1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, )

)

v. ) Case No. 15-cv-1397 (TSC)

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

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.)

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 1 of 42
2

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.) 

In granting Plaintiffs’ motion for summary judgment and denying the FEC’s crossmotion 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). 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 2 of 42
3

B. Plaintiffs’ August 11, 2017 Amended Complaint

On August 11, 2017, Plaintiffs filed an amended complaint alleging that the FEC’s postremand 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, 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 preestablished, 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. § 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 3 of 42
4

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).

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 4 of 42
5

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) (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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 5 of 42
6

bid, a 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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 6 of 42
7

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,

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. 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 7 of 42
8

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 8 of 42
9

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. 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 extrarecord evidence when reviewing an agency action.” Dist. Hosp. Partners, L.P. v. Sebelius, 971 

F. Supp. 2d 15, 32, n.14 (D.D.C. 2013), aff’d sub nom. Dist. Hosp. Partners, L.P. v. Burwell, 786 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 9 of 42
10

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 10 of 42
11

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 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

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 11 of 42
12

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 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

 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. 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 12 of 42
13

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 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 said in his report.” (Pls.’ Mot. to 

Supplement at 5.) The duplicative nature of the supplement renders this case inapposite to the 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 13 of 42
14

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. 

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 14 of 42
15

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, 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 15 of 42
16

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 

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 16 of 42
17

impeach that written opinion.” Kan. State Network v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983).

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 17 of 42
18

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 18 of 42
19

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, 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 19 of 42
20

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 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 for selecting debate participants was 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 20 of 42
21

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 21 of 42
22

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 22 of 42
23

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 the law of agency to assess the merits of 

Plaintiffs’ claims. 

The court therefore DENIES Plaintiffs’ motion and GRANTS Defendant’s crossmotion 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 23 of 42
24

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).

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.

Here, after acknowledging its earlier conclusions that the age of the documents and 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 24 of 42
25

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 25 of 42
26

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 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

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 26 of 42
27

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 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 clever moderator to make sure that each 

candidate gets an opportunity to put forth their views.

(Id.)

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 27 of 42
28

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 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 . . . 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 28 of 42
29

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 29 of 42
30

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.)

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 30 of 42
31

consequence were those that “express the position of the CPD,” (2) the contributions of 

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);

• 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;

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 31 of 42
32

• 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 found that all the previously considered evidence was nonpartisan, 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 32 of 42
33

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 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.)

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 33 of 42
34

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’ 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 34 of 42
35

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. 

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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 35 of 42
36

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 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 threeway 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 news outlets; (4) did not account for the 

fact that independent expenditure-only political committees are on the rise and are able pay for 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 36 of 42
37

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 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.

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 37 of 42
38

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 38 of 42
39

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 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 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 decisionmaking 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 39 of 42
40

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; 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.) 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 40 of 42
41

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 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 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 41 of 42
42

report failed to explain the circumstances under which the leading corporate and political media 

buying firm 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

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge 

Case 1:15-cv-01397-TSC Document 110 Filed 03/31/19 Page 42 of 42