No. 19-5117-cv 

 

United States Court of Appeals 

for the 

District of Columbia Circuit ________________

LEVEL THE PLAYING FIELD, PETER ACKERMAN, GREEN PARTY OF THE 

UNITED STATES, and LIBERTARIAN NATIONAL COMMITTEE, INC. 

Plaintiffs-Appellants, 

—v.— 

FEDERAL ELECTION COMMISSION 

Defendant-Appellee. 

________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA



 5(3/< BRIEF FOR PLAINTIFFS-APPELLANTS

 

 

 

ALEXANDRA A.E. SHAPIRO 

ERIC S. OLNEY 

JACOB S. WOLF 

SHAPIRO ARATO BACH LLP

500 Fifth Avenue, 40th Floor 

New York, New York 10110



DVKDSLUR#VKDSLURDUDWRFRP

Attorneys for Plaintiffs-Appellants

USCA Case #19-5117 Document #1817426 Filed: 11/25/2019 Page 1 of 38
TABLE OF CONTENTS 

TABLE OF AUTHORITIES .................................................................................... ii

GLOSSARY .............................................................................................................. v

SUMMARY OF THE ARGUMENT ........................................................................ 1

I. THE FEC IS NOT ENTITLED TO DEFERENCE ........................................ 3

II. THE FEC’S DISMISSAL OF THE ADMINISTRATIVE 

COMPLAINTS WAS ARBITRARY AND CAPRICIOUS ........................... 9

A. The FEC’s Refusal To Acknowledge The CPD’s 

Partisanship Was Contrary To Law ...................................................... 9

B. The FEC Arbitrarily And Capriciously Found The CPD’s 

Exclusionary Polling Criterion “Objective”........................................18

III. THE FEC’S DISMISSAL OF THE RULEMAKING PETITION 

WAS ARBITRARY AND CAPRICIOUS ....................................................28

CONCLUSION ........................................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................31

CERTIFICATE OF SERVICE ................................................................................32

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ii 

TABLE OF AUTHORITIES

Cases 

Akzo Nobel Salt, Inc. v. Fed. Mine Safety & Health Review Comm’n, 

212 F.3d 1301 (D.C. Cir. 2000) ..........................................................................3, 8 

Am. Farm Bureau Fed’n v. EPA, 

559 F.3d 512 (D.C. Cir. 2009) ..............................................................................29 

Ark. Educ. Television Comm’n v. Forbes, 

523 U.S. 666 (1998) ....................................................................................... 20, 21 

BedRoc Ltd., LLC v. United States, 

541 U.S. 176 (2004) ..............................................................................................20 

Christopher v. SmithKline Beecham Corp., 

567 U.S. 142 (2012) ................................................................................................ 8 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) .............................................................................. 5 

City of Los Angeles v. Dep’t of Transp., 

165 F.3d 972 (D.C. Cir. 1999) ................................................................................ 8 

Conkright v. Frommert, 

559 U.S. 506 (2010) ................................................................................................ 7 

* Dep’t of Commerce v. New York, 

139 S. Ct. 2551 (2019) ............................................................................... 6, 25, 27 

Erie Brush & Mfg. Corp. v. NLRB, 

700 F.3d 17 (D.C. Cir. 2012) ................................................................................13 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) .................................................................................................. 5 

Flyers Rights Educ. Fund, Inc. v. FAA, 

864 F.3d 738 (D.C. Cir. 2017) ....................................................................... 23, 29 

USCA Case #19-5117 Document #1817426 Filed: 11/25/2019 Page 3 of 38
iii 

Food Mktg. Inst. v. ICC, 

587 F.2d 1285 (D.C. Cir. 1978) ............................................................................12 

Hagelin v. FEC, 

411 F.3d 237 (D.C. Cir. 2005) ................................................................................ 8 

Haselwander v. McHugh, 

774 F.3d 990 (D.C. Cir. 2014) ..............................................................................15 

Int’l Union, United Mine Workers v. Dep’t of Labor, 

358 F.3d 40 (D.C. Cir. 2004) ................................................................................16 

KeySpan–Ravenswood, LLC v. FERC, 

348 F.3d 1053 (D.C. Cir. 2003) ................................................................. 2, 13, 19 

* Kisor v. Wilkie, 

139 S. Ct. 2400 (2019) ..................................................................... 3, 6, 7, 8, 9, 20 

Mozilla Corp. v. FCC, 

940 F.3d 1 (D.C. Cir. 2019) ........................................................................... 13, 16 

Nat’l Ass’n of Life Underwriters, Inc. v. Comm’r of Internal Revenue, 

30 F.3d 1526 (D.C. Cir. 1994) ..............................................................................22 

Nat’l Gypsum Co. v. EPA, 

968 F.2d 40 (D.C. Cir. 1992) ................................................................................21 

Natural Res. Def. Council, Inc. v. SEC, 

606 F.2d 1031 (D.C. Cir. 1979) .............................................................................. 9 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ................................................................................ 7 

PLMRS Narrowband Corp. v. FCC, 

182 F.3d 995 (D.C. Cir. 1999) ................................................................................ 6 

Safe Extensions, Inc. v. FAA, 

509 F.3d 593 (D.C. Cir. 2007) ....................................................................... 10, 24 

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iv

Williams Gas Processing-Gulf Coast Co., L.P. v. FERC, 

475 F.3d 319 (D.C. Cir. 2006) ..............................................................................16 

WWHT, Inc. v. FCC, 

656 F.2d 807 (D.C. Cir. 1981) ..............................................................................29 

Statutes, Rules and Regulations 

* 11 C.F.R. §110.13 ................................................................................... 7, 15, 18, 20 

52 U.S.C. §30118 .....................................................................................................15 

Fed. R. App. P. 32(a) ...............................................................................................31 

Other Authorities 

 60 Fed. Reg. 64,260 (1995) .....................................................................................19 

Merriam-Webster Online Dictionary ...................................................................4, 20 

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v 

GLOSSARY 

CPD: Commission on Presidential Debates 

FEC: Defendant-Appellee Federal Election Commission 

FECA: Federal Election Campaign Act 

RNC: Republican National Committee

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SUMMARY OF THE ARGUMENT 

The FEC’s brief typifies the arbitrary, capricious, and unlawful approach it 

has taken throughout these proceedings. At every stage, it has been unable to 

provide a coherent rationale for its decisions. And at every stage, it has resorted to 

inventing new rationales to justify its pre-ordained determination not to enforce the 

laws the CPD has been violating. This appeal continues that pattern. The agency 

now offers up a litany of improper post hoc rationalizations manufactured for this 

Court, discarding fundamental aspects of its post-remand decisions—which 

themselves had replaced the faulty reasoning of its original decisions. 

The district court found that the FEC “stuck its head in the sand and ignored 

the evidence” in the original decisions. Post-remand, the agency buried it even 

deeper, replacing its original reasoning with equally indefensible justifications: 

identically-worded, boilerplate affidavits signed by CPD directors who unwittingly 

confirmed they had not reviewed Appellants’ allegations; supposed anti-partisan 

CPD “policies” that mysteriously surfaced for the first time on remand, were 

withheld from the FEC, prohibited next to nothing and are not enforced by the 

CPD; a blatantly pretextual Westlaw news analysis in which the FEC manipulated 

the data to achieve its desired outcome; and its claim that when directors admitted 

the CPD was “bipartisan,” they simply couldn’t have meant what they said. 

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Now the FEC abandons these and other indefensible purported justifications 

for its illogical post-remand decisions, in favor of a “post hoc salvage operation[]” 

designed to “overcome the inadequacy of the Commission’s” previous two bites at 

the apple. KeySpan–Ravenswood, LLC v. FERC, 348 F.3d 1053, 1059 (D.C. Cir. 

2003). This third effort to justify the outcome fares no better than the first two. 

The agency now repudiates its longstanding interpretation of its own regulation 

and claims that debate-qualifying criteria may be “objective” even if designed to 

exclude specific candidates from the debates; asserts that “organizations may 

change over time,” without citing a single way the CPD has repudiated its partisan 

ways; claims a Supreme Court case permits biased debate-qualifying criteria, even 

though the FEC previously admitted that the same case required objective criteria; 

purports to “dispute” its own admission in its Answer that Ross Perot would not 

have qualified under the current CPD criteria; and, abandoning any pretense of 

objectivity and fairness towards independent candidates, simply declares that 

“bipartisan” means the same thing as “nonpartisan”; and the list goes on. 

The FEC’s inability to articulate any logically sound bases for its 

decisions—in its first try, again in its second, and now on appeal—shows that its 

reasoning is entirely pretextual. For three decades the FEC has refused to enforce 

its regulations against the CPD, and its appellate brief only confirms its ulterior 

motives. This Court should hold the FEC accountable for its derelict oversight of 

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the CPD. The CPD continues to accept millions in corporate contributions and 

expenditures, while refusing to play by the rules Congress and the FEC itself have 

set for corporate-funded debates. And the CPD exercises unchecked power to 

decide who may participate in the presidential debates and abuses that power by 

erecting insurmountable obstacles that ensure only Republican and Democratic 

candidates will participate. The judgment should be reversed. 

I. THE FEC IS NOT ENTITLED TO DEFERENCE 

The FEC is a bipartisan agency. Its decisions in this case typify its lengthy 

history of “sticking its head in the sand”: the agency ignored Appellants’

complaints and petition until a lawsuit was filed; then hastily issued conclusory 

dismissals that the district court found were contrary to law; then twisted itself in 

knots trying to reach the same result on remand; and now resorts to improper “post 

hoc rationalizations” on appeal. Akzo Nobel Salt, Inc. v. Fed. Mine Safety & 

Health Review Comm’n, 212 F.3d 1301, 1304–05 (D.C. Cir. 2000). The Court 

should “decline to defer” to the FEC and its revolving door of “convenient 

litigating position[s].” Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019). 

The FEC is unable to rebut that the cumulative effect of its bias, its pattern 

of rubber-stamping the CPD, and its shifting litigation positions vitiate any 

justification for deference. 

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1. The FEC remarkably claims, for the first time on appeal, that “bipartisan” 

and “nonpartisan” mean the same thing. (FEC.Br.26-27). The fallacy of this 

proposition is obvious, and it contradicts what the FEC itself said below. When 

attempting to explain away CPD directors’ admissions that the CPD was 

“bipartisan,” the FEC never claimed that “bipartisan” meant the same thing as 

“nonpartisan.” Instead it unquestioningly credited one director’s claim that she 

really meant “nonpartisan” when she said “bipartisan”; it also tried to distance the 

directors from their admissions, claiming the admissions did not “reflect [the 

directors’] respective views on the participation of independent candidates in CPD 

debates.” (A-1352). But a person only equates “bipartisan” with “nonpartisan” if 

she assumes voters (and serious candidates) all identify with one of two parties, 

and dismisses independents as irrelevant to the political system. The FEC’s new 

position thus reflects its true worldview and shows why it is inherently biased 

against independent candidates. 

“Bipartisan” and “nonpartisan” are plainly not synonyms. “Nonpartisan” 

means “not partisan”—in other words, the opposite of partisan. Merriam-Webster 

Online Dictionary, http://www.merriam-webster.com/dictionary/nonpartisan (last 

visited Nov. 19, 2019). A “bipartisan” agency does not meet this definition 

because it “involve[s] members of two parties.” Id. at http://www.merriamwebster.com/dictionary/bipartisan (last visited Nov. 19, 2019). An agency 

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comprised of two political parties is a “partisan” agency, plain and simple. A 

bipartisan agency certainly cannot be considered “nonpartisan” where, as here, the

two parties in question work together to exclude other parties and unaffiliated 

candidates (who are members of no party) from the political process. 

And there is no serious dispute that the FEC is a partisan agency. “Because 

the FEC is comprised of three Democratic appointees and three Republican 

appointees...all actions by the Commission occur on a bipartisan basis.” Citizens 

for Responsibility & Ethics in Wash. v. FEC, 923 F.3d 1141, 1142 (D.C. Cir. 2019) 

(Griffith, J., concurring in denial of rehearing en banc); id. at 1143 (FEC has 

“bipartisan emphasis”); accord, e.g., FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 37 (1981) (“the Commission is inherently bipartisan”). The 

FEC’s own website touts its “bipartisan” commitment.1

The FEC also tries to disavow its commissioner’s admission that the agency 

“desire[s] to strengthen party organizations.” (See Br.29-31). It claims that “pre1

 FEC, Statement of Comm’r Ellen L. Weintraub, https://www.fec.gov/

resources/cms-content/documents/ELW-statement-on-FECs-opening-of-adisclaimer-rulemaking.pdf (Nov. 16, 2017). The FEC says commissioner 

Steven Walther is independent (FEC.Br.27), ignoring that he previously 

served as counsel to Democratic Senate Leader Harry Reid, see Ed Vogel, 

Recount Not Expected to Unseat Reid, LAS VEGAS REV.-J. (Nov. 10, 1998), 

1998 WLNR 534067, and was appointed to the FEC on Reid’s 

recommendation as a “Democratic commissioner,” Senate Confirms New 

FEC Commissioners, THE POLITICO (June 24, 2008), www.cbsnews.com/

news/senate-confirms-new-fec-commissioners-ending-long-partisanstandoff/. 

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decisional deliberations...cannot be used to impeach an agency’s final decision” 

(FEC.Br.30), but the Supreme Court recently held that “internal deliberative 

materials” may be used “to demonstrate pretext.” Dep’t of Commerce v. New 

York, 139 S. Ct. 2551, 2573–76 (2019). And PLMRS Narrowband Corp. v. FCC, 

182 F.3d 995 (D.C. Cir. 1999) (cited FEC.Br.30) is inapposite. The Court there

considered whether particular predecisional statements established agency bias, but 

concluded that they didn’t. Id. at 1001. Here, by contrast, the FEC’s longstanding 

bias gave even the district court “reason to suspect that the agency’s” 

decisionmaking did “not reflect [its] fair and considered judgment.” (A-292). The 

commissioner’s concession corroborates what the courts have already confirmed 

and the FEC boasts on its website: that the agency has a bipartisan objective, 

which explains why the FEC has repeatedly turned a blind eye to the CPD’s illegal 

efforts to exclude independent candidates. 

 2. The FEC does not dispute that it repeatedly dismissed complaints against 

the CPD using a “control” standard that the district court found contravenes “the 

text of the agency’s own regulations.” (A-290; see also Br.19, 31). The agency 

makes no effort to defend that standard—and yet still claims its “consistent[]” 

reliance on that standard was somehow “reasonable.” (FEC.Br.27-28). But courts 

may not defer to an agency’s consistent interpretation of its own regulation (see 

FEC.Br.27-28) unless that interpretation is “permissible.” Kisor, 139 S. Ct. at 

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2416-17; see also id. at 2414 (“not all reasonable [interpretations] of...truly 

ambiguous rules are entitled to deference”). Here, the FEC misinterpreted 11 

C.F.R. §110.13’s plain language by applying the impermissible “control” standard. 

(A-290-91). The FEC’s longstanding use of this erroneous interpretation was 

patently unreasonable and supplies all the more reason to closely scrutinize its 

decisions here. See, e.g., Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986) (“In 

deciding whether to defer...the courts look to...[the] validity” of the “agency’s 

reasoning.”). 

 3. Finally, the FEC argues that review is “not more strict” when the agency 

arrives at the same result on remand. (FEC.Br.28). It cites Conkright v. 

Frommert, but Conkright concerns ERISA plan administrators—not agencies—

and expressly contemplates heightened scrutiny where the decisionmaker is acting 

“beyond the bounds of reasonable judgment” or has “not exercise[d] [its] 

discretion fairly.” 559 U.S. 506, 514-15 (2010). The FEC disregards why that is 

the case here—the agency shares the CPD’s political bias, consistently acts upon it, 

and has done so using an arbitrary and capricious standard of review. Moreover, 

the “consistency” of an agency’s reasoning directly impacts “whether to defer.” 

Orloski, 795 F.2d 164. At each stage of this litigation, the FEC has altered its 

justification for reaching the exact same result, and does so again on appeal. (See 

infra at 11, 13, 16-17, 19-22, 26). These are the types of “flip-flops” and “post 

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hoc rationalizations to which courts will not defer.” Akzo Nobel, 212 F.3d at 

1304–05; accord Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 

(2012) (“deference is...unwarranted” for “post hoc rationalization[s]”). 

The dubious nature of the FEC’s reasoning casts further doubt on whether its 

decisions truly reflect the “fair and considered judgment” required for deference. 

Kisor, 139 S. Ct. at 2417. The FEC’s countless errors and inconsistencies are 

detailed in the opening brief and below. Moreover, the FEC’s post-remand 

decisions rely almost exclusively upon evidence post-dating the original 

dismissals. (See Br.32). Although “agencies may consider such evidence” 

(FEC.Br.29), the fact that it relied almost exclusively upon such evidence smacks 

of “post hoc rationalization.” Christopher, 567 U.S. at 155. 

* * * * * * 

The FEC cites cases that involved only a single factor cutting against 

deference. See, e.g., Hagelin v. FEC, 411 F.3d 237, 242-44 (D.C. Cir. 2005) 

(shared bias between agency and litigant, by itself, did not warrant departure from 

ordinary deference); City of Los Angeles v. Dep’t of Transp., 165 F.3d 972, 977-78 

(D.C. Cir. 1999) (applying ordinary deference where agency reached same result 

on remand). None of these cases involve the “number of factors” described above 

which, when taken together, “rebut[]” “the presumption of agency regularity” and 

require “[m]ore exacting scrutiny.” Natural Res. Def. Council, Inc. v. SEC, 606 

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F.2d 1031, 1049-50 & n.23 (D.C. Cir. 1979); accord Kisor, 139 S. Ct. at 2416-18 

(in determining whether to award “deference,” courts must consider entire 

“context” because the inquiry does not “reduce to any exhaustive test”). 

II. THE FEC’S DISMISSAL OF THE ADMINISTRATIVE 

COMPLAINTS WAS ARBITRARY AND CAPRICIOUS 

Even if ordinary deference applies, the FEC’s post-remand decisions were 

arbitrary and capricious. In claiming otherwise, the FEC either parrots the 

reasoning in its decision without addressing what makes it arbitrary and capricious, 

abandons that reasoning altogether, or advances impermissible and equally 

meritless post hoc rationalizations. 

A. The FEC’s Refusal To Acknowledge The CPD’s 

Partisanship Was Contrary To Law 

It is obvious that the CPD is inherently partisan. No reasonable assessment 

of the record evidence could lead to any other conclusion. The CPD was created 

“by the Republican[s] and Democrat[s]” to “forge a permanent framework on 

which all future debates between the nominees of the two political parties w[ould] 

be based.” (A-850, A-855). The CPD has always been led by diehard Republicans 

and Democrats who lavish their parties’ candidates—including CPD debate 

participants—with substantial cash contributions; endorse these same candidates 

while simultaneously serving on the CPD board; support partisan causes in 

violation of the CPD’s purported anti-partisan “policies”; lobby Republicans and 

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Democrats on behalf of the same corporations that bankroll the CPD; and routinely 

admit that the CPD is “not likely to look with favor on including third-party 

candidates in the debates.” (See Br.10-13, 36-37). That explains why “only one 

non-major party candidate, Ross Perot, has [ever] participated” in a CPD debate, 

“and only then at the request of the two major parties,” because he would not have 

otherwise satisfied the CPD’s debate-qualifying criteria. (A-300). 

Instead of acknowledging the obvious—that the CPD is partisan—the FEC 

offers up tortured logic to avoid this conclusion. 

1. The FEC maintains that some of the evidence is “old” and that 

“organizations may change over time.” (FEC.Br.32 (quoting A-1353)). But the 

FEC is unable to point to any evidence that the CPD’s partisan loyalties have 

actually changed. Instead it asserts “there were ‘significant indications that [the 

CPD] has made concerted efforts to be independent in recent years’”—without 

identifying what these “concerted efforts” supposedly were. (FEC.Br.32) (quoting 

A-1353). That is because the CPD has made no such efforts. See Safe Extensions, 

Inc. v. FAA, 509 F.3d 593, 605-06 (D.C. Cir. 2007) (“arbitrary and capricious” for 

agency to rely upon “unsupported assertion”). Offering no specifics, the FEC’s 

brief vaguely alludes to a page from its decision (A-1353) that does not purport to 

reflect any attempt to curb the CPD’s partisanship. This page merely discusses 

how the CPD “adopted new candidate selection criteria” after “the 1996 debates” 

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(A-1353)—the same exclusionary criteria that no independent candidate has ever 

hurdled. It is absurd to suggest that the adoption of these criteria two decades ago 

reflects a “recent” and “concerted effort[] to be independent.” 

The unbroken chain of partisanship from the CPD’s inception to the present 

explains its eleventh-hour decision to concoct supposed anti-partisan “policies,”

which only surfaced after the district court vacated the original FEC dismissals. 

Clearly, the CPD was trying to show that something had changed in recent years. 

But nothing has changed. The organization is intractably partisan and incapable of 

implementing meaningful reform. The purported “policies” were a sham: to the 

extent they even exist, they are unenforceable by definition and by design, have 

been violated without repercussion, and do not even purport to prohibit the vast 

majority of the CPD’s partisan activities. (See Br.32-33, 41-43; see also 

Nonprofit.Amicus.Br.8-16). 

The FEC makes no serious effort to defend the purported CPD policies. 

Instead, apparently recognizing their bogus nature, it now protests that its 

“determination did not rise or fall with the policies.” (FEC.Br.37). The FEC 

claims to have included “appropriate caveats” to show that its decision accounted 

for the CPD’s failure to produce the policies, but the Court will search the decision 

in vain for any such caveats. (See Br.42; A-1357-58). The reality is that the FEC 

expressly relied upon the policies despite the CPD’s failure to provide them. Its 

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decision said that Appellants had “not support[ed] a reasonable inference that CPD 

endorses supports or opposes political candidates or parties” precisely because the 

CPD supposedly “adopted a formal ‘Political Activities Policy’” and an “‘informal 

policy against Board members serving in any official capacity with a campaign.’” 

(A-1357-58). But why would the FEC bother to discuss the policies at all when it 

had no idea what they said? Why would the agency not ask to see the policies, and 

instead issue a decision regurgitating the cryptic, incomplete descriptions supplied 

by the very organization motivated to conceal their true nature? Because the FEC 

did not care what the policies said, whether they imposed any meaningful 

restrictions or whether the CPD had any intention of enforcing them. The agency’s 

reliance upon the policies was “a barren exercise of supplying reasons to support 

a pre-ordained result.” Food Mktg. Inst. v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 

1978). 

2. The FEC claims that “only the [CPD] directors’ actions in an official, as 

opposed to personal, capacity” are relevant. (FEC.Br.33). This (1) ignores the 

numerous admissions that the CPD itself is partisan (see Br.36-37 (collecting 

record citations)); and (2) impermissibly brushes aside the “mountain” of 

additional evidence tying the directors to the major parties (see, e.g. Br.9-13). 

As to the first point, the FEC’s decision did attempt to address several of the 

admissions. But its reasoning was frivolous (see Br.37-38), and—like the 

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policies—the FEC now abandons it (FEC.Br.33), which further underscores why 

the decision was arbitrary and capricious. 

Nor can the FEC dodge the remaining evidence. The agency advances yet 

another new argument on appeal, claiming that the CPD is “liable [for] the 

statement” of a director only if the director made it in his capacity as the CPD’s 

“agent.” (FEC.Br.33). But “courts may not accept appellate counsel’s post hoc

rationalization for agency action...”; rather, agency action may be “upheld, if at 

all, on the same basis articulated in the [agency’s] order.” Erie Brush & Mfg. 

Corp. v. NLRB, 700 F.3d 17, 23 (D.C. Cir. 2012). The FEC’s belated foray into 

the law of agency “is an off-limits post hoc rationalization.” Mozilla Corp. v. 

FCC, 940 F.3d 1, 62 (D.C. Cir. 2019); accord KeySpan–Ravenswood, 348 F.3d at 

1059. 

And the argument is a non sequitur. Appellants do not claim that the 

directors, as agents, made independently actionable partisan statements for which 

the CPD is liable as principal. Appellants argue that the CPD directors’ 

statements—as well as their extensive ties to the major parties and substantial 

contributions to partisan causes—are evidence that the CPD itself supports those 

same causes. After all, the CPD is nothing more than a collection of the staunch 

partisans who comprise it. Where, as here, an organization that stages political 

debates is run by people with a demonstrably partisan bent, it stands to reason 

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that—without an independent board or mechanism of corporate governance to 

override its leaders’ partisanship—the organization will behave in a partisan 

fashion. As explained by the amicus group comprised of prominent leaders and 

scholars from the nonprofit sector, the CPD’s failure to impose any such 

constraints “contravenes the basic standards and practices of good governance that 

are fundamental in the nonprofit community.” (Nonprofit.Amicus.Br.8). And that 

is particularly true for a nonprofit organization that operates in a political setting 

and, having chosen to fund itself with corporate money, is required by law to 

adhere strictly to a nonpartisanship requirement. 

Fahrenkopf illustrates why the evidence of CPD directors’ partisan activities

is highly relevant. 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 

debates between the nominees of the two political parties.” (A-850). 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 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 in 

violation of the alleged CPD policy, thereby registering his disagreement with the 

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policy’s purported goal of limiting partisanship at the CPD; (3) told a Harvard 

audience that the “Commission on Presidential Debates” helps 

“rejuvenat[e]...bipartisanship”; and (4) conceded that he is “not likely to look with 

favor on including third party candidates in the debates.” (Br.9-11, 33 (collecting 

other examples of Fahrenkopf’s partisan acts); A-395). This is evidence that the 

CPD itself is partisan. The FEC’s “stunningly myopic” refusal to consider any of 

this evidence was arbitrary and capricious. Haselwander v. McHugh, 774 F.3d 

990, 999 (D.C. Cir. 2014). 

Nor are the CPD directors’ First Amendment rights in jeopardy, as the FEC

and CPD as amicus erroneously claim. (FEC.Br.33-34; CPD.Br.10-12). The 

directors are permitted under the First Amendment to run a partisan debate-staging 

organization, as they have for thirty years. But FECA prohibits such an 

organization from accepting corporate contributions. 52 U.S.C. §30118(a); 11 

C.F.R. §110.13. Only a debate-staging organization that does not “endorse, 

support or oppose” the parties, and uses “objective” criteria, may pay for the 

debates using corporate money. 11 C.F.R. §110.13(a)(1), (c). The CPD is always 

free to turn that money away. By accepting the money, however, the CPD and its 

leadership also accept the prohibition on partisanship that comes with it. 

3. The FEC only takes into account the director affidavits and Fahrenkopf’s

2015 interview. (FEC.Br.34-39). This erroneously assumes that the agency was 

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free to ignore the “mountain” of additional evidence establishing the CPD’s 

partisanship, including the new evidence of the CPD leadership’s recent partisan 

activities, its concessions about the CPD’s partisanship, and expert analyses 

quantifying the obstacles imposed by the 15% rule. (See Br.20). The FEC’s

arbitrary and capricious refusal to consider that evidence alone compels reversal. 

See, e.g., Williams Gas Processing-Gulf Coast Co., L.P. v. FERC, 475 F.3d 319, 

329–30 (D.C. Cir. 2006) (“Because FERC rested its determination, at least in part, 

on its infirm ‘incomplete information’ ground, we must...set [it] aside 

as arbitrary and capricious.”); Int’l Union, United Mine Workers v. Dep’t of 

Labor, 358 F.3d 40, 44–45 (D.C. Cir. 2004) (agency “failed to provide an adequate 

explanation for its decision” where “[t]wo of the three reasons it gave...would not 

support its decision”). 

Nor do the FEC’s treatment of the affidavits and the interview pass muster. 

The FEC barely tries to justify its reliance on the affidavits. It merely labels them 

“first-hand accounts” that supposedly attest to the directors’ “own beliefs, actions, 

and observations.” (FEC.Br.38-39). Yet these labels appear nowhere in the FEC’s 

decision, which had rotely accepted the affidavits without purporting to explain 

why. (A-1353-54). Appellate counsel’s belated spin on the affidavits reflects 

another “off-limits post hoc rationalization” that compels reversal. Mozilla Corp., 

940 F.3d at 62. Moreover, the affidavits themselves directly undermine what the 

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FEC now claims. There is no dispute that the CPD’s lawyer drafted them; that the 

lawyer distributed a form affidavit to all nine directors, most of whom immediately 

signed it, and none of whom made a single edit; that the affidavits confirm that no 

director even reviewed Appellants’ allegations; and that the affidavits instead 

consist of a single page of identically-worded, boilerplate disclaimers that ignore 

the evidence specific to each director. (Compare FEC.Br.38-39 with Br.39-41). In 

other words, the affidavits are not a “first-hand account” of anything. They reflect 

the uninformed view of a CPD lawyer and his wholesale evasion of the evidence 

Appellants marshaled against his clients. 

The sole piece of evidence the FEC analyzes in any detail is the Fahrenkopf 

interview. The FEC claims that is because it is “the only evidence that was both 

recent and official-capacity” (FEC.Br.34), but even that is not true. For example, 

Fahrenkopf submitted an affidavit post-remand in which he falsely claimed that “I 

have never observed any Board member ever approach any issue concerning the 

CPD or its mission from a partisan perspective.” (A-1282 ¶5). In the very same 

affidavit, however, Fahrenkopf confirmed that one of his “goal[s]” at the CPD was 

to “secur[e] the commitment of both major party nominees to debate”—a 

decidedly “partisan perspective” that directly contradicts his prior claim that 

neither he nor any other board member had taken one. (A-1283 ¶10). Indeed, both 

Fahrenkopf and Paul Kirk announced, upon forming the CPD, that “the 

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Democratic and Republican parties” would be “jointly sponsoring” future debates 

to “strengthen the role of political parties in the electoral process.” (A-854). Even 

though the affidavit represents “recent” and “official-capacity” evidence that 

Fahrenkopf’s denials are less than trustworthy, the FEC accepted them rote, just as 

it did the other director affidavits. (A-1352). 

And the FEC’s superficial treatment of the 2015 interview simply ignores 

Appellants’ arguments. (FEC.Br.34-36). The FEC’s brief, parroting its decision, 

characterizes Fahrenkopf’s statement as “an assertion of historical fact,” without 

acknowledging that (1) he was responding to a question about “the prospects” of 

more than two participants in future presidential debates, and (2) he answered that 

question in the present tense, not the past tense: “we . . . primarily go with” the 

Republican and Democratic candidates. (A-1168). That Fahrenkopf mentioned 

Ross Perot later in his answer does not somehow transform this admission into “an 

assertion of historical fact.”

B. The FEC Arbitrarily And Capriciously Found The 

CPD’s Exclusionary Polling Criterion “Objective” 

The FEC’s defense of its conclusion that the CPD’s criteria are “objective”

is equally unavailing. It (1) tries to replace its longstanding interpretation of 

§110.13(c) with a brand new one crafted for this litigation; (2) fails to identify any 

independent that has satisfied the 15% criterion; (3) fails to impugn Clifford 

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Young; and (4) ignores the pretextual justifications it used to reject Douglas 

Schoen’s conclusions. 

1. In 1995, the Commission provided an “Explanation and Justification” for 

the objectivity requirement, which was published in the Federal Register. See 60 

Fed. Reg. 64,260-01, 1995 WL 735941 (Dec. 14, 1995). There the FEC 

confirmed, inter alia, that “objective criteria” cannot be “designed to result in the 

selection of certain pre-chosen participants.” Id. at 64,262. For over two decades, 

the FEC consistently adhered to this interpretation. (See A-105, A-133, A-181, A249). Until now. In yet another “post hoc salvage” exercise, KeySpan–

Ravenswood, 348 F.3d at 1059, the FEC now jettisons its longstanding 

interpretation of the regulation and claims that criteria geared to the selection of 

preferred candidates may nevertheless be considered “objective.”2

 This argument 

defies the plain text of the regulation, its own prior interpretation, and the 

controlling authorities. 

The agency purports to ground its new interpretation of the regulation in the 

“regulatory text.” (FEC.Br.43). Yet conspicuously absent from the FEC’s brief is 

any discussion of the text itself. See BedRoc Ltd., LLC v. United States, 541 U.S. 

2

 One will search the district court’s first decision in vain to find what the 

FEC claims was an “instruct[ion]” to adhere to its prior interpretation. 

(FEC.Br.41). 

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176, 183 (2004) (statutory “inquiry begins with the statutory text, and ends there as 

well if the text is unambiguous”); Kisor, 139 S. Ct. at 2415 (same for regulations). 

Objectivity requires the absence of “personal feelings,” “prejudices,” or 

“subjective factors.” Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/objective#h1 (last visited Nov. 19, 2019). Criteria 

“designed to result in the selection of...pre-chosen participants” are not objective 

because they permit the use of “personal feelings,” “prejudices,” and other 

“subjective factors” to select candidates. 

The FEC purports to rely on Ark. Educ. Television Comm’n v. Forbes, 523 

U.S. 666 (1998) (FEC.Br.41-42), but that case actually supports this conclusion. 

To understand why, this Court need look no further than the FEC’s own prior 

decisions, which cited Forbes in support of the requirement that 

“objective...selection criteria must...not [be] geared to the selection of certain prechosen participants.” (A-104-05). As the FEC correctly reasoned at the time, 

under Forbes, “objective” criteria must “not be based on the speaker’s viewpoint,”

523 U.S. at 682; this is why criteria crafted to exclude all but the Democratic and 

Republican nominees are not “objective” under 11 C.F.R. §110.13(c).3

 See also 

3

 The issue in Forbes was whether “all ballot qualified candidates” for 

Congress had a First Amendment right to appear in debates. 523 U.S. at 

681. The Supreme Court held that candidates like the Forbes plaintiff—who 

did not have a “campaign headquarters other than his house”—had no such 

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Nat’l Gypsum Co. v. EPA, 968 F.2d 40, 43 (D.C. Cir. 1992) (vacating agency 

decision for taking “inconsistent” positions). 

The FEC also argues that the election laws should not be used to steer voters 

to particular candidates. (FEC.Br.43). We could not agree more. The American 

people favor including more than two candidates in the general election debates. 

(See, e.g., A-761, A-786). Yet the CPD—an unelected and unaccountable coterie 

of party insiders—actively works to steer voters to the two major party candidates 

and to prevent voters from hearing from the third alternative most of them prefer. 

It is the CPD that has abused the election laws to rig the process in favor of 

Republicans and Democrats and to steer voters away from any other candidate. 

 2. No truly independent candidate has ever satisfied the 15% criteria. 

(Br.45-46). There is no dispute that Anderson, Wallace, Thurmond, LaFollette and 

Roosevelt all rose to prominence as Republicans and Democrats before turning 

independent, affording them the enhanced name recognition that true independents 

do not receive. (See Br.46; FEC.Br.45). The FEC therefore focuses on the 

independent presidential campaign of Ross Perot, a self-funded billionaire. But in 

doing so, the agency advances more post hoc rationalizations. First, the FEC 

right. Id. at 682-83. Appellants here neither suggest that such candidates 

should appear in the presidential debates nor assert an infringement of their 

constitutional rights. 

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claims that Perot polled at “40%” at an unspecified time during his campaign. 

(FEC.Br.45). Yet the FEC admitted in its answer to the complaint that he “would 

not have satisfied the CPD’s current rule, because he was polling at or below 10%” 

in late-September, which is when the CPD chooses debate participants. (A-332 

¶52, A-367 ¶52; see also A-701). The FEC now tries to dispute its own 

concession, in violation of the well-settled rule that “admissions in the pleadings 

are binding.” Nat’l Ass’n of Life Underwriters, Inc. v. Comm’r of Internal 

Revenue, 30 F.3d 1526, 1530 (D.C. Cir. 1994). 

Second, the FEC also argues for the first time that Perot “ultimately received 

18.7% of the popular vote that year.” (FEC.Br.45). This directly undermines the 

FEC’s position and demonstrates Appellants’ point. Perot was polling between “7 

to 10%” in September, but his participation in the debates doubled his support. Put 

simply, polling drastically undercounts both the actual support and true potential of 

independent candidates. Examples from gubernatorial elections prove that 

independent candidates polling below 15% in September can easily come back to 

win the election—if they are granted access to the debates. (A-720). That is why 

the CPD goes out of its way to exclude these candidates. 

 3. Clifford Young showed that a candidate needs at least 60-80% name 

recognition among the “American public” to potentially achieve 15% in the polls. 

(See Br.47, 52-53). The FEC does not seriously dispute the causal relationship 

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between name share—how many people know who the candidate is—and vote 

share—how many people will vote for the candidate. It is obvious that no one will 

vote for a candidate they do not know. Young depicted this phenomenon 

graphically, in the chart below, with data points showing how vote share increases 

with name recognition: 

 

(A-970). Candidates cannot reach 15% in the polls unless close to two thirds of 

the American people have heard of them. So, while the FEC quibbles about other 

things candidates can do to increase their popularity (FEC.Br.46-47), achieving 

name recognition is the bare minimum requirement. A candidate who does not 

achieve widespread name recognition plainly has no chance at appearing in a CPD 

debate. It “blinks reality,” and is “arbitrary [and] capricious,” for the agency to 

suggest otherwise. Flyers Rights Educ. Fund, Inc. v. FAA, 864 F.3d 738, 743-44 

(D.C. Cir. 2017). 

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 The FEC also admits that it had no business criticizing Young for using 

“early stage” primary data, because his report expressly relied upon “late primary” 

and “general election” data. (Compare Br.52 with FEC.Br.52). The agency’s 

superficial critiques leave Young’s central thesis—that a candidate needs 60-80% 

name recognition to reach 15%—entirely unscathed. 

 Young separately showed that polling error could lead to the erroneous 

exclusion of an independent candidate. This, too, is indisputable, and the FEC 

does not seriously suggest otherwise. 

The FEC now concedes that Young properly corrected for his use of 

gubernatorial data in three-way races, and that its decisions erroneously criticized 

him for using it (Compare Br.49 with FEC.Br. 51). See Safe Extensions, Inc., 509 

F.3d at 605. The FEC had also claimed that “Young’s metric for polling error 

appears to be based on the difference between the poll and actual results on 

Election Day. However, CPD does not purport to use the polls as predictors of 

what will occur on Election Day, but as a reliable measure of a candidates’ support 

at a given moment in September.” (A-1367). That was simply false. The CPD 

admits that the “purpose” of the polling criterion is “to identify those 

candidates...who have a realistic chance of being elected President,” not to 

measure support in September. (A-1308). The FEC refuses to accept 

responsibility for this error, but still offers nothing resembling a coherent 

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explanation (FEC.Br.50-51), creating “a significant mismatch between the decision 

the [agency] made and the rationale [it] provided.” Dep’t of Commerce, 139 S. Ct. 

at 2575.

 Finally, there is no dispute that polling error only disadvantages independent 

candidates polling close to the 15% threshold, because no Democratic or 

Republican candidate would ever be excluded from a debate. (See A-983 ¶66). 

But according to the FEC, the CPD has no obligation to “level the playing field” 

for independent candidates who cannot meet the CPD’s criteria. (FEC.Br.52). 

This argument lays bare the FEC’s institutional partisan bias. It assumes that only 

Republicans and Democrats should be invited to debate, and that independents 

would be lucky to receive an invitation. Yet the FEC’s regulations require that 

debate-qualifying criteria be devised without any “pre-chosen participants” in 

mind. The FEC’s “level the playing field” argument is thus premised upon the 

very partisan bias that the regulations prohibit. And the FEC’s attempt to invoke 

democratic institutions falls flat (see FEC.Br.23 (arguing that “American politics” 

is “organized around two parties”)), because the American people have been 

clamoring for the inclusion of an independent candidate in the debates. Appellants 

are not asking the FEC for any special favors. They are seeking to enforce the 

plain meaning of the agency’s own regulations which, it so happens, is perfectly 

aligned with the popular will. 

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 4. Douglas Schoen’s basic point is incontestable—it takes a lot of money to 

run a competitive modern presidential campaign, particularly without the benefit of 

a major party affiliation. (Br.49-50). To dispute this point would be disingenuous, 

to say the least. But the FEC disputes it. 

 The most revealing aspect of the FEC’s response is what it does not say 

about the fabricated results of its Westlaw news analysis. The analysis was 

supposed to show that major party and independent candidates receive comparable 

news coverage—which itself would have proven little, because even major party

candidates require massive expenditures to fund a serious campaign. But in any 

event, major party candidates receive substantially more coverage than their 

independent counterparts. So the FEC grossly underreported the search hits for the 

major party candidates to make them seem comparable to the independents’; 

pretended every Gary Johnson in the country was running for president to make it 

seem like candidate Gary Johnson received more coverage than he actually did; ran 

searches for major party candidates when they were not even running for president; 

and so on. (Br.53-57). 

 The FEC has no response (FEC.Br.57), because it has abandoned the 

Westlaw analysis in favor of its rationale du jour. That is this case in a nutshell. 

The FEC is unconcerned with whether its own analyses can withstand the slightest 

scrutiny, how many times it flip-flops and to what lengths it must go to protect the 

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CPD. This directly violates “[t]he reasoned explanation requirement of 

administrative law” which, as the Supreme Court recently confirmed, “is meant to 

ensure that agencies offer genuine justifications for important decisions...that can 

be scrutinized by courts and the interested public.” Dep’t of Commerce, 139 S. Ct. 

at 2575-76. Were this Court to merely “[a]ccept[] contrived reasons” like the ones 

the FEC now advances, “judicial review” would be reduced to “an empty ritual.” 

Id. at 2576. 

 The FEC’s remaining responses to Schoen are equally “contrived” and do 

not rescue the agency from its Westlaw debacle. First, the FEC falsely asserts that 

Gary Johnson exceeded the 60% name recognition threshold. (FEC.Br.48-49, 54). 

The poll on which the FEC purports to rely actually puts Johnson almost 10% 

below the threshold; the 63% figure cited by the FEC involved Johnson’s name 

recognition among a subset of the population.4

 

 Otherwise the agency provides what amount to a handful of unhelpful 

campaign cost-saving tips. (FEC.Br.54-55). It suggests independents could meet 

Schoen’s $266 million figure using PACs, even though PACs donated $700 

4

 See A-968 ¶24 (Young requires “name recognition...in excess of 60% of the 

American public”); https://d25d2506sfb94s.cloudfront.net/cumulus_uploads/

document/wc35k48hrs/tabs_HP_Third_Party_Candidates_20160831.pdf, at 

2 (poll indicates 53% of the American public have heard of Gary Johnson; 

he has 63% name recognition among registered voters). 

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million to major party candidates and $1.4 million to independents in 2016. (See 

Br.50; FEC.Br.55). The FEC also advises them to spend money like Donald 

Trump, who had a $1 billion warchest and devoted $90 million of it to social 

media—amounts no independent has ever raised. (See Br.51; FEC.Br.54-55). And 

the FEC posits that an independent candidate might start the race with meaningful 

name recognition, apparently in the hopes that Oprah Winfrey or Tom Brady might 

someday launch an independent bid for the presidency. (FEC.Br.55). 

 Since Schoen provided his $266 million figure five years ago, the cost of 

campaigning has skyrocketed. (Br.49). But even if that figure were somehow 

overstated, the amount necessary to launch a serious bid for the presidency is 

undoubtedly substantial. Yet the FEC is content to squabble about the minutiae of 

Schoen’s calculations while ignoring the real issue—that the 15% criterion 

imposes an impossible fundraising burden on non-billionaire independent 

candidates. Meaningfully lowering the polling threshold and introducing other 

debate-qualifying criteria, for example, would immediately make an independent 

candidate viable in eyes of prospective donors, enable that candidate to raise the 

funds necessary to run for president, and facilitate his or her entry to the debates. 

III. THE FEC’S DISMISSAL OF THE RULEMAKING PETITION WAS 

ARBITRARY AND CAPRICIOUS 

 The FEC also failed to undertake the “searching and careful” inquiry 

necessary to determine whether to “institute[] rulemaking proceedings.” WWHT, 

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Inc. v. FCC, 656 F.2d 807, 817 (D.C. Cir. 1981). It downplays what is at stake in 

this litigation (FEC.Br.61), but this case directly impacts how Americans select the 

leader of the free world, the importance of which should go without saying. 

Otherwise, in attempting to explain its refusal to open a rulemaking, the FEC 

merely repeats the same meritless arguments addressed above. As explained, the 

FEC’s “unsubstantiated representations,” “vacuous” reasoning and “fail[ure] to 

provide a plausible evidentiary basis” for its conclusions compel reversal. Flyers 

Rights, 864 F.3d at 743-45, 747 (reversing agency denial of rulemaking petition); 

accord Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512, 515 (D.C. Cir. 2009) (same 

where denial of petition was “contrary to law and unsupported by adequately 

reasoned decisionmaking”). 

 

 

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CONCLUSION 

 For the foregoing reasons, the judgment should be reversed, and summary 

judgment awarded to Appellants. 

Dated: New York, New York 

 November 25, 2019 

/s/ Alexandra A.E. Shapiro 

Alexandra A.E. Shapiro 

Eric S. Olney 

Jacob S. Wolf 

SHAPIRO ARATO BACH LLP 

500 Fifth Avenue, 40th Floor 

New York, New York 10110 

(212) 257-4880 

Attorneys for Plaintiffs-Appellants 

 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, 

TYPEFACE REQUIREMENT, AND

TYPE STYLE REQUIREMENT

1. The undersigned counsel of record for Plaintiff-Appellants certifies 

pursuant to Federal Rules of Appellate Procedure 32(a)(7)(B)(ii) that the foregoing 

brief contains 6,476 words, excluding the parts of the brief exempted by Fed. R. 

App. P. 32(f), according to the Word Count feature of Microsoft Word 2016. 

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2016 in 14-point font of Times New Roman. 

Dated: November 25, 2019 

/s/ Alexandra A.E. Shapiro 

Alexandra A.E. Shapiro 

 

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CERTIFICATE OF SERVICE

I hereby certify that on November 25, 2019, I caused the foregoing 

document to be electronically filed with the Clerk of Court for the United States 

Court of Appeals for the District of Columbia Circuit by using the appellate 

CM/ECF system, thereby serving all persons required to be served. 

/s/ Alexandra A.E. Shapiro 

Alexandra A.E. Shapiro 

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