United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2020 Decided June 12, 2020 

No. 19-5117

LEVEL THE PLAYING FIELD, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01397)

Alexandra A.E. Shapiro argued the cause for appellants. 

With her on the briefs were Eric S. Olney and Jacob S. Wolf. 

Haven G. Ward argued the cause for appellee. With her on

the brief were Lisa J. Stevenson and Kevin Deeley. 

Before: PILLARD and KATSAS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

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RANDOLPH, Senior Circuit Judge: The Commission on

Presidential Debates (the “CPD”) is a private non-profit

corporation. For more than thirty years, it has hosted televised

debates among the leading candidates for President and Vice

President of the United States. The CPD uses several factors to

decide which candidates are eligible to participate in its debates. 

At the center of this controversy is the CPD’s compliance with

rules of the Federal Election Commission (the “Commission”)

for determining which candidates are, or will be, eligible to

participate in the debates.

The Commission’s regulations allow a non-profit

organization to stage candidate debates in federal elections so

long as the organization does not “endorse, support, or oppose

political candidates or political parties.” 11 C.F.R.

§ 110.13(a)(1). The debates must “include at least two

candidates” and cannot be structured “to promote or advance

one candidate over another.” Id. at § 110.13(b). Staging

organizations must use “pre-established objective criteria” to

select eligible candidates, and for general election debates,

cannot “use nomination by a particular political party as the sole

objective criterion.” Id. at § 110.13(c). 

The plaintiffs in this case are Level the Playing Field, a

non-profit corporation created to promote independent

candidatesfor elected office; Peter Ackerman, a registered voter

from the District of Columbia; the Green Party; and the

Libertarian National Committee, Inc. They argue that the CPD

routinely endorses and supports Republican and Democratic

nominees at the expense of third-party candidates. They also

contend that the CPD uses subjective and biased criteria for

selecting debate participants. 

Although the CPD is by definition involved in politics, it

neither endorses nor opposes candidatesfor the Presidency. The

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government does not fund the CPD, nor does any political party,

political action committee, or candidate. It is governed by an

independent Board of Directors.

 To participate in a CPD-sponsored debate, there are three

requirements. The candidate must be qualified under the

Constitution to be President. The candidate must be on the

ballot of enough states to have a mathematical chance of

winning a majority vote in the Electoral College. And the

candidate must have a level of support of at least 15% of the

national electorate, as determined by five selected national

public opinion polling organizations, using the average of those

organizations’ most recent publicly-reported results at the time

of the determination. 

Plaintiffs began their case with two administrative

complaints. The first challenged the 15% polling criterion,

which the CPD used to determine eligibility for participation in

the debates preceding the 2012 Presidential election. The

Commission decided 5-0 (with one recusal) that the CPD’s

criterion did not violate the Commission’s debate rules. The

second complaint asked the Commission to initiate a rulemaking

to change its rules to prohibit debate sponsors from using public

opinion polls as a criterion for eligibility. The Commission

rejected this request by a vote of 4-2. Based on these votes, the

Commission dismissed both administrative complaints.

Plaintiffs sought review in the district court, alleging that

the dismissal of their complaints violated the Administrative

Procedure Act. For reasons unnecessary to discuss, the district

court remanded both administrative matters to the Commission

for further consideration of the record. The Commission

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

district court, the court granted summary judgment in favor of

the Commission. We agree with the district court’s thorough

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and well-reasoned decision and, applying de novo review, we

affirm. 

I.

Judicial review of decisions by the Federal Election

Commission is highly deferential. Hagelin v. FEC, 411 F.3d

237, 242 (D.C. Cir. 2005). We presume the validity of the

Commission’s decisions and will reverse them only if they are

contrary to law, not supported by substantial evidence, or are

arbitrary, capricious, or an abuse of discretion. Id. 

Plaintiffs urge us to apply a less deferential standard of

review, arguing that the Commission’s decisions display a

“pattern of suspect decisionmaking,” “bias,” and a “partisan

agenda.” But as we have previously explained, the “arbitrary

and capricious and substantial evidence standards” are “fully

adequate to capture partisan or discriminatory FEC behavior.” 

Hagelin, 411 F.3d at 243. Indeed, decisions featuring

unjustifiable bias or partisanship are precisely the types of

agency actions that “would work a violation of the arbitraryand-capricious standard.” Id. (citation, internal quotation marks

and alteration omitted). Accordingly, we need not create a new

standard of review to assess the appropriateness of the

Commission’s actions in this case. 

 

 II.

Plaintiffs believe that the CPD is an “overtly partisan”

organization whose goal “is to exclude independent candidates.”

They argue that the Commission refused to recognize this bias,

thereby ignoring the regulations that require debate sponsors not

to endorse, support, or oppose political parties or their

candidates.

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As evidence of the CPD’s purported partisanship, plaintiffs

highlight various statements and campaign contributions made

by the CPD’s founders and leaders. For example, announcing

the formation of the CPD in 1987, the Democratic and

Republican National Committees “emphasiz[ed] the bipartisan

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

National Committee and a current CPD co-chair, indicated that

the CPD “was not likely to look with favor on including thirdparty candidates in the debates.” Similarly, Paul Kirk, the

chairman of the Democratic National Committee at the time and

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

[CPD]should exclude third-party candidates from the debates.” 

The Commission carefully considered these and other

statements made when the CPD was created in 1987. It found

the statements to have “limited persuasive value” for three

reasons. First, the Commission reasoned that decades-old

declarations are not particularly probative of current bias, as

organizations can change. Second, the early statements about

the CPD must be understood in the context of trying to

institutionalize televised debates as a “permanent part of the

political process.” And third, statements made by individuals do

not necessarily reflect an organization’s endorsement or support. 

Each of these explanations was reasonable.

Take the first explanation. The record supports the

Commission’s view that the CPD has changed over time,

making “concerted efforts to be independent in recent years.” 

After third-party candidate Ross Perot’s exclusion fromthe 1996

debates, for instance, the CPD “adopted new candidate selection

criteria and retained a polling consultant to ensure” “careful and

thoughtful application” of the new criteria. The Commission

also noted that the CPD “conducts a review after every

presidential election of issues relating to the debates.” In light

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of these changes and ongoing reviews, it was reasonable for the

Commission to believe that statements made about the CPD in

1987 do not adequately describe the CPD as it exists today. See

Hagelin, 411 F.3d at 244.

It was also reasonable for the Commission to place the early

statements made by Fahrenkopf and others in context. For

instance, the Commission credited a sworn declaration from

Fahrenkopf explaining that when the CPD was first created, “the

major impediment to” institutionalizing televised debates “was

securing the commitment of both major party nominees to

debate.” Thus, references to a “bipartisan” and “partysponsored” organization were meant to convey only that the

CPD would not favor one leading political party at the expense

of the other. American politics has, for most of American

history, been organized around two parties. See Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 367 (1997). So it is

plausible that leaders of the newly-created CPD used terms like

“bipartisan” and “party-sponsored” to assure and secure support

from both major parties. 

The Commission explained that “even if these written and

oral statements did reflect more current sentiments, they are not

indicative of CPD’s organizational endorsement of or support

for the Democratic and Republican Parties and their

candidates. ...” The record supports this finding. The 1987

statement announcing the formation of the CPD, for instance,

was released by the Democratic and Republican National

Committees, and not by the CPD. Paul Kirk’s statement that the

CPD should exclude third-party candidates was based on his

personal view, and he added that “he could not speak for the

[C]ommission.” 

Plaintiffs characterize the Commission’s explanations as

“spurious” and attack the affidavits submitted by Fahrenkopf

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and others as “boilerplate” and “meaningless.” But as the

district court explained, that plaintiffs may disagree with the

Commission’s weighing of the evidence presented to it is not

enough for the courts to overturn the Commission’s decisions as

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

Field v. FEC, 381 F. Supp. 3d 78, 101 (D.D.C. 2019). The

Commission considered plaintiffs’ submissions and articulated

reasonable explanationsfor assigning the decades-old statements

little probative value.

Plaintiffs also presented the Commission with

contemporaneous evidence of the CPD’s alleged bias. In 2015,

for example, Fahrenkopf was interviewed by Sky News. During

the interview he said that the CPD “primarily go[es] with the

two leading candidates” from the “two political part[ies].” In

2011, Fahrenkopf wrote an op-ed in which he praised the

Republican Party and described it as “our great party.” And

since 1997, Fahrenkopf has donated tens of thousands of dollars

to Republican congressional and presidential candidates.

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

previously served as President Bill Clinton’s press secretary and

as a director of communications for the Democratic National

Committee. Since 2008, McCurry has given tens of thousands

of dollars to Democrats. Plaintiffs claim that the statements and

contributions made by Fahrenkopf and McCurry are illustrative

of the CPD’s partisan bias.

The Commission rejected this argument, again providing

reasonable explanations supported by the record. For example,

the Commission noted that during the 2015 Sky News interview,

Fahrenkopf was asked “about the impact of multiple candidates

(the questioner posited seven) on the educational value of

debates.” Fahrenkopf responded by lamenting the quality of

primary debates, which can feature “seven or eight people on the

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stage,” and which “people jokingly say” are “less of a debate

than a cattle show.” He then said: “That’s why in the general

election debate, we have a system, and we . . . primarily go with

the two leading candidates, it’s between the two political party

candidates . . . except for 1992 when Ross Perot participated in

the debates.” The context of the interview thus makes clear that

Fahrenkopf was expressing a preference for smaller debates

where the candidates with the most support are given more time

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

suggest, admitting that the CPD seeks to exclude independent

candidates to benefit Democratic and Republican candidates. 

Considering Fahrenkopf’s words in the appropriate context, the

Commission justifiably concluded that plaintiffs’ “interpretation

is not dispositive.”

 

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

he and others have made to candidates from the two major

political parties, the Commission stated that “individuals may

wear multiple hats to represent multiple interests.” And if this

is permissible, the Commission reasoned, it follows that “an

individual’s leadership role in a given organization does not

restrict his or her ability to speak freely on political issues or

make contributions to political committees when he or she does

so in his or her personal capacity.”

 

Reviewing the record, the Commission found no evidence

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

as a CPD co-chair or was intended in any way to represent the

views of the organization. Similarly, plaintiffs cannot identify

a single instance of a donation to a Democrat or Republican that

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

official capacity.

Plaintiffs’ arguments, then, amount to a disagreement with

the Commission’s view that personal partisan activities do not

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necessarily reflect the views or biases of the organization for

which a person works. But again, as the district court held,

“such a disagreement does not discharge [p]laintiffs of their

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

capricious, an abuse of discretion, or otherwise not in

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

not met that burden. The Commission has consistently

maintained that individuals may support political candidates

when acting in their personal capacities, even if they would be

prohibited from doing so in their professional capacities. See,

e.g. FEC Advisory Op. 2007-05; Advisory Op. 2005-02;

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

axiomatic that, for an agent’s statement to be attributable to the

principal, the “speaking must be done in the capacity of agent

and connected with the business of the principal.” Restatement

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

In sum, far from ignoring plaintiffs’ evidence, the

Commission thoughtfully evaluated the record. The

Commission offered detailed explanations in support of its view

that plaintiffs failed to show impermissible bias against

independent candidates or in favor of candidates from the two

major political parties. And though plaintiffs may disagree with

these explanations, they have failed to show that the

Commission’s decisionmaking was arbitrary or unreasonable. 

 III. 

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

requirement to select debate candidates is “subjective” and

favors major-party candidates. This threshold, they argue,

violates 11 C.F.R. § 110.13(c), which requires staging

organizations to “use pre-established objective criteria to

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determine which candidates may participate in a debate.” In

support of this claim, plaintiffs presented the Commission with

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

posits that “on average, an independent candidate must achieve

a minimum of 60% name recognition, and likely 80%, in order

to obtain 15% vote share.” The second, prepared by Douglas

Schoen, suggests that an independent candidate “should

reasonably expect to spend approximately $266,059,803 to run

a viable campaign capable of reaching 15% support in polls by

September of the election year.”

Plaintiffs argue that these studies show the 15% threshold

is not objective because, while major party candidates “benefit

from the widespread media coverage of the presidential

primaries,” independent candidates “have no analogous

mechanism for generating name recognition.” And if an

independent candidate must spend over $260 million to achieve

15% support, plaintiffs reason, “[o]nly a self-funded billionaire

could realistically hope to compete as an independent.”

The Commission considered and rejected these arguments. 

Evaluating the expert reports, the Commission found several

“limitations that undermine their persuasiveness.” The Young

Report, for instance, “correlates polling results to name

recognition alone,” but as Dr. Young himself acknowledged,

several other factors affect a candidate’s poll numbers,including

“fundraising, candidate positioning, election results, and

idiosyncratic events.” The Commission also noted that “neither

the Young Report nor [plaintiffs] . . . ever establish that

independent candidates do not or cannot meet 60-80 percent

name recognition.” The Commission cited as a counter-example

a 2016 YouGov poll, which found that 63% of registered voters

had heard of Libertarian candidate Gary Johnson, while 59%

had heard of Green Party candidate Jill Stein.

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These critiques of the Young Report are reasonable. The

omission of relevant variables from a statistical analysis “may

render the analysis less probative than it otherwise might be.” 

Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per curiam)

(Brennan, J., concurring). It is quite plausible that a factor like

the unpopularity of major-party candidates could lead to a high

degree of support for an independent candidate who has less

than 60% name recognition. And the Commission reasonably

relied on a YouGov poll to question the notion that independent

candidates cannot achieve 60% name recognition. Though the

Young Report posited 60% name recognition was necessary

among the American public and the poll only shows name

recognition among registered voters, the poll still suggests

independent candidates may sometimes earn significant name

recognition. See also Buchanan v. FEC, 112 F. Supp. 2d 58, 74

(D.D.C. 2000) (listing George Wallace, John Anderson, and

Ross Perot as examples of independent candidates who achieved

at least 15% support in pre-election polling). 

The Commission identified many reasons to discount the

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

Commission found that the $260 million estimate rests “on the

assumption that independent candidates are unable to attract

earned media (i.e., free coverage).” The Schoen Report also

fails to account for the role of social media, which the

Commission notes has “enabled the ubiquitous sharing of

[candidates’] messages among vast global networks.”

Again, these critiques are reasonable and well-supported. 

As the Commission highlights, Libertarian candidate Gary

Johnson received extensive media coverage during the 2016

presidential election. And at least some of that coverage was not

generated by the campaign’s spending. See, e.g., Jonah

Bromwich, ‘I Guess I’m Having an Aleppo Moment’: Gary

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

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

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

Commission similarly cited the example of the 2016 Trump

campaign, during which “digital media reportedly replaced field

offices,” “thereby reducing another traditional campaign cost.”

More broadly, we need not conclusively determine the

validity or persuasiveness of the Young and Schoen reports to

decide this case. Even if both reports are correct, and it takes a

large amount of money and name recognition for a candidate to

be viable, the 15% polling criterion is not impermissible. 

All that is required is that the CPD use a “pre-established

objective criteria” to determine debate eligibility. 11 C.F.R.

§ 110.13(c). Plaintiffs have identified many reasons why it

might be difficult for an independent candidate to achieve the

support of 15% of the electorate. But a threshold does not

become “subjective” merely because it is difficult to reach.

There is no legal requirement that the Commission make it

easier for independent candidates to run for President of the

United States. The Commission thus acted reasonably in

determining that a 15% polling threshold is an objective

requirement. 

 IV. 

In addition to challenging the CPD’s existing criteria,

plaintiffs asked the Commission to initiate a rulemaking to

revise and amend 11 C.F.R. § 110.13(c). Specifically, they

believe the Commission’s rules should preclude debate sponsors

from using any polling threshold and should instead require the

CPD to select some other unspecified “objective, unbiased

criteria for debate admission.” 

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The Commission rejected the request to change its

regulations. Our review of a rulemaking denial is “extremely

limited and highly deferential.” Massachusetts v. EPA, 549 U.S.

497, 527-28 (2007) (internal quotation marks and citation

omitted). Federal agencies have “broad discretion to choose

how best to marshal [their] limited resources and personnel to

carry out [their] delegated responsibilities.” Id. at 527. 

Applying this even more deferentialstandard, we affirm the

Commission’s decision. Plaintiffs suggest that the

Commission’s rejection of their petition was arbitrary and

capricious “for the same reasons” they challenge the

Commission’s decisions about the CPD’s neutrality and the 15%

polling criterion. Because we have found that the Commission

acted reasonably in reaching those decisions, we hold that the

Commission did not err by electing not to initiate a rulemaking.

For these reasons, the district court’s grant of summary

judgment to the Commission is affirmed.

So ordered.

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