ORAL ARGUMENT NOT YET SCHEDULED 

______________________________________________________ 

No. 19-5117 

______________________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

______________________________________________________ 

LEVEL THE PLAYING FIELD, et al.,

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION,

Defendant-Appellee. 

______________________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

______________________________________________________ 

CORRECTED BRIEF OF AMICUS CURIAE 

COMMISSION ON PRESIDENTIAL DEBATES 

IN SUPPORT OF DEFENDANT-APPELLEE 

AND IN SUPPORT OF AFFIRMANCE 

______________________________________________________ 

Lewis K. Loss 

DYKEMA GOSSETT, PLLC 

1301 K Street, N.W., Suite 1100W 

Washington, D.C. 20005 

Telephone: 202.906.8705 

lloss@dykema.com 

Counsel for Amicus Curiae Commission 

on Presidential Debates 

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amicus 

Curiae Commission on Presidential Debates hereby certifies that it is a nonprofit, 

501(c)(3) corporation. It has no parent corporation and no publicly held corporation 

owns 10 percent or more of its stock. 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), Amicus Curiae Commission on Presidential 

Debates hereby certifies as follows: 

A. Parties and Amici 

All parties, intervenors, and amici appearing before the district court are listed 

in the Brief for Appellants. All parties, intervenors, and amici appearing in this 

Court are listed in the Brief for Appellee. 

B. Rulings Under Review

References to the rulings at issue appear in the Brief for Appellee. 

C. Related Cases 

This case has not previously been before this Court or any other court except 

for the district court. The Commission on Presidential Debates is not aware of any 

related cases within the meaning of Circuit Rule 28(a)(1)(C). 

Dated: November 12, 2019 By:/s/ Lewis K. Loss 

Lewis K. Loss 

DYKEMA GOSSETT PLLC 

1301 K Street, N.W., Suite 1100 West 

Washington, D.C. 20005 

Telephone: 202.906.8705 

lloss@dykema.com 

Counsel for Amicus Curiae Commission on 

Presidential Debates

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TABLE OF CONTENTS 

CORPORATE DISCLOSURE STATEMENT............................................ i 

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES............ii 

TABLE OF AUTHORITIES................................................................iv 

STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF 

AUTHORITY TO FILE......................................................................vi 

I. INTRODUCTION......................................................................1 

II. BACKGROUND........................................................................4 

III. ARGUMENT...........................................................................10 

A. Appellants’ Requested Relief Would Trample Debate Sponsors’ First 

Amendment Rights....................................................................10 

B. Whether CPD Is a Proper Sponsoring Organization Under FEC Regulations 

Is Determined by Assessing Its Conduct as an Organization...................12 

C. CPD’s 15 Percent Standard Is the Same Standard Employed by the League 

of Women Voters.......................................................................15 

CONCLUSION................................................................................18 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE 

REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS.........................19 

CERTIFICATE OF SERVICE..............................................................20 

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TABLE OF AUTHORITIES 

Page(s) 

FEDERAL CASES

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

523 U.S. 666 (1998) ...................................................................................... 10, 11 

Buchanan v. Fed. Election Comm’n, 

112 F. Supp. 2d 58 (D.D.C. 2000) ...................................................................... 11 

Buckley v. Valeo, 

424 U.S. 1 (1976) ................................................................................................ 12 

Citizens United v. Fed. Election Comm’n, 

558 U.S. 310 (2010) ............................................................................................ 14 

Fed. Election Comm’n v. Beaumont, 

539 U.S. 146 (2003) ............................................................................................ 14 

Fulani v. Brady, 

935 F.2d 1324 (D.C. Cir. 1991) ............................................................................ 7 

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 

515 U.S. 557 (1995) ............................................................................................ 10 

Johnson v. Commission on Presidential Debates, 

869 F.3d 976 (D.C. Cir. 2017) ............................................................................ 11 

Level the Playing Field v. FEC, 

232 F. Supp. 3d 130 (D.D.C. 2017) .................................................................... 13 

McConnell v. Fed. Election Comm’n, 

540 U.S. 93 (2003) .............................................................................................. 14 

McCutcheon v. Fed. Election Comm’n, 

572 U.S. 185 (2014) ............................................................................................ 12 

FEDERAL REGULATIONS

11 C.F.R. § 110.13(a)(1) .......................................................................................... 12 

11 C.F.R. § 110.13(c) ................................................................................................. 8 

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OTHER AUTHORITIES

2020 Candidate Financial Totals, Fed. Election Comm’n, 

http://www.fec/gov/data/elections/president /2020/ ............................................. 7 

Fed. Election Comm’n, AO 1984-12, 1984 WL 1022490 ...................................... 14 

Tax Guide for Churches & Religious Organizations, IRS Pub. 1828 at 

8 (Jan. 1, 2012).................................................................................................... 14 

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STATEMENT OF IDENTITY, INTEREST IN THE CASE, AND SOURCE 

OF AUTHORITY TO FILE 

The Commission on Presidential Debates is a private 501(c)(3) organization 

that sponsors televised general election presidential debates and has done so for more 

than 30 years. The Commission on Presidential Debates set the debate participant 

criteria at issue in the instant appeal, giving it a clear interest in this appeal’s 

outcome. All parties in this matter have consented to the Commission on 

Presidential Debate’s participation in this matter as amicus curiae. No party’s 

counsel authored this brief in whole or in part, and no party, counsel to a party, or 

person other than the Commission on Presidential Debates contributed money 

toward the preparation or filing of this brief. 

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I. INTRODUCTION

The Commission on Presidential Debates (“CPD”) is a private, nonprofit, 

501(c)(3) organization that sponsors general election presidential debates. It is a 

private actor, governed by an independent board of volunteer directors. It enjoys no 

governmental designation or entitlement to serve as the sponsor of presidential 

debates. The debates it plans only proceed if the invited candidates agree to debate 

under its sponsorship. 

CPD has chosen as its mission to host televised debates between or among the 

leading candidates for President and Vice President of the United States in the final 

weeks of a long campaign season. (A-1294.) In determining its approach to debate 

invitations, the CPD takes the campaign as it finds it in the final weeks of a very 

long campaign season. CPD invites to participate in its debates any candidate, 

regardless of party affiliation, who is qualified under the Constitution to be 

president, is on the ballot in enough states to garner a theoretical Electoral College 

majority, and has a level of public support of at least 15 percent as reflected in the 

average of five high-quality, national public opinion polls conducted shortly before 

the debates. (A-1299.) 

Appellants prefer, and seek to have the government compel, a different 

approach. Through administrative complaints and a petition for rulemaking filed 

with the Federal Election Commission (“FEC”), Appellants seek to have the 

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government require that CPD (and any other sponsor of general election presidential 

debates) invite at least one candidate who does not enjoy substantial public support 

as measured by public opinion polling but, rather, who qualifies for inclusion based 

on some non-poll based standard. Appellants have suggested that an invitation be 

extended to the candidate who has gathered the most ballot access signatures by 

April 30 of an election year, regardless of that candidate’s level of support among 

the electorate as the election draws near and the general election debates are held. 

(A-727.) Appellants would like for this selected candidate to be given the 

opportunity to use the debates as a springboard for his or her candidacy. 

Appellants’ proposed approach is highly impractical, which illustrates that it 

is far easier to criticize a sponsor’s poll-based set of criteria than it is to devise a 

workable alternative.1 But the flaws in Appellants’ proposal are not what prompts 

this brief. CPD submits this brief to highlight three points. 

1

 Appellants’ proposed signature gathering competition approach to determining 

debate invitations is deeply flawed. Appellants’ own expert acknowledged that the 

act of signing requires the voter only to “attest[] that the candidate . . . deserves to 

be considered at the polls,” and not that the voter actually supports or prefers that 

candidate to others. (Expert Rep. of M. Arno, Pls.’ Petition for Rulemaking, Ex. 28, 

at ¶ 21 (Sept. 10, 2014), http://sers.fec.gov/fosers/ (search for REG No. 2014-06, 

then select “Commencing Document”).) It also makes little sense to determine 

debate invitations based on a metric frozen in time in April for debates to be held in 

the Fall, particularly since the deadline for signature gathering and ballot access in 

most states is well after April 30. Further, the logistics of validating signatures as 

part of determining who has the most signatures would be a daunting task and one 

that would inevitably lead to legal challenges. Further, there is little chance that the 

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First, Appellants ask that the FEC’s regulations be read or revised to prohibit

a private debate sponsor from limiting participation in its debates to those candidates 

in whom the public has demonstrated the greatest interest as measured by wellrespected public opinion polls. Appellants’ requested relief is plainly 

unconstitutional. The law is clear: A debate sponsor not only may so limit 

participation in its debates, it would violate a private debate sponsor’s First 

Amendment rights to preclude it from doing so. 

Second, when addressing whether CPD is a proper “staging organization” 

under the FEC’s regulations, the proper inquiry is whether CPD complies with the 

regulatory requirement that it not “endorse, support or oppose political candidates 

or parties.” Appellants plainly cannot demonstrate that CPD violates this standard, 

so they seek to substitute an ill-defined inquiry that focuses on protected First 

Amendment activities of, and statements by, former and current CPD directors in 

their individual capacities. The proper focus under the FEC’s regulations 

necessarily is on CPD’s activities as an organization. 

Third, at bottom, the Appellants have a policy preference, not a valid legal 

claim. To advance their public policy agenda, Appellants have attacked the not-forprofit CPD and its volunteer directors with a no-holds-barred approach. Because 

true leading candidates, who are not legally obligated to debate, would agree to share 

the stage with a candidate that enjoys scant public support. 

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CPD’s approach to candidate selection is publicly known and entirely transparent in 

operation, Appellants attack the 15 percent standard as an unreasonable barrier to 

debate participation selected by an allegedly partisan organization for the very 

purpose of excluding non-major party candidates. Appellants dismiss the reasons 

supporting CPD’s approach as contrivances designed to conceal an agenda hostile 

to non-major party candidates. But Appellants’ core thesis runs aground on the 

shoals of an inconvenient truth: CPD’s 15 percent threshold is identical to the 

threshold adopted by the League of Women Voters when it sponsored televised 

presidential debates. (JA1399-1400.) Appellants themselves laud the League of 

Women Voters as “a strictly nonpartisan organization.” (A-693.) 

The FEC correctly dismissed the complaint and petition to open a rulemaking 

proceeding and the district court properly dismissed Appellants’ complaint.

II. BACKGROUND 

The Commission on Presidential Debates. CPD is a private 501(c)(3) 

organization. CPD’s primary mission is to ensure, for the benefit of the American 

electorate, that general election debates are held every four years between and among 

the leading candidates who have a realistic (i.e., more than theoretical) chance of 

being elected to the offices of President and Vice President of the United States.2

2

 The background information in this section appears at Commission on Presidential 

Debates: An Overview, http://www.debates.org/index.php?page=overview. 

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CPD has sponsored general election presidential debates in every election since 

1988. 

CPD is an independent organization. It is not controlled by any political party 

or outside organization and it does not endorse, support, or oppose political 

candidates or parties. It receives no funding from the government or any political 

party, political action committee or candidate. CPD is governed by an independent 

Board of Directors. The CPD Board presently is jointly chaired by Frank J. 

Fahrenkopf, Jr., Dorothy S. Ridings, and Kenneth Wollack.3 Although at the time 

CPD was formed, its co-founders, Paul G. Kirk, Jr. and Mr. Fahrenkopf served, 

respectively, as chairmen of the Democratic National Committee and Republican 

National Committee, their terms ended some thirty years ago, in 1989. In the 

intervening 30 years, no sitting officer of either major party has had any affiliation 

with CPD and the major parties have no role whatsoever in running CPD or setting 

its policies. Co-Chair Dorothy Ridings is the former President of the League of 

Women Voters. In addition to the Co-Chairs, the current Board consists of the 

3

 Ms. Ridings was elected co-chair of CPD in December 2016. (A-1286.) Mr. 

Wollack, formerly the president of the National Democratic Institute and a current 

director of the National Endowment for Democracy, was elected to serve as CPD’s 

third co-chair in October 2019. See Commission on Presidential Debates Elects 

Kenneth Wollack as Co-Chair (Oct. 1, 2019), https://www.debates.org/2019/10/01/ 

commission-on-presidential-debates-elects-kenneth-wollack-as-co-chair. 

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following distinguished Americans, all of whom volunteer their time to serve on the 

CPD Board: 

John C. Danforth, Former U.S. Senator

Charles Gibson, Former Anchor, ABC World News with Charles 

Gibson 

John Griffen, Managing Director, Allen & Company LLC 

Yvonne Hao, Managing Director and Co-founder, Cove Hill Partners

Jane Harman, Director, President and CEO, Woodrow Wilson 

International Center for Scholars 

Antonia Hernandez, President and CEO, California Community 

Foundation 

Reverend John I. Jenkins, President, University of Notre Dame

Jim Lehrer, Former Executive Editor and Anchor of the PBS NewsHour 

Newton N. Minow, Senior Counsel, Sidley Austin LLP 

Richard D. Parsons, Senior Advisor, Providence Equity Partners LLC

Olympia Snowe, Former U.S. Senator 

CPD obtains the funds required to produce its debates every four years and to 

support its ongoing voter education activities from the communities that host the 

debates and, to a lesser extent, from corporate, foundation, and private donors. 

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Donors have no input into the management of any of CPD’s activities and have no 

input into the process by which CPD selects debate participants. 

Candidate Selection Criteria. One of the most challenging issues faced by 

any debate sponsor is candidate selection. Scores of candidates run for president 

every election cycle, many of whom do not seek the nomination of either major 

party. See 2020 Candidate Financial Totals, Fed. Election Comm’n, 

https://www.fec.gov/data/elections/president /2020/ (last visited November 7, 2019) 

(reporting that there are already 573 candidates for US President in 2020 who have 

registered and have filed a financial report, hundreds of whom are not seeking the 

nomination of either major party). CPD applies its nonpartisan candidate selection 

criteria in the final weeks of a long general election campaign. (A-1298-1300.) 

CPD’s selection criteria have always sought to identify the individuals whose public 

support has made them the leading candidates. (A-1298-99.) 

Candidates for federal office are not required to debate. History teaches that 

it is speculative at best to assume that the leading candidates would agree to share 

the stage with candidates enjoying only scant public support. 4 In the 2012 and 2016 

presidential elections, for instance, the major party candidates declined invitations 

4 See Fulani v. Brady, 935 F.2d 1324, 1329 (D.C. Cir. 1991) (acknowledging that it 

is speculative at best to assume the leading candidates would agree to share the stage 

with candidates enjoying only scant public support). 

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to participate in debates that included third party and independent candidates, 

including Libertarian Party nominee Gary Johnson and Green Party nominee Jill 

Stein.5 Thus, a sponsor of general election debates that aims to provide the electorate 

with a focused debate that includes the leading candidates faces a difficult task. The 

sponsor needs to be inclusive enough to invite each of those candidates, regardless 

of party affiliation, whose level of public support genuinely qualifies him or her as 

a leading candidate. At the same time, the sponsor should not take an approach that 

is so inclusive that invitations to candidates with scant public support cause the 

leading candidates to decline the invitation to debate. The CPD strives to strike this 

balance in an appropriate fashion. 

FEC regulations require a debate sponsor to make its candidate selection 

decisions on the basis of “pre-established, objective” criteria. See 11 C.F.R. 

§ 110.13(c). Under the CPD’s Non-Partisan Candidate Selection Criteria, in 

addition to being constitutionally eligible, candidates must appear on a sufficient 

number of state ballots to have a mathematical chance of winning a majority vote in 

the Electoral College, and have a level of support of at least 15 percent of the national 

5See, e.g., 2016 Free and Equal Presidential Debate, The Free and Equal Elections 

Foundation (Nov. 1, 2016), available at https://www.youtube.com/watch?v= 

dzM4p23uLbE; Third Party Presidential Candidates Debate, C-Span (Oct. 23, 2012) 

(including Gary Johnson and Jill Stein), available at http://www.cspan.org/video/?308995-1/third-party-presidential-candidates-debate. 

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electorate as determined by five selected national public opinion polling 

organizations, using the average of those organizations’ most recent publiclyreported results at the time of the determination. (A-1299.) In 2016, as in prior 

debate cycles, the polls relied upon were selected based on the recommendations of 

the Editor-in-Chief of the Gallup Organization based on the quality of the 

methodology employed, the reputation of the polling organizations, and the 

frequency of the polling conducted. (A-1299-1300.) CPD announced the identity 

of the selected polling organizations well in advance of the time the criteria were 

applied. (Id.) 

The CPD has announced that it will apply substantially the same criteria in 

2020. See Commission on Presidential Debates Announces Sites and Dates for 2020 

General Election Debates and 2020 Nonpartisan Candidate Selection Criteria, 

(Oct. 11, 2019), https://www.debates.org/2019/10/11/commission-on-presidentialdebates-announces-sites-and-dates-for-2020-general-election-debates-and-2020-

nonpartisan-candidate-selection-criteria. The CPD adopted its 2020 criteria based 

on the recommendations of a working group of its Board chaired by former League 

of Women Voters President Dorothy Ridings, who serves as a CPD Co-Chair. Id. 

At the time the Criteria were announced, Ridings stated, “We concluded that the 

CPD serves its voter education mission best when, in the final weeks of the 

campaign, based on pre-established, published, objective and transparent criteria, it 

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identifies those individuals whose public support places them among the leading 

candidates and invites them to debate the issues of the day. We also concluded that 

the best available measure of public support is high-quality public opinion polling 

conducted near the time of the debates.” Id. 

III. ARGUMENT 

A. Appellants’ Requested Relief Would Trample Debate Sponsors’ First 

Amendment Rights. 

Appellants insist that the FEC’s debate regulations be read or revised to 

compel private debate sponsors to invite one or more candidates who do not enjoy 

substantial public support as reflected in public opinion polls. The goal, as lead 

Appellant’s name trumpets, is to “level the playing field.” Appellants’ coercive goal 

is unconstitutional. 

CPD and other debate sponsors engage in protected speech and expressive 

conduct: they develop candidate selection criteria, identify the candidates who meet 

the criteria, and invite them to debate in a forum created by the debate staging 

organization. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998) 

(debate sponsor’s compilation of the speech of third parties is a communicative act); 

see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 

573 (1995) (holding that a parade organizer is a speaker that has the autonomy to 

choose the content of his own message). 

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The D.C. Circuit twice has expressly addressed CPD’s constitutional right to 

select the participants in the debates it sponsors, most recently in a case brought by 

certain of Appellants herein. In Johnson v. Commission on Presidential Debates, 

869 F.3d 976 (D.C. Cir. 2017), the plaintiffs alleged that CPD’s 15 percent criterion 

violated, inter alia, federal antitrust laws. In affirming the district court’s dismissal 

of that claim, the D.C. Circuit made clear that a ruling that CPD cannot limit debate 

participation to those candidates who meet its candidate selection criteria would 

violate CPD’s First Amendment rights: 

Plaintiffs’ requested relief—whether stated in the form of a request for 

injunctive relief or damages—amounts to a request for a declaratory 

judgment stating that [CPD] is not entitled to exclude certain 

individuals from its debates. On this point, we must agree with this 

Court’s opinion in Perot v. Fed. Election Comm'n: “[I]f this [C]ourt 

were to enjoin the [CPD] from staging the debates or from choosing 

debate participants, there would be a substantial argument that the 

[C]ourt would itself violate the [CPD’s] First Amendment rights. 

Id. at 981.6

6 See also Forbes, 523 U.S. at 682-83 (even when a debate sponsor is a state actor, 

unlike CPD, and therefore subject to the limitations of the First Amendment when 

issuing debate invitations, the Supreme Court has expressly approved such sponsor’s 

exclusion of a candidate based on his or her lack of voter support); Buchanan v. Fed. 

Election Comm’n,, 112 F. Supp. 2d 58, 75 (D.D.C. 2000) (noting that “[i]t is difficult 

to understand why it would be unreasonable or subjective to consider the extent of a 

candidate’s electoral support prior to the debate . . .” and upholding the FEC’s 

determination that CPD’s 15 percent threshold was objective and lawful). 

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The Federal Election Campaign Act (“FECA”), pursuant to which the FEC 

adopted its debate regulations, was enacted to limit “the actuality and appearance of 

corruption . . .” and the Supreme Court has recognized that its restrictions “operate 

in an area of the most fundamental First Amendment activities.” Buckley v. Valeo, 

424 U.S. 1, 14 (1976). Here, Appellants do not seek to prevent corruption, but “to 

level the playing field” for non-major party candidates. The Supreme Court, 

however, has repeatedly denounced efforts to use the federal election laws to 

equalize electoral opportunities because “the concept that government may restrict 

the speech of some elements of our society in order to enhance the relative voice of 

others is wholly foreign to the First Amendment . . . .” Id. at 48-49. Notably, 

especially given the name lead Appellant has selected for itself and Appellants’ goal 

herein, the Supreme Court has stated, “[I]t is not an acceptable government 

objective to ‘level the playing field’ . . . or to ‘equaliz[e] the financial resources of 

candidates.’” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 207 (2014) 

(emphasis added). In short, the coercive relief Appellants seek runs afoul of the First 

Amendment. 

B. Whether CPD Is a Proper Sponsoring Organization Under FEC 

Regulations Is Determined by Assessing Its Conduct as an Organization. 

FEC regulations require debate staging organizations to be tax exempt 

organizations (under 26 U.S.C. § 501(c)(3) or (4)), “which do not endorse, support, 

or oppose political candidates or political parties . . . .” 11 C.F.R. § 110.13(a)(1). 

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When addressing the meaning of the phrase “supports, endorses, or opposes political 

candidates or political parties,” the district court turned to dictionary definitions, 

suggesting a “plain meaning” test, Level the Playing Field v. FEC, 232 F. Supp. 3d 

130, 139 n.6 (D.D.C. 2017), as did the FEC on remand, (A-1349).

Under a “plain meaning” approach, Appellants offer no evidence whatsoever 

that CPD, as an organization, “endorses, supports or opposes” candidates or political 

parties. Many organizations run ads or issue endorsements in support of or in 

opposition to candidates or parties. CPD does none of those things, and Appellants 

do not contend otherwise. Simply stated, insofar as CPD indisputably is tax exempt 

under 26 U.S.C. § 501(c)(3) and insofar as there is no evidence whatsoever that CPD 

“endorses, supports or opposes” political parties or candidates, the inquiry as to 

whether it is a proper sponsoring organization is straightforward.

Not content with this result, Appellants seek to shift the inquiry from CPD’s 

actions as an organization and, instead, focus on political activities by current or 

former directors in their individual capacities and cherry-picked statements 

attributed to selected former or current directors (many from long ago) in their 

individual capacities. This is a deeply flawed approach.7

7

 Appellants’ assertions of fact concerning actions of individual directors, many 

wholly unsupported by record citations, are inaccurate in numerous ways and are 

beyond what CPD can address in this short brief. 

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Appellants cite no authority for the Constitution-bending assertion that only 

individuals who have refrained from exercising their First Amendment right to 

participate in the political process in a personal capacity are eligible to serve as 

directors of a debate staging organization under the FEC’s regulations. Merely to 

state the proposition is to reveal its wrong-headedness. Indeed, even the IRS does 

not ignore the distinction between acts committed in a board member’s official 

capacity and acts committed in his or her personal capacity in determining whether 

an organization participates in a political campaign in violation of § 501(c)(3). See, 

e.g., Tax Guide for Churches & Religious Organizations, IRS Pub. 1828 at 8 (Jan. 1, 

2012), https://www.irs.gov/pub/irs-pdf/p1828.pdf (recognizing that a religious 

leader’s endorsement of a candidate in his or her individual capacity does not 

constitute political campaign intervention by the 501(c)(3) tax exempt church).8

8

 It is beyond reasonable dispute that board members or directors and the 

organizations they serve are not one and the same. The federal election laws 

recognize this distinction. Although the FECA, for instance, imposes restrictions on 

corporate political activities, the Supreme Court has acknowledged that “a ban on 

direct corporate contributions leaves individual members of corporations free to 

make their own contributions . . . .” Fed. Election Comm’n v. Beaumont, 539 U.S. 

146, 161 n.8 (2003); see also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 177 

(2003) (recognizing that the ban on national, state, and local party committees’ 

solicitation of funds for 501(c) organizations “in no way restricts solicitations by 

party officers acting in their individual capacities.”). The distinction between the 

political activities of separate legal entities holds true even when organizations 

create political action committees for the specific purpose of supporting candidates 

or parties. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 337-38 

(2010); see also Fed. Election Comm’n, AO 1984-12 (May 31, 1984), available at 

1984 WL 1022490 (acknowledging the distinction between an organization and the 

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Moreover, it is difficult to conceive of an organization that would qualify as 

a debate sponsor under Appellants’ test, which requires board members in their 

individual capacities to have refrained (without time limitation) from exercising their 

First Amendment rights to support candidates or otherwise participate in the political 

process. Appellants’ arguments in this regard should be flatly rejected.9

C. CPD’s 15 Percent Standard Is the Same Standard Employed by the 

League of Women Voters. 

Appellants argue that the 15 percent threshold is an unreasonably high barrier 

to entry erected by an organization committed to preserving a two-party system.10

political action committee created by its board members in their individual 

capacities). 

9

 Notably, Appellant Level the Playing Field (“LPF”) would fail to meet its own test 

for nonpartisanship. LPF’s directors, as individuals, have made contributions to 

political candidates (including Hillary Clinton). See Transaction Query by Individual 

Contributor, FEC, http://classic.fec.gov/finance/disclosure/norindsea.shtml (based 

on individual queries of the following LPF directors as identified in Form 990 Return 

of Organization Exempt from Income Tax for the 2015 Tax Year: Peter Ackerman, 

Kahlil J Byrd, Joshua Levine, and Cara McCormick). Yet, LPF describes itself as a 

“nonpartisan, nonprofit corporation” in Appellants’ Complaint. (A-016.) Likewise, 

Appellants’ amici acknowledge that individuals can and do act in different capacities 

at different times. The Nonprofit Leaders, Scholars and Practitioners state in their 

brief that “each amicus submits this brief in his or her personal capacity only.” 

Corrected Br. of Amici Curiae Nonprofit Leaders, Scholars and Practitioners in 

Supp. of Pls.-Appellants, at 1 n.2. 

10 Appellants’ critiques of CPD’s reliance on polling ring particularly hollow in light 

of the fact that the Libertarian presidential and vice presidential candidates 

participated in presidential primary debates that were limited to the “leading 

candidates,” as determined by an online poll. See John Stossel, What are 

Libertarians doing wrong?, FOX NEWS (Mar. 9, 2016), http://www.foxnews.com 

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CPD has submitted extensive evidence explaining the careful process by which it 

adopted its candidate selection criteria and why it adopted those criteria. (See, e.g., 

A-1094-1111, 1281-84, 1286-94, 1296-1304.) 

In short, CPD has concluded that its selection criteria advance its voter 

education goal of affording the members of the public, in the final weeks of a very 

long campaign season, an opportunity to sharpen their views, in a focused debate 

format, of the leading candidates who have a realistic chance of being elected 

President and Vice President of the United States. (A-1294.) In so doing, CPD takes 

the campaign as it finds it, using the best known measure of candidate support, 

(A1123), to identify the individuals whom the public has made the leading 

candidates by virtue of whom they support. As noted earlier, the sponsor needs to 

be inclusive enough to invite each of those candidates, regardless of party affiliation, 

whose level of public support genuinely qualifies him or her as a leading candidate. 

At the same time, the sponsor should not take an approach that is so inclusive that 

invitations to candidates with scant public support cause the leading candidates to 

/opinion/2016/03/09/stossel-what-are-libertarians-doing-wrong.html (explaining 

criteria for selecting “leading” Libertarian presidential candidates to participate in 

the Fox Business Network debate); WNCN (CBS North Carolina), Libertarian Party 

to hold presidential debate (Mar. 7, 2016), http://wncn.com/2016/03/07/libertarianparty-to-hold-presidential-debate/. 

USCA Case #19-5117 Document #1815326 Filed: 11/12/2019 Page 23 of 27
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decline the invitation to debate. CPD has concluded that the 15 percent standard 

strikes this balance in an appropriate manner. 

Appellants disregard all of this as pretextual and seek to paint the 15 percent 

standard as an unreasonable barrier to debate participation erected by an 

organization dedicated to excluding non-major party candidates. In doing so, 

Appellants ignore an inconvenient truth: 15 percent was the polling threshold 

adopted in the League of Women Voters’ 1980 selection criteria, which resulted in 

the inclusion of independent candidate John Anderson in one of the League’s 

debates. (A-1106, 1399-1400.) Appellants laud the League, stating “The League 

was a strictly nonpartisan organization.” (A-693.) Appellants never address how 

the 15 percent threshold must be viewed as the unlawful and unreasonable fruit of a 

bipartisan conspiracy when it is the same standard earlier applied by “a strictly 

nonpartisan organization.” There is but one answer: It is not.11

11 The League extended automatic invitations to the nominees of the major parties 

and applied its 15 percent standard only to non-major party candidates. (A-1399-

1400.) CPD applies the same criteria, including the 15 percent standard, to all 

candidates, regardless of party affiliation. Thus, the League afforded the major party 

candidates special treatment, given the public’s historical interest in those 

candidates. (Id.) CPD does not. 

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CONCLUSION 

For the reasons stated above, CPD respectfully requests that the Court affirm 

the district court’s judgment below. 

Dated: November 12, 2019 Respectfully Submitted, 

By:/s/ Lewis K. Loss 

Lewis K. Loss 

DYKEMA GOSSETT PLLC 

1301 K Street, N.W., Suite 1100 West 

Washington, D.C. 20005Telephone: 

202.906.8705 

lloss@dykema.com 

Counsel for Amicus Curiae Commission on 

Presidential Debates 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

1. The foregoing brief complies with the type-volume limit of Rule 

32(a)(5) of the Federal Rules of Appellate Procedure because, excluding the parts of 

the document exempted by Rule 32(f), this brief contains 4,217 words, according to 

the Word Count feature of Microsoft Word for Office 365. 

2. The foregoing brief complies with the typeface requirements of Rule 

32(a)(5) of the Federal Rules of Appellate Procedure and the type-style requirements 

of Rule 32(a)(6) because this brief has been prepared in a proportionally spaced 

typeface using Microsoft Word for Office 365 in 14-point Times New Roman font. 

Dated: November 12, 2019 By:/s/ Lewis K. Loss 

Lewis K. Loss 

DYKEMA GOSSETT PLLC 

1301 K Street, N.W., Suite 1100 West 

Washington, D.C. 20005 

Telephone: 202.906.8705 

lloss@dykema.com 

Counsel for Amicus Curiae Commission on 

Presidential Debates

USCA Case #19-5117 Document #1815326 Filed: 11/12/2019 Page 26 of 27
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CERTIFICATE OF SERVICE 

I hereby certify that on this 12th day of November, 2019, I caused true and 

correct copies of the foregoing document to be served via electronic mail upon all 

counsel of record, by operation of the Court’s ECF system. 

By:/s/ Lewis K. Loss 

Lewis K. Loss 

DYKEMA GOSSETT PLLC 

1301 K Street, N.W., Suite 1100 West 

Washington, D.C. 20005 

Telephone: 202.906.8705 

lloss@dykema.com 

Counsel for Amicus Curiae Commission on 

Presidential Debates

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