD, in particular, conducts an internal

review after every presidential election and has

adjusted the process to be inclusive of independent

candidates. (Id.) The FEC also found that the earlier

documents and statements were of limited persuasive
39a

value because each current CPD director swore that he

or she had never observed a CPD board member

conduct CPD business in a partisan fashion. (A.R.

7218.) Finally, the FEC reasoned that even if the earlier

declarations reflected more current sentiments, they

did not demonstrate that CPD endorsed, supported, or

opposed any party or candidate. (Id.)

The FEC then addressed the evidence that had not

been presented in prior complaints. It found that

statements made in an interview by CPD Co-Chair

Frank Fahrenkopf in his official capacity did not

indicate any categorical support for or opposition to any

candidates; they merely asserted the historical fact that,

aside from Ross Perot, the debates have consisted of

only Democratic and Republican candidates. (A.R.

7219.) The FEC also reviewed all other statements,

financial contributions, and employment-related

evidence to determine whether any were attributable to

any CPD co-chair or director in his or her official

capacity. (A.R. 7221.) The FEC then noted the CPD’s

recently adopted “Political Activities Policy” and an

informal policy limited the risk that financial conflicts

of interest could arise as a result of outside

employment. (A.R. 7221–22.) Accordingly, the FEC

found that the additional evidence failed to demonstrate

that the CPD endorsed, supported, or opposed any

political party or political candidate.

The FEC’s Factual and Legal Analysis then

addressed Plaintiffs’ claim that the fifteen percent

polling threshold is not objective and results in

prohibited corporate contributions from CPD to debate

participants. First, the FEC noted that, in another case,
40a

the court concluded that “third party candidates have

proven that they can achieve the level of support

required by the CPD.” (A.R. 7223–24.) Second, the FEC

acknowledged that this case is different because

Plaintiffs have presented new information in the form

of expert reports.

The FEC took issue with Dr. Clifford Young’s report,

which found that to meet the 15 percent threshold, a

candidate must achieve 60 and perhaps as much as 80

percent name recognition. (A.R. 7224.) The FEC

claimed that by focusing solely on name recognition,

Young oversimplified the study to the detriment of its

usefulness. (AR. 7224–25.) Moreover, the Young report

did not and cannot establish that it is impossible for

independent candidates to reach the requisite name

recognition because 63 percent of registered voters had

heard of Libertarian Gary Johnson and 59 percent had

heard of Green Party candidate Jill Stein.

(AR.7225–26.)

The FEC then turned to political analyst Douglas

Schoen’s report, which stated that the cost to an

independent candidate of achieving 60 percent name

recognition would be over $266 million, including $120

million for paid media content production and

dissemination. (A.R. 7224.) The FEC found that the

report was flawed in large part because it was built on

the Young report’s premise that 60 to 80 percent name

recognition is necessary to meet the 15 percent

threshold. (A.R. 7226.) The FEC criticized the Schoen

report for failing to consider that independent

candidates can attract earned media (free coverage),

that social media provides more economical avenues for
41a

messaging, and that independent expenditure-only

political committees pay for messaging in support of

independent candidates. (A.R. 7226–28.)

Having identified significant limitations

undermining the reports’ persuasiveness, found that

recent elections undermined the reports’ findings,

noted that independent candidates do not begin at zero

percent name recognition, and acknowledged the

judicial finding that independent candidates in the past

have reached 15 percent in the polls, the FEC concluded

that the expert reports did not provide reason to believe

that the 15 percent threshold violated the requirement

to use objective candidate-selection criteria for staging

debates. (A.R. 7228–29.)

The FEC then addressed Plaintiffs’ allegations that

the CPD manipulates the selection of polls to favor

Democratic and Republican candidates, and relies on

inaccurate polls. The FEC found no evidence in the

record that the CPD has manipulated the dates of the

polls to favor any party. (A.R. 7230.) It relied on a

sworn declaration from its independent polling expert

stating, in part, that he has recommended which polls

to use since 2000 based solely upon his professional

judgment and without any partisan purpose or

pre-determined result in mind. (Id.) With regard to

Plaintiffs’ allegations that polling in three-way races is

subject to increased inaccuracy, the FEC gave greater

weight to its own expert, finding that Young’s

conclusions about gubernatorial races were not equally

applicable to presidential races and therefore could not

support a reasonable inference that the CPD’s criteria
42a

for selecting debate participants was not objective. 

(A.R. 7231–32.)

Finally, the FEC dismissed Plaintiffs’ remaining

allegations as being grounded solely in policy and

untethered from evidence. (A.R. 7233.)

In their motion for summary judgment, Plaintiffs

assert that the FEC’s conclusions were arbitrary,

capricious, and contrary to law because the FEC: (1)

applied the incorrect legal standard, (2) failed to

properly consider the submitted evidence, and (3)

ultimately reached the wrong conclusion regarding the

objectivity of the CPD’s debate requirement.

i. Legal Standard Adopted by the FEC

Plaintiffs argue that the FEC failed to articulate the

standard it used in determining whether the CPD

complied with the regulation prohibiting it from

endorsing, supporting, or opposing political candidates

or parties. (See Pls.’ Mot. Summ. J. at 20.) They

contend that the FEC’s conclusory statement that it

applied the plain meaning of each term is insufficient

and offers no insight into its decision-making. (Id.) 

Further, Plaintiffs argue that the FEC applied the

“control test” that this court instructed it not to use in

Level the Playing Field v. Fed. Election Comm’n, 232 F.

Supp. 3d 130 (D.D.C. 2017) (“LPF I”). (Id. at 20–21.)

In response, the FEC argues that not only does its

articulation of the standard applied satisfy the court’s

instruction in LPF I, but it is also plainly reasonable

and not contrary to law. (See ECF No. 90 (“Def.’s Resp.

and Mot. Summ. J.”) at 25.) The FEC notes, as it did in
43a

its decision, that the Supreme Court determined in

another context that two out of three of the

terms—“support” and “oppose”—“provide explicit

standards for those who apply them and give the person

of ordinary intelligence a reasonable opportunity to

know what is prohibited.” (Id. (quoting McConnell v.

Fed. Election Comm’n, 540 U.S. 93, 170 n.64 (2003),

overruled on other grounds by Citizens United v. Fed.

Election Comm’n, 558 U.S. 310 (2010)).) In addition,

the FEC contends that Plaintiffs’ assertion that it

applied an improper “control test” is belied by the

record. (Id. at 26.)

The FEC has the better of this argument. Plaintiffs

might prevail if the FEC had merely stated that it

applied the plain meaning of “endorse,” “support,” and

“oppose” without incorporating the application into its

written analysis. But the FEC’s discussion regarding its

application demonstrates that it reviewed the evidence

to determine whether it fell into one of three categories:

(1) evidence that the CPD directly engaged in

prohibited conduct, (2) evidence that CPD personnel

engaged in prohibited conduct in an official capacity,

and (3) evidence that CPD personnel engaged in

prohibited conduct in a personal capacity. (A.R.

7213–22.) The FEC examined the evidence in the first

two categories to determine whether it was persuasive

enough to warrant a finding that the CPD violated the

Federal Election Campaign Act (“FECA” or the “Act”).

(A.R. 7214–20.) In so doing, the FEC used the plain

meaning of the terms “endorse,” “support,” and

“oppose.” (A.R. 7213–22.) With respect to evidence in

the third category, the FEC determined that it did not
44a

violate the Act because an individual is permitted to

wear “multiple hats” and “an individual’s leadership

role in a given organization does not restrict his or her

ability to speak freely on political issues or make

contributions to political committees when he or she

does so in his or her personal capacity.” (A.R. 7220–21.)

Moreover, to the extent that the FEC’s decision

contains a “control test,” it is patently different from

that in Buchanan v. Fed. Election Comm’n, 112 F.

Supp. 2d 58, 63 (D.D.C. 2000). In Buchanan, the FEC

looked for evidence demonstrating that the two major

parties controlled the CPD, was involved in the CPD’s

operations, or had input in the CPD’s debate decision. 

Id. at 70–71. The FEC’s use of the control standard

was deemed permissible to address the “specific

contention . . . that the CPD was created to give the two

major parties ‘control over’ the presidential debates.”

Id. at 70–71 n.8. Heeding Buchanan’s narrow holding,

in LPF I this court advised the FEC that the Buchanan

control standard was inapplicable to Plaintiffs’

allegations because Plaintiffs “do not allege that the

Democratic or Republican parties exercised control over

the CPD, but instead that the CPD and its directors

acted on a partisan basis to support those parties.” LPF

I, 232 F. Supp. 3d at 139. And on remand, the FEC

made plain that it was not applying the Buchanan

control standard, but a standard designed address

whether the CPD was liable for its directors’ actions.

That is, in order for the FEC to address Plaintiffs’

allegations that CPD directors were engaging in

partisan activity that permeated the CPD and rendered

it a partisan organization, the FEC needed to look to
45a

the law of agency to assess the merits of Plaintiffs’

claims.

The court therefore DENIES Plaintiffs’ motion and

GRANTS Defendant’s cross- motion with respect to the

appropriateness of the legal standard applied.

ii. FEC’s Treatment of the Evidence

Plaintiffs argue that, for the second time, the FEC

failed to adequately consider the evidence it presented

in its two administrative complaints. (See Pls.’ Mot.

Summ. J. at 21–32.) In response, the FEC contends that

Plaintiffs cannot meet their burden to show that the

Commission acted contrary to law or in an arbitrary

manner. (See Def.’s Resp. and Mot. Summ.J. at 28–41.)

The FEC also notes that on remand, it heeded this

court’s directives and addressed each deficiency

identified in LPF I. (See id. at 24–28.)

In reviewing the FEC’s Factual and Legal Analysis,

this court must assess whether the FEC considered the

“relevant factors” and must “engage in a ‘substantial

inquiry’ into the facts, one that is ‘searching and

careful.’” Ethyl Corp. v. EPA, 541 F.2d 1, 34–35 (D.C.

Cir. 1976) (quoting Volpe, 401 U.S. at 415–16). 

However, in educating itself about “the intricacies of

the problem before the agency,” this court must be

mindful that it is not a “superagency that can supplant

the agency’s expert decision-maker.” Id. at 36. As such,

this court must examine the administrative record only

for a “rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983).
46a

Although Plaintiffs mount several challenges to the

FEC’s treatment of the evidence, for the reasons set

forth below, none are availing.

a. Plaintiffs’ disagreement with the

FEC’s findings regarding partisan

evidence

In support of their allegations that the CPD is a

partisan organization that has supported, endorsed, or

opposed political parties or candidates, Plaintiffs

submitted several categories of evidence for the FEC’s

review, none of which the FEC found persuasive.

1. Statements analyzed by FEC in

prior matters

As discussed in LPF I, there is some overlap between

the evidence submitted with Plaintiffs’ complaints and

evidence submitted with prior CPD-related complaints,

including MURs 4987, 5004, and 5021, which were

reviewed by the court in Buchanan. The court there

noted that this evidence of the CPD’s alleged

partisanship was “not insubstantial” and “[a]n ordinary

citizen might easily view the circumstances surrounding

the creation of the CPD along with the evidence of

major-party influence over the past three debates as

giving some ‘reason to believe’ that the CPD always has

supported, and still does support, the two major parties

to the detriment of all others.” Buchanan, 112 F. Supp.

2d at 72. However, it found that plaintiffs lacked

“contemporaneous evidence” specifically relating to the

CPD’s decisions regarding the 2000 election debates at

issue in that case. Id.
47a

Here, after acknowledging its earlier conclusions that

the age of the documents and statements undermined

their persuasiveness as evidence of current bias, the

FEC reevaluated the evidence. (A.R. 7215–18.) In so

doing, it first compared Plaintiffs’ characterization of

several statements with declarations submitted by the

quoted individuals. (A.R. 7215.) For example, Plaintiffs

submitted statements made by the then-chairmen of

the Republican and Democratic parties, who entered

into a 1985 Memorandum of Agreement that the

debates “should be principally and jointly sponsored

and conducted by the Republican and Democratic

National Committees,” and issued a 1987 press release

stating that “while the two party committees will be

sponsors for all future presidential general election

debates between our party nominees, we would expect

and encourage” the League of Women’s participation as

a sponsor. (A.R. 2244, 2249.) Plaintiffs view these

statements as “incontestably partisan.” (See Pls.’ Mot.

Summ. J. at 22.) However, the FEC credited a

declaration from CPD Co-Chair Fahrenkopf that

Plaintiffs’ “cherry-picked quotes” must be understood

from the perspective of two individuals working to

procure “buy in” from the two major parties because

“securing commitment of both major party nominees”

was a “major impediment” to institutionalized debates. 

(A.R. 7058, 7216.) In another instance, Plaintiffs

submitted a statement made by a then-former CPD

board member, who in a 2001 interview stated that the

then-CPD Executive Director was “extremely careful to

be bi-partisan.” (A.R. 7216.) Plaintiffs assert that

“bi-partisan” refers to an agreement between two major

political parties. (See Pls.’ Mot. Summ. J. at 22.) The
48a

FEC, however, credited a declaration from the quoted

individual that the word “bi-partisan” was used “to

mean not favoring any one party over another.” (A.R.

7095, 7216.) These two instances are not anomalous.

The FEC deferred to each declarant’s attestation that

the meaning Plaintiffs ascribed to their statements was

inaccurate. (A.R. 7035–7161, 7216.)

The FEC next determined that even if the past

statements did “suggest support for debates exclusively

between Republicans and Democrats or opposition to

the inclusion of independent candidates,” they did not

“necessarily reflect the organization’s perspective at the

time it sponsored the 2012 presidential debates at

issue.” (A.R. 7217.) The FEC noted that the CPD

conducts an internal review after every presidential

election, indicating that the CPD may change over time.

(Id.) And it cited the fact that, following allegations that

the 1996 debates arbitrarily excluded Ross Perot, the

CPD studied the 1996 debates, adopted new candidate

selection criteria, and retained a polling expert to

ensure the new criteria were carefully and thoughtfully

applied. (Id.) The FEC also relied on sworn declarations

from every director, attesting that he or she has “never

observed any [CPD] Board member ever approach any

issue concerning the CPD or its mission from a partisan

perspective and the CPD has conducted its business in

a strictly nonpartisan fashion.” (A.R. 7218.) (alteration

in original)

Finally, the FEC reasoned that even if the past

statements “did reflect more current sentiments, they

are not indicative of CPD’s organizational endorsement

of or support for the Democratic and Republican Parties
49a

and their candidates, or CPD’s opposition to third party

candidates” for two reasons. (Id. (emphasis in

original).) It noted that two of the documents were not

released by the CPD, but the Democratic and

Republican National Conventions “as expressions of

[their] commitment to a new custom for presidential

debates.” (Id.) There was also no evidence that the

statements from the CPD officers and directors were

made in their capacity as CPD representatives. (Id.)

The court finds the FEC’s three-layer assessment

sufficient. It “examine[s] the relevant data and

articulate[s] a satisfactory explanation for its action

including a rational connection between the facts found

and the choice made.” Tex. Neighborhood Servs. v. U.S.

Dep’t of Health & Human Servs., 875 F.3d 1, 6 (D.C.

Cir. 2017). The FEC rationally decided, based on

evidence presented to it, that the statements were

non-partisan, not representative of the current CPD, or

not indicative of CPD’s organizational endorsement,

support, or opposition. That Plaintiffs or other

like-minded individuals may disagree with the FEC’s

interpretation of these statements is not enough for the

court to find that the FEC’s decision is arbitrary,

capricious, or contrary to law. See, e.g., New Life

Evangelistic Ctr., Inc. v. Sebelius, 753 F. Supp. 2d 103,

133 (D.D.C.2010) (“[W]hile New Life may

understandably disagree with HHS’ determination,

mere disagreement cannot discharge its burden of

establishing that the determination was arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.”). Therefore, in light of the FEC’s

reasoned explanations, this court finds that the FEC’s
50a

treatment of previously considered evidence was

neither arbitrary nor contrary to law.

2. Statements analyzed by FEC for the

first time

Plaintiffs next challenge the FEC’s treatment of a

2015 interview that CPD Co-Chair Fahrenkopf gave to

SkyNews. In the interview, Fahrenkopf was asked the

following question:

And, this time around, of course, together, the

television companies wanting to do the two lead

candidates, the three lead candidates, and then a

four candidate debate, the conservative leader said

he wouldn’t do that, and we’ve ended up with a

seven person, a seven party, debate. What do you

think the prospects for that are?

(A.R. 3099.) Fahrenkopf responded:

Well, you know the primary debates here in the

United States, we often—and of course the

Republicans three years ago, had seven or eight

people on the stage and people jokingly say it’s

less of a debate than a cattle show, because there’s

such little time for each candidate to get across in

the short period what their views are on issues.

That’s why in the general election debate, we have

a system, and we, you know, as you know,

primarily go with the two leading candidates, it’s

been the two political party candidates, save in

except for 1992 when Ross Perot participated in

the debates. So, seven people on the stage at one

time is very difficult, it’s going to take a very
51a

clever moderator to make sure that each candidate

gets an opportunity to put forth their views.

(Id.)

Plaintiffs read this exchange to indicate that

Fahrenkopf “admit[ted] that the CPD uses its ‘system’

to ensure that only the ‘two leading candidates’ can

participate in the debates.” (A.R.3094.) Plaintiffs

therefore argued that the FEC should view the

admission as confirmation of the CPD’s bias and

respondents’ violation of federal law. (A.R. 3093.) 

Plaintiffs also asked the FEC to not afford significant

weight to a portion of CPD Director Janet Brown’s

declaration that CPD’s selection system is designed to

be inclusive enough to draw the leading candidates

without being so inclusive that leading candidates

would refuse to participate, because Plaintiffs viewed it

as contradicting Fahrenkopf’s admission. (A.R. 3094.)

Upon review, the FEC found “no categorical support

for Democrats or Republicans or opposition to

independent candidates” because it viewed Fahrenkopf

as referring to a trend. (A.R. 7219.) Then, as it had done

with the statements discussed above, the FEC looked to

Fahrenkopf’s declaration, in which he averred that his

remarks were not fairly construed by Plaintiffs. (A.R.

3120.) Specifically, the FEC agreed with Fahrenkopf’s

explanation that in responding to a question about a

seven-candidate debate, he simply stated “the historical

fact that in the United States, the general election

debates usually have been between two candidates, who

have been the major party nominees.” (A.R. 3119–20.)

Lastly, the FEC noted that Fahrenkopf’s remarks about
52a

the effect a seven-candidate debate would have on the

“educational value of debates” is consistent with the

CPD’s statement that it “operates for the purpose of

providing meaningful debates for the public benefit.” 

(A.R. 7219–20.)

In moving for summary judgment on the FEC’s

treatment of the SkyNews interview, Plaintiffs contend

that the FEC improperly accepted Fahrenkopf’s “bogus

explanation” that he was merely stating a historical

fact, because the interviewer’s “question on its face was

prospective.” (See Pls.’ Mot. Summ. J. at 22.) Plaintiffs

note that the statement “we . . .primarily go with” is

present tense. (See ECF No. 97 (“Pls. Reply and Opp.

Mot. Summ. J.”) at 10 (emphasis and ellipsis in

original).) Plaintiffs also accuse the FEC of sharing the

CPD’s partisan bias because the FEC espouses the

“paternalistic view” that multiple candidates have a

negative effect on the debates’ educational value. (Pls.’

Mot. Summ. J. at 23.)

Plaintiffs contend that because the interviewer posed

a prospective question, the FEC should have read

Fahrenkopf’s entire answer as relating to the future. 

This argument goes too far. In answering a question

about the future, it is not unusual to use the past as a

frame of reference. Given Fahrenkopf’s answer and

declaration, it was reasonable for the FEC to find that

a portion of his statement asserted a historical

fact—“we . . . primarily go with the two leading

candidates, it’s been the two political party

candidates”—and the other portion of his answer

addressed the question about a seven candidate debate

in the future—“[s]o, seven people on the stage at one
53a

time is very difficult, it’s going to take a very clever

moderator to make sure that each candidate gets an

opportunity to put forth their views.” (A.R. 3099.) 

Accordingly, the court finds that the FEC’s treatment

of Fahrenkopf’s 2015 interview was neither arbitrary

nor contrary to law.

3. Policies implemented by CPD

leadership

As an exhibit to their complaints, Plaintiffs included

a document entitled “Commission on Presidential

Debates: Conflict of Interest Policy,” created to protect

the CPD’s interests “when it is contemplating entering

into a transaction or arrangement that might benefit

the private interests of an officer, director or senior

manager of the Organization or might result in a

possible excess benefit transaction.” (A.R. 2768–71,

4017.)

On remand, the CPD submitted a declaration from

its Executive Director explaining that there are two

additional policies. The first is an “informal policy,”

which provides that “Board members are to refrain

from serving in any official capacity with a political

campaign or party while serving on the Board.” (A.R.

7103.) The second is a “formal Political Activities

Policy” that expands upon the informal policy and “is

intended to deter CPD-affiliated persons from

participating, even in a personal capacity, in the

political process at the presidential level (including the

making of campaign contributions) while serving on the

Board, despite the fact no such policy is required by

FEC regulations.” (A.R. 7103–04.)
54a

The parties’ arguments with respect to this evidence

are akin to two ships passing in the night. Plaintiffs

argue that the FEC erred in relying only on the CPD’s

description of the two previously undisclosed policies

instead of actually reviewing the policies. (See Pls.’

Mot. Summ. J. at 24–26.) According to Plaintiffs, the

CPD’s cursory description of the policies demonstrate

that they are ineffective at prohibiting partisan activity.

(Id.) In response, the FEC highlights that Plaintiffs

submitted the “Conflict of Interest Policy” for the

FEC’s review, and the FEC subsequently reasonably

determined that the policy “appear[s] to limit financial

conflicts of interest that could arise as a result of

outside employment.” (Def.’s Resp. and Mot. Summ. J.

at 34.) This response, focusing solely on the previously

disclosed policy, indicates that the FEC may have

misunderstood Plaintiffs’ contention regarding the two

undisclosed policies.

Putting this apparent misunderstanding aside, the

FEC’s treatment of both undisclosed policies was

appropriate given its earlier findings that political

statements, contributions, and positions held by CPD

leadership solely in their personal capacity were

acceptable. Plaintiffs’ argument that the FEC erred in

considering the two undisclosed policies might have had

more traction had the FEC solely or primarily relied on

policies it had neither viewed nor questioned. However,

the FEC’s Factual & Legal Analysis makes clear that its

determination did not rise or fall with the policies. 

Before mentioning the policies, the FEC stated that (1)

the statements of consequence were those that “express

the position of the CPD,” (2) the contributions of
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consequence were those that “originated from CPD

resources,” and (3) the only positions of consequence

were those where the CPD officer and directors “acted

as agents of CPD” in the course of the outside

employment. (A.R. 7221.) The FEC then found that

Plaintiffs failed to adduce any evidence suggesting that

specific statements, contributions, or positions fell into

any one of those three categories. (Id.) Next, the FEC

found that most of the challenged work preceded the

individual’s CPD service and thus was not fairly

attributable to the CPD. (Id.) The FEC then addressed

its reliance on all three policies, and added appropriate

caveats to show that it had accounted for the CPD’s

failure to provide the Political Activities Policy and the

informal policy. (See id. (“Although not part of

Respondents’ submissions, the policy reportedly . . .”).)

Accordingly, the court finds that the FEC’s treatment

of the policies was neither arbitrary nor contrary to law.

b. Plaintiffs’ contention that the FEC

failed to consider key partisan

evidence

Plaintiffs argue that the FEC’s Factual and Legal

Analysis failed to “specifically address” the following

“evidence demonstrating the CPD’s partisan bias.” 

(See Pls.’ Mot. Summ. J. at 23.)

! Fahrenkopf’s 1987 statement that the CPD

was “not likely to look with favor on including

third-party candidates in the debates” (A.R.

2252);
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! Former Senator Alan Simpson’s 2002

comment that “Democrats and Republicans

on the commission [] are interested in the

American people finding out more about the

two major candidates—not about independent

candidates who mess things up” (A.R. 3136);

! Representative John Lewis’ comment that

“the two major parties [have] absolute control

of the presidential debate process” (A.R.

3095);

! Congressional testimony that the Democratic

and Republican parties determine who

participates in the debates, Buchanan, 112 F.

Supp. 2d at 71;

! Fahrenkopf’s reference to the Republican

Party as “our great party” (A.R. 2382–83);

! Cash contributions from CPD directors to

Democratic and Republican campaigns (see,

e.g., A.R. 2370, 2373–80, 2403–05, 2407–08);

and

! CPD directors’ lobbying efforts on behalf of

industries that gave money to Democratic and

Republican candidates (see, e.g., A.R. 2370,

2385).

(Id. at 23–24.)

The first four pieces of evidence are encompassed in

the FEC’s discussion of evidence that it has previously

reviewed in connection with other administrative

complaints. (A.R. 7214– 18.) As detailed above, the FEC
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found that all the previously considered evidence was

non- partisan, not representative of the current CPD, or

not representative of the organization. In LPF I, this

court stated that it “does not expect the FEC to discuss

every single page of evidence in order to demonstrate

that it had carefully considered the facts.” 232 F. Supp.

3d at 142.

The last three pieces of evidence are encompassed in

the FEC’s discussion of more recent partisan evidence

that it had not previously considered. (A.R. 7219–22.) 

As noted above, the FEC reviewed that evidence to

determine whether it amounted to evidence that (1) the

CPD directly engaged in prohibited conduct, (2) CPD

personnel engaged in prohibited conduct in an official

capacity, and (3) CPD personnel engaged in prohibited

conduct in a personal capacity. (A.R. 7213–22.)

Categorizing the evidence in this manner was a critical

step in the FEC’s analysis because prohibited conduct

done solely in a personal capacity was deemed benign.

The FEC found that each of the last three pieces of

evidence fell within the benign category. Beginning

with Fahrenkopf’s article in which he referred to the

Republican Party as “our great party,” the FEC found

that “there is no indication that Fahrenkopf wrote his

op-ed in his official capacity as CPD co-chair, nor does

the opinion piece express positions on behalf of CPD.”

(A.R. 7221.) With respect to the cash contributions

made by CPD personnel to Democratic and Republican

campaigns, the FEC found “no suggestion that any of

the contributions . . . originated from CPD resources or

any source other than their respective personal assets.”

(Id.) Lastly, with respect to the lobbying efforts, the
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FEC found no information that the CPD directors acted

“as agents of CPD in the course of outside

employment,” “on behalf of the CPD” in the course of

lobbying efforts, or “on behalf of their employer while

volunteering for CPD.” (Id.)

Because the FEC did in fact address each piece of

evidence identified by Plaintiffs, Plaintiffs’ contention

is reduced to a simple disagreement with the FEC’s

decision (as opposed to their representation that the

FEC ignored a mountain of evidence), and such a

disagreement does not discharge Plaintiffs of their

burden to establish that the decision was arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law. Therefore, this court finds in favor

of the FEC.

c. Plaintiffs’ contention that the FEC

and CPD Directors failed to give

sufficient consideration to evidence

that CPD Directors were

participants in a “partisan scheme”

In LPF I, this court ordered that on remand, the FEC

must notify the named directors that Plaintiffs’

complaint alleged that the directors had committed a

violation of the FECA, give the directors the

opportunity to address the allegations, and consider the

evidence against the directors. 232 F. Supp. 3d at 143.

In accordance with this court’s order, the FEC notified

the directors and provided them with an opportunity to

respond. Nine of the directors submitted sworn

declarations containing nearly identical paragraphs. 

(A.R. 7143–61.)
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Plaintiffs contend that the directors’ responses

demonstrate that neither they nor the FEC gave “any

sufficient thought to the substantial evidence.”

Specifically, they contend that the declarations are

meaningless because they are virtually identical and

summarily deny the allegations. (See Pls.’ Mot. Summ.

J. at 32.) Plaintiffs also assert, using Alan Simpson’s

declaration as an example, that the declarations are

flawed because they do not confirm that the directors

reviewed the complaint or supporting evidence. (Id. at

32–33.) Plaintiffs therefore conclude that the FEC

should have questioned their validity. (Id. at 33.)

The FEC responds that it was reasonable for it to

give greater weight to the declarations because

Plaintiffs’ “cherry-picked quotes from CPD’s directors

were not made under oath and the quoted statements

do not necessarily contradict respondents’

declarations.” (Def.’s Resp. and Mot. Summ. J. at 35.)

The FEC uses Simpson’s declaration to demonstrate

that he did in fact directly address the statement that

Plaintiffs accused him of ignoring. (Id.) As to Plaintiffs’

argument that the FEC should have questioned the

validity of the declarations, the FEC states that the

Factual and Legal Analysis’ robust discussion regarding

the evidence’s age, history, context, and legal

significance demonstrates that it did not blindly accept

the declarations. (ECF No. 104 (“Def.’s Reply”) at

12–13.) In addition, the FEC argues that in the absence

of the declarations, it would have reached the same

conclusion because all the evidence—except for the

remarks made in Fahrenkopf’s 2015 interview—was

“too old and/or only pertained to CPD directors’
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non-official capacity and thus likely would not establish

CPD liability.” (Id. at 13.) Lastly, the FEC cites Circuit

case law stating that it is not a valid objection that

conflicts in the evidence might have been resolved

differently or other inferences may have been drawn

from the same record. (Id.)

The FEC determined that out of all of Plaintiffs’

evidence, only one statement— Fahrenkopf’s 2015

interview—was both recent and given in an official

capacity. The FEC engaged in an in-depth analysis of

that statement before finding that it did not evince

partisan bias. For the remaining statements, the FEC

deemed them benign because they were outdated or

made in the individual’s personal capacity, and

therefore it was not unreasonable for the FEC to award

greater weight to the more recent declarations. In

addition, to the extent the FEC may have erred in

relying on the declarations, such error was not

prejudicial given that the FEC also separately identified

critical imperfections in the statements. Jicarilla

Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112,

1121 (D.C. Cir. 2010) (“The harmless error rule applies

to agency action because ‘[i]f the agency’s mistake did

not affect the outcome, if it did not prejudice the

petitioner, it would be senseless to vacate and remand

for reconsideration.’”). The court therefore finds that

Plaintiffs have not met their burden in establishing that

the FEC’s treatment of the nine declarations was

arbitrary, capricious, or otherwise contrary to law.
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d. Plaintiffs’ disagreement with the

weight afforded to their experts

Plaintiffs submitted two supporting expert reports,

one of which was prepared by Clifford Young, and in

which report he opined that “on average, an

independent candidate must achieve a minimum of 60%

name recognition, and likely 80%, in order to obtain

15% vote share.” (A.R.2493.) Young arrived at this

conclusion after noting, among other things, that there

is a positive correlation between name recognition and

vote share. (Id.) He also stated that three-way races are

more error prone than two-way races, which could lead

to an independent candidate’s improper exclusion from

the debate. (A.R. 2519.) The other expert report was

authored by Douglas Schoen. Building on Young’s

finding that 60 percent name recognition is required to

meet the 15 percent polling threshold, Schoen opined

that an independent candidate should expect to spend

$266,059,803 to run a campaign capable of meeting the

15 percent polling threshold, and that this level of

financing is impossible for all but the major-party

candidates. (A.R. 2555–56.) Schoen also declared that

with respect to polling error, elections with more than

two candidates are prone to distinct volatility that

limits the predictive power of pre-election polling data. 

(A.R. 2556.) According to Plaintiffs, the two expert

reports work in tandem to support their argument that

the 15 percent threshold is not an objective criterion.

Because the FEC addressed the two expert reports at

length in its Factual & Legal Analysis, Plaintiffs do not

and cannot contend that the FEC did not take the

expert reports into account. Instead, they argue that
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the FEC erred in determining how much evidentiary

weight to give the expert reports. But the fact that

Plaintiffs disagree with how the FEC treated the

evidence is not actionable because the FEC provided a

sound and reasoned basis for discounting both expert

opinions.

With respect to Young’s expert report, the FEC

found that (1) the analysis was limited in its scope

because it considers one factor—name recognition—to

the exclusion of other key factors, such as fundraising,

candidate positioning, election results, idiosyncratic

events, policy preferences, and political missteps; (2)

the report did not establish that independent

candidates do not and cannot acquire 60 percent name

recognition; (3) Young’s metric for polling error—the

difference between the poll and the actual result on

election—was not useful because the CPD is concerned

only with a candidate’s support at a given moment; and

(4) Young’s reliance on three- way gubernatorial

election polling was not useful in the presidential

election polling context because presidential election

polling is inherently more reliable than polling in low

turn-out elections, such as gubernatorial races. (A.R.

7224–25, 7231–32.)

The FEC found that Schoen’s report (1) was flawed

because it built upon the Young report’s flawed

findings; (2) presumed that all independent candidates

must pay for all of their media; a presumption which

was unfounded because candidates are able to attract

earned media; (3) failed to address the fact that digital

and social media has enabled the sharing of campaign

messaging at a much lower cost than more traditional
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news outlets; (4) did not account for the fact that

independent expenditure-only political committees are

on the rise and are able pay for messaging, which

reduces the amount the candidate must spend in order

to reach 60 percent name recognition; and (5)

incorrectly presumed that independent candidates

begin with 0 percent name recognition and funding. 

(A.R. 7226–29.)

Each of the FEC’s evidentiary findings was informed

and reasonable given the facts presented to it and the

flaws identified by the FEC. That Plaintiffs would have

come to a different conclusion regarding the weight

afforded to the reports does not render the FEC’s

findings arbitrary, capricious, or contrary to law.

Moreover, the FEC was permitted to afford more weight

to its expert, Gallup’s Editor-in-Chief Frank Newport.

See Wis. Valley Improvement v. F.E.R.C., 236 F.3d 738,

746–47 (D.C. Cir. 2001) (“Given the presence of

disputing expert witnesses,” the court “‘must defer to

‘the informed discretion of the responsible federal

agencies.’”).

iii. FEC’s Determination Regarding CPD’s

Polling Criterion

Finally, Plaintiffs argue that the FEC’s dismissals

were arbitrary and capricious because the agency

“ignored or misconstrued the evidence that the CPD’s

polling criteria is not ‘objective’ and instead favors the

major party nominees.” (See Pls.’ Mot. Summ. J. at 33.)

The FEC regulations require that staging organizations

such as the CPD “use pre-established objective criteria

to determine which candidates may participate in a
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debate,” but does not define “objective criteria.” 11

C.F.R. § 100.13(c); see also Perot v. FEC, 97 F.3d 553,

559–60 (D.C. Cir. 1996) (stating that regulation “does

not spell out precisely what the phrase ‘objective

criteria’ means,” giving “the individual organizations

leeway to decide what specific criteria to use”). In

Buchanan, however, the court noted that “the

objectivity requirement precludes debate sponsors from

selecting a level of support so high that only the

Democratic and Republican nominees could reasonably

achieve it.” 112 F. Supp. 2d at 74.

Here, Plaintiffs bring two challenges. First, they take

issue with the FEC’s failure to dispute that if an

independent candidate did reach 15 percent support,

there is nothing to prevent the CPD from manipulating

the selection of polls to exclude the independent

candidate. (See Pls.’ Mot. Summ. J. at 34.) Second,

Plaintiffs contend that the FEC failed to address the

fact that no independent candidate has satisfied the 15

percent criterion since it was instituted by the CPD.

(See id.)

Plaintiffs’ first challenge is based in conjecture,

requiring the occurrence of two separate events: first,

that an independent candidate reaches the 15 percent

threshold, and second, that the CPD manipulates the

selection of polls to exclude the independent candidate.

Faced with such hypothetical scenarios, the FEC relied

on its independent polling expert’s sworn declaration

that he recommends polls based on the quality of the

methodology employed, the reputation of the polling

organizations, and how often the polling is conducted.

(A.R. 3045.) The expert further averred that he makes
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recommendations based solely upon his professional

judgment and without any partisan purpose or

pre-determined result in mind, and that the CPD has

always adopted his recommendations. (Id.) In light of

this declaration, the FEC’s decision to discount

Plaintiffs’ hypothetical misconduct cannot be construed

as arbitrary.

With regard to Plaintiffs’ second challenge, once the

FEC determined that the Schoen and Young reports

contained flaws that undermined their persuasive

value, the FEC relied on a judicially-upheld finding that

independent candidates have reached the 15 percent

threshold in the past. Indeed, the Buchanan court

stated:

In view of the substantial deference I must accord

to the FEC’s interpretation of its own regulations,

I cannot conclude that it was plainly erroneous or

inconsistent with the regulation for the FEC to

find that the 15% support level set by the CPD is

“objective” for the purposes of 11 C.F.R. §

110.13(c). As Brown indicated in her declaration,

several third party candidates have in the past

achieved over 15% support in the polls taken at or

around the time that the debates are traditionally

held. For instance, by September of 1968, George

Wallace had achieved a level of support of

approximately 20% in the polls. John Anderson

was invited by the League of Women Voters to

participate in the 1980 presidential debates after

his support level reached approximately 15%.

Finally, in 1992, Ross Perot’s standing in the polls

was near 40% at some points and he ultimately
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received 18.7% of the popular vote that year.

(Brown Decl. at ¶ 35.) Thus, third party

candidates have proven that they can achieve the

level of support required by the CPD. While a

lower threshold of support might be preferable to

many, such a reading is neither compelled by the

regulation's text nor by the drafters’ intent at the

time the regulation was promulgated. Accordingly,

deference to the FEC’s interpretation is

warranted.

112 F. Supp. 2d at 74. And because the FEC first

discounted all newly submitted evidence purporting to

show that the criterion was not objective, all that

remained was the evidence that was considered in

Buchannan, and thus the FEC’s reliance on

Buchanan’s findings that it was possible for a third

party candidate to reach the polling threshold was

reasonable.

Accordingly, the court concludes that the FEC’s

determination regarding the polling criterion was

neither arbitrary nor capricious. The court therefore

DENIES Plaintiffs’ motion and GRANTS Defendant’s

cross-motion with respect to the FEC’s determination

regarding the polling criterion.

2. FEC’s Decision to Not Engage in Rulemaking

Plaintiffs also move for summary judgment on its

claim that the FEC’s decision not to initiate rulemaking

was arbitrary and capricious in violation of the APA. 

The court’s review of an agency’s decision not to engage

in rulemaking is very limited, and that decision “is at

the high end of the range of levels of deference we give
67a

to agency action under our ‘arbitrary and capricious’

review.” Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 919

(D.C. Cir. 2008) (internal quotation omitted). The

proper inquiry is “whether the agency employed

reasoned decision- making in rejecting the petition.” Id.

In making this assessment, the court “must examine

‘the petition for rulemaking, comments pro and con . . .

and the agency’s explanation of its decision to reject the

petition.” Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d

1, 5 (D.C. Cir. 1987) (quoting WWHT, Inc. v. FCC, 656

F.2d 807, 817–18 (D.C. Cir. 1981)). An order

overturning the agency’s decision and requiring

promulgation of a rule is reserved for only “the rarest

and most compelling of circumstances.” WWHT, 656

F.2d at 818. However, if the agency fails to provide a

reasonable explanation for its decision, an appropriate

remedy may be a remand to the agency for

reconsideration and publication of a new decision or the

commencement of rulemaking if the agency so decides. 

See, e.g., Shays v. FEC, 424 F. Supp. 2d 100, 116–17

(D.D.C. 2006).

In its Petition for rulemaking, Plaintiffs requested

the following:

The FEC should conduct a rulemaking to revise

and amend 11 C.F.R. § 110.13(c), the regulation

governing the criteria for candidate selection that

corporations and broadcasters must use in order

to sponsor candidate debates. The amendment

should (A) preclude sponsors of general election

presidential and vice-presidential debates from

requiring that a candidate meet a polling

threshold in order to be admitted to the debates;
68a

and (B) require that any sponsor of general

election presidential and vice-presidential debates

have a set of objective, unbiased criteria for debate

admission that do not require candidates to satisfy

a polling threshold to participate in debates.

(A.R. 0009–10.) In support of this request, Plaintiffs

presented much of the same evidence, including the

Young and Schoen reports, as they presented in support

of their administrative complaint. Plaintiffs’ basic

argument is that the use of a single polling criterion to

determine admission to candidate debates is

particularly susceptible to excluding candidates and

confining support to the two major party candidates,

creating an appearance of corruption or unlawful

conduct. Plaintiffs therefore argue that in the unique

context of presidential and vice-presidential debates,

which are run solely by the CPD, the FEC should

continue permitting the CPD or future debate staging

organizations to craft their own objective criteria but

disallow the use of polling thresholds. (A.R. 0032.) The

FEC received 1,264 comments, and only one—from the

CPD— opposed the Petition. (A.R. 1903.)

When it remanded this case, this court identified

several problems with the FEC’s reasoning. For

example, the FEC acknowledged that polling thresholds

could be used to advance one candidate over another,

and summarily stated that other mechanisms would

detect the issue without explaining why alternative

processes would be preferable. (A.R. 1905.) And the

FEC assessed a nationwide prohibition on polling

thresholds for every debate as opposed to Plaintiffs’

requested prohibition on polling thresholds for only
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presidential and vice president debates. (Id.) The court

therefore directed the FEC to reconsider the

rulemaking petition and issue an opinion addressing the

court’s concerns. LPF I, 232 F. Supp. 3d at 148.

Following the remand, the FEC again denied

Plaintiffs’ petition for rulemaking. Plaintiffs now move

for summary judgment based on the FEC’s treatment

of its two expert reports. (See Pls.’ Mot. Summ. J. at

36–43.) As Plaintiffs aptly note, the reasoning in the

Supplemental Notice of Disposition “largely mirrors the

arguments in the Factual and Legal Analysis” and adds

a “handful of additional arguments.” (Id. at 36.) And

given this court’s finding that the FEC’s treatment of

the Young and Schoen report were neither arbitrary nor

contrary to law, there is no need to assess whether the

FEC’s additional reasons for discounting the expert

reports are sufficient. However, the court notes that the

flaws identified by the FEC included: (1) Young’s

decision to measure name recognition at an early stage

in each model may have amplified polling errors, which

are higher earlier in the election cycle; (2) Young’s

analysis does not account for the fact that the

September candidate field is smaller than the earlier

stage that his analysis uses; (3) Young’s report does not

establish any causative effect between name recognition

and vote share; (4) Young’s report fails to provide any

evidence that polling error is biased in a manner

specific to party affiliation; (5) Schoen’s report builds

its conclusion through an extensive series of

unsupported suppositions and assertions; (6) Schoen’s

report failed to explain the circumstances under which

the leading corporate and political media buying firm
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offered its estimate that an independent candidate

would need $100 million for a media buy; and (7)

Schoen’s report does not account for any inherent

biases held by the buying firm. (A.R. 1932–37.) These

flaws vary in magnitude, but as discussed above, the

other flaws were sufficient for the FEC to discount

Plaintiffs’ two proffered experts and rely on its own

independent expert. Thus, Plaintiffs have presented no

basis upon which this court may find that the FEC’s

decision not to engage in rulemaking was arbitrary,

capricious, or otherwise contrary to law. The court

therefore DENIES Plaintiffs’ motion and GRANTS

Defendant’s cross-motion with respect to the FEC’s

decision not to engage in rulemaking.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to

strike is GRANTED, in part and DENIED, in part,

Plaintiffs’ motion to supplement is DENIED, Plaintiffs’

motion for summary judgment is DENIED, and

Defendant’s cross-motion is GRANTED.

An appropriate Order accompanies this Memorandum

Opinion.

Date: March 31, 2019

/s/ Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge
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APPENDIX C

FEDERAL ELECTION COMMISSION

Washington, DC 20463

MAR 31 2017

VIA CERTIFIED AND ELECTRONIC MAIL

Alexandra A.E. Shapiro, Esq.

Shapiro, Arato & Isserles LLP

500 Fifth Avenue, 40th Floor

New York, NY 10110

RE: MURs 6869R & 6942R Commission on

Presidential Debates, et al.

Dear Ms. Shapiro:

The Commission previously notified you of its

findings in MURs 6869 and 6942, which were generated

by complaints you filed on behalf of Level the Playing

Field and Dr. Peter Ackerman, and the Green Party of

the United States and the Libertarian National 

Committee, Inc., respectively. In each matter, the

Commission found that there was no reason to believe

the Commission on Presidential Debates (“CPD”) or

Frank Fahrenkopf Jr. and Michael D. McCurry as

co-chairs violated 52 U.S.C. §§ 30116(f) or 30118(a), 

and no reason to believe that CPD violated 52 U.S.C. 

§§ 30103 or 30104. Accordingly, the Commission closed

each file.
72a

You challenged the Commission's decisions in MURs

6869 and 6942 in Level the Playing Field v. FEC, No.

1:15-cv-01397. On February 1, 2017, the United States

District Court for the District of Columbia ordered the

Commission to issue a decision consistent with the

court's opinion. Pursuant to the court's remand, these

matters were reopened and numbered MUR 6869R and

MUR 6942R.

On March 29, 2017, the Commission reconsidered

the allegations in the complaints and found, on the

basis of the information provided, that there is no

reason to believe the Commission on Presidential

Debates (“CPD”), Frank Fahrenkopf Jr. and Dorothy S.

Ridings as co-chairs, or the ten named staff and board

members violated 52 U.S.C. §§ 30116(f) or 30118(a) by

making prohibited contributions and expenditures and

accepting prohibited contributions, and no reason to

believe that CPD violated 52 U.S.C. §§ 30103 or 30104

by failing to register and report as a political committee.

Accordingly, on March 29, 2017, the Commission closed

the files in MUR 6869R and 6942R.

Documents related to the cases will be placed on the

public record within 30 days. See Disclosure of Certain

Documents in Enforcement and Other Matters, 81 Fed.

Reg. 50,702 (Aug. 2, 2016). The Factual and Legal

Analysis, which explains the Commission's findings, is

enclosed for your information.

The Federal Election Campaign Act of 1971, as

amended, allows a complainant to seek judicial review

of the Commission's dismissal of this action. See 52

U.S.C. § 30109(a)(8). If you have any questions, please
73a

contact Meredith McCoy, the attorney assigned to this

matter, at (202) 694-1650.

Sincerely,

/s/ Mark Allen

Assistant General Counsel

Enclosure

Factual and Legal Analysis
74a

FEDERAL ELECTION COMMISSION

FACTUAL AND LEGAL ANALYSIS

RESPONDENTS : Commission on Presidential

Debates 

Frank Fahrenkopf Jr., Co-Chair

Dorothy S. Ridings, Co-Chair

Michael D. McCurry

Janet H. Brown 

Howard G. Buffet 

John C. Danforth 

John Griffen 

Antonia Hernandez 

John I. Jenkins 

Newton N. Minow 

Richard D. Parsons 

Alan K. Simpson

MURs: 6869R; 6942R

I. INTRODUCTION

These matters are before the Commission on 

remand from the United States District Court for the

District of Columbia following its decision in Level

the Playing Field v. FEC, No.1 :15-cv-01397 (D.D.C. 

Feb. 1, 2017). At issue in the case was the

Commission's prior determination that there is no

reason to believe the Commission on Presidential 

Debates (“CPD”) and its then-co-chairs, Frank

Fahrenkopf Jr. and Michael D. McCurry, made or

accepted prohibited corporate contributions by failing

to comply with the Commission’s regulations on debate

sponsorship in hosting its 2012 presidential and
75a

vice-presidential general elections debates. The court

also reviewed the Commission's finding that there is no

reason to believe CPD failed to register and report as a

political committee. The district court concluded that

the Commission acted “arbitrarily and capriciously in

its enforcement decisions by failing to address evidence

or articulate its analysis” and ordered the Commission

to issue a new decision consistent with its Opinion.1

In accordance with the court's instructions, the

Commission has reconsidered the full scope of the 

available information.2 On the basis of that review, 

1 Level the Playing Fieldv. FEC, No. l:15-cv-01397, 2017

WL 437400 at *13 (D.D.C. Feb. 1, 2017).

2 See Compl., MUR 6869 (Sept. 11, 2014) (“6869 Compl.”);

Resp. of CPD, Fahrenkopf, and McCurry, MUR 6869 (Dec. 15,

2014) (“6869 CPD Resp.”); First Supp. Compl., MUR 6869 (Nov.

25, 2014) (“6869 Supp. Compl.# l “); Second Supp. Compl., MUR

6869 (Apr. 15, 2015) (“6869 Supp. Compl. #2"); Supp. Resp. of CPD,

Fahrenkopf, and McCurry, MUR 6869 (May 26, 2015) (“6869 Supp.

CPD Resp.”); see also Compl. MUR 6942 (June 17, 2015) (“6942

Compl.”); Resp. of CPD, Fahrenkopf, and McCurry, MUR 6942

(July 1, 2015) (“6942 CPD Resp.”); Supp. Compl., MUR 6942 (Oct.

21, 2015) (“6942 Supp, Compl.”); Supp, Resp, of CPD, Fahrenkopf,

and McCurry, MUR 6942 (Nov. 18, 2015) (“6942 Supp. CPD 

Resp.”).

 Consistent with the court's instructions, the Commission also

notified ten CPD board and staff members that had been named as

respondents in these matters but not previously notified and

provided each with an opportunity to respond. Janet H. Brown,

Howard G. Buffet, John C. Danforth, John Griffen, Antonia

Hernandez, John I. Jenkins, N, Minow, Richard D. Parsons,

Dorothy S. Ridings, and Alan K. Simpson responded jointly on

March 6, 2017. Resp. of Janet H. Brown, Howard G. Buffet, John
76a

the Commission has concluded that the available 

information does not support a reasonable inference3

that CPD “endorses, supports, or opposes” federal

candidates or political parties or failed to use “objective

criteria” in selecting its 2012 debate participants. 

Accordingly, the Commission finds no reason to

believe that CPD, Fahrenkopf and Dorothy S. Ridings

as co-chairs, and the ten named staff and board

members (collectively, “Respondents”) violated 52

U.S.C. §§ 30116(f) or 30118(a) by making prohibited 

contributions and expenditures and accepting 

prohibited contributions, and no reason to believe that

CPD violated 52 U.S.C. §§ 30103 or 30104 by failing to

register and report as a political committee.

II. FACTUAL BACKGROUND

CPD is a nonprofit corporation formed under

Section 501(c)(3) of the Internal Revenue Code4

 to

“organize, manage, produce, publicize and support

debates for the candidates for President of the United

C. Danforth, John Griffen, Antonia Hernandez, John I. Jenkins, N.

Minow, Richard D. Parsons, Dorothy S. Ridings, and Alan K.

Simpson, MURs 6869R & 6942R (Mar. 6, 2017) (“CPD Dir. Resp.”),

and this analysis reflects the information presented therein.

3 See Statement of Policy Regarding Commission Action in

Matters at the Initial Stage in the Enforcement Process, 72 Fed.

Reg, 12545, 12546 (Mar. 16, 2007)(explaining circumstances

supporting a no-reason-to-believe finding).

4 26 U.S.C. § 50l(c)(3).
77a

States.”5

 The organization derives its funding from a

variety of sources, including corporations, foundations, 

universities, and private donations.6

According to information presented by both the

Complainants and Respondents, CPD was created in

response to the recommendations of two studies on

presidential debates from the Georgetown University 

Center for Strategic and International Studies and the

Harvard University Institute of Politics.7

 Both studies

observed the educational value of presidential debates 

and proposed mechanisms to guarantee them as a

permanent part of the electoral process.8

 Among other

5 6869 Compl. Ex. 100 (IRS Form 1023, Application for

Recognition of Exemption for the Commission on Presidential

Debates (Mar. 5, 1987)); 6942 Compl. Ex. 100 (same). The CPD also

staged three presidential debates and one vice-presidential debate

in the 2016 election cycle. CPD Dir. Resp. Ex. 4 (Supp. Declaration

of Janet H. Brown) (“Supp. Brown decl.”).

6 6869 Compl. Ex. 4 (CPD: Our Mission, COMM'N. ON

P RESIDENTIAL DEBATES, http://www.debates.org//

index.php?page=about-cpd (last visited Mar. 1, 2017)); 6942 Compl.

Ex. 4 (same).

7 6869 Compl. Ex. 20 (Excerpts from NEWTON N. MINOW

AND CRAIG L. LAMAY, INSIDE THE PRESIDENTIAL DEBATES 62-63

(2008)) (“MINOW & LAMAY”); 6942 Compl. Ex. 20 (same); 6869

CPD Resp. Ex. I (Declaration of Janet H. Brown) (“Brown Decl.”);

6942 CPD Resp. Ex. I (same); CPD Dir. Resp. Ex. 1 (Decl. of Frank

J. Fahrenkopf) (“Supp. Fahrenkopf Decl.”); CPD Dir. Resp. Ex. 2

(Decl. of Dorothy S. Ridings) (“Ridings Decl.”).

8 MINOW &LAMAY, supra note 7, at 63; Brown Decl., supra

note 7, 9; Supp. Fahrenkopf Decl., supra note 7, ¶¶ 7-9.
78a

recommendations, the studies called upon the

Democratic and Republican Parties to play a role in

institutionalizing the debates in order to ensure the

participation of leading candidates9

 who, as recent 

history had shown, at times had a disincentive to

participate.10 In response, the then-chairmen of the

9 MINOW &LAMAY, supra note 7, at 63; Brown Decl., supra

note 7, ¶¶ 10; Supp. Fahrenkopf Decl., supra note 7, ¶¶ 7-9.

10 MINOW & LAMAY, supra note 7, at 62. Minow has been a

CPD board member since the organization's founding after

previously serving as co-chair of presidential debates for the

League of Women Voters and a member of the Harvard debate

study. Id. This exhibit, provided by Complainants, is an excerpt

from his book on presidential debates, which provides a first-hand 

history of the formation of the CPD. In it, he and his co-author

write:

The most persistent and difficult impediment

to debates, any where, is that the candidate

who is ahead in the polls - – and particularly

an incumbent – will almost never want to

debate, and for good reason. . . .The leader's

potential for gain is small, while the potential

for the challenger is great. . . . But I thought

the voters benefit from debates and so it was

essential to find a way to bring pressure on the

candidates to participate. The parties could do

that.

Id. This conclusion followed Minow's experience co-chairing the

League's 1980 presidential debates. That year, President Jimmy

Carter had refused to participate in a debate hosted by the League

after the organization invited both Republican nominee Ronald

Reagan and independent candidate John B. Anderson. MINOW &

LAMAY, supra note 7, at 56; Ridings Decl., supra note 7, ¶¶ 9-12,

Tab A. With the hope of enticing Carter's participation, the League
79a

Democratic and Republican National Committees, 

Paul G. Kirk Jr. and Frank J. Fahrenkopf Jr.,

respectively, jointly called for the creation of the

independent Commission on Presidential Debates,

which was incorporated on February 19, 1987.11

Since its founding, CPD has staged almost every

general election presidential debate including three

presidential debates in the 2012 election cycle. 12CPD

purports to stage its debates pursuant to the safe

harbor provision of the Federal Election Campaign 

Act of 1971, as amended (the “Act”), that exempts from

the definition of “expenditure” any “nonpartisan

activity designed to encourage individuals to vote or

subsequently offered to host a two-way debate between Carter and

Reagan if all three candidates agreed to participate in a three-way

debate afterward. MLNOW & LAMAY, supra note 7, at 56; Ridings

Decl., supra note 7, Tab A. Reagan refused and the plan was

scrapped. Ultimately, after Anderson dropped below the League's

15 percent polling threshold, Carter and Reagan agreed to a

two-way debate. MLNOW & LAMAY, supra note 7, at 57; Ridings

Decl. ¶ 11, Tab A.

11 MINOW & LAMAY, supra note 7; Brown Decl., supra note

7, 11., supra note 7; Brown Decl., supra note 7, ¶ 11.

12 6869 Compl. Ex. 4 (CPD: Our Mission, COMM'N. ON

P RESIDENTIAL DEBATES , http://www.debates.org

/index.php?page=about-cpd (last visited Mar. I, 2017)); 6942 Compl.

Ex. 4 (same). CPD has also hosted every vice-presidential debate

since 1988, including one in the 2012 election cycle. See CPD: Our

Mission, C OMM ' N . O N P RESIDENTIAL DEBATES ,

http://www.debates.org/ index.php?page=about-cpd.
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to register to vote.”13 Although the Act generally

prohibits corporations from making contributions to

federal candidates,14 this exemption permits 501(c)(3)

and 501(c)(4) organizations that do not “endorse,

support, or oppose political candidates or political

parties” to stage candidate debates,15 provided the

events abide by certain standards, including the use of

“pre-established objective criteria” to determine which

candidates may participate.16

On October 20, 2011, CPD adopted three criteria

that candidates would be required to satisfy in order to

participate in the 2012 general election debates. CPD

required participants to: (1) satisfy the eligibility

requirements for president under the U.S. Constitution;

(2) qualify for enough state ballots to have a

mathematical chance of securing an Electoral College

majority; and (3) obtain the support of at least 15

percent of the national electorate “as determined by

five selected national public opinion polling

organizations, using the average of those organizations'

most recent publicly-reported results at the time of

13 52 U.S.C. § 30101(9)(B)(ii).

14 52 U.S.C. § 30118(a); see also 52 U.S.C. § 30116(f).

15 11 C.F.R. § 110.13(a); Explanation and Justification,

Funding and Sponsorship of Federal Candidate Debates, 44 Fed.

Reg, 76,734 (Dec. 27, 1979) (“1979 E&J”); see also Corporate and

Labor Organization Activity; Express Advocacy and Coordination

with Candidates, 60 Fed. Reg. 64,260 (Dec, 14, 1995) (“1995 

E&J”).

16 11 C.F.R, § 110.13(b), (c).
81a

determination.”17 CPD applied the same participation

criteria in 2000, 2004, 2008, and 2016.18

Applying these criteria to the 2012 candidate field,

CPD determined that Democratic nominee President

Barack Obama and Republican nominee Mitt Romney

were eligible to participate in the three presidential

debates.19 CPD also determined that Vice President Joe

Biden and Representative Paul Ryan qualified for the

17 6869 Compl. Ex. 8 (CPD: 2012 Candidate Selection

Criteria, COMM'N. ON PRESIDENTIAL DEBATES, http://

www.debates.org/index.php?page=candidate-selection-process (last

visited March I, 2017)) (“2012 Debate Criteria”); 6942 Comp!. Ex.

8 (same).

18 2012 Debate Criteria, supra note 17.

19 6869 Compl. Exs. 9 (2012 Application of Criteria,

COMM'N. ON PRESIDENTIAL DEBATES (Sept. 21, 2012),

http://www.debates.org/index.php?mact=News,cntnt0l

,detail,0&cntnt01articleid=42&cntnt01origid=27&cntnt01det

ailtemplate=newspage&cntnt01 returnid=80), 11 (20l 2 Application

of Criteria - Second Presidential Debate,COMM'N, ON PRESIDENTIAL

D EBATES (Oct.12,2012),http://www.debates.

org/index.php?mact=News,cntnt0l,detail,0&cntnt0

larticleid=46&cntnt0lorigid=27&cntnt0ldet

ailtemplate=newspage&cntnt0lreturnid=80), and 12 (2012

Application of Criteria - Third Presidential Debate, COMM'N. ON

PRESIDENTIAL DEBATES (Oct. 19, 2012),http://www.

debates.org/index.php?mact=News,cntnt01,detail,0&cntnt0

larticleid=47&cntnt0lorigid=27&cntnt0ldet

ailtemplate=newspage&cntnt01returnid=80); 6942 Compl. Exs. 9

(same), 11 (same), and 12 (same).
82a

vice presidential debate.20 CPD concluded that no 2

other candidates satisfied the criteria for inclusion in 

its 2012 debates.21

III. PROCEDURAL BACKGROUND

On September 11, 2014, Level the Playing Field,

Inc. (“LPF”) and Dr. Peter Ackerman filed the

complaint in MUR 6869. The Complaint, which includes

over 100 exhibits, makes two principal allegations. 

First, Complainants allege that CPD is a partisan 

organization that “endorses” and “supports” political 

candidates and political parties, to wit, the Democratic 

and Republican Parties and their respective presidential

nominees.22 Broadly, Complainants provide three

categories of information in support of this claim: (I)

documents and statements from CPD officers and

directors suggesting that CPD was formed as a

partisan organization;23 (2) information suggesting that

20 6869 Compl. Ex. 9 (2012 Application of Criteria, COMM'N,

ON PRESIDENTIAL DEBATES (Sept. 21, 2012), http://

www.debates.org/index.php?mact=News,cntnt01 ,detail,0&cntnt01

articleid=42&cntnt01origid=27&cntnt01detailtemplate

=newspage&cntnt01returnid=80); 6942 Compl. Ex. 9 (same).

21 6869 Compl. Exs. 9, 11, and 12, supra note 19; 6942

Compl. Exs. 9, 11, and 12, supra note 19.

22 6869 Compl. at 14-32.

23 Id. EXS. 20 (MINOW & LAMAY, supra note 7), 22

(Memorandum of Agreement on Presidential Candidate Joint

Appearances (Nov. 26, 1985)) (“1985 MOU”), 23 (G.O.P. Seeks a

City for '88, N.Y. TIMES (Jan. 26, 1986)), 24 (Press Release, News

from the Democratic and Republican National Committees (Feb.
83a

CPD continues to promote the interests of the two

major parties in the present day;24 and (3) records of

officers' and directors' connections and financial

contributions to major party committees and

candidates.25 These exhibits, they argue, demonstrate 

18, 1987)) (“1987 DNC/RNC Press Release”), 25 (Phil Gailey,

Democrats and Republicans Form Panel to Hold Presidential 

Debates, N.Y. TIMES (Feb. 19, 1987)), and 32 (Excerpts from H.

Comm. on H. Admin., Presidential Debates: Hearing Before the

Subcomm. On Elections of the H. Comm. on H. Admin. at 50-51, I

03d Cong., pt Sess., June 17, 1993); see also LPF at *7.

24 6869 Supp. Compl. #2 Ex. A (Transcript, Frank

Fahrenkopflnterview, SKY NEWS (Apr. I, 2015)) (“Fahrenkopf 

Interview Transcript”).

25 6869 Compl. Exs. 43 (Michael D. Mccurry, PUBLIC

STRATEGIES WASHINGTON INC., http://www.psw-inc.com

/team/member/michael-d.-mccurry), 44 (Press Briefing by Mike

McCurry, WHITE HOUSE (Sept. 23, 1996), available at

http://www.presidency.acsb.edu/ws/?pid=48827), 45 (Harrison

Wills, Debate Commission's Own Hot Topic, OPEN SECRETS (Oct.

2, 2012), https://www.opensecrets.org/news/2012/l

0/debate-commission), 46 (List of Frank Fahrenkopflndividual

Contributions, FEC (retrieved Sept. 4, 2014)) (“List

ofFahrenkopfContributions”), 47 (Frank Fahrenkopf and Jim

Nicholson, Don't Repeat Error of Picking Steele, POLITICO (Jan. 12,

2011, 4:37 a.m.), http: //www.po l itico.com/new s/stories/O 111

/47440.html) (“Fahrenkopf Editorial”), 48 (2012 Two-Year

Summary of American Gaming Association Political Action

Committee, FEC (retrieved Sept. 4, 2014)), 49 (What We Do,

P UBLIC S TRATEGIES W ASHINGTON I N C ., http://

www.psw-inc.com/what), 53 (Andrea Saenz, Former MALDEF

Chief Antonia Hernandez Speaks at HLS, HARV. L. RECORD (Nov.

16, 2007)), 54 (List of Howard Buffett Individual Contributions,

FEC (retrieved Sept. 4, 2014) (“List of Buffett Contributions”), 55
84a

that CPD was formed by the Democratic and 

Republican Parties for partisan gain,26 has consistently 

supported Democrats and Republicans to the exclusion

of third party or independent candidates,27 and

continues to be led by individuals with partisan

interests.28

Respondents deny the allegation. CPD and its leaders

maintain that there is no evidence the organization

“endorses” or “supports” major party candidates or

“opposes” independent candidates, within any plain 

meaning of those terms.29 The organization asserts that 

the Complaint's information on CPD's formation and 

practices is not relevant, has been rejected by the

Commission and the courts, and has been taken out

(List of Dorothy Ridings Individual Contributions, FEC (retrieved

Sept. 4, 2014) (“List of Ridings Contributions”), 56 (CPD Elects Six

New Directors, COMM'N, PRESIDENTIAL DEBATES (Apr, 16,

2014),http: //www.debates.or g/index.php?mact=N ews,cntnt01

,detail01&cntnt01articleid=52&cntnt01origid=15&cntnt01det

ailtemplate=newspage&cntnt01returnid=80), 60 (Jonathan D.

Salant, Former Democratic Party Leader Paul Kirk Backs Obama,

BLOOMBERG (May 2, 2008 2:22 p.m.), http://www.bloomberg

.com/apps/news?pid=newsarchive&sid=aBtdfy

DJEwZM&refer=home), and 61 (Abby Goodnough & Carl Hulse,

Former Kennedy Aide Is Appointed to Fill His Senate Seat, N.Y.

TIMES (Sept. 24, 2009)).

26 6869 Compl. at 16-20.

27 Id. at 20-25; 6869 Supp. Compl. #2 at 1-4.

28 6869 Compl. at 25-32.

29 6869 CPD Resp. At 4; CPD Dir. Resp. At 2.
85a

of context to create a “false narrative” about CPD.30

Further, the CPD's leadership asserts that the personal

allegiances or actions of officers and directors in their 

individual capacities are not evidence of CPD's 

organizational endorsement of or support for the major 

parties.31 Respondents argue that to insist otherwise is

unconstitutional and practically unworkable.32

Second, the Complaint contends that the CPD's 15

percent threshold is not an “objective criterion,” but 

rather designed to ensure the participation of

Republican and Democratic nominees to the exclus'ion

of virtually all independent candidates.33 In support, 

Complainants primarily offer two expert reports from

Dr. Clifford Young and Douglas Schoen, respectively.

Young concludes that, in order to meet CPD's 15

percent polling threshold, candidates must obtain name

recognition among 60-80 percent of the electorate.34

Young also opines that the type of polling relied upon

by CPD systematically disfavors independent

candidates due to increased inaccuracy in three-way

races. Following on Young's conclusions, Schoen

submits that, in order to obtain 60-80 percent name 

30 CPD Dir. Resp. at 2-8.

31 6869 CPD Resp. at 4-5; CPD Dir. Resp. at 6.

32 CPD Dir. Resp. at 6-7.

33 6869 Compl. at 32-47.

34 Id. Ex. 62 (Expert Report of Dr. Clifford Young) (“Young

Report”).
86a

recognition, an independent candidate must raise over

$266 million, including almost $120 million for paid

media content production and dissemination.35

Complainants argue that these requirements are

prohibitively high for independent candidates who do

not enjoy the same exposure and resources of major

party candidates. On this basis, the Complaint

concludes that CPD's 15 percent threshold is so high

that only major party candidates could reach it and

therefore not an objective means of selecting debate

participants.36

Respondents also deny this allegation. CPD argues

that Commission regulations afford debate sponsors

broad discretion to determine participant selection

criteria and point out that the Commission and the

courts have affirmed the 15 percent threshold as an

objective condition.37 Noting that the 15 percent 

threshold was originally a requirement of CPD's 

predecessor in debate sponsorship, the League of 

Women Voters.38 Respondents contend that the polling

threshold provides an objective means of achieving its

educational mission. Specifically, the organization

argues that the 15 percent threshold:

35 Id. Ex. 70 (Expert Report of Douglas Schoen) (“Schoen

Report”).

36 Id. at 37-38.

37 6869 CPD Resp. at 7-11; CPD Dir. Resp. at 9.

38 6869 CPD Resp. at 9; see also Ridings Deel., supra note

7, ¶ 9, Tab A.
87a

best balanced the goal of being sufficiently 

inclusive to invite those candidates considered to 

be among the leading candidates, without being

so inclusive that invitations would be extended 

to candidates with only modest levels of public

support, thereby creating an unacceptable risk

that leading candidates with the highest levels of

public support would refuse to participate.39

Likewise, the limiting criterion also ensures that

debate itself is not “hindered by the sheer number of

speakers.”40 Respondents also argue that the allegations 

about potential manipulation of polling data are

speculative and unfounded.41

The Complaint concludes that the Respondents'

alleged noncompliance with the debate sponsorship 

regulations resulted in corporate contributions to and

expenditures on behalf ofdebate participants in

violation of 52 U.S.C. § 30118(a). In addition, the

Complaint alleges that because CPD had a “major 

purpose” of promoting the election of the Democratic 

and Republican Party nominees in 2012 and made

expenditures in excess of $1,000 during the calendar

year, CPD qualified as a “political committee” under

the Act. Accordingly, the Complaint asserts that CPD

violated 52 U.S.C. §§ 30103 and 30104 by failing to

register and report with the FEC as a political 

39 Brown Deel., supra note 7,¶ 32; CPD Dir. Resp. at 9-13.

40 CPD Resp. at 11.

41 CPD Resp.at 7-11; CPD Dir. Resp. at 13-17.
88a

committee and that CPD, its co-chairs, and ten officers

and directors violated 52 U.S.C.§ 30 l l 6(f) by accepting

contributions from corporate sponsors.

Submissions filed by the Green Party of the United

States (“Green Party”) and the Libertarian National 

Committee (“LNC”) on June 15 and 18, 2015, 

incorporated the allegations of MUR 6869 into a new 

matter designated by the Commission as MUR 6942.42

On July 13, 2015 and December 10, 2015, the

Commission voted on MURs 6869 and 6942,

respectively. Relying on the Commission's dismissal of

nine previous similar matters alleging that CPD is

partisan and uses subjective participation criteria,

the Commission found no reason to believe

Respondents had violated the Act's prohibition on

corporate contributions or political committee 

registration and reporting requirements in both

matters.43 The Commission decided each case by a vote

of 5-0 (with one commissioner recused), approved

42 The original Complaint in MUR 6942 was a copy of the

Complaint in MUR 6869 and asserted no additional allegations;

however, on October 13, 2015, the 6942 Complainants submitted

supplemental material on the reliability of polling data, 6942 Supp.

Compl., and Respondents were afforded an opportunity to respond,

see 6942 Supp. CPD Resp.

43 First General Counsel's Report, MUR 6869 (June

17,2015); First General Counsel's Report, MUR 6942 (Dec. 1,

2015).
89a

nearly identical Factual & Legal Analyses, and closed 

each file.44

LPF and the other Complainants challenged the

Commission's decisions in federal district court under

52 U.S.C. § 30109(a)(8). The district court concluded

that the Commission had acted arbitrarily and

capriciously and contrary to law by: (1) failing to

articulate the standard it used to determine whether

CPD had endorsed, supported, or opposed political

candidates or parties under 11 C.F.R. § 110.13(a); (2)

not demonstrating its consideration of the evidence

before it, particularly that relating to alleged 

partisanship and political donations by CPD's officers

and directors and two expert analyses on polling and

fundraising; (3) failing to notify and solicit responses

from ten respondents; and (4) concluding that CPD's

15 percent polling criteria is objective under 11 C.F.R.

§ l10.13(c) without adequately discussing the plaintiffs'

evidence and arguments or providing a legal analysis

applying the regulation to the evidence and arguments45

On these bases, the court granted the plaintiff's motion

for summary judgment and ordered the Commission to

reconsider the evidence and allegations and issue a new

44 Certification, MUR 6869 (July 13, 2015); Certification,

MUR 6942 (Dec. I 0, 2015).

45 LPF at *6, *8, *9, and *11. The court also found that the

Commission had acted arbitrarily and capriciously by deciding not

to initiate a rulemaking on whether to revise and amend 11 C.F.R.

§ 110.13(c), which the plaintiffs had challenged at the same time.

Id. at * 13.
90a

reason-to-believe decision in these matters within 30

days.46

IV. LEGAL ANALYSIS

A. CPD Qualifies as a Staging

Organization that Does Not Endorse,

Support, or Oppose Political

Candidates or Political Parties

 The Act prohibits any corporation from making

contributions or expenditures in connection with an

election.47 Likewise, the Act bars political committees

from knowingly accepting corporate contributions.48

“Contribution” includes “any gift, subscription, loan,

advance, or deposit of money or anything of value”49

and “expenditure” includes “any purchase, payment,

distribution, loan, advance, deposit, or gift of money or

anything of value,”50 but exempts “nonpartisan activity

designed to encourage individuals to vote or to register

to vote.”51

46 LPF at *11. On February 10, 2017, the court granted the

Commission an additional 30 days to make a reason to believe

determination in these matters. Level the Playing Field v. FEC,

No. 1: l 5-cv-01397, slip op. at 3 (Feb. I 0, 2017).

47 52 U.S.C. § 30118(a).

48 Id. § 30116(f); 30118(a).

49 Id.§ 30101(8)(A).

50 Id. § 30 IO I (9)(A)(i).

51 Id.§ 30101(9)(B)(ii).
91a

Pursuant to this exemption, the Commission has

promulgated rules permitting “[n]onprofit

organizations described in 26 U.S.C. § 50l(c)(3) or

501(c)(4) and which do not endorse, support or oppose

political candidates or political parties” to stage

candidate debates in accordance with 11 C.F.R. §§

110.13 and 11 4.4(f)52 The purpose of this rule was to

“provide a specific exception so that certain nonprofit

organizations and the news media may stage debates,

without being deemed to have made prohibited

corporate contributions to the candidates taking part in

the debate.”53

As noted by the LPF court, neither the Act nor

Commission regulations define what it means for a

debate sponsor to “endorse, support, or oppose”

candidates or parties.54 However, the meaning of this

52 11 C.F.R. § 110.13(a)(l); 1979 E&J, supra note 15.

53 1995 E&J, supra note 15, at 64,261.

54 In response to specific allegations that CPD was

“controlled by” the two major parties and that the parties “had

input in” or were “involved in” CPD's operations and debate

decisions, the court in Buchanan v. FEC, 112 F. Supp. 2d 58

(D.D.C. 2000), concluded that CPD did not “endorse, support, or

oppose” candidates or parties, 112 F. Supp. 2d at 71 n.8.; however,

such a standard is inapplicable here where no such allegations have

been offered. LPF at *6 (“[U]nlike in Buchanan, there are no

control-specific factual allegations here to warrant applying a

control standard.”).
92a

standard is plain on its face.55 And indeed, in

reviewing the Act’s use of “support” and “oppose” in

another context, the United States Supreme Court

found that “[t]hese words provide explicit standards for

those who apply them and give the person of ordinary

intelligence a reasonable opportunity to know what is 

prohibited.”56

Therefore, applying the plain meaning of these 

words, the Commission must evaluate whether

Complainants’ evidence on the formation and

evolution of CPD and on the alleged partisanship of

CPD officers and directors either demonstrates directly 

or supports a reasonable inference that the CPD has

endorsed or supported the Democratic and Republican 

Parties and their respective presidential nominees (or

opposed third parties or independent candidates).

1. Documents and Statements from CPD

Officer and Directors Allegedly

55 See LPF at* 12, n. 6 (“According to the Oxford

Dictionary,’endorse’ means to ‘declare one’s approval of; ‘support’

means ‘contributing to the success of or maintaining the value of;

and ‘oppose’ means to ‘set oneself against’ or ‘stand in the way

of.”’).

56 McConnell v. FEC, 540 U.S. 93, n. 64 (2003) (rejecting a

challenge to the meaning of the words “promote, attack, support,

or oppose” as used in the definition of”federal election activity” in

52 U.S.C. § 30101(20)(A)(iii) (then 2 U.S.C. § 431(20)(A)(iii)); see

also, e.g., Factual & Legal Analysis, MUR 6072 at 5 (Northland

Regional Chamber of Commerce) (Apr. 27, 2009) (applying

“endorse, support, or oppose”).
93a

Suggesting that CPD Was Formed as a

Partisan Organization

Complainants first allege that information from the

time of CPD's founding in 1987 indicates that CPD had

bipartisan (rather than nonpartisan) origins and

therefore was formed with the intent to endorse or

support the Democratic and Republican Parties and

their respective nominees. Among the documents

presented in support of this allegation are a 1985

Memorandum of Understanding57 (“ 1985 MOU”) and

a 1987 joint press release from the then-chairmen of the

Democratic National Committee (“DNC”) and

Republican National Committee (“RNC”), Frank

Fahrenkopf Jr. and Paul Kirk, respectively, who

subsequently became the first co-chairs of CPD.58 The

1985 MOU addresses the necessity of institutionalized

debates and describes their “bipartisan view” on the

need for “joint appearances” of the presidential and

vice-presidential nominees of the “two major political

parties.”59 Similarly, the press release, which announces

the formation of the CPD, describes the organization as

a “bipartisan” entity “formed to implement joint

sponsorship of general election presidential and vice

presidential debates. . . by the national Republican and

57 1985 MOU, supra note 23.

58 1987 DNC/RNC Press Release, supra note 23.

59 1985 MOU, supra note 23.
94a

Democratic committees between their respective

nominees.”60

The Complaints also submit various past statements

from CPD officers and directors reportedly indicating

CPD's support for the major parties and opposition to

independent candidates,61 including a news article

describing Fahrenkopf s reported sentiment that CPD

“was not likely to look with favor on including

third-party candidates in the debates” and another

from Kirk that “he personally believed the panel should

exclude third-party candidates,[but] could not speak

for the commission.”62

As noted by the LPF court in its recent decision, this

information is “identical to evidence submitted with

prior CPD-related complaints, including MURs 4987,

5004, and 502 l. Those matters, which pertained to

CPD's sponsorship of the 2000 general election

presidential debates, were reviewed by the court in

Buchanan [v. FEC, 112 F. Supp. 2d 58 (D.D.C.

2000)].”63 In Buchanan, the court upheld the

Commission's conclusion that such information does not 

provide a reason to believe the CPD endorses or

60 1987 DNC/RNC Press Release, supra note 23.

61 6869 Compl. at 18-19; see also LPF at *7.

62 6869 Compl. Ex. 25 (G.O.P. Seeks a City/or '88, N.Y.

TIMES (Jan. 26, 1986)); 6942 Compl., Ex. 25(same).

63 LPF at *7.
95a

supports political candidates or parties.64 The Buchanan

court deferred to the Commission, writing “it is

apparent from the report that in the absence of any

contemporaneous evidence of influence by the major

parties over the 2000 debate criteria,” “evidence of

possible past influence [was] simply insufficient to

justify disbelieving the CPD's sworn statement . . . that

the CPD's 2000 debate criteria were neither influenced 

by the two major parties nor designed to keep minor

parties out of the debates.”65 Four years later, in 2004,

the Commission further emphasized that the increasing

age of these documents and statements undermines

their persuasiveness as evidence of current bias.66

Evaluating the statements in the present matters, we

reach a similar conclusion.

At the outset, it is not clear that, in context, these

documents and past statements constitute an

endorsement of, or support for, the Democratic and

64 Buchanan, I 12 F. Supp. 2d at 72.

65 Id at 72-73.

66 First General Counsel's Report, MUR 5414 (Dec. 7, 2004)

(“Not only did challenges based on Fahrenkopfs and Kirk's

leadership of the CPD not carry the day when they were fresh [in

MURs 4987, 5004, and 5021], but as neither man has been a party

official since 1989, the passage of time has rendered such

assertions less persuasive.”); see also Certification, MUR 5414

(Dec. 13, 2004) (finding no reason to believe CPD violated 52

U.S.C. § 30118(a) – then 2 U.S.C. § 441b(a) – without approving a

separate Factual & Legal Analysis, consistent with Commission

policy at the time in cases finding no reason to believe a violation 

occurred).
96a

Republican Parties and their candidates or opposition 

to independent candidates. In a recently submitted

declaration, Fahrenkopf insists that these

“cherry-picked quotes” must be understood as

reflections on the greater goal of ensuring debates as

a permanent part of the political process:

When the CPD was formed, the goal was to

institutionalize general election televised debates

for the good of the public, and the major

impediment to achieving that goal was securing

the commitment of both major party nominees to

debate. References to the CPD as bipartisan at the

time of its formation must be understood with

reference to this challenge and the huge stride

forward that forming the CPD represented.67

Declarations from others similarly insist that

statements attributed to them do not fairly or fully

reflect their respective views on the participation of

independent candidates in CPD debates.68 For example,

Barbara Vucanovich, a CPD board member between 

1987 and 1997 who was quoted as praising CPD's

executive director for being “extremely careful to be

bi-partisan” clarifies that she “used the word

'bi-partisan,' as many do, to mean not favoring any one

67 Supp. Fahrenkopf Decl., supra note 7, 10.

68 CPD Dir. Resp. Ex. 3 (re-submitting sworn declarations

from current and former CPD board members Alan K. Simpson,

Newton Minow, Barbara Vucanovich, John Lewis, and David

Norcross previously submitted in MUR 5414) (“MUR 5414

Declarations”).
97a

party over another.”69 Vucanovich and others have

previously affirmed their view that “CPD's debates

should include the leading candidates for president

and vice-president, regardless of party affiliation” but

“should not include candidates who have only marginal

national electoral support.”70

Assuming arguendo that such statements do suggest

support for debates exclusively between Republicans 

and Democrats or opposition to the inclusion of

independent candidates, they do not necessarily reflect

the organization's perspective at the time it sponsored

the 2012 presidential debates at issue. Organizations 

may change over time.71 And given this, it would be

inappropriate to rely on documents and statements

that are more than 30 years old to ascertain CPD's

present support or opposition to candidates and parties.

Indeed, there are significant indications that CPD has

made concerted efforts to be independent in recent 

years and reaffirm its commitment to an educational 

mission. For example, according to Janet Brown, 

Executive Director of CPD, the organization conducts

a review after every presidential election of issues

relating to the debates.72 After its study of the 1996 

69 CPD Dir. Resp. Ex. 3 (Declaration of Barbara 

Vucanovich).

70 MUR 5414 Declarations, supra note 68.

71 See Citizens for Responsibility and Ethics in Washington

v. FEC, No. 1:14-cv-01419, slip op. at *11 (D.D.C. Sept. 19, 2016).

72 Brown Decl., supra note 7, 29.
98a

debates – which some alleged had arbitrarily excluded 

independent candidate Ross Perot – CPD adopted 

new candidate selection criteria and retained a polling

consultant to ensure its “careful and thoughtful

application.”73 CPD believed the new criteria would 

be “faithful to the long-stated goal of the CPD's

debates – to bring before the American people, in a

debate, the leading candidates for the Presidency and

Vice Presidency.”74 Brown affirms that these criteria

“were not adopted with any partisan (or bipartisan)

purpose” or “with the intent to keep any party or

candidate from participating. . .”75 Declarations from

current and recent CPD directors similarly affirm the

organization's recent commitment to including “any 

independent or non-major party candidate if that

candidate is properly considered a leading candidate.”76

In the same sworn affidavits, each director swears that 

he or she has “never observed any [CPD] Board

member ever approach any issue concerning the CPD or 

its mission from a partisan perspective and the CPD

has conducted its business in a strictly nonpartisan 

73 Id. ¶ 30, 34-35.

74 Id. ¶ 30.

75 Id. ¶ 31..

76 CPD Dir. Resp. Ex. 6 (submitting sworn declarations

from Michael D. McCurry, Howard G. Buffet, John C. Danforth,

John Griffen, Antonia Hernandez, John I. Jenkins, Newton

Minow, Richard Parsons, and Alan K. Simpson) (“CPD Dir. 

Declarations”).
99a

fashion.”77 Thus, the early documents and statements

are of limited persuasive value in evaluating CPD's

recent support for or opposition to political parties or

candidates.

Finally, even if these written and oral statements

did reflect more current sentiments, they are not

indicative of CPD's organizational endorsement of or

support for the Democratic and Republican Parties and

their candidates, or CPD's opposition to third party

candidates. The 1985 MOU and 1987 press release were

each executed by the DNC and RNC – not the CPD 

itself – as expressions of those organizations'

commitment to a new custom for presidential debates.

Indeed, according to both the Georgetown and Harvard

studies on presidential debates, such support was

critical to the success of institutionalized debates among

the leading candidates for president.78 Likewise, there 

is no indication that the statements from officers and

directors were made in their official capacity as

representatives of CPD.79 Thus, the historical

77 Id.

78 See MINOW & LAMAY, supra note 7.

79 In fact, in his reported statement to the New York Times

expressing opposition to independent candidates in the debates,

Kirk explicitly distinguished between his own feelings and the

organization's position, noting that “he personally believed the

panel should exclude third-party candidates, [but] could not speak

for the commission.” 6869 Campl. Ex. 25 (G.O.P. Seeks a City for

'88, N.Y.TIMES (Jan. 26, 1986) (emphasis added)); 6942 Campl. Ex.

25 (same). The Commission has repeatedly concluded that

individuals may wear “multiple hats” to represent the interests
100a

documents and statements do not indicate the CPD's

organizational support for any candidate or party or

opposition to others.

2. Recent Statements by Fahrenkopf in His

Official Capacity as Co-Chair of CPD

In an attempt to buttress its claim that CPD

endorses, supports, or opposes candidates or parties, 

the MUR 6869 Complainants supplemented their

submission with excerpts from a 2015 interview 

Fahrenkopf gave to Sky News80 In the interview, 

Fahrenkopf stated that CPD has “a system,” “we. . .

primarily go with the two leading candidates, it's been

the two political party candidates. . . except for 1992

when Ross Perot participated in the debates.”81 The 

Complainants argue that this is an “admission” from 

Fahrenkopf in his official capacity representing CPD,

that CPD systematically supports major party

candidates over independent candidates.82

 Complainants’ interpretation is not dispositive,

however. Fahrenkopf’s statement indicates no

categorical support for Democrats or Republicans or

opposition to independent candidates, stating clearly

that CPD “primarily go[es] with the two leading

of multiple people or entities at different times. See, e.g., Advisory

Op. 2005-02 (Corzine); Advisory Op. 2003-10 (Reid).

80 Fahrenkopf Interview Transcript, supra note 24.

81 Id.

82 6869 Supp. Compl. #2 at 1-2.
101a

candidates,” while immediately indicating the 

exceptions to that trend. Moreover, as Fahrenkopf 

averred in a declaration responding to this allegation,83

the statement appears to be more an assertion of

historical fact than an admission that CPD favors

candidates from the two major political parties over

others.84 Furthermore, Fahrenkopf makes his statement

in the context of a broader point about the impact of

multiple candidates (the questioner posited seven) on

the educational value of debates.85 Thus, Fahrenkopf s

interview is consistent with Respondents' repeated

attestations that CPD operates for the purpose of

providing meaningful debates for the public benefit.

Accordingly, these statements are not persuasive

indicators that CPD endorses, supports, or opposes

political candidates or parties.

83 6869 Supp. Resp. Ex. A (Fahrenkopf Decl.) (“Fahrenkopf

Decl.”).

84 Fahrenkopf Decl., supra note 84, ¶ 4.

85 The Sky News interviewer states”. . . we've ended up with

a seven person, a seven party debate. What do you think the

prospects for that are?” to which Fahrenkopf responds with a

description of the crowded 2012 Republican primary debates

stating “people jokingly say it's less of debate than a cattle show,

because there's such little time for each candidate to get across in

the short period what their views are on issues.” Fahrenkopf

lnterview Transcript, supra note 24. Fahrenkopf continued, “seven

people on the stage at one time is very difficult, it's going to take

a very clever moderator to make sure that each candidate gets an

opportunity to put forth their view. Id.
102a

3. Exhibits Regarding Alleged Partisanship

and Political Activity of CPD Co-Chairs 

and Board Members

The Complaints have supplemented the information 

presented in past matters with new information 

alleging more recent partisanship and political activity 

by CPD's co-chairs and directors. Notably, the

Complaints identify the recent personal contributions

of Fahrenkopf, McCurry, and several other directors to

various candidates and political committees.86 The

Complaints also submit a 2011 op-ed by Fahrenkopf

indicating a personal allegiance to the Republican Party

and information on board members’ “ties” to

officeholders and political parties, including former

employment. Finally the Complaints attach 

information on Fahrenkopf and McCurry's work as

lobbyists on behalf of various corporations and trade

associations that are allegedly “heavily invested in

currying favor with the two major political parties.”87

The Complainants urge the Commission to infer that

individuals' statements, recent contributions, and

outside employment render the CPD itself a partisan

organization. As noted above, however, the Commission

has previously opined that individuals may wear

“multiple hats” to represent multiple interests.88 It

86 See supra note 25.

87 6869 Compl. at 27-28.

88 See, e.g., Advisory Op. 2007-05 (Iverson) (opining that an

individual may serve as chairman ofa state party committee and
103a

follows then, that an individual's leadership role in a

given organization does not restrict his or her ability

to speak freely on political issues or make contributions

to political committees when he or she does so in his or

her personal capacity.89

Here, there is no indication that Fahrenkopf wrote

his op-ed in his official capacity as CPD co-chair, nor

does the opinion piece express positions on behalf of

CPD. Likewise, the Complaints make no suggestion

that any of the contributions by Fahrenkopf, Mccurry,

or CPD board members originated from CPD 

resources or any source other than their respective 

personal assets. Finally, the available information does

not show that Fahrenkopf, McCurry, or other CPD

officers and directors have acted as agents of CPD in the

course of outside employment. At the outset, most of

the information presented involves work that preceded

-at times significantly -the individual's service for

solicit, direct, and spend non-federal funds on its behalf while

continuing to serve as chief of staff to a member of Congress);

Advisory Op. 2005-02 (Corzine) (describing circumstances under

which a U.S. Senator may raise non-federal funds for his state

gubernatorial campaign and other state candidates and 

committees); Advisory Op. 2003-10 (Reid) (concluding, inter alia,

that an individual may, at different times, act in his capacity as an

agent on behalf of a state party and in his capacity as an agent on

behalf of a U.S. Senator).

89 See Advisory Op. 1984-12 (American College of Allergists)

(recognizing the ability of organization leaders, acting in their

individual capacities, to establish and govern a separate entity).
104a

CPD.90 And, to the extent officers or directors are

currently employed by entities with ties to or interests 

in the success of the Democratic or Republican parties,

there is no indication that they act on behalf of CPD

in the course of such employment, or alternatively, on

behalf of their employer while volunteering for CPD.

Moreover, the organization has recently adopted a

formal “Political Activities Policy” that is “intended to

deter CPD-affiliated persons from participating, even in

a personal capacity, in the political process at the

presidential level (including the making of campaign

contributions) while serving on the Board.”91 Although

not part of Respondents’ submissions, the policy

reportedly builds on a previous “informal policy 

against Board members serving in any official 

capacity with a campaign while also serving on the

CPD Board” and “reflects CPD's view that a debate

staging organization better serves the public when it

not only conducts its operations in a strictly

nonpartisan manner, but when it also adopts and

adheres to balanced policies designed to prevent even

the potential for an erroneous appearance of

90 For example, the Complaint notes that Brown “is a

creature of partisan politics, having served as an aide to top

Republicans before taking over her present office [as Executive

Director of CPD] in 1987.” 6869 Compl. at 28 (emphasis added).

The Complainants likewise note that board member Newton

Minow was a “close aide to Adlai Stevenson and a Kennedy

appointee to the Federal Communications Commission” and that

board member Antonia Hernandez served as counsel to the Senate

Judiciary Committee when it was led by the late Ted Kennedy. Id.

91 Supp. Brown Deel., supra note 5, ¶ 7.
105a

partisanship.”92 The Political Activities Policy

supplements CPD's Conflict of Interest Policy, which

would appear to limit financial conflicts of interest that

could arise as a result of outside employment.93

Complainants’ information alleging partisan political 

activity on the part of CPD's officers and directors in

their non-CPD capacities therefore does not support a

reasonable inference that CPD endorses supports or

opposes political candidates or parties. For the reasons

stated above, the inference that LPF asks the

Commission to draw is legally baseless and factually 

unworkable.

The Complaints offer no additional information to

demonstrate that CPD itself has endorsed, supported,

or opposed any political party or political candidate.

Accordingly, CPD would appear to be a permissible

debate sponsor under 11 C.F.R. § 110.13(a).

B. CPD's 15 Percent Threshold Constitutes 

an Objective Criterion

Commission regulations require staging

organizations like CPD to use “pre-established objective

criteria to determine which candidates may participate 

in a debate.”94 In adopting this requirement, the

92 Id.

93 6869 Compl. Ex. 101 (Conflict of Interest Policy, COMM'N.

PRESIDENTIAL DEBATES); 6942 Campi. Ex. 101 (same).

94 11 C.F.R. § 110.13(c). The Complainants do not question

whether the debate criteria is “pre-established,” therefore we will

not address this requirement further.
106a

Commission reasoned, “[g]iven that the rules permit 

corporate funding of candidate debates it is appropriate

that staging organizations use pre-established objective

criteria to avoid the real or apparent potential for a

quid pro quo, and to ensure the integrity and fairness

of the process.”95

The regulation does not define “objective criteria;”

however, the courts have said it does not “mandate[ ] 

a single set of objective criteria all staging organization

must follow, but rather [gives] the individual

organizations leeway to decide what specific criteria to

use.”96 The Buchanan court concluded that “[t]he

authority to determine what the term objective criteria

means rests with the agency. . . and to a lesser extent

with the courts that review agency action.”97 To that

end, the Commission has previously made clear that a

requirement of “reasonableness is implied” and stated

that “[s]taging organizations must be able to show that

their objective criteriamwere used to pick the

participants, and that the criteria were not designed to

result in the selection of certain pre-chosen 

participants.”98

95 1995 E&J, supra note 15, at 64,262.

96 Buchanan, 112 F. Supp. 2d at 73 (citations and internal 

 quotations omitted); see also 1995 E&J, supra note 15 at 64,262

(“The choice of which objective criteria to use is largely left to the

discretion of the staging organization.”).

97 Buchanan, 112 F. Supp. 2d at 73.

98 1995 E&J, supra note 15, at 64,262.
107a

In specifically considering – and upholding – CPD's

15 percent threshold as applied to the 2000 debates, the

Buchanan court opined that “the objectivity 

requirement precludes debate sponsors from selecting

a level of support so high that only the Democratic and

Republican nominees could reasonably achieve it.”

But the court also noted that several third party

candidates have achieved over 15 percent support in

polls at or around the time that the debates are

traditionally held:

For instance, by September 1968, George 

Wallace had achieved a level of support of

approximately 20% in the polls. John Anderson

was invited by the League of Women Voters to

participate in the 1980 presidential debates after

his support level reached approximately 15%.

Finally, in 1992, Ross Perot's standing in the polls

was near 40% at some points and he ultimately

received 18.7% of the popular vote that year.99

Accordingly, the court concluded that “third party

candidates have proven that they can achieve the level

of support required by the CPD.”100 The Complainants 

now present new information in support of their

contention that the 15 percent threshold is not

objective and results in prohibited corporate

contributions from CPD to debate participants.

99 Buchanan, 112 F. Supp. 2d at 73.

100 Id.
108a

1. Expert Reports on the Purported

Impracticability of Independent Candidates

Reaching CPD’s 15% Polling Threshold

Complainants present two expert reports in support

of their argument that the 15 percent threshold is

designed to result in the exclusion of all candidates but

those nominated by the Democratic and Republican 

Parties. The first, by Dr. Clifford Young, opines that 

in order to obtain 15 percent of the vote share, a

candidate must achieve name recognition among at

least 60 percent of the population and perhaps as

much as 80 percent.101The second, from political analyst

Douglas Schoen, estimates that the cost to an

independent candidate of achieving 60 percent name

recognition would be over $266 million, including

almost $120 million for paid media content production

and dissemination.102The Complainants argue that such

a sum is prohibitive for independent and third-party 

candidates, who do not have the benefit of participating 

in a much-watched primary season or of garnering a

minimum vote share in a general election by virtue of

being associated with a major party.103 Thus,

Complainants conclude, the 15 percent threshold is

systematically out of reach for independent candidates

and therefore not “objective” within the meaning of the

regulations.

101 See generally Young Report, supra note 34.

102 Id.

103 Id. at 12-13 (discussing the “party halo effect”).
109a

The expert reports relied upon by Complainants

contain significant limitations that undermine their

persuasiveness. Young's analysis is limited in its scope:

It correlates polling results to name recognition alone

and draws conclusions regarding hypothetical 

third-party- candidate performance based on that one

factor. But polling results are not merely a function of

name recognition – they are a much more complex 

confluence of factors. Indeed, as Young acknowledges,

his report does not take into account a number of other

factors that may affect polling results, including

“fundraising, candidate positioning, election results, 

and idiosyncratic events.”104 In so doing, the report

minimizes the very salient fact that, no matter how

recognizable a candidate is, the candidate may, 

nonetheless, be unpopular. For example, the report does 

not take into consideration forces that might decrease

the poll numbers of an independent candidate who has

become well-recognized – such as policy preferences or

political missteps. Conversely, it also does not account 

for forces that might increase the poll numbers of an

otherwise unfamiliar independent candidate – such as

high unfavorable ratings among major party candidates.

This is a significant limitation that undermines the

practical application of the data to our analysis of CPD's

debate participation criterion.

104 Id..at 12-13; see also, e.g., Nate Silver, A Polling Based 

Forecast of the Republican Primary Field, FIVETHIRTYEIGHT

POLITICS (May 11, 2011) (noting that, more than name recognition,

“laying the groundwork for a run quite early on,” including efforts

to “hire staff, cultivate early support, brush up[] media skills”

predicts later electoral success).
110a

In addition, the Complaint appears to draw

misguided conclusions from the Young Report's data.

Notably, neither the Young Report nor the Complaints

and their voluminous exhibits ever establish that

independent candidates do not or cannot meet 60-80

percent name recognition. To the contrary, during the

2016 presidential election, a YouGov poll taken at the

end of August found that 63 percent of registered 

voters had heard of Libertarian Gary Johnson and 59 

percent had heard of Green Party candidate Jill

Stein.105 Thus, there is no information in the record to

show that 60-80 percent name recognition is a

prohibitively high bar for independent candidates to

meet or, put another way, that a criteria which 

purportedly requires achievement of 60-80 percent 

name recognition is designed to exclude independent

candidates.

Instead, the Complainants appear to use Young's

name recognition threshold as a springboard to another

argument: that the cost of achieving 15 percent vote

share is prohibitively high for independent candidates.

Indeed, the Schoen Report starts from the premise that

60-80 percent name recognition is necessary to gain a

15 percent vote share and estimates the amount of

money that an independent candidate would need to

spend to reach 60-80 percent name recognition. This

105 Poll Results.·Third Party Candidates, YOUGOV (Aug.

25-26, 2016), available at https://d25d2506sfb94s.cloudfront

.net/cumulus_uploads/document/wc35k48hrs/tabs_HP_Third_pa

rty_Candidates_ 20160831.pdf.
111a

approach is similarly based on significant assumptions 

that reduce its value.

Notably, the Schoen Report bases its estimation of

campaign and media costs on the assumption that 

independent candidates are unable to attract earned 

media (i.e., free coverage). Schoen presumes that “the 

media will not cover an independent candidate until

they are certainly in the debates. Thus, they must pay

for all their media. . .”106 This premise is unfounded.

Notably, media coverage from the most recent

presidential election demonstrates that the two leading

independent candidates – Libertarian Gary Johnson 

and Green Party candidate Jill Stein received extensive

media coverage.107

Furthermore, Schoen's supposition is based in part

on research published in 1999,108 which seems entirely

inappropriate, given the rise of digital and social media

and independent expenditure-only political committees

(“IEOPCs”) in the years that have followed.

106 Schoen Report, supra note 35, at 3, 5.

107 See, e.g., Supp. Brown Decl., supra note 5, ¶ 16

(identifying over 60 appearances by Johnson and Stein in media

outlets including ABC, CBS, CNN, Fox, MSNBC, CNBC, PBS,

C-SPAN, USA Today, Time, People, the New York Times, and

others).

108 Schoen Report, supra note 35, at 4 (citing Paul Herrnson

& Rob Faucheux, Outside Looking In: Views of Third Party and

Independent Candidates, CAMPAIGNS & ELECTIONS (Aug. 1999)).
112a

Digital and social media have provided more

economical avenues for candidates' messages, while

social media has also enabled the ubiquitous sharing

of those messages among vast global networks.109 The

most recent election especially highlighted the impact

of changing media. In the final months of the 2016

election, Hillary Clinton spent more than $200 million

on television ads; Donald Trump spent less than half

of that, by focusing his spending on digital platforms 

like Facebook and Twitter.110 Digital and social media

not only served as a cheaper avenue for paid media, but

also generated earned media when more traditional 

news outlets covered noteworthy tweets and posts.111

In addition, digital media reportedly replaced field

offices for the Trump campaign, thereby reducing

another traditional campaign cost.112 This change in

traditional campaign strategies – a phenomena that

109 6869 Resp. n.4 (citing Clair Cain Miller, How Obama's

Internet Campaign Changed Politics, N.Y. TIMES (Nov. 7, 2008);

Derek Prall, The Social Soapbox: How Social Media and Data

Analytics are Helping Grassroots Candidates Gain Legitimacy, AM.

CITY & COUNTY (Oct. 22, 2014)); 6942 Resp. n.4 (same).

110 See Issie Lapowsky, Here's How Facebook Actually Won

Trump the Presidency, WIRED (Nov. 15, 2016),

https://www.wired.com/2016/11/facebook-won-trump-election-not

-just-fake-news/.

111 Id.

112 Matthew Tyson, How Digital Marketing Helped Donald

Trump Win, HUFFINGTON POST (Dec. 19, 2016), http://www. 

huffingtonpost.com/matthew-tyson/how-digital

-marketing-hel_b_13721224.html.
113a

intensified in 2016, but began in earnest in the 2008

election cycle113 – dramatically undermines Schoen's 

assumptions about the avenues of media exposure

available to independent candidates and their associated 

costs.

Furthermore, with the rise of IEOPCs – several of

which supported Libertarian candidate Gary Johnson 

in 2016114 – paid media in support of a particular

candidate may be created and distributed by entities

other than the candidate and his or her principal

campaign committee. Such independent support likely

increases a candidate's name recognition at no cost to

the candidate, thereby reducing the total sum that the

candidate must spend to achieve 60-80 percent name

recognition. In addition, IEOPCs may raise unlimited

funds from individuals and from sources, like

corporations, otherwise prohibited under the Act. Thus,

the existence of IEOPCs also undermines the dated

Schoen Report's conclusions about the number of

113 Claire Cain Miller, How Obama's Internet Campaign

Changed Politics, N.Y. TIMES (Nov. 7, 2008), https://bits.blogs.nyti

mes.com/2008/11/07/how-obamas-internet-campaign

-changed-politics/?_r=0; Sarah Lai Stirland, Propelled by Internet,

Barack Obama Wins Presidency, WIRED (Nov. 4, 2008),

https://www.wired.com/2008/11/propel led-by-in/.

114 See Independent Expenditures in Support or Opposition

to Gary Johnson, 2016 Cycle, OPEN SECRETS, https://www

.opensecrets.org/pres16/outside-spending?id=N00033226 (last

visited March 8, 2017) (listing six IEOPCs that reported

independent expenditures supporting Johnson in 2016, including

two that spent over $1 million).
114a

individual donations needed to reach Young's 60-80

percent name recognition threshold.115

The most recent elections demonstrate how

Complainants' failure to consider recent developments

undermines their conclusions. As noted above,

Libertarian candidate Gary Johnson achieved 63

percent name recognition shortly before Labor Day

2016. This was a significant increase from just 34

percent three months earlier.116 Yet to reach 63 percent

name recognition, Johnson raised only $7.9 million and

spent only $5.4 million,117 a mere 2-3 percent of the $266

million that Schoen estimates an independent candidate

would need to achieve 60-80 percent name recognition.

Finally, it is worth noting that independent

candidates frequently do not start from zero in terms of

either name recognition or fundraising. Notably, Gary

Johnson and George Wallace, who ran as an

115 Schoen Report, supra note 35, at 24-25 (estimating

independent candidate's “hypothetical average donation”).

116 Poll Results: Gary Johnson, YouGov (May 25-26, 2016),

available at https://today .yougov.com/news/2016/08/31/poll-resu

Its-third-party-candidates/.

117 February Monthly Rpt. of Gary Johnson 2016, FEC (Feb.

20, 2016); Amended Mar. Monthly Rpt. of Gary Johnson 2016, FEC

(June 20, 2016); Amended Apr. Monthly Rpt. of Gary Johnson

2016, FEC (June 20, 2016); Amended May Monthly Rpt. of Gary

Johnson 2016, FEC (June 20, 2016); June Monthly Rpt. of Gary

Johnson 2016, FEC (June 20, 20 I 6); Amended July Monthly Rpt.

of Gary Johnson 2016, FEC ( Aug . 20, 2016); Aug. Monthly Rpt.

of Gary Johnson 2016, FEC (Aug. 20, 2016); Sept. Monthly Rpt. of

Gary Johnson 2016, FEC (Sept. 20, 2016),
115a

independent candidate in 1968, were both governors

before running for president and presumably enjoyed at

least regional recognition. Similarly, several

independent candidates – including Ross Perot – have

been independently wealthy and able to fund significant

preexisting name recognition118 and significant personal 

wealth were among the qualities that drew him

significant attention as a potential independent 

candidate in 2016.119 That candidates may start with

some name recognition or financial resources further

belies the Complaints’ critique about the onerous

fundraising required to reach 60-80 percent name

recognition and the 15 percent polling threshold.

In sum, the reports by Young and Schoen do not

provide a sufficient basis to conclude that CPD's 15

percent participation threshold is a level of support so

high that only the Democratic and Republican 

nominees could reasonably achieve it. Taken together

with the Commission's judicially upheld determinations

that independent candidates of the past have reached 15

118 See Michelle Hackman, Bloomberg Wants to Save 

Everyone from Trump. But a Lot of People Don't Know Who He

Is, VOX (Jan. 23, 2016), http://www.vox.com/2016/l/21/10810624

/michael-bloomberg-third-party-bid (reporting on a poll finding

that, contrary to the title's characterization, roughly 57 percent of

voters had an opinion on Bloomberg).

119 See Alexander Burns and Maggie Haberman, 

Bloomberg, Sensing an Opening, Revisits a Potential White House

Run, N.Y. TIMES (Jan. 23, 2016), https://www.nytimes

.com/2016/01/24/nyregion/bloomberg-sensing-an-open

ing-revisits-a-potential-white-ho use-run. html.
116a

percent in the polls,120 the Complainants' reports do not

provide reason to believe that CPD’s 15 percent criteria

violated the requirement to use objective

candidate-selection criteria for staging debates.

2. Evidence on Purported Unreliability of

Polling Data

Finally, Complainants allege that CPD’s 15 percent

threshold is not objective because the fact that CPD

selects both the cutoff date for the application of its

debate criteria and the polls to consider allows CPD to

manipulate the criteria favor of Democratic and 

Republican interests.121 Citing the Young Report,

Complainants also contend that polling in races with

more than two candidates is subject to increased 

inaccuracy.122 As to the first allegation, there is no

information in the Complaint suggesting that CPD has

manipulated the dates on which it applies its criteria 

to reach a particular result. Likewise, there is no

information in the record to indicate that any

candidates have been excluded by virtue of the polling

deadline or that past independent candidates would

have been admitted to a debate had CPD relied on

different polling sources.

With regard to the selection of polls, CPD’s

independent polling expert, Frank M. Newport,

120 Buchanan, 112 F. Supp. 2d at 73.

121 6869 Compl. at 41-45.

122 ld. at 41-42
117a

Editor-in-Chief of Gallup Organization, affirms in a

sworn declaration that he has recommended which 

polls CPD should use in every election since 2000, 

based on, “the quality of the methodology employed,

the reputation of the polling organizations and the

frequency of the polling conducted.”123 Newport states

that he made the recommendations based solely “upon

my professional judgement and without any partisan

purpose or pre-determined result in mind” and that

CPD has always adopted his recommendations.124 The

Newport declaration further lists the polls selected in

each cycle between 2000 and 2012, and indicates that,

with few exceptions, CPD relied on the same five polling

organizations, thus lending a relative degree of

predictability to the polling used. Newport also affirms

that “it is neither feasible nor appropriate to include

every candidate’s name in a public opinion poll,” but

that based on his experience, “it is extraordinarily 

unlikely that a poll would fail to identify and include

among the candidates listed in polling questions a

candidate whose level of support is anywhere near 15

123 6869 Resp. Ex. 2 (Declaration of Frank M. Newport)

(“Newport Deel.”). Among the polls used between 2000 and 2012

were those conducted by ABC News and the Washington Post, NBC

News and the Wall Street Journal, CBS News and the New York

Times, Fox News and Opinion Dynamic, and CNN, USA Today and

Gallup. Id. According to Newport, “these organizations’ polls

would be conducted in a responsible and professional manner that

meets the industry standards and reflects the then-current

advances in polling methodology.” Id.

124 Id.
118a

percent of the national electorate.”125 The Complaint’s 

speculation about the possibility of an independent

candidate being excluded by CPD’s selection of polls is

unpersuasive in the face of Newport’s sworn 

attestations.

Lastly, relying on the Young Report, the Complaints 

suggest that polling in three-way races is subject to

increased inaccuracy, as compared to polling in

two-way races.126 In particular, the Young Report

concludes that sampling (i.e., sample size) and 

non-sampling (e.g., coverage bias, election salience,

and strategic voting) errors are greater in three-way

gubernatorial races studied127 and that the error rates

are especially high for candidates on the cusp of CPD’s

15 percent thresh old.128

Reliance on this conclusion is problematic for several

reasons. First, Young’s metric for polling error appears

to be based on the difference between the poll and the

actual results on Election Day.129 However, CPD does

not purport to use the polls as predictors of what will 

125 Id.

126 6869 Compl. at 42.

127 Young Report, supra note 34, at 18-28.

128 Id. at 18.

129 Id. at 25-26. Young uses as his metric the “average

absolute difference” (“AAD”) – a measure of the average difference

between each candidate’s actual result on Election Day and his or

her polled vote share in a given poll.
119a

occur on Election Day, but as a reliable measure of

candidates’ support at a given moment in September.

Indeed, as the Newport Declaration notes, “[p]olls are

estimates and imperfect predictors of future events”

but, according to Newport, “there is no doubt that

properly conducted polls remain the best measure of

public support for a candidate. . . at the time the polls

are conducted.”130

Newport further disagrees with the Young Report’s 

reliance on three-way gubernatorial election polling

to draw conclusions about the effect of sampling error

on independent presidential candidates on the cusp of

CPD’s 15 percent threshold. Specifically, Newport

states that presidential election polling is “inherently 

more reliable than is polling in low turn-out elections,”

as polls in mid-term state elections are “generally more

subject to sampling and non-sampling errors than 

national polls which are used by CPD in presidential 

elections.”131 Newport further asserts that “nothing

about support for a significant third party-candidate

[sic] [ ] makes it more difficult to measure.”132

Having carefully weighed and considered the

analyses of the parties’ respective experts, we do not 

believe the available information is sufficient to

conclude that the polling data employed by CPD are

not an objective means of measuring public support

130 Newport Deel., supra note 123, ¶ 21.

131 Id. ¶ 19.

132 Id. ¶ 21.
120a

for presidential candidates at a moment in time. In 

particular, we note that all candidates must abide by

the same polls, and thus equally endure whatever errors 

may be present. Moreover, as the court noted in

Buchanan, such error may just as likely result in over

inclusion of candidates shy of the 15 percent

threshold.133 And although the Complainants present

information suggesting that independent gubernatorial 

candidates may be disproportionately impacted by

polling errors, it is not clear that independent

presidential candidates are similarly impacted.

In conclusion, the new information presented to

the Commission asserting the impracticability of the 15

percent threshold for independent candidates and on

the unreliability of polling are not sufficient to support

a reasonable inference that the CPD’s criteria for

selecting its debate participants are not objective within

the meaning of 11 C.F.R. § 110.13(c).

3. Complainants Policy Arguments

Much of the remaining information included with

the Complaints pertains to policy arguments about the

particular challenges that independent candidates face

in the two-party dominant system, the reasons why 

independent candidates should be included in debates,

or the benefits of alternative selection criteria.

However, these points, no matter how compelling, do

not bear on the Commission’s consideration of whether

or not the 15 percent threshold is an objective criterion

and, most fundamentally, whether CPD’s use of such a

133 Buchanan, 112 F. Supp. 2d at 75.
121a

criteria results in prohibited in-kind corporate 

contributions from CPD to debate participants.

As the Commission has previously explained in 

related rulemaking proceedings, “the rule at section 

l10.13(c). . . is not intended to maximize the number of

debate participants; it is intended to ensure that staging

organizations do not select participants in such a way

that the costs of a debate constitute corporate

contributions to the candidates taking part.”134 Thus,

the relevant inquiry is not whether CPD’s 15 percent

threshold “den[ies] voters a viable alternative to the

Republican and Democratic parties that Americans 

increasingly feel have failed the nation,”135 as

Complainants urge, but whether that threshold is

objective and thereby “avoids the real or apparent 

potential for a quid pro quo”136 between a corporate

debate sponsor and a party or candidate. As described 

above, there is insufficient information to support a

reasonable inference that CPD’s criteria are not

objective, which ends the Commission’s inquiry in this

allegation.

V. CONCLUSION

For the reasons stated above, the Commission finds

no reason to believe CPD, Fahrenkopf, and Ridings as

co-chairs, and the ten named officers and board 

134 Candidate Debates, 80 Fed. Reg. 72,616, 72,617 (Nov.

20, 2015).

135 6869 Compl. at 2.

136 1995 E&J, supra note 15, at 64,262.
122a

members violated 52 U.S.C. §§ 30116(f) or 3011 S(a) by

making prohibited contributions and expenditures and

accepting prohibited contributions, and no reason to

believe that CPD violated 52 U.S.C. §§ 30103 or 30104 

by failing to register and report as a political

committee.
123a

APPENDIX D

FEDERAL ELECTION COMMISSION

WASHINGTON, DC 20463

March 29, 2017

Alexandra A.E. Shapiro, Esq.

Jeremy Licht

Shapiro, Arato & Isserles LLP

500 Fifth Avenue, 40th Floor

New York, NY 10110

Dear Ms. Shapiro and Mr. Licht:

On March 23, 2017, the Commission voted not to

initiate a rulemaking to revise its regulations at 11 CFR

110.13(c) as proposed in the Petition for Rulemaking

filed by Level the Playing Field on September 11, 2014.

Please see the enclosed Supplemental Notice of

Disposition, which the Commission approved at its open

meeting of March 23, 2017, and was published in the

Federal Register on March 29, 2017 (82 Fed. Reg.

15468).

Sincerely,

/s/ Adav Noti

Adav Noti

Associate General Counsel
124a

Proposed Rules

Federal Register

Vol. 82 No.59

Wednesday, March 29, 2017

This section of the FEDERAL REGISTER contains

notices to the public of the proposed issuance of rules

and regulations. The purpose of these notices is to give

interested persons an opportunity to participate In the

rule making prior to the adoptio11 of the final rules.

FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2017-09]

Candidates Debates

AGENCY: Federal Elecxtion Commission

ACTION: Supplemental Notice of Disposition of

Petition for Rulemaking

SUMMARY: On February 1, 2017, the U.S. District

Court for the District of Columbia ordered the

Commission to reconsider its disposition of the Petition

for Rulemaking filed by Level the Playing Field and to

issue a new decision consistent with the Court’s

opinion. The Petition for Rulemaking asks the

Commission to amend its regulation on candidate

debates to revise the criteria governing the inclusion of

candidates in presidential and vice presidential general

election debates. In this supplement to the Notice of

Disposition, as directed by the Court, the Commission

provides further explanation of its decision to not

initiate a rulemaking at this time.
125a

DATES: March 29, 2017.

ADDRESSES: The petition and other documents

relating to this matter are available on the

Commission’s Web site, www.fec.gov/fosers (reference

REG 2014–06), and in the Commission’s Public Records

Office, 999 E Street NW., Washington, DC 20463.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert M. Knop, Assistant General Counsel, or Ms.

Jessica Selinkoff, Attorney, 999 E Street NW.,

Washington, DC 20463, (202) 694–1650 or (800)

424–9530.

SUPPLEMENTARY INFORMATION: On

participating candidates, requires staging organizations

to ‘‘use pre- established objective criteria to determine

which candidates may participate in a debate’’ and

further specifies that, for general election debates,

staging organizations ‘‘shall not use nomination by a

particular political party as the sole objective criterion

to determine whether to include a candidate in a

debate.’’ 11 CFR 110.13(c). The petition asks the

Commission to amend 11 CFR 110.13(c) in two

respects: (1) To preclude sponsors of general election

presidential and vice presidential debates from

requiring that a candidate meet a polling threshold in

order to be included in the debate; and (2) to require

sponsors of general election presidential and vice

presidential debates to have a set of objective, unbiased

criteria for debate participation that do not require

candidates to satisfy a polling threshold. The petition

included, in addition to legal arguments, reports and

other evidence in support of its position.
126a

Procedural History

The Commission published a Notice of Availability

seeking comment on the petition on November 14, 

2014. Candidate Debates, 79 FR 68137. The

Commission received 1264 comments in response to

that notice, including one from the Petitioner that

included updated and additional factual submissions.

On November 20, 2015, the Commission published in

the Federal Register a Notice of Disposition in which

it explained why it would not initiate a rulemaking.

Candidate Debates, 80 FR 72616.

The Petitioner and others sued on the basis that the

Commission’s failure to initiate a rulemaking was

arbitrary and capricious in violation of the

Administrative Procedure Act. See Level the Playing

Field v. FEC, No. 15–cv–1397, 2017 WL 437400 at *1

(D.D.C. Feb. 1, 2017) (citing 5 U.S.C. 706). On February

1, 2017, the U.S. District Court for the District of

Columbia concluded that the Commission acted

arbitrarily and capriciously by failing to thoroughly

consider the presented evidence and explain its

decision; the Court ordered the Commission to

reconsider its disposition of the petition and issue a new

decision consistent with the Court’s opinion. See id. at

*13. In particular, the Court concluded that the

Commission had not adequately addressed evidence

concerning the 15% vote share polling threshold used

by the Commission on Presidential Debates (‘‘CPD’’) as

a criterion for inclusion in presidential general election 

debates. See id. at *12 (noting that ‘‘for thirty years

[CPD] has been the only debate staging organization for
127a

presidential debates’’ and concluding that Commission

had arbitrarily ignored evidence particular to CPD’s

polling criterion). The Court declined to ‘‘take the

extraordinary step of ordering promulgation of a new 

rule,’’ but instead remanded for the Commission to

‘‘give the Petition the consideration it requires’’ and

publish a new reasoned disposition or the

commencement of rulemaking ‘‘if the Commission so

decides.’’ Id. at *11, *13 (citing Shays v. FEC, 424 F.

Supp. 2d 100, 116–17 (D.D.C. 2006)).

In accordance with the Court’s instructions, the

Commission has reconsidered the full rulemaking

record. On the basis of this review, the Commission

again declines to initiate a rulemaking to amend 11

CFR 110.13(c) at this time. The analysis below is

intended to supplement, rather than replace, the

analysis that the Commission provided in its original

Notice of Disposition. 80 FR 72616.

Purpose and Requirements of Existing

Candidate Debate Regulation

As the Commission stated in adopting the current

candidate debate regulation in 1995, ‘‘the purpose of

section 110.13. . . is to provide a specific exception so

that certain nonprofit organizations. . . and the news

media may stage debates, without being deemed to have

made prohibited corporate contributions to the

candidates taking part in debates.’’ Corporate and

Labor Organization Activity; Express Advocacy and

Coordination with Candidates, 60 FR 64260, 64261 
128a

(Dec. 14, 1995).1 Accordingly, the Commission has

required that debate ‘‘staging organizations use

pre-established objective criteria to avoid the real or

apparent potential for a quid pro quo, and to ensure the

integrity and fairness of the process.’’ Id. at 64262. In

discussing objective selection criteria, the Commission

has noted that debate staging organizations may use

them to ‘‘control the number of candidates

participating in . . . a meaningful debate’’ but must not

use criteria ‘‘designed to result in the selection of

certain pre-chosen participants.’’ Id. The Commission

has further explained that while ‘‘[t]he choice of which

objective criteria to use is largely left to the discretion

of the staging organization,’’ the rule contains an

implied reasonableness requirement. Id. Within the

realm of reasonable criteria, the Commission has stated

that it ‘‘gives great latitude in establishing the criteria

for participant selection’’ to debate staging

organizations under 11 CFR 110.13.2 First General

Counsel’s Report at n.5, MUR 5530 (Commission on

Presidential Debates) (May 4, 2005),

http://eqs.fec.gov/eqsdocsMUR/ 000043F0.pdf.

1 See also Funding and Sponsorship of Federal Candidate

Debates, 44 FR 76734 (Dec. 27, 1979) (explaining that, through

candidate debate rule, costs of staging multi-candidate nonpartisan

debates are not contributions or expenditures); 11 CFR 100.92

(excluding funds provided for costs of candidate debates staged

under 11 CFR 110.13 from definition of ‘‘contribution’’); 11 CFR

100.154 (excluding funds used for costs of candidate debates staged

under 11 CFR 110.13 from definition of ‘‘expenditure’’).

2 See Candidate Debates and News Stories, 61 FR 18049

(Apr. 24, 1996) (quoting H.R. Rep. No. 93–1239 at 4 (1974)).
129a

In the first major enforcement action under this

regulation almost two decades ago, the Commission

found that CPD’s use of polling data (among other

criteria) did not result in an unlawful corporate

contribution, with five Commissioners observing that it

would make ‘‘little sense’’ if ‘‘a debate sponsor could

not look at the latest poll results even though the rest

of the nation could look at this as an indicator of a

candidate’s popularity.’’ MUR 4451/ 4473 Commission

Statement of Reasons at 8 n.7 (Commission on

Presidential Debates) (Apr. 6, 1998), http://

www.fec.gov/disclosure data/mur/ 4451.pdf#page=459.

Citing this statement, one court noted with respect to

the use of polling thresholds as debate selection criteria

that ‘‘[i]t is difficult to understand why it would be

unreasonable or subjective to consider the extent of a

candidate’s electoral support prior to the debate to

determine whether the candidate is viable enough to be 

included.’’ Buchanan v. FEC, 112 F. Supp. 2d 58, 75

(D.D.C. 2000). Nonetheless, the Commission has noted

that while it cannot reasonably ‘‘question[ ] each and

every . . .candidate assessment criterion,’’ it can

evaluate ‘‘evidence that [such a] criterion was ‘fixed’ or

arranged in some manner so as to guarantee a

preordained result.’’ MUR 4451/4473 Commission

Statement of Reasons at 8–9 (Commission on

Presidential Debates).

The Arguments for Changing the Regulation

The petition and many of the comments supporting

it essentially argue that CPD’s 15% threshold is a

non-objective criterion because it is unreliable and/or

intended to unfairly benefit major party candidates at
130a

the expense of independent and third-party candidates.

The Court summarized the petition’s arguments as

attempting to establish, first, that ‘‘CPD’s polling

threshold is being used subjectively to exclude

independent and third-party candidates’’ and, second,

that ‘‘polling thresholds are particularly unreliable and

susceptible to . . . subjective use at the presidential

level, undermining the FEC’s stated goal of using

‘objective criteria to avoid the real or apparent potential

for a quid pro quo, and to ensure the integrity and

fairness of the process.’’’ Level the Playing Field, 2017

WL 437400 at *12.

In essence, the petition argues that there are biases

against third-party and independent candidates in

accurate polling, and therefore that a polling threshold

requirement like CPD’s presents these candidates with

a Catch-22 scenario:

[A polling threshold] effectively institutionalizes

the Democratic and Republican candidates as the

only options with which the voters are presented.

A third- party or independent candidate who is

excluded from the debates loses the opportunity to

take the stage against the major party nominees

and demonstrate that he or she is a better

alternative; the media does not cover the

candidate; and the candidate does not get the

public exposure necessary to compete. The

‘‘determination’’ that a [third-party or

independent] candidate is not viable because he or

she lacks a certain amount of support becomes a

self-fulfilling prophecy.
131a

Petition at 3. The petition argues that inclusion of

independent and third- party candidates in presidential

general election debates furthers voter education and

voter turnout, which, the petition asserts, are policy

purposes underlying the regulation.

Summary of Petition Evidence in Support of

Changing the Regulation

In support of the argument that polling thresholds

have the purpose or effect of favoring major party

candidates over third-party or independent candidates,

the petition presents facts and analysis regarding the

name recognition required to poll at CPD’s 15%

threshold and the amount of money required to gain

that level of name recognition. The petition provides

further factual submissions that, according to the

petition, show that the unreliability of polling—both

generally and with respect to independent and

third-party candidates—renders the 15% threshold

unattainable and unreasonable for independent and

third- party candidates.

The crux of the petition’s factual submissions

consists of two reports that purport to show that CPD’s

15% threshold is designed to result in the exclusion of

independent or third-party candidates. The first report,

by Dr. Clifford Young, concludes that in order to

reach a 15% threshold, a candidate must achieve name

recognition among 60–80% of the population.3 The

second, by Douglas Schoen, estimates that the cost to a

third-party or independent candidate of achieving 60%

3 Petition Ex. 3 (‘‘Young Report’’).
132a

name recognition would be over $266 million, including

almost $120 million for paid media content production

and dissemination, which the report concludes is not a

reasonably reachable figure for a non-major-party

candidate.4 Additionally, both the Young and Schoen

reports conclude that polling in three-way races is

inherently unreliable and not, therefore, an objective

measure of the viability of third-party and independent

candidates. In reaching their conclusions, both the

Young and Schoen reports assert that third-party and

independent candidates are disadvantaged by the fact

that they do not benefit from a ‘‘party halo effect’’ by

which Democratic and Republican candidates —

regardless of name recognition — may garner a

minimum vote share in polling merely for being

associated with a major party, in addition to benefitting

from increased name recognition from media coverage

of the major party primary season.5

The Commission’s Assessment of the Petition’s

Factual Submissions

1. Submissions Regarding Whether a 15% Threshold

Cannot Be Attained by (and Therefore Excludes)

Independent and Third-Party Candidates

The Young Report’s conclusion that third-party and

independent candidates require a 60–80% name

recognition to meet CPD’s 15% threshold does not

provide a persuasive basis for changing the candidate

4 Petition Ex. 11 (‘‘Schoen Report’’).

5 See Young Report at ¶¶ 21–22.
133a

debate regulation. Dr. Young acknowledges that his

report’s analysis is one-dimensional; it correlates

polling results to name recognition alone, and then it

draws conclusions regarding hypothetical third-party

candidate performance based on that one factor. More

specifically, Dr. Young acknowledges that polling

results are not merely a function of name

recognition—they are a much more complex confluence

of factors. See Young Report at ¶¶ 10, 20(d) (listing

other factors, beyond name recognition, affecting

candidate vote share, including ‘‘fundraising, candidate

positioning, election results, and idiosyncratic events’’);

see also Nate Silver, A Polling Based Forecast of the

Republican Primary Field, FiveThirtyEight Politics

(May 11, 2011) (attached to Petition as Exhibit 20)

(noting that, more than name recognition, ‘‘laying the

groundwork for a run quite early on,’’ including efforts 

 to ‘‘hire staff, cultivate early support, brush up [ ]

media skills,’’ predicts later vote share success). Due to

the Young Report’s focus on this one correlative factor,

the report does not purport to establish any causative

effect between name recognition and vote share, and it

does not account for how external forces apart from

name recognition—such as fundraising, candidate

positioning, election results, and idiosyncratic

events—may influence vote share. For example, the

report does not take into consideration forces that

might increase the vote share of an otherwise 

unfamiliar independent candidate—such as high

unfavorable ratings among major party candidates—or

forces that might decrease the vote share of an

independent candidate who has become well-recognized

— such as policy preferences or political missteps.
134a

Because it largely omits analysis of all other factors

beyond name recognition, the Commission is not

persuaded that the Young Report’s conclusions are a

sufficient basis on which to determine that a 15%

polling threshold is so inherently unreachable by

non-major- party candidates that the Commission

should provide that sponsors of general election

presidential debates must be prohibited as a matter of

law from using it in order to fulfill the statutory

prohibition on corporate contributions.

Moreover, even within the confines of name

recognition, the Young Report is only weakly applicable

to the debates at issue, which are presidential general

election debates. The Young Report reaches its 60–80%

name recognition result through three models, all of

which extrapolate from data about name recognition of

major party candidates at the early stages of the party

primary process (i.e., before the Iowa caucuses) because,

the report explains, ‘‘party halo effects’’ may be lower

during early primary polling. Young Report at ¶ 22. The

decision to measure name recognition at this

extraordinarily early stage in all three models, even if

only in part, may amplify polling errors, which the

report notes are higher earlier in the election cycle than

during the later ‘‘election salience’’ period—from one 

day to several months before election day—during

which people start paying more attention to the

election. Id. at ¶¶ 43(g), (i). Additionally, the use of the

early party primary stage as the point of comparison for

third-party or independent candidates’ name

recognition in September does not address or account

for differences in the size of the candidate fields at
135a

those points in time. Thus, the Young Report’s

observations regarding early primary candidates

provide little or no persuasive evidence as to the effect

of a polling threshold on presidential general election

candidates.

In addition, the petition appears to draw inapposite

conclusions from the Young Report’s data. Critically,

neither the Young Report nor other evidence submitted

with the petition or comments establishes that

third-party or independent candidates do not or cannot

meet 60–80% name recognition. In fact, at least one

third-party candidate was reported to achieve over 60%

name recognition in the most recent presidential

campaign prior to the general election debates. See Poll

Results: Third Party Candidates, YouGov (Aug. 25–26,

2016), available at https://d25d2506sfb94s.

cloudfront.net/ cumulus uploads/document/

wc35k48hrs/tabs HP Third Party Candidates

20160831.pdf (showing Gary Johnson and Jill Stein

having 63% and 59% name recognition among

registered voters, respectively). Thus, there is no

information in the rulemaking record showing that 60–

80% name recognition is a prohibitively high bar for

independent candidates. In other words, even if the

Commission were to assume arguendo that 60–80%

name recognition correlates with 15% vote share, there

is no information in the record demonstrating that

these thresholds inherently function to exclude

third-party or independent candidates because of their

party status.

Instead, the petition uses Dr. Young’s name

recognition threshold as a springboard to the primary
136a

argument of the Schoen Report: That the cost of

achieving 15% vote share is prohibitively high for

independent candidates. The Schoen Report starts from

the premise that 60–80% name recognition is necessary

to gain a 15% vote share and proceeds to estimate the

amount of money that an independent candidate would

need to spend to reach 60–80% name recognition. For

the reasons stated above, the Commission does not find

that this premise is adequately established by the

Young Report, and therefore the Commission questions

whether the Schoen Report possesses any meaningful

evidentiary value. But even assuming that a candidate

must reach 60–80% name recognition to achieve a 15%

threshold in vote share, the Commission finds the

Schoen Report not to provide a reasoned evidentiary

basis for amending the rule at issue.

The Commission is unpersuaded by the Schoen

Report primarily because the report builds its

conclusion through an extensive series of unsupported

suppositions and assertions. For example, to explain a

significant portion of its calculations, the report states

that ‘‘the media will not cover an independent

candidate until they are certainly in the debates.’’

Schoen Report at 3. But the report provides no basis for

this assertion other than an unexplained reference to

the number of publications ‘‘follow[ing]’’ one particular

candidate (id. at 5), and the Commission is aware of at

least three non-major-party candidates who did not
137a

participate in the general election debates but received

significant media attention in 2016.6

In another premise that the report uses to build its

later conclusions, the Schoen Report asserts that

independent candidates are disadvantaged because they

‘‘must resort to launching a massive national media

campaign’’ while major party candidates ‘‘by competing

6 Searches of the Thompson Reuters Westlaw

‘‘Newspaper’’ database for mentions in 2016 of independent and

third-party 2016 presidential candidate names (‘‘Gary Johnson,’’

‘‘Jill Stein,’’ and ‘‘Evan McMullin’’) show thousands of results.

Moreover, the number of results for references to these

independent candidates was comparable to the number of results

for references to several major party candidates during comparable

time periods.Using as a baseline the 277 days from the lead up 

to the first Republican party primary debate until Donald Trump

was determined to be the presumptive nominee (August 1, 2015, to

May 4, 2016), and the similar 277-day period of September 4, 2015

(before the first Democratic primary debate) to June 7, 2016 (when

Hillary Clinton became the presumptive Democratic nominee), the

Commission looked at mentions for independent candidates during

the 277 days before the general election (February 5–November, 7,

2016). Those results show that Gary Johnson (with 3,001 results)

was comparable to Bobby Jindal and Mike Huckabee (with 2,894

and 3,274 results, respectively); Jill Stein (with 1,744 results) was

comparable to Rick Perry and Martin O’Malley (with 2,278 and

2,566 results, respectively); and Evan McMullin (with 353 results)

was comparable to Lincoln Chafee, Jim Webb, and George Pataki

(with 424, 521, and 937 results, respectively). And, while searches

for Donald Trump’s and Hillary Clinton’s names returned

significantly more results (7,451 and 7,404, respectively), those

results were in line with other candidates who did not achieve high

vote share in the party primaries, such as Jeb Bush with 7,102

results.
138a

in small state primaries, can build their name

recognition without the costs of running a national

campaign.’’ Id. In support of this statement, the report

states that ‘‘Obama’s 2008 victory in the Iowa caucuses

catapulted him to national prominence.’’ Id. In fact,

polling expert Nate Silver has noted that ‘‘contrary to

the conventional wisdom, which holds that Barack

Obama suddenly burst onto the political scene, the

polling shows that he was already reasonably wellknown to voters in advance of the 2008 primaries,

largely as a result of his speech at the 2004 Democratic

National Convention. His name was recognized by

around 60 percent of primary voters by late 2006, and

that figure quickly ramped up to 80 or 90 percent after

he declared for the presidency in February, 2007.’’ Nate

Silver, A Brief History of Primary Polling, Part II,

FiveThirtyEight (Apr. 4, 2011),https://fivethirtyeight.

com/features/a-brief-history-of-primary- polling-part-ii/.

The only other basis that the report provides for this

portion of its conclusion is the statement that Senator

Rick Santorum ‘‘spent only $21,980 in [Iowa], or 73

cents per vote’’ in 2012. Schoen Report at 5. It is not 

clear how the newspaper article cited by the report

derived this figure, and Schoen (despite having access

to all relevant financial data through the FEC’s Web

site) does not appear to have assessed its accuracy. In

fact, reports filed with the Commission for the

period ending three days before the Iowa caucus show

that Senator Santorum made disbursements of

$1,906,018. Rick Santorum for President, FEC Form 3P

at 4 (Jan. 31, 2012), http://docquery.fec.gov/pdf/317/

12950383317/12950383317.pdf. While not all of these

disbursements were targeted to Iowa, the candidate’s
139a

total spending in relation to the caucuses in that state

was far higher than $21,980. Even looking at only

reported disbursements to Iowa payees (and, therefore,

not including payments to media buyers and others

outside of Iowa for activities targeted towards Iowa),

the filings shows that Santorum spent over $112,000 in

Iowa between October 1 and December 31, 2011, for

purposes including rent, payroll, lodging, direct mail, 

advertising, communication consulting, and coalition

building. Id. Thus, the Schoen Report’s use of

unexplained second-hand analysis undercuts its

credibility, and the facts demonstrated by the public

record give the Commission reason to doubt the Schoen

Report’s calculations regarding any extra benefit major

party primary candidates receive from their media

expenditures.

In addition, the Schoen Report states that media

costs to accomplish 60% name recognition are higher in

three- way races due to increased competition, and the

report increases its cost estimate accordingly.7 But the

60% figure is apparently drawn from the Young Report,

which, as discussed above, addresses the very earliest

stages of major party primaries. Like the Young Report,

the Schoen Report does not explain why or how this

60% figure can be extrapolated from early major party

primaries to three-way general elections.

7 Schoen Report at 3; see also id. at 10 (asserting, without

supporting data or sources, that costs will likely be ‘‘significantly’’

higher ‘‘in an election year featuring three viable candidates’’ and,

therefore, adding 5% premium to report’s earlier cost estimates).
140a

The Schoen Report ultimately adopts an estimated

cost of at least $100 million for a media buy that an

independent candidate would require to gain the name

recognition to meet the 15% threshold. Schoen Report

at 6. Not only does this figure rely upon the faulty

assumptions that the Commission has already noted, it

is also unreliable for at least four additional reasons.

First, the $100 million figure is taken from an

estimate from ‘‘a leading corporate and political media

buying firm,’’ without any underlying data and without

any explanation of the circumstances under which the

firm purportedly offered that estimate. Nor does the

report address (or even acknowledge) any biases in that 

estimate that may stem from a media buying firm’s

financial interest in estimating or promoting high

media buy costs. The Schoen Report simply provides no

evidentiary basis for the Commission to credit this

third-person estimate.

Second, the $100 million estimate presumes that a

candidate must go from zero percent name recognition

to 60% name recognition, without noting the likelihood

of a candidate starting from zero or otherwise

explaining this assumption. The Schoen Report

suggests, by consistently comparing the hypothetical

independent candidate’s position with the positions of

his ‘‘two’’ (and only two) major party candidate

competitors, that this zero percent baseline occurs at

some point after the major parties have established

presumptive nominees. See, e.g., Schoen Report at

10–11 (discussing ‘‘the two major party campaigns’’

with whom hypothetical independent candidate needing

60% name recognition will be competing for ad buy
141a

time); id. at 15 (same). A hypothetical situation in

which a person with zero percent name recognition

decides to run for president in approximately June of

the election year and must raise name recognition from

nothing to 60% within the three months before CPD

looks at polls in September is unrelated to the realities

of presidential elections. Presidential candidates —

major party and third-party alike — generally begin

campaigning a full year or more before the election,

see, e.g., Jill Stein, FEC Form 2 (July 6, 2015) (declaring

candidacy for president in 2016 election cycle), and they

rarely start with zero name recognition, see, e.g.,

Petition Ex. 13 (Gallup report showing 11 candidates

(including Libertarian Gary Johnson) with over 10%

name recognition in January 2011). The Schoen

Report’s scenario — and the conclusions that the report

draws from it — therefore provides no persuasive

support for the petition’s assertion that the candidate

debate regulation must be revised.

Third, the Schoen Report bases its estimate of

campaign and paid media costs on the assertion that

independent candidates are unable to attract news

media coverage. See Schoen Report at 4. But the

report’s assertion, based primarily on research

published in 1999,8

 seems particularly antiquated in the

8 Schoen Report at 4 (citing Paul Herrnson & Rob

Faucheux, Outside Looking In: Views of Third Party and

Independent Candidates, Campaigns & Elections (Aug. 1999)). The

assertion also appears to be in tension with the statutory exclusion

of the news media coverage from legal treatment as campaign

spending. See 52 U.S.C. 30101(9)(B)(i) (excluding ‘‘any news story

. . .distributed through the facilities of any broadcasting station,
142a

age of digital and social media. See Farhad Manjoo, I

Ignored Trump News for a Week. Here’s What I

Learned, NY Times, Feb. 22, 2017, https://

www.nytimes.com/2017/02/22/ technology

/trump-news-media-ignore.html (discussing news media

coverage during and since 2016 presidential election

campaign in light of social media pressures). The

Commission declines to promulgate rules that will

govern the 2020 presidential election and beyond on the

basis of opinions that are premised on such obsolete

data.

Fourth, the Schoen Report’s media cost estimates do

not appear to take account of media purchases in

support of a candidate by outside groups, including

independent expenditure- only political committees

(‘‘IEOPCs’’). IEOPCs may create, produce, and

distribute communications in support of, but

independently of, a particular candidate, and in 2016

several IEOPCs Johnson in just that way.9

 In addition,

IEOPCs may raise unlimited funds from individuals and

from sources, like corporations, otherwise prohibited

under the Federal Election Campaign Act, 52 U.S.C. 

30101–46. Thus, the existence and rise of IEOPCs

undermine the Schoen Report’s assumptions about the

newspaper, magazine, or other periodical’’ from definition of

‘‘expenditure’’).

9 See Open Secrets, Independent Expenditures, Gary

Johnson, 2016 cycle, https://www.opens ecrets.

org/pres16/outside-spending?id=N00033226 (listing six ‘‘Super

PACs’’ or IEOPCs supporting Johnson, two of which spent over $1

million in support) (last visited Feb. 24, 2017).
143a

amount of the average contribution to a candidate, as

well as the report’s extrapolations about the number of

individual contributions needed and total sum

necessary to reach Dr. Young’s 60–80% name

recognition threshold. See Schoen Report at 24–25

(estimating third-party candidate’s ‘‘hypothetical

average donation’’ on basis of ‘‘assumption for average

donation’’ of ‘‘plurality’’ of Obama and Romney

contributors under $2600 maximum).

Ultimately, the unreliability of the Schoen Report’s

conclusions is most clearly demonstrated by the fact

that third-party candidate Gary Johnson reached 60%

name recognition by August 31, 2016.10 In the 2016

election cycle through August 31, Johnson had spent

almost $5.5 million; this amount represents total

disbursements for all purposes, including, but not

limited to, media buys.11 According to the Schoen

Report, such a result should have been impossible:

Johnson should not have been able to achieve 60%

10 See Ariel Edwards-Levy, Third-Party Candidates are

Getting a Boost in Name Recognition, Huffington Post (Aug. 31,

2016) (noting Johnson’s name recognition); Poll Results: Third

Party Candidates, YouGov (Aug. 25–26, 2016), available at

https://d25d2506sfb94s.cloud front.net/cumulus

uploads/document/wc35k48hrs/ tabs HP Third Party Candidates

20160831.pdf (showing Gary Johnson and Jill Stein having 63%

and 59% name recognition among registered voters, respectively).

11 See Gary Johnson 2016, FEC Form 3P at 3–4 (Sept. 20,

2016), http://docquery.fec.gov/pdf/391/201609209032026391

/201609209032026391.pdf (showing receipts of $7,937,608 and

disbursements of $5,444,704).
144a

name recognition until he spent at least $266

million—fifty times more than he actually did.12

For all of the foregoing reasons, the Commission

finds the Schoen Report unpersuasive.

Finally, the petition acknowledges that a number of

third-party presidential candidates have performed

sufficiently well that they were included or would have 

been included in debates with 15% thresholds. See

Petition at 15–16. Indeed, the petition notes that as

many as six candidates would apparently have satisfied

this requirement at some point during their campaigns:

Roosevelt in 1912, LaFolette in 1924, Thurmond in

1948, Wallace in 1968, Anderson in 1980, and Perot in

1992. Id. The petition asks the Commission to

categorically disregard these examples because they

predate the Internet, and in some cases, the television.

Petition at 16.13 As discussed above, the Commission

12 The Young and Schoen Reports do not address a

circumstance in which a candidate, like Gary Johnson, reaches at

least 60% name recognition but does not reach a 15% threshold.

The Commission notes, though, that this circumstance (in which 

name recognition does not translate to high vote share) might be

explained by the other factors beyond name recognition that affect

vote share, including ‘‘fundraising, candidate positioning, election

results, and idiosyncratic events,’’ mentioned in the Young Report.

See Young Report at ¶¶ 10, 20(d). Moreover, the circumstance in 

which name recognition does not translate to high vote share is not

unique to third party candidates. See note 6, above (discussing Jeb 

 Bush).

13 The petition also asks the Commission to disregard the

strong polling results of third-party or independent candidates, like

George Wallace and John Anderson, who have a prior affiliation
145a

agrees that pre-Internet candidacies provide only a

relatively weak basis assessing how easy or difficult it

would be for candidates to achieve 15% vote share in a

modern election. But to the extent that the availability

of Internet communication has changed this calculus,

the Commission notes that advertising on the Internet

can cost significantly less money than advertising in

more traditional media that was available to those

pre-Internet independent candidates. See, e.g. Internet

Communications, 71 FR 18589, 18589 (Apr. 12, 2006)

(describing Internet as ‘‘low-cost means of civic

engagement and political advocacy’’ and noting that

Internet presents minimal barriers to entry compared

to ‘‘television or radio broadcasts or most other forms

of mass communication’’); Associated Press, Here’s

How Much Less than Hillary Clinton Donald Trump

Spent on the Election, Fortune (Dec. 9, 2016),

http://fortune.com/2016/12/09/hillary-clintondonald-trump-campaign- spending/ (comparing Hillary

Clinton’s ‘‘more traditional’’ television-heavy

advertising strategy in campaign’s last weeks—$72

million on TV ads and about $16 million on Internet

ads—with Donald Trump’s ‘‘nearly $39 million on

last-minute TV ads and another $29 million on

with a major political party. Petition at 15. The Commission is not

persuaded that disregarding those polling results would be

reasonable in the context of assessing, as required by the court,

whether the CPD’s 15% threshold under the current candidate

debate regulation acts ‘‘subjectively to exclude independent and

third-party candidates,’’ since the threshold would apply to all

third-party and independent candidates, regardless of prior

affiliation. Level the Playing Field, 2017 WL 437400 at *12.
146a

digital’’); see also Bill Allison et al., Tracking the 2016 

Presidential Money Race, Bloomberg Politics (Dec. 9,

2016), https://www.bloomberg.com/politics/

graphics/2016-presidential-campaign-fundraising/

(noting that Trump’s spending to ‘‘target[ ] specific

groups of Clinton backers with negative ads on social

media to lower Democratic turnout . . . may have been

a factor in Trump’s performance in battleground

states’’).

In sum, the Commission concludes that the petition

does not present credible evidence that a 15% threshold

is so unobtainable by independent or third-party

candidates that it is per se subjective or intended to

exclude them.

2. Submissions Regarding Whether Polls are Unreliable

and Systematically Disfavor Independent and

Third-Party Candidate

The Young Report’s examination of polling error in

three-way races with independents seeks to determine,

essentially, if the threshold is drawn in the right place

to identify candidates that actually have a 15% vote 

share. Young Report at ¶ 60. The Young Report

concludes that polls in three-way races have greater

errors than polls in two- way races. Specifically, the 

Young Report extrapolates from gubernatorial election

polls taken two months before the general election (the

point at which CPD uses polls as a debate inclusion

criterion) where there is an 8% error rate in three-way

races compared to a 5.5% error rate in two-way races.

Id. at ¶¶ 52–56. Adjusting for the fact that

gubernatorial race polling is ‘‘more error prone’’ than
147a

presidential race polling, the Young Report concludes

that the applicable error rate is 6.04%. Id. at ¶¶ 57–58.

The Young Report continues to extrapolate the effect of

this error on candidates, such as independent or

third-party candidates, that poll close to the 15%

threshold; for these candidates, the Young Report 

concludes that there is an approximately 40% chance

that a third-party or independent candidate who holds

the support of 15% of the population would be excluded.

Id. at ¶¶ 59–66.

The Commission is unpersuaded by this analysis for

two fundamental reasons. First, as the Commission

noted in its original notice of disposition, the fact that

polling data can be erroneous does not mean that a

debate staging organization acts subjectively in using

it. 80 FR at 72618 n.6. By way of analogy, consider a 

school district with a policy of canceling school if a

majority of local television news stations predict at least

six inches of snow for the next day. That policy would

be facially objective, even though such weather

forecasts are known to be significantly inaccurate. The

policy would be subjective only if the inaccuracy in the

forecast were systematically biased for or against the

condition being triggered (e.g., if the local weather

forecasters regularly used high-end estimates of snow

to drive viewer interest). But this demonstrates the

second reason the Commission is unpersuaded by the

petition’s submissions regarding polling unreliability:

The petition provides no evidence that the polling error

is biased in a manner specific to party affiliation, that

is, that polling is biased against third-party or

independent candidates. Indeed, the petition explicitly
148a

acknowledges that ‘‘it [is] wholly unclear whether the

polling over- or underestimate[s] the potential of the

third party candidate.’’ Petition at 19 (quoting Schoen

Report at 28). Thus, the Commission concludes that the

petition does not demonstrate that statistical errors in

polling data render the use of such data subjective or

show that it is intended to exclude third-party

candidates.14

14 Because this data, even as cited by the petition, does not

show that the regulation should be amended, the Commission need

not further assess the data’s validity. Nonetheless, the Commission

notes that there are significant structural differences between the

state polls cited by Dr. Young and national presidential polls. See,

e.g., Young Report at ¶¶ 41 (explaining differences between

reputable national and state or local polls, with respect to both

number of interviews and margins of error), 57 (showing

significant differences between state and federal polling at different

points in time). Although Dr. Young adjusts the state-poll results

before applying them to his national analysis, (see id. ¶ 58), the

manner in which the adjustment is described leaves unexplained

whether the adjustment accounts for all of the relevant differences

between state and national polls.

The Petitioner also submitted in response to the Notice

of Availability a comment with additional data concerning 

‘‘grossly inaccurate’’ polling in 2014 midterm Senate and

gubernatorial elections. Level the Playing Field, Comment at 1

(Nov. 26, 2014), http://sers.fec.gov/fosers/

showpdf.htm?docid=310980. However, attachments to the

comment note that ‘‘midterm polling biases in Senate elections are

far worse than in presidential elections.’’ Id. at Exhibit A. And a

chart created by the Petitioner for the comment shows that, of ten

races with purportedly high polling errors in races without a

‘‘viable third-party or independent candidate,’’ the two races 

included in the chart with the lowest polling error are, in fact, the

only two races that include a third-party or independent candidate.
149a

The petition does imply that third-party and

independent candidates are at a disadvantage because

‘‘there is no requirement that pollsters test third-party

and independent candidates,’’ and therefore the CPD

might ‘‘cherry pick from among the myriad polls that

exist in order to engineer a specific outcome.’’

Petition at 17–18. But the petition presents no evidence

that such manipulation has ever occurred, and the

Commission is unwilling to predicate a rule change on

unsupported speculation of wrongdoing. A debate

sponsor who took actions to manipulate the ‘‘preestablished’’ and ‘‘objective’’ selection criteria so as to

‘‘select[ ] certain pre- chosen participants’’ by

cherry-picking polls that excluded other candidates

would violate the existing rule.

The petition further argues that lowering the polling

threshold is insufficient to solve polling error problems.

As an initial matter, the Commission notes that the

Young Report does not conclude that any and all polling

thresholds are unreliable. On this point, in addition to

the Young and Schoen Reports discussed above,

Petitioner cites an article from Nate Silver on

Republican primaries for the conclusion that ‘‘a simple

Compare Level the Playing Field, Comment at 3 (showing Georgia

and North Carolina Senate races with the lowest final polling

errors of those entries in chart) to Level the Playing Field,

Comment at Exhibit C (showing Georgia and North Carolina

Senate as only races included in chart that involved three-way

race polling). For all of these reasons, the Commission is not

persuaded that the Petitioner’s submissions regarding state and

Senate polls indicate any systematic, anti-third-party flaw in the

polls at issue here, which are presidential general election polls.
150a

poll does not capture a candidate’s potential.’’ Petition

at 17 (citing Nate Silver, A Polling Based Forecast of 

the Republican Primary Field, FiveThirtyEight Politics

(May 11, 2011) (attached to Petition as Exhibit 20)).

The cited article, though, concludes what appears to be

the opposite of the point for which it is cited; it starts by

explaining that it will prove the author’s contention

that ‘‘polls have enough predictive power to be a

worthwhile starting point.’’ Petition, Ex. 20. In fact,

that article was part four of a four part series. The

second sentence of part one of that series explained that

the series was intended to show that ‘‘national polls of

primary voters—even [nine months] out from the Iowa

caucuses and New Hampshire primary—do have a

reasonable amount of predictive power in informing us

as to the identity of the eventual nominee.’’ Nate Silver,

A Brief History of Primary Polling, Part I,

FiveThirtyEight (Mar. 31, 2011),

https://fivethirtyeight.com/features/a-briefhistory-of-primary-polling-part-i/. Moreover, polls like

those used in September by CPD are not ‘‘inaccurate’’

or ‘‘unreliable’’ simply because their assessments of

vote share do not match the final vote share on Election

Day; such polls are ‘‘designed to measure the true level

of public support at the time the poll is administered,’’

not ‘‘to measure the true level of public support on

Election Day.’’ Commission on Presidential Debates,

Comment at Ex. 2 ¶ 20 (Declaration of Frank M.

Newport, Editor-in-Chief, Gallup Organization)

(Dec.15,2014), http://sers.fec.gov/

fosers/showpdf.htm?docid=310982. As the Newport

Declaration notes, ‘‘there is no doubt that properly

conducted polls remain the best measure of public
151a

support for a candidate . . . at the time the polls are

conducted.’’ Id. at Ex. 2 ¶ 21.

3. Submissions Regarding the Desirability of

Expanding Debate Participation

The petition and most of the commenters who

support it rely primarily on policy arguments that

polling thresholds are inconsistent with the purposes of

the existing regulations and that those purposes would

be better served by, in essence, including more voices on

the debate stage.15 The Commission explained in its

15 A substantial majority of the comments that the

Commission received on the petition were cursory and consisted of

a single sentence expressing support for the petition. See, e.g.,

Comment by Amanda Powell, REG 2014–06 Amendment of 11 

CFR 110.13(c) (Dec. 15, 2014) (‘‘I support the petition.’’),

http://sers.fec.gov/fosers/ showpdf.htm?docid=310989. Additionally,

the League of Women Voters ‘‘does not support amending the FEC

regulation to preclude sponsors of general election presidential 

and vice presidential debates from requiring that a candidate meet

a polling threshold in order to be included in the debate,’’ but did

generally support opening a rulemaking, though without

supporting or proposing any specific proposal. Comment by 

League of Women Voters, REG 2014–06 Amendment of 11 CFR

110.13(c) (Dec. 15, 2014), http://sers.fec.gov/fosers/showpdf

.htm?docid=310985. The comment did not, however, present any

substantial justification for doing so. Moreover, such an

open-ended inquiry was not the focus of the petition for 

rulemaking.

Another commenter, FairVote, indicated that it ‘‘do[es]

not oppose the use of polling as a debate selection criterion so long

as candidates have an alternative means of qualifying for

inclusion.’’ See Comment by FairVote, REG 2014–06 Amendment

of 11 CFR 110.13(c) (Dec. 15, 2014), http://sers.fec.gov/fosers/

showpdf.htm?docid=310974. That commenter emphasized the
152a

original Notice of Disposition why it was not

persuaded by the petition’s ‘‘arguments in favor of

debate selection criteria that would include more

candidates in general election presidential and vice

presidential debates.’’ 80 FR at 72617. As the 

Commission explained, ‘‘The rule at section 110.13(c)

. . . is not intended to maximize the number of debate

participants; it is intended to ensure that staging

organizations do not select participants in such a way

that the costs of a debate constitute corporate

contributions to the candidates taking part.’’ Id. That 

is the only basis on which the Commission is

authorized to regulate in this area. The Commission 

has no independent statutory basis for regulating the

number of candidates who participate in debates, and

the merits or drawbacks of increasing such

participation—except to the limited extent that they

Commission’s recognition of the educational purpose of candidate

debates and advocated that including additional candidates in

debates would ‘‘broaden the substantive discussion within the

debates.’’ Id. As explained supra, however, the main purpose of

the regulation at issue is to clarify when money spent on debate

sponsorship is exempt from the FECA’s definition of

‘‘contribution.’’ The Commission’s recognition of the educational

value of debates does not alter its view that the determination of

which candidates participate in a given debate should generally be

left to the organizations sponsoring such events. See supra. In

addition, while the Commenter supported Petitioner’s proposed

alternative to select a third debate participant based upon the

number of signatures gathered to obtain ballot access, the existing

rule already permits this alternative and thus amending the rule

is not required to allow for that approach. See id.
153a

implicate federal campaign finance law — are policy

questions outside the Commission’s jurisdiction.

Conclusion

The evidence presented to the Commission in the

petition and comments on the impracticability of

independent candidates reaching the 15% threshold

and on the unreliability of polling do not lead the

Commission to conclude that the CPD’s use of such a

threshold for selecting debate participants is per se

subjective, so as to require initiating a rulemaking to

amend 11 CFR 110.13(c). While the reports by Dr. 

Young and Mr. Schoen, in addition to the historical

polling and campaign finance data presented with the

petition, demonstrate certain challenges that

independent candidates may face when seeking the

presidency, these submissions do not demonstrate

either that the threshold is so high that only

Democratic and Republican nominees could reasonably

achieve it, or that the threshold is intended to result in

the selection of those nominees to participate in the 

debates.

For all of the above reasons, in addition to the

reasons discussed in the Notice of Disposition

published in 2015, see Candidate Debates, 80 FR 

72616, and because the Commission has determined

that further pursuit of a rulemaking would not be a

prudent use of available Commission resources, see

11 CFR 200.5(e), the Commission declines to

commence a rulemaking that would amend the criteria

for staging candidate debates in 11 CFR 110.13(c) to

prohibit the use of a polling threshold to determine

participation in presidential general election debates

.
154a

On behalf of the Commission,

Dated: March 23, 2017

Steven T. Walther,

Chairman, Federal Election Commission

[FR Doc. 2017–06150 Filed 3–28–17; 8:45 am] 
155a

APPENDIX E

United States District Court 

for the District of Columbia 

LEVEL THE PLAYING FIELD, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Case No. 15-cv-1397 (TSC)

MEMORANDUM OPINION

This case concerns a highly visible element of our

democratic elections: the presidential and

vice-presidential debates held every four years by the

Commission on Presidential Debates (“CPD”).

Plaintiffs allege that the Federal Election Commission

(“FEC”) has violated the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706, in dismissing two

administrative complaints regarding the CPD and in

denying a petition to engage in rulemaking to change

the FEC’s regulations regarding debate staging

organizations.

Before the court are Plaintiffs’ motion for summary

judgment (ECF No. 37) and Defendant’s cross-motion

for summary judgment (ECF No. 42). Upon

consideration of the motions, the Administrative Record

(ECF No. 58), and the arguments at the hearing held on
156a

January 5, 2017, Plaintiffs’ motion is GRANTED, and

Defendant’s cross-motion is DENIED.

I. BACKGROUND

A. The Parties

The four Plaintiffs in this case are Level the Playing

Field (“LPF”), Green Party of the United States,

Libertarian National Committee, Inc., and Dr. Peter

Ackerman. LPF is a nonpartisan, nonprofit corporation

whose purpose is to promote reforms that allow for

greater competition and choice in federal elections. 

(Administrative Record (“AR”) 2019 (ECF No. 58)). The

Green Party is a political party that has nominated

candidates in every presidential election since 2000.

(AR 4003–04). The Libertarian Party is the third

largest political party in the U.S. and has nominated

presidential candidates in every election since 1972.

(AR 4781–82). Dr. Peter Ackerman is a citizen and

voter who is an active participant in efforts to reform

elections and encourage third-party or independent

candidates to seek office. (AR 2020; Tr. of Mot. Hr’g

(Jan. 5, 2017) at 7:18–8:7 (ECF No. 59)).

Defendant FEC is charged with the administration

and civil enforcement of the Federal Election Campaign

Act (“FECA” or “Act”), 52 U.S.C. § 30101 et seq. Of the

FEC’s six commissioners, no more than three “may be

affiliated with the same political party.” 52 U.S.C. §

30106(a)(1). The FEC is authorized to “formulate policy

with respect to” the FECA, including through

promulgating regulations. 52 U.S.C. § 30106(b)(1). The
157a

agency is also authorized to investigate potential

violations of the FECA. 52 U.S.C. § 30109(a)(1)–(2).

B. The Commission on Presidential

Debates

The CPD, though not a party to this case, is centrally

involved in this litigation and has submitted an amicus

brief. (See ECF No. 45).1

 The CPD is a nonprofit

corporation that has staged every general election

presidential debate since 1988, including the four

debates in the 2012 election. (AR 2144, 2882–83 ¶¶

3–4). It accepts corporate donations to help with the

costs associated with staging the debates. (AR 2883 ¶

5).

Since its creation in 1987, the CPD has been led by

two co-chairmen: one Republican (former Republican

National Committee Chair Frank Fahrenkopf, Jr.) and

one Democrat (originally former Democratic National

Committee Chair Paul G. Kirk, Jr., and then in 2009

Michael D. McCurry, former press secretary to

President Bill Clinton). (AR 2360, 2885–86 ¶ 11, 2363).

The CPD is “bipartisan” by its own description: the

press release announcing its formation stated that it

was a “bipartisan . . . organization formed to implement

joint sponsorship of general election presidential and

vice-presidential debates . . . by the national Republican

and Democratic committees between their respective

nominees.” (AR 2249). Moreover, Fahrenkopf has

1 Two additional parties filed amicus briefs in support of

Plaintiffs’ motion: Independent Voter Project (ECF No. 38) and

FairVote (ECF No. 39).
158a

stated that the CPD was not likely to look with favor on

including third-party candidates in the debates, and

Kirk has stated that he personally believed the CPD

should exclude third-party candidates from the debates. 

(AR 2252).

Since 1988, the CPD’s debates have included a

third-party candidate—i.e., a candidate not affiliated

with the Democratic or Republican parties—just once,

in 1992, when the campaigns of Bill Clinton and George

H. W. Bush requested that the CPD include Ross Perot

in the presidential debates. (AR 2288–89, 2303–04). 

Beginning with the 2000 election, the CPD has relied on

the following criteria to determine whether a candidate

may participate in its debates: (1) he/she must be

constitutionally eligible to hold office; (2) he/she must

appear on enough state ballots to secure an Electoral

College majority; and (3) he/she must have “a level of

support of at least 15% . . . of the national electorate as

determined by five selected national public opinion

polling organizations, using the average of those

organizations’ most recent publicly-reported results at

the time of the determination.” (AR 2917–18).

C. Statutory and Regulatory Framework

The FECA prohibits “any corporation whatever, or

any labor organization, [from] mak[ing] a contribution

or expenditure in connection with any election at which

presidential and vice presidential electors . . . are to be

voted for.” 52 U.S.C. § 30118(a). Contributions include

“any gift, subscription, loan, advance, or deposit of

money or anything of value,” 52 U.S.C. § 30101(8)(A),

and expenditures include “any purchase, payment,
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distribution, loan, advance, deposit, or gift of money or

anything of value,” but exempt is “nonpartisan activity

designed to encourage individuals to vote or to register

to vote,” 52 U.S.C. § 30101(9)(A)(i), (B)(ii).

“Contributions” are defined as any “expenditures made

by any person in cooperation, consultation, or concert,

with, or at the request or suggestion of, a candidate, his

authorized political committees, or their agents.” 52

U.S.C. § 30116(7)(B)(i).

 Pursuant to the FECA, the FEC has promulgated

various regulations, including those concerning political

candidate debates. Under the law, corporations may not

give contributions to or make expenditures on behalf of

political candidates or campaigns, but they may donate

to organizations that stage debates featuring those

candidates because the FEC’s regulations provide that

any “[f]unds provided to defray costs incurred in

staging candidate debates in accordance with the

provisions of 11 CFR 110.13 and 114.4(f) are not

contributions” and are also “not expenditures.” 11

C.F.R. §§ 100.92, 100.154. Organizations that stage

debates must be nonprofit entities and cannot “endorse,

support, or oppose political candidates or political

parties.” 11 C.F.R. § 110.13(a)(1).2 Staging

organizations “must use pre-established objective

criteria to determine which candidates may participate

in a debate. For general election debates, staging

2 If the debate is staged by a broadcaster, newspaper, or

magazine, the organization may stage debates “provided that they

are not owned or controlled by a political party, political committee

or candidate.” 11 C.F.R. § 110.13(a)(2).
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organizations(s) [sic] shall not use nomination by a

particular political party as the sole objective criterion

to determine whether to include a candidate in a

debate.” 11 C.F.R. § 110.13(c). The regulation does not

define “objective,” but the FEC stated when it

promulgated the rule that the use of objective criteria

is intended “to avoid the real or apparent potential for

a quid pro quo, and to ensure the integrity and fairness

of the process,” and therefore criteria cannot be

“designed to result in the selection of certain

pre-chosen participants,” and “the rule contains an

implied reasonableness requirement.” 60 Fed. Reg.

64,260, 64,262 (Dec. 14, 1995).

The debate staging regulation thus acts as an

exemption to the general ban on corporate

contributions to or expenditures on behalf of political

campaigns or candidates. To prevent debate staging

organizations such as the CPD from operating as

conduits for corporate contributions made to benefit

only one or two candidates from the Democratic and

Republican parties—via the much-watched prime-time

debates—the regulations require these organizations to

(1) be nonpartisan, (2) not endorse, support, or oppose

candidates or campaigns, and (3) use pre-established,

objective criteria. If a debate staging organization fails

to comply with the regulations, such as failing to use

objective criteria in determining which candidates

participate in its debates, then the value of the debate

is actually a contribution or expenditure made to the

participating political campaigns in violation of the Act.

The Act provides that any person who believes a

violation of the Act has occurred may file an
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administrative complaint with the FEC. 52 U.S.C. §

30109(a)(1). The FEC is required to review the

complaint and any responses filed by respondents and

determine whether there is “reason to believe” the Act

has been violated. 52 U.S.C. § 30109(a)(2). If at least

four of the six FEC commissioners vote that they find

there is reason to believe a violation has occurred, then

the FEC may investigate the allegations; otherwise, the

complaint is ordinarily dismissed. Id. If the

commissioners find there is reason to believe a violation

has occurred, the next step is determining whether

there is probable cause to believe that the Act has been

violated; if so, the FEC is required to attempt to remedy

the violation first through conciliation and then, if

unsuccessful, through litigation. 52 U.S.C. §

30109(a)(4)(A)(i), (a)(6).

The Act further provides that parties “aggrieved by

an order of the Commission dismissing a complaint filed

by such a party . . . may file a petition with the United

States District Court for the District of Columbia,”

which “may declare that the dismissal of the complaint

or failure to act is contrary to law, and may direct the

Commission to conform with such declaration within 30

days, failing which the complainant may bring, in the

name of such complainant, a civil action to remedy the

violation involved in the original complaint.” 52 U.S.C.

§ 30109(a)(8)(A), (C).
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D. Procedural History and the Present

Litigation

1. Administrative Complaints

Plaintiffs filed two administrative complaints with

the FEC alleging that the CPD and twelve of its

directors violated the FEC’s debate staging regulations

and the FECA in connection with the 2012 general

election debates.3

 (AR 2001–75, 4001–05, 4778–83).

These complaints were labeled Matters Under Review

(“MUR”) 6869 (filed by LPF and Peter Ackerman in

September 2014) and 6942 (filed by the Green Party

and Libertarian Party in June 2015).4

 Both complaints

alleged that in the 2012 presidential election the CPD

was not a nonpartisan debate staging organization

under 11 C.F.R. § 110.13(a)(1) because it endorsed,

supported, or opposed certain political parties, and that

therefore the debates held in 2012 were prohibited

corporate contributions and expenditures to the

campaigns of the 2012 candidates in violation of 52

U.S.C.§ 30118(a). Further, the complainants—now

Plaintiffs—alleged that because the CPD made these

contributions and expenditures, it was functioning as a

3 These directors included executive director Janet Brown,

chairmen Frank Fahrenkopf, Jr. and Michael McCurry, and

Howard G. Buffett, John C. Danforth, John Griffen, Antonia

Hernandez, John I. Jenkins, Newton N. Minow, Richard D.

Parsons, Dorothy Ridings, and Alan K. Simpson.

4 The Green Party and Libertarian Party each filed

individual requests to join MUR 6869, but these requests were

denied and instead combined as a new administrative complaint,

MUR 6942.
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political committee under the FECA and violated 52

U.S.C. §§ 30103 and 30104 by failing to register and

report its contributors and contributions with the FEC. 

(AR 2027–73).

The complainants submitted over one hundred

supporting exhibits, including information, statements,

and press releases relating to the founding of the CPD,

information on the recent political contributions and

political activity of the CPD’s directors, the expert

report of Dr. Clifford Young regarding the ability of

third-party or independent candidates to meet the

CPD’s fifteen percent polling criterion, and the expert

report of Douglas Schoen regarding the financial cost to

achieve the name recognition necessary to meet the

CPD’s polling requirement, and the financial difficulty

in doing so. (AR 2076–771).

In July 2015, the FEC voted 5-0 (with one recusal) to

find no reason to believe that the CPD or its co-chairs

violated these regulations or statutes, thus dismissing

MUR 6869. (AR 3172–73). In December 2015, the FEC

again voted 5-0 to make the same determination

regarding MUR 6942. (AR 5000–01). In the Factual &

Legal Analyses provided by the FEC to the Plaintiffs in

its dismissals of their complaints, the FEC noted that

past administrative complaints—MURs 4987, 5004,

5021, 5207, 5414, and 5530—had “made similar

allegations,” and that in those cases the FEC had found

no reason to believe that the CPD and its co-chairs had

violated regulations or the FECA. The FEC also pointed

out that its past decisions analyzing the objectivity of

the CPD’s fifteen percent requirement had been

reviewed and upheld in Buchanan v. FEC, 112 F. Supp.
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2d 58 (D.D.C. 2000) (reviewing MURs 4987, 5004,

5021). (AR 3175–81; AR 5003–10).

2. Petition for Rulemaking

In September 2014, on the same day it filed its

administrative complaint, LPF also filed a Petition for

Rulemaking with the FEC under 5 U.S.C. § 553(e) of

the APA. (AR 0002–32). The Petition asked the FEC to

revise 11 C.F.R. § 110.13(c) to specifically bar debate

staging organizations from using a polling threshold as

the sole criterion for accessing general election

presidential and vice-presidential debates. LPF

submitted many of the same exhibits, including the

Young and Schoen expert reports, in support of its

arguments.

In November 2015, the FEC published in the Federal

Register its Notice of Disposition that it was not

initiating rulemaking in response to the Petition. (AR

1903–05; 80 Fed. Reg.72,616 (Nov. 20, 2015)). The

agency noted that “[b]ecause the regulation at issue is

designed to provide debate sponsors with discretion

within a framework of objective and neutral debate

criteria, and because the Commission can evaluate the

objectivity and neutrality of a debate sponsor’s selection

criteria through the enforcement process, the

Commission finds that the rulemaking proposed by the

petition is not necessary at this time.” (AR 1904; 80

Fed. Reg.72,617). The FEC also wrote: “In these

enforcement matters, the Commission has carefully

examined the use of polling thresholds and found that

they can be objective and otherwise lawful selection

criteria for candidate debates.” (Id.).
165a

3. Present Litigation

Plaintiffs filed this lawsuit in August 2015,

challenging the dismissal of their administrative

complaint, MUR 6869, and the agency’s decision not to

engage in rulemaking. (See Compl. (ECF No. 1)). In

October 2015, Plaintiffs filed an Amended Complaint

adding a claim that the FEC’s failure to act on MUR

6942 within 120 days was arbitrary and capricious. (See

Am. Compl. (ECF. 17)). In January 2016, after the FEC

dismissed MUR 6942, Plaintiffs filed their Second

Amended Complaint adding a challenge to the

dismissal. (See Second Am. Compl. (ECF No. 25)). The

parties filed cross-motions for summary judgment (ECF

Nos. 37, 42), on which a hearing was held on January 5,

2017.

II. SUMMARY JUDGMENT STANDARD

On a motion for summary judgment in a suit seeking

APA review, the court must set aside any agency action

that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. §

706(2). The court’s review is “highly deferential” and

begins with a presumption that the agency’s actions are

valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283

(D.C. Cir. 1981). The court is “not empowered to

substitute its judgment for that of the agency,” Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971), but instead must consider only “whether

the agency acted within the scope of its legal authority,

whether the agency has explained its decision, whether

the facts on which the agency purports to have relied

have some basis in the record, and whether the agency
166a

considered the relevant factors.” Fulbright v. McHugh,

67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund for

Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). 

The plaintiff bears the burden of establishing the 

invalidity of the agency’s action. Id.

III. DISCUSSION

A. FEC’s Dismissals of Plaintiffs’

Administrative Complaints

Plaintiffs argue that Defendant’s dismissals of their

two administrative complaints— MURs 6869 and

6942—violated the APA because they were contrary to

law and were arbitrary and capricious. They assert that

the FEC: (1) applied a legal standard contrary to the

text of the regulations; (2) failed to properly consider

the submitted evidence; (3) failed to consider the

allegations raised against most of the respondents; and

(4) ultimately reached the wrong conclusion regarding

the objectivity of the CPD’s debate requirement.

1. Legal Standard Adopted by the FEC

Plaintiffs first argue that the FEC adopted and

applied a legal standard that is contrary to the text of

the regulation. In their administrative complaints,

Plaintiffs alleged that the CPD “endorse[d],

support[ed], or oppose[d] political candidates or

political parties” in violation of 11 C.F.R. § 110.13(a)

because it acted with partisan bias, its chairmen and

directors were active partisans and political donors to

the Democratic and Republican parties and their

candidates, and its fifteen percent polling threshold for

participation in the presidential debates was designed
167a

to bar any third party or independent candidate from

participation. (See AR 2002–75). In its Factual & Legal

Analyses, the FEC did not articulate what standard it

used to determine whether the CPD had endorsed,

supported, or opposed political parties—indeed, it did

not mention these terms at all except in quoting the

regulation and the respondents’ denials that they had

endorsed, supported, or opposed political parties. When

asked at oral argument how the FEC actually engaged

in an analysis to determine whether the CPD endorsed,

supported, or opposed political campaigns or parties,

FEC’s counsel responded simply, though unhelpfully,

that “[t]he FEC applied the endorsed support opposed

standard that’s in the regulation.” (Tr. at 28:2–3).

In support of its decisions, the FEC cited its past

dismissals of administrative complaints involving the

CPD—including MURs 4987, 5004, and 5021—as well

as the single prior district court decision that

considered the denials, Buchanan v. FEC5

 In those

dismissals, the FEC described the legal standard it

applied:

5 The FEC also repeatedly claims that its decisions

regarding the CPD were reviewed and upheld in Natural Law

Party v. FEC, Case No. 00-cv-2138. That case was a companion to

Buchanan, and the final order, issued fifteen days after the

complaint was filed, includes no separate analysis. See Order (Sept.

21, 2000) (granting summary judgment “[f]or the reasons set forth

in Part II of the September 14, 2000 Memorandum Opinion in”

Buchanan). The FEC also repeatedly cites to another opinion in

Natural Law Party, 111 F. Supp. 2d 33 (D.D.C. 2000). That

decision was explicitly limited to whether plaintiffs had standing

to challenge the FEC’s actions, an issue not before the court here.
168a

[Complainants] have not provided evidence that

the CPD is controlled by the DNC or the RNC.

There is no evidence that any officer or member of

the DNC or the RNC is involved in the operation of

the CPD. Moreover, there does not appear to be

any evidence that the DNC and the RNC had

input into the development of the CPD’s candidate

selection criteria for the 2000 presidential election

cycle. Thus, it appears that the CPD satisfied the

requirement of a staging organization that it not

endorse, support or oppose political candidates or

political parties. 11 C.F.R. § 110.13(a).

(FEC Mem. at 21 (quoting First General Counsel’s

Report in MURs 4897, 5004, and 5021 (July 13, 2000))

(emphasis added)). The FEC asserted in Buchanan that

this “control” standard was in response to a “specific

contention” involved in those administrative

complaints, and the court agreed that the control

standard was “geared toward refuting [that] specific

contention.” 112 F. Supp. 2d at 71 n.8. However,

Plaintiffs argue that by citing to these past MURs and

the Buchanan case in its most recent dismissals, the

FEC is effectively adopting this “control” standard sub

silentio, as it has not articulated any other standard.

The FEC responds that there is “no instance in which

the agency actually said it was adopting a ‘control over’

test.” (FEC Mem. at 28 (emphasis in original)), and

adds that the control test “in any event . . . indisputably

is also a helpful aid in determining whether a group’s

activities are nonpartisan.” (Id. at 28–29).

The court agrees with Plaintiffs that, in the absence

of any articulated standard or analysis, the FEC’s
169a

reliance on its past dismissals and the Buchanan case

strongly implies that it has effectively adopted or relied

on the control test it articulated in those past

dismissals. However, such a test appears to be contrary

to the text of the agency’s own regulations. The FEC’s

regulations do not define “support, endorse, or oppose”

as used in 11 C.F.R. § 110.13(a)(1), and the FEC did not

define them in its Factual & Legal Analyses.6

 However,

the regulations suggest that, whatever these terms do

mean, they do not mean “control,” for that is the

standard given in the regulation’s subsequent

subsection, 11 C.F.R. § 110.13(a)(2), applying to

broadcasters, as opposed to nonprofit organizations. 

That subsection permits only broadcasters that “are not

owned or controlled by a political party, political

committee or candidate” from staging debates. 11

C.F.R. § 110.13(a)(2). Therefore, the FEC’s own

regulations create a distinction between the control

test, which applies to broadcasters, and an

endorse-support-oppose test, which applies to nonprofit

organizations.

The FEC heavily relies on the district’s court 2000

decision in Buchanan, which permitted the agency’s

control test as applied to the CPD. As described above,

that test assessed whether the CPD was “controlled by”

the two major parties, whether either party was

6 According to the Oxford Dictionary, “endorse” means to

“declare one’s approval of”; “support” means “contributing to the

success of or maintaining the value of”; and “oppose” means to

“set oneself against” or “stand in the way of.” See Oxford, The New

Shorter Oxford English Dictionary 818, 3153, 2009 (4th ed. 1993).
170a

“involved in” the CPD’s operations, or whether those

parties “had input in” CPD’s debate decisions.

However, the court in Buchanan simply noted that the

control standard was used to refute the specific

control-specific facts alleged in that case. 112 F. Supp.

2d at 71 n.8. Here, Plaintiffs’ do not allege that the

Democratic or Republican parties exercised control over

the CPD, but instead that the CPD and its directors

acted on a partisan basis to support those parties.

Therefore, unlike in Buchanan, there are no

control-specific factual allegations here to warrant

applying a control standard an incorrect construction of

the regulation. Moreover, as noted above, a plain

reading of the regulation in the context of the following

subsection does not support applying a control

standard, and to do so may be an incorrect construction

of the regulation.

Courts are to be “exceedingly deferential” when

reviewing an agency’s construction of its own

regulations, and the court “is not to decide which

among several competing interpretations best serves

the regulatory purpose.” Thomas Jefferson Uni. v.

Shalala, 512 U.S. 504, 512 (1994); Trinity Broadcasting

of Fla., Inv. v. FCC, 211 F.3d 618, 625 (D.C. Cir. 2000).

The court must defer to the FEC unless the agency fails

to meet the “minimal burden of showing a ‘coherent

and reasonable explanation [for] its exercise of

discretion.’” Carter/Mondale Presidential Comm., Inc.

v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 1985) (quoting

MCI Telecommunications Corp. v. FCC, 675 F.2d 408,

413 (D.C. Cir. 1982)); see also FEC v. Democratic

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)
171a

(FEC “is precisely the type of agency to which deference

should presumptively be afforded”). However, deference

is not appropriate “when the agency interpretation is

plainly erroneous or inconsistent with the regulation”

or “when there is reason to suspect that the agency’s

interpretation does not reflect the agency’s fair and

considered judgment.” Christopher v. SmithKline

Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (quoting

Auer v. Robbins, 519 U.S. 452, 462 (1997)).

The Buchanan court was satisfied that while the

FEC’s “terse explanation could have been more clear

and thorough,” the court could still determine what

legal analysis was “apparent from the report.” 112 F.

Supp. 2d at 72. This court is not as willing to read

thoughtful consideration into the FEC’s threadbare

Factual & Legal Analyses. Here, the FEC either applied

a “control” standard that is contrary to the plain text of

the regulation, or it possibly applied no analytical

standard at all, given that it articulated none. 

Therefore, the court cannot defer to the FEC’s analysis

and further concludes that the FEC acted arbitrarily

and capriciously and contrary to law when it

determined that the CPD did not endorse, support, or

oppose political parties in the 2012 election.

The court therefore GRANTS Plaintiffs’ motion and

DENIES Defendant’s cross- motion with respect to the

appropriateness of the legal standard applied. On

remand, the FEC is ORDERED to articulate its analysis

in determining whether the CPD endorsed, supported,

or opposed political parties or candidates.
172a

2. FEC’s Alleged Failure to Give Evidence a

Hard Look

Plaintiffs next argue that the FEC failed to

adequately consider the evidence it presented with its

two administrative complaints. Courts must assess

whether agencies have considered the “relevant factors”

and must “engage in a ‘substantial inquiry’ into the

facts, one that is ‘searching and careful.’” Ethyl Corp.

v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (quoting Overton

Park, 401 U.S. at 415). While the court’s review is

deferential, it is not required to “rubber-stamp the

agency decision.” Id. Here, the court finds that the

FEC’s Legal & Factual Analyses do not provide any

evidence that the FEC considered the relevant factors

or took a hard look at the evidence. Indeed, the FEC

fails to cite or discuss virtually any of the evidence

submitted with Plaintiffs’ complaints.

a. Evidence Submitted With Past

Complaints

The parties agree that some of evidence submitted

with the complaints in this case was identical to

evidence submitted with prior CPD-related complaints,

including MURs 4987, 5004, and 5021, which were

reviewed by the court in Buchanan. In those

complaints, Plaintiffs presented evidence that the CPD

was created by the then-chairmen of the Republican

and Democratic parties, who entered into a

Memorandum of Agreement that the debates “should

be principally and jointly sponsored and conducted by

the Republican and Democratic National Committees,”

and that the press release announcing the CPD’s
173a

formation stated it was a “bipartisan . . . organization.” 

(AR 2244, 2249).

Plaintiffs also submitted numerous statements by

the CPD chairmen and directors, including: the CPD

was not likely to look with favor on including

third-party candidates in the debates (CPD

Co-Chairman Fahrenkopf, AR 2252); the CPD should

exclude third-party candidates from the debates (CPD

Co-Chairman Kirk, AR 2252); “Democrats and

Republicans on the commission [] are interested in the

American people finding out more about the two major

candidates—not about independent candidates who

mess things up” (CPD Director Alan Simpson, AR

3095); “[t]here’s no question” that “the two major

parties [have] absolute control of the presidential

debate process” (CPD Director John Lewis, AR 3095);

“responsibility for [the debates] should rest with the

political system—with the Democratic and Republican

Parties . . . [and] if the Democratic and Republican

nominees agreed, other candidates could be included”

(CPD Director Minow, AR 3095); the CPD “is not really

nonpartisan[;] [i]t’s bipartisan” (CPD Director

Norcross, AR 3095); and the CPD is “extremely careful

to be bi-partisan” (CPD Director Vucanovich, AR 3095).

Finally, Plaintiffs submitted evidence from the 1993

Congressional testimony of Bobby Burchfield, who

served as General Counsel of President Bush’s

re-election campaign in 1992, that the CPD did not

want to invite Ross Perot to participate in the 1992

election debates, but “the Bush campaign insisted, and

the Clinton campaign agreed, that Mr. Perot and
174a

Admiral Stockdale be invited to the debates,” after

which Perot was included. (AR 2299–304).

The court in Buchanan noted that this evidence of

the CPD’s alleged partisanship was “not insubstantial”

and “[a]n ordinary citizen might easily view the

circumstances surrounding the creation of the CPD

along with the evidence of major-party influence over

the past three debates as giving some ‘reason to believe’

that the CPD always has supported, and still does

support, the two major parties to the detriment of all

others.” 112 F. Supp. 2d at 72. However, the court

found that Plaintiffs lacked “contemporaneous

evidence” specifically relating to the CPD’s decisions

regarding the 2000 election debates at issue in that

case. Id.

b. Plaintiffs’ New Evidence

In this case, Plaintiffs submitted new evidence in

addition to the evidence described above. Much of this

evidence pointed to the recent partisanship of the

CPD’s chairs and directors. According to the submitted

materials, CPD Chairman Fahrenkopf donated more

than $23,000 between 2008 and 2012 and $35,000

between 2012 and 2014 to the Republican Party. (AR

2370, 2373–80). Similarly, CPD Chairman McCurry

donated almost $85,000 to Democrats between 2008

and 2012. (AR 2370). Additionally, several of the CPD

directors contributed tens of thousands of dollars to the

two major political parties and candidates. (AR 2370,

2403–05, 2407–08). CPD directors also have engaged in

active partisanship. For example, in 2011, Fahrenkopf

referred to the Republican Party as “our great party,”
175a

and in April 2015, he stated that the CPD “primarily

go[es] with the two leading candidates” in its debates.

(AR 2382–83, 3099).

Plaintiffs also submitted the reports of two experts:

Dr. Clifford Young, who discussed the ability of

third-party or independent candidates to meet the

CPD’s fifteen percent polling criterion (AR 2487–526);

and Douglas Schoen, who discussed the financial

obstacles to achieving the name recognition necessary

for a third-party or independent candidate to meet the

CPD’s polling requirement (AR 2552–82). Finally, in

support of their argument that using polling as the

single criterion for admission into the debates is not

objective or fair, Plaintiffs in MUR 6942 submitted

evidence that Gallup was no longer polling during the

2016 presidential election, because polling “has become

inherently unreliable.” (AR 4946–76).

c. FEC’s Consideration of the Evidence

In its two Factual & Legal Analyses, the FEC

addressed just two items from this mountain of

submitted evidence: the April 2015 quote from

Fahrenkopf that the CPD goes with the two leading

candidates in its debates (AR 3180; AR 5008–09), and

Gallup’s decision to not conduct polling during the 2016

election (AR 5003 n.1).7

 The FEC accepted on its face

7 The court notes with concern that the Fahrenkopf

interview quote was presented to the FEC in April 2015 as an

amendment to the original September 2014 complaint (see AR

3093–96), and the Gallup information was similarly submitted in

an amendment in October 2015 (see AR 4852–54), rather than with

the initial submission of evidence. The FEC’s decision to address
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Fahrenkopf’s declaration that he was merely stating a

historical fact (AR 3180; AR 5008–09), and similarly

accepted the statement in a declaration submitted by

Gallup’s Editor-in-Chief that the polling decision was

“based on allocation of resources[,] not any lack of

confidence in Gallup’s ability to conduct accurate polls”

(AR 5003 n.1).

At oral argument, when asked why the FEC had only

mentioned these two items of evidence, counsel for the

FEC stated that this was the only other evidence that

“required [a] separate response.” (Tr. at 31:2–14). A

casual reader of the Factual & Legal Analyses would

get the distinct impression that these two pieces of

evidence were all that Plaintiffs had even submitted.

Certainly, the court does not expect the FEC to discuss

every single page of evidence in order to demonstrate

that it had carefully considered the facts, but here the

FEC did not even mention the vast majority of the

substantive evidence submitted regarding partisanship,

party support, and the non-objectivity of the CPD’s

fifteen percent threshold. While the court hopes that

the FEC carefully reviewed the evidence submitted by

Plaintiffs before thoughtfully reaching its conclusions,

the two Factual & Legal Analyses provide no basis

whatsoever for the court to reach that conclusion.

Therefore, the court GRANTS Plaintiffs’ motion and

DENIES Defendant’s cross-motion with respect to

whether the FEC acted arbitrarily and capriciously and

only these stray, supplemental pieces of submitted evidence

suggests that the FEC may not have considered or even reviewed

the originally submitted evidence at all.
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contrary to law by not reasonably considering the

evidence before it. On remand, the FEC must

demonstrate how it considered the evidence,

particularly, but not necessarily limited to, the

newly-submitted evidence of partisanship and political

donations and the expert analyses regarding

fundraising and polling.

3. FEC’s Failure to Include CPD Directors as

Respondents

Plaintiffs’ two administrative complaints were filed

against the CPD, its two co- chairmen, and ten other

directors. The FECA requires that “[w]ithin 5 days

after receipt of a complaint, the Commission shall

notify, in writing, any person alleged in the complaint

to have committed such a violation.” 52 U.S.C. §

30109(a)(1). Despite the Act’s dictate, the FEC only

notified the CPD and the two chairmen, only solicited

responses from them, and mentioned only them in its

Factual & Legal Analyses. Plaintiffs argue that the

FEC’s failure to notify the ten other respondents and to

consider the evidence and allegations made against

them is further indication that the agency’s dismissals

were arbitrary and capricious. Despite its clear violation

of the Act’s procedural requirements, the FEC

maintains that this failure amounted to no more than

harmless error because this failure “is almost always

harmless error.” (Def. Mem. at 30).

In support, the FEC cites Nader v. FEC, 823 F. Supp.

2d 53, 67–68 (D.D.C. 2011), which found that under the

facts of that case the agency’s failure to notify

respondents was indeed harmless error because the
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plaintiff did not “identify the harm to him.” Here, while

Plaintiffs’ allegations against the ten un-notified

respondents were the same as those against the CPD,

Fahrenkopf, and McCurry, Plaintiffs did submit new

evidence specific to those ten directors regarding their

partisan financial contributions and partisan political

activity. Whether the FEC considered this evidence is

essential in assessing the FEC’s final determination as

to whether the CPD has supported, endorsed, or

opposed political parties or candidates.

The FEC may ultimately decide that its conclusions

would be the same regarding these ten directors as with

the CPD and two chairmen, but from the record before

the court, it appears that the FEC did not even consider

this evidence or these allegations. The court cannot

brush aside this procedural violation of the Act and

determine that it was harmless error, because there is

no way for the court to determine that Plaintiffs

experienced no harm from having their evidence

ignored. Therefore, the court GRANTS Plaintiffs’

motion and DENIES Defendant’s cross-motion with

respect to whether it was arbitrary and capricious and

contrary to law to ignore the allegations made against

ten of the CPD’s directors in violation of the Act’s

notification requirements. On remand, the FEC must

notify these ten remaining directors, address these

allegations, and consider the evidence presented against

these respondents.
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4. FEC’s Conclusion that the CPD’s Polling

Criterion Was Objective

Finally, Plaintiffs argue that the FEC’s dismissals

were arbitrary and capricious because the agency

unreasonably found that the CPD’s fifteen percent

polling criterion was “objective” under the regulation.

The regulation requires that staging organizations such

as the CPD “use pre-established objective criteria to

determine which candidates may participate in a

debate,” but does not define what it means for criteria

to be “objective.” 11 C.F.R. § 100.13(c); see also Perot v.

FEC, 97 F.3d 553, 559–60 (D.C. Cir. 1996) (regulation

“does not spell out precisely what the phrase ‘objective

criteria’ means,” giving “the individual organizations

leeway to decide what specific criteria to use”). In

Buchanan, however, the court noted that “the

objectivity requirement precludes debate sponsors from

selecting a level of support so high that only the

Democratic and Republican nominees could reasonably

achieve it.” 112 F. Supp. 2d at 74.

In support of their assertion that the fifteen percent

requirement was not objective, but instead designed to

keep third-party or independent candidates out of the

CPD’s debates, Plaintiffs submitted evidence that no

non-major party nominee had or would have qualified

under this requirement since the CPD began staging

debates in 1988, as well as the reports of two experts,

one of whom found that polling is not inherently

reliable, particularly in races with more than two

candidates, and the other who concluded that achieving

fifteen percent support in polls requires spending about

$266 million before the debates even take place. The
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FEC gave this evidence only glancing attention, writing

in a footnote in both its Factual & Legal Analyses,

without reference to any specific evidence or how it

came to this conclusion, that “[e]ven if CPD’s 15%

polling criterion may tend to exclude third-party and

independent candidates, the available information does

not indicate—as the available information in previous

complaints did not indicate—that the CPD failed to use

pre-established, objective criteria.” (AR 3181 n.4; AR

5010 n.5).

As discussed above, the court is faced with the

difficult task of determining the reasonableness of the

FEC’s analysis when the FEC did not provide any

indication that it actually considered the submitted

evidence and engaged in any reasoned decision-making.

This task is made all the more difficult by the fact that

the evidence unaddressed—or outright ignored—by the

FEC is quite substantial. Dr. Clifford Young’s expert

report concluded that for a third-party or independent

candidate to achieve fifteen-percent approval in polls,

she “must achieve a minimum of 60% [national] name

recognition, and likely 80%,” (AR 2493), while

participation in the Republican or Democratic party

primary process affords greater name recognition and

even greater reported support in polls due to the “party

halo effect” (AR 2500–01). Dr. Young’s report also

concluded that election polling, particularly involving

third-party candidates, suffers from “sampling and

non-sampling error,” including “coverage bias and

measurement error,” which make polling of “three-way

races [] more error prone than two-way races.” (AR

2518–19). He also calculated that, due to these polling
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errors, a hypothetical independent candidate with a

seventeen percent level of support had a thirty-seven to

forty-one percent likelihood of reporting as under

fifteen percent support and thus being excluded from

the debates. (AR 2519).

Douglas Schoen’s report discussed the realities of

modern media markets and campaign spending, and

concluded that to achieve name recognition of sixty

percent and support of fifteen percent, an independent

candidate “should reasonably expect to spend”

approximately 266 million dollars on her

campaign—before the debates—including “broadcast,

cable, and digital media placement costs.” (AR 2555).

To reach the eighty percent name recognition Dr.

Young found was “likely” necessary to achieve fifteen

percent support, Schoen determined that an

independent candidate would have to spend nearly forty

million additional dollars, bringing the total to over

$300 million—just to hope to gain access to the CPD’s

debates, a de facto prerequisite for competing in the

presidential election. (See AR 2564). In Schoen’s

opinion, such a spending threshold “is, for all practical

purposes, impossible for all but the major-party

candidates” in part because of competition with the

nominating processes of the major parties, the potential

lack of ties with media networks and broadcast

companies, and a lack of media interest in third-party

candidates prior to the debates. (AR 2556).

Given these expert analyses, the evidence that since

1988 only one non-major party candidate, Ross Perot,

has participated in the debates, and only then at the

request of the two major parties, and the evidence that
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the CPD’s chairmen and directors are actively invested

in the partisan political process through large

donations, the court is perplexed that the full extent of

the FEC’s analysis consisted of no more than a footnote

stating that even if the fifteen percent threshold

excluded third-party candidates, this still did not

indicate that it was not an objective criterion. (See AR

3181 n.4; AR 5010 n.5). This begs the question: if

under these facts the FEC does not consider the fifteen

percent polling criterion to be subjective, what would

be? Unfortunately, the FEC articulated no analysis, and

the court cannot discern the FEC’s reasoning.

In its briefs on this issue, the FEC again relies

heavily on the district court’s decision in Buchanan

sixteen years ago. In that case, the court found that the

FEC’s conclusion that the CPD’s polling threshold was

objective was not arbitrary and capricious. 111 F. Supp.

2d at 76. As the court in Buchanan noted, the record

before it regarding the objectivity of the polling

threshold was limited to the plaintiffs’ arguments that

federal funding eligibility for presidential candidates is

tied to a much lower five percent threshold, that polling

is inexact because “even the best polls have significant

margins of error,” and that pre-debate polls fail to

reflect the level of support that could result from

participation in the debates themselves. See id. at

73–76. Here, however, the record is far more developed

and involves different and considerably stronger

evidence. The FEC’s reliance on the holding in

Buchanan is thus misplaced.

With regard to Plaintiffs’ arguments on the objective

criteria, the FEC’s Factual & Legal Analyses suffer
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from two notable flaws. First, there is no discussion, or

even mention, of Plaintiffs’ substantial and lengthy

evidence and arguments. Second, there appears to be

little to no legal analysis applying the agency’s

regulation. Missing from the single footnote that the

FEC devoted to this issue is any explanation as to how

it reached its conclusion, what it considered, what

analysis it engaged in, and any other information that

would allow the court to find the FEC’s conclusions

were the result of reasoned decision-making. The court

therefore GRANTS Plaintiffs’ motion and DENIES

Defendant’s cross-motion as to whether the FEC’s

analysis of the criterion’s objectivity was arbitrary and

capricious and contrary to law. While the court cannot

and does not mandate that the FEC reach a different

conclusion on remand, the court notes that the weight

of Plaintiffs’ evidence is substantial, and the FEC must

demonstrate that it actually considered the full scope of

this evidence, including the CPD chairmen’s and

directors’ partisan political activity and the expert

reports, as well as explain how and why it rejected this

evidence in deciding that the CPD’s polling requirement

is an objective criterion.

In sum, with respect to Plaintiffs’ allegation that the

FEC acted arbitrarily and capriciously and contrary to

law when it dismissed their two administrative

complaints, this court agrees and grants their motion

for summary judgment and denies Defendant’s

cross-motion. Pursuant to the Act, 52 U.S.C. §

30109(a)(8)(C), the FEC is ORDERED to reconsider the

evidence and allegations and issue a new decision

consistent with this Opinion “within 30 days, failing
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which the complainant[s] may bring, in the name of

such complainant[s], a civil action to remedy the

violation involved in the original complaint.”

B. FEC’s Decision to Not Engage in

Rulemaking

LPF also moves for summary judgment on its claim

that the FEC’s decision not to initiate rulemaking was

arbitrary and capricious in violation of the APA.8

 The

court’s review of an agency’s decision not to engage in

rulemaking is very limited, and that decision “is at the

high end of the range of levels of deference we give to

agency action under our ‘arbitrary and capricious’

review.” Defenders of Wildlife v. Gutierrez, 532 F.3d

913, 919 (D.C. Cir. 2008) (internal quotation omitted).

The proper inquiry is “whether the agency employed

reasoned decision-making in rejecting the petition.” Id.

In making this assessment, the court “must examine

‘the petition for rulemaking, comments pro and con . . .

and the agency’s explanation of its decision to reject the

petition.” Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d

1, 5 (D.C. Cir. 1987) (quoting WWHT, Inc. v. FCC, 656

F.2d 807, 817–18 (D.C. Cir. 1981)). An order to

8 The FEC contends that the Green Party is barred from

challenging the FEC’s refusal to engage in rulemaking following

the denial of the Petition because “it previously litigated the

question” of whether 11 C.F.R. § 110.13 is contrary to the FECA.

(FEC Mem. at 35). The court disagrees. The claim here is about the

refusal to engage in rulemaking, not whether a regulation is

unlawful under the Act, and more importantly, this claim is

brought by LPF alone, not by the Green Party. (See Second Am.

Compl. ¶¶ 142–44; Pls. Rep. at 17 n.6).
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overturn the agency’s decision and require

promulgation of a rule is reserved for only “the rarest

and most compelling of circumstances.” WWHT, 656

F.2d at 818. However, if the agency fails to provide a

reasonable explanation for its decision, an appropriate

remedy may be a remand to the agency for

reconsideration and publication of a new decision or the

commencement of rulemaking if the agency so decides.

See, e.g., Shays v. FEC, 424 F. Supp. 2d 100, 116–17

(D.D.C. 2006).

In its Petition requesting rulemaking, LPF

requested the following:

The FEC should conduct a rulemaking to revise

and amend 11 C.F.R. § 110.13(c), the regulation

governing the criteria for candidate selection that

corporations and broadcasters must use in order

to sponsor candidate debates. The amendment

should (A) preclude sponsors of general election

presidential and vice-presidential debates from

requiring that a candidate meet a polling

threshold in order to be admitted to the debates;

and (B) require that any sponsor of general

election presidential and vice-presidential debates

have a set of objective, unbiased criteria for debate

admission that do not require candidates to satisfy

a polling threshold to participate in debates.

(AR 0009–10). In support of this request, LPF

presented much of the same evidence, including the

Young and Schoen reports, as it presented in support of

its administrative complaint. LPF’s basic argument is

that the use of a single polling criterion to determine
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admission to candidate debates is particularly

susceptible to excluding candidates and lending support

to the two major party candidates, creating an

appearance of corruption or unlawful conduct. LPF

therefore argues that in the unique context of

presidential and vice-presidential debates, which are

run solely by the CPD, the FEC should continue

permitting the CPD or future debate staging

organizations to craft their own objective criteria but

disallow the use of polling thresholds. The FEC received

1,264 comments, and only one—from the

CPD—opposed the Petition. (AR 1903). FEC published

its Notice of Disposition in the Federal Register,

notifying the public that it had declined to engage in

rulemaking and stating its reasoning.

In its Notice, the FEC first noted that “the purpose

of section 110.13 . . . is to provide a specific exception so

that certain nonprofit organizations . . . and the news

media may stage debates, without being deemed to have

made prohibited corporate contributions to the

candidates taking part in debates.” (AR 1904). It stated

that “debate staging organizations may use [objective

selection criteria] to control the number of candidates

participating in . . . a meaningful debate but must not

use criteria designed to result in the selection of certain

pre-chosen participants,” and “[t]he choice of which

objective criteria to use is largely left to the discretion

of the staging organization.” (Id. (internal quotations

omitted)). Moreover, the agency stated that the

regulation “is not intended to maximize the number of

debate participants” but instead “is intended to ensure

that staging organizations do not select participants in
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such a way that the costs of a debate constitute

corporate contributions to the candidates taking part.”

(Id.). The FEC therefore found “that section 110.13(c)

in its current form provides adequate regulatory

implementation of the corporate contribution ban and

is preferable to a rigid rule that would prohibit or

mandate use of particular debate selection criteria in all

debates.” (Id.).

In response to the specific evidence that CPD’s use of

the fifteen percent polling threshold has the result of

excluding third-party and independent candidates, the

FEC stated only that “[t]he use of polling data by a

single debate staging organization for candidate debates

for a single office . . . does not suggest the need for a

rule change.” (AR 1905). It further acknowledged that

a “polling threshold could be used to promote or

advance one candidate (or group of candidates) over

another,” but noted that “this would already be

unlawful under the Commission’s existing regulation,”

and “the Commission can evaluate the objectivity and

neutrality of a debate sponsor’s selection criteria

through the enforcement process.” (AR 1904–05). The

FEC did not explain why the enforcement process was

preferable.

The FEC also did not explain why it was rejecting the

Petition’s request for a specific debate rule for

presidential and vice-presidential debates. Instead, it

responded to the Petition as if it requested a general

rule change (which the Petition did not), only stating,

again without any additional explanation or analysis,

that “[i]n the absence of any indication that polling

thresholds are inherently unobjective or otherwise
188a

unlawful as applied to all federal elections . . . the

Commission declines to initiate a rulemaking that

would impose a nationwide prohibition on the use of

such thresholds.” (AR 1905).

As with the above review of the FEC’s dismissals, the

court must accord substantial deference to the agency’s

decisions. However, the court is again concerned at the

agency’s cursory treatment of Plaintiff LPF’s Petition,

its arguments, and its evidence. LPF clearly argued,

and attempts to establish with significant evidence, that

in presidential elections CPD’s polling threshold is

being used subjectively to exclude independent and

third-party candidates, which has the effect of allowing

corporations to channel money to the CPD’s

expenditures to the campaigns they would be prohibited

from giving the campaigns directly. It further argued

and presented evidence that polling thresholds are

particularly unreliable and susceptible to this type of

subjective use at the presidential level, undermining the

FEC’s stated goal of using “objective criteria to avoid

the real or apparent potential for a quid pro quo, and to

ensure the integrity and fairness of the process.” In its

Notice, the FEC brushed these arguments aside,

describing the practice as “[t]he use of polling data by

a single debate staging organization for candidate

debates for a single office.” (AR 1905). This

characterization makes little sense. Referring to the

CPD as just “a single debate staging organization”

ignores the fact that for thirty years it has been the only

debate staging organization for presidential debates;

similarly, referring to the presidential debates as simply

“debates for a single office” ignores that the entire
189a

Petition is aimed at the unique characteristics of

presidential elections and debates.

In light of the court’s conclusions above that the FEC

acted arbitrarily and capriciously in its enforcement

decisions by failing to address evidence or articulate its

analysis, the court views with some skepticism the

FEC’s assertion that rulemaking is unnecessary

because the agency has chosen to root out subjective

debate criteria through the enforcement process. By

citing past practice—and the Buchanan decision—as its

only response to LPF’s Petition, the FEC appears to

have stuck its head in the sand and ignored the

evidence that its lack of rulemaking and lack of

enforcement may be undermining the stated purpose of

its regulations and the Act. This is not the reasoned

decision-making that is required of all agencies.

Therefore, despite the deferential standard of review,

this court concludes from reviewing the Petition and

Notice of Disposition that the FEC acted arbitrarily and

capriciously by refusing to engage in rulemaking

without a thorough consideration of the presented

evidence and without explaining its decision.

The decision in Shays v. FEC is instructive, and the

court reaches a similar conclusion here. The FEC’s

failure to provide a reasoned and coherent explanation

for its decision requires remand for reconsideration.

However, the court will not order the FEC to

promulgate the rule requested in the Petition based on

the record here. Such a remedy is appropriate in “only

the rarest and most compelling of circumstances.”

WWHT, 656 F.2d at 818. The D.C. Circuit has found

such circumstances when an agency refused rulemaking
190a

despite new evidence and behavior that “strongly

suggest[ed] that it ha[d] been blind to the nature of [its]

mandate from Congress.” Am. Horse Prot. Ass’n, 812

F.2d at 7. While the FEC’s refusal to engage in

thoughtful, reasoned decision-making in either

enforcement or rulemaking in this case may strike

some, including Plaintiffs, as being “blind to the nature

of [its] mandate from Congress,” this court will not take

the extraordinary step of ordering promulgation of a

new rule, but instead will permit the FEC a second

opportunity to give the Petition the consideration it

requires.

LPF’s motion is therefore GRANTED as to its

rulemaking petition, and Defendant’s cross-motion is

DENIED. The FEC is ORDERED to reconsider the

Petition for Rulemaking and issue a new decision

consistent with this Opinion within sixty days.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for

summary judgment is GRANTED in full, and

Defendant’s cross-motion is also DENIED.

Date: February 1, 2017

/s/ Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge
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APPENDIX F

1. 11 C.F.R. § 110.13 provides:

Candidate debates.

(a) Staging organizations.

(1) Nonprofit organizations described in 26 U.S.C.

501 (c)(3) or (c)(4) and which do not endorse,

support, or oppose political candidates or political

parties may stage candidate debates in accordance

with this section and 11 CFR 114.4(f).

(2) Broadcasters (including a cable television

operator, programmer or producer), bona fide

newspapers, magazines and other periodical

publications may stage candidate debates in

accordance with this section and 11 CFR 114.4(f),

provided that they are not owned or controlled by a

political party, political committee or candidate. In

addition, broadcasters (including a cable television

operator, programmer or producer), bona fide

newspapers, magazines and other periodical

publications, acting as press entities, may also cover

or carry candidate debates in accordance with 11

CFR part 100, subparts B and C and part 100,

subparts D and E.

(b) Debate structure. The structure of debates staged in

accordance with this section and 11 CFR 114.4(f) is left

to the discretion of the staging organizations(s),

provided that:
192a

(1) Such debates include at least two candidates; and

(2) The staging organization(s) does not structure

the debates to promote or advance one candidate

over another.

(c) Criteria for candidate selection. For all debates,

staging organization(s) must use pre-established

objective criteria to determine which candidates may

participate in a debate. For general election debates,

staging organizations(s) shall not use nomination by a

particular political party as the sole objective criterion

to determine whether to include a candidate in a

debate. For debates held prior to a primary election,

caucus or convention, staging organizations may

restrict candidate participation to candidates seeking

the nomination of one party, and need not stage a

debate for candidates seeking the nomination of any

other political party or independent candidates.

* * * * *
193a

2. 11 C.F.R. § 114.4 provides:

Disbursments for communications by

corporations and labor organizations beyond the

restricted class in connection with a Federal

Election.

* * * * *

(f) Candidate debates.

(1) A nonprofit organization described in 11 CFR

110.13(a)(1) may use its own funds and may

accept funds donated by corporations or labor

organizations under paragraph (f)(3) of this

section to defray costs incurred in staging

candidate debates held in accordance with 11

CFR 110.13.

(2) A broadcaster (including a cable television

operator, programmer or producer), bona fide

newspaper, magazine or other periodical

publication may use its own funds to defray costs

incurred in staging public candidate debates held

in accordance with 11 CFR 110.13.

(3) A corporation or labor organization may

donate funds to nonprofit organizations qualified

under 11 CFR 110.13(a)(1) to stage candidate

debates held in accordance with 11 CFR 110.13

and 114.4(f).
194a

3. 52 U.S.C. § 30101 provides:

Definitions.

* * * * *

(B) The term “expenditure” does not include–

* * * * *

(ii) nonpartisan activity designed to encourage

individuals to vote or to register to vote;

* * * * *
195a

4. 52 U.S.C. § 30118 provides:

Contributions or expenditures by national

banks, corporations, or labor organizations.

(a) In general

It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make

a contribution or expenditure in connection with any

election to any political office, or in connection with

any primary election or political convention or caucus

held to select candidates for any political office, or for

any corporation whatever, or any labor organization, to

make a contribution or expenditure in connection with

any election at which presidential and vice presidential

electors or a Senator or Representative in, or a Delegate

or Resident Commissioner to, Congress are to be voted

for, or in connection with any primary election or

political convention or caucus held to select candidates

for any of the foregoing offices, or for any candidate,

political committee, or other person knowingly to

accept or receive any contribution prohibited by this

section, or any officer or any director of any

corporation or any national bank or any officer of any

labor organization to consent to any contribution or

expenditure by the corporation, national bank, or labor

organization, as the case may be, prohibited by this

section.

* * * * *