No. 19-5117-cv

In The 

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 JUDGMENT OF THE 

U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

(HON. TANYA S. CHUTKAN PRESIDING) 

CORRECTED BRIEF OF AMICI CURIAE NONPROFIT 

LEADERS, SCHOLARS AND PRACTITIONERS IN SUPPORT 

OF PLAINTIFFS-APPELLANTS 

ARNOLD & PORTER KAYE SCHOLER LLP 

DAVID B. BERGMAN

D.C. Bar No. 435392 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Telephone: (202) 942-5000 

david.bergman@arnoldporter.com 

Counsel for Amici Curiae Nonprofit Leaders, 

Scholars and Practitioners

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i 

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES 

Parties and Amici. All parties, intervenors, and amici appearing before this 

Court are listed in the Certificate as to Parties, Rulings, and Related Cases filed by 

Level the Playing Field.

Rulings Under Review. The rulings under review are set forth in the 

Certificate as to Parties, Rulings, and Related Cases filed by Level the Playing 

Field.

Related Cases. Counsel for amici is unaware of any related cases before 

this Court. 

 /s/David B. Bergman

DAVID B. BERGMAN 

D.C. Bar Number 435392 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel.: (202) 942-5000 

david.bergman@arnoldporter.com 

Counsel for Amici Nonprofit Leaders, Scholars 

and Practitioners: Norman R. Augustine, 

Admiral Dennis C. Blair, Mary McInnis Boies, 

W. Bowman Cutter, Dr. James J. Fishman, 

Carla A. Hills, Dr. Vali R. Nasr, and Nancy E. 

Roman 

September 26, 2019 

 

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ii 

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT 

Pursuant to Circuit Rule 29(b), Fed. R. App. P. 26.1, and Circuit Rule 26.1, 

the undersigned counsel states that proposed amici curiae are eight individuals 

with experience in the nonprofit sector. They are as follows: 

• Norman R. Augustine is a recently retired member of the Bipartisan Policy 

Center’s Board of Directors. He served as chairman and principal officer of the 

American Red Cross for nine years, and as chairman of the National Academy 

of Engineering, the Aerospace Industries Association, and the Defense Science 

Board. Mr. Augustine is a former president of the American Institute of 

Aeronautics and Astronautics and the Boy Scouts of America. 

• Admiral Dennis C. Blair is the Knott Distinguished Visiting Professor at the 

University of North Carolina, Chapel Hill. He is the former United States 

Director of National Intelligence and a retired United States Navy admiral. He 

currently serves as the Chairman of the Board and Distinguished Senior Fellow 

of Sasakawa Peace Foundation USA. He also serves as a member of the 

Energy Security Leadership Council and is on the boards of Freedom House, 

the National Bureau of Asian Research, the National Committee on U.S.-China 

Relations, and the Atlantic Council. 

• Mary McInnis Boies serves as counsel to Boies Schiller Flexner LLP. She is a 

member of the Board of Directors of the Council on Foreign Relations and 

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iii 

chairs its Committee on Nominations and Governance. She is a former Second 

Circuit representative to the American Bar Association’s Standing Committee 

of Federal Judiciary. 

• W. Bowman Cutter is a Senior Fellow and Director of the Next American 

Economy Project at the Roosevelt Institute. He is the immediate past chairman 

of CARE, a global development organization, and has served as a board 

member for 18 years. Mr. Cutter is also the chairman of MicroVest; the 

chairman of the Tunisian American Enterprise Fund; a board member of 

SeaChange; a member of the Governing Council of the IFMR Trust in India; a 

member of the executive committee and immediate past co-chairman of the 

Committee for Economic Development; a board member and immediate past 

chair of Resources for the Future; and a board member of the Russell Sage 

Foundation. 

• Dr. James J. Fishman is a professor of law Emeritus at the Elisabeth Haub 

School of Law at Pace University and has authored numerous books and 

articles on nonprofit tax law and regulation. He is a co-author of New York 

Nonprofit Law and Practice: With Tax Analysis and a leading law school 

casebook, Nonprofit Organizations: Cases and Materials, now in its fifth 

edition. He previously served as the executive director of the Council of New 

York Law Associates (now The Lawyers Alliance for New York) and 

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Volunteer Lawyers for the Arts. 

• Carla A. Hills is the chairman and CEO of Hills & Company, International 

Consultants, which advises companies on global trade and investment issues. 

Ms. Hill serves as co-chair Emeritus of the Council on Foreign Relations and of 

the Inter-American Dialogue; chair of the Advisory Board of the Center for 

Strategic & International Studies, chair of the National Committee on U.S.-

China Relations, member of the executive committees of the Trilateral 

Commission, of the Gerald R. Ford Presidential Foundation, and a member of 

Yale’s President’s Council on International Activities. She also serves as 

honorary board member of the Peterson Institute for International Economics. 

• Dr. Vali R. Nasr is the Dean of the Johns Hopkins University Paul H. Nitze 

School of Advanced International Studies and a Nonresident Senior Fellow at 

the Brookings Institution. He is a life member of the Council on Foreign 

Relations. Dr. Nasr was previously a Senior Advisor to the U.S. Special 

Representative for Afghanistan and Pakistan and a member of the U.S. 

Department of State’s Foreign Affairs Policy Board.

• Nancy E. Roman is the President and CEO of Partnership for a Healthier 

America (“PHA”). Prior to joining PHA, she was the President and CEO of the 

Capital Area Food Bank, an $80 million NGO addressing hunger and its 

companion problems of obesity and diet-related disease. She has served on the 

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leadership team of the United Nation’s World Food Programme and as Vice 

President of the Council on Foreign Relations. Ms. Roman currently serves on 

the board of Global Communities, a $125 million NGO working on global 

development issues in 25 countries, and on the board of the Millennial Action 

Project, an NGO that seeks to engage and work with millennials serving in 

government nationwide. 

Pursuant to Circuit Rule 26.1(b), these eight individuals describe their 

purpose as follows: they are dedicated to ensuring public trust in the nonprofit 

organizations with which they are affiliated, or to the study or practice of nonprofit 

law. They have no financial ties with any party to this appeal. 

 Respectfully submitted, 

By: /s/David B. Bergman

DAVID B. BERGMAN 

D.C. Bar Number 435392 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel.: (202) 942-5000 

david.bergman@arnoldporter.com 

Counsel for Amici Nonprofit Leaders, Scholars 

and Practitioners: Norman R. Augustine, 

Admiral Dennis C. Blair, Mary McInnis Boies, 

W. Bowman Cutter, Dr. James J. Fishman, 

Carla A. Hills, Dr. Vali R. Nasr, and Nancy E. 

Roman 

Dated: September 26, 2019

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TABLE OF CONTENTS 

STATEMENT OF INTEREST ............................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 5

ARGUMENT.......................................................................................................... 7

I. CPD’s Informal Conflict-Of-Interest Policy Willfully Ignores Partisan 

Conduct By Falling Woefully Short Of Basic Standards Of 

Governance Applicable To Nonprofit Organizations. ................................... 8

II. CPD’s Informal Conflict-Of-Interest Policy Is Incapable Of 

Preventing The Appearance Of Partisanship. .............................................. 14

CONCLUSION .................................................................................................... 16

CERTIFICATE OF COMPLIANCE..................................................................... 19

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

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

232 F. Supp. 3d 130 (D.D.C. 2017).................................................................... 6 

Statutes 

15 U.S.C. § 7264..................................................................................................... 9 

Nonprofit Revitalization Act of 2013, N.Y. Not-for-Profit Corp. Law 

§ 715-a(a)-(b). .................................................................................................. 11 

Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 ....................... 8, 9 

Other Authorities 

BoardSource, Nonprofit Governance Index 2012 (Sept. 2012), 

available at 

https://www.leadingagemn.org/assets/docs/NonProfit_Governance

_Index_Report_2012.pdf (last accessed Sept. 10, 2019) .................................... 9 

BoardSource, The Sarbanes-Oxley Act and Implications for Nonprofit 

Organizations (Jan. 2006), available at 

https://www.centerfornonprofitexcellence.org/sites/default/files/Sa

rbanesOxley.BoardSource.pdf (last accessed Sept. 10, 2019 .......................... 8, 9 

Conflicts of Interest Policies Under the Nonprofit Revitalization Act 

of 2013, Guidance Document 2015-4 (Apr. 2015) ........................................... 11 

Independent Sector, Principles for Good Governance and Ethical 

Practice (2015), available at

https://www.independentsector.org/wpcontent/uploads/2016/11/Principles2015-Web-1.pdf (last accessed 

Sept. 10, 2019) ........................................................................................... 10, 14 

IRS Form 14114 (2009), Part 5, Questions 18a-c .................................................. 12 

IRS Form 990 (2018), Part VI, Section B, Questions 12a-c .................................. 12 

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viii 

IRS, Governance and Related Topics - 501(c)(3) Organizations (Feb. 

4, 2008), available at https://www.irs.gov/pub/irstege/governance_practices.pdf (last accessed Sept. 10, 2019) .......................... 12 

Leading with Intent, 2017 National Index of Nonprofit Board 

Practices (2017), available at https://leadingwithintent.org/wpcontent/uploads/2017/09/LWI2017.pdf (last accessed Sept. 10, 

2019) ................................................................................................................. 9 

Panel on the Nonprofit Sector, Strengthening Transparency 

Governance Accountability of Charitable Organizations: A Final 

Report to Congress and the Nonprofit Sector (2005), available at

http://www.kiplinger.com/members/taxlinks/071505/NonprofitSector-report.pdf .......................................................................................... 9, 10 

Urban Institute, Nonprofit Governance in the United States: Findings

on Performance and Accountability from the First National 

Representative Study (2007), available at 

https://www.urban.org/research/publication/nonprofit-governanceunited-states/view/full_report (last accessed Sept. 10, 2019) .............................. 9 

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STATEMENT OF INTEREST 

The eight (8) individual amici jointly submitting this brief in support of the 

Brief of Plaintiffs-Appellants represent a broad array of prominent leaders, 

scholars, and practitioners with considerable experience in the nonprofit sector.1 

All amici are dedicated to ensuring public trust in the nonprofit organizations with 

which they are affiliated, or to the study or practice of nonprofit law, and they 

therefore have a direct stake in the implications of this litigation for public trust in 

the nonprofit community at large. Their backgrounds are set forth briefly below:2 

• Norman R. Augustine is a recently retired member of the Bipartisan Policy 

Center’s Board of Directors. He served as chairman and principal officer of the 

American Red Cross for nine years, and as chairman of the National Academy 

of Engineering, the Aerospace Industries Association, and the Defense Science 

Board. Mr. Augustine is a former president of the American Institute of 

Aeronautics and Astronautics and the Boy Scouts of America. 

• Admiral Dennis C. Blair is the Knott Distinguished Visiting Professor at the 

University of North Carolina, Chapel Hill. He is the former United States 

 

1

 Amici state that no party’s counsel authored this brief in whole or in part, and 

that no party or person other than amici contributed money toward the 

preparation or filing of this brief. 

2

 Amici include for the Court’s reference their current and former professional 

and personal affiliations, but each amicus submits this brief in his or her 

personal capacity only. 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 10 of 29
2 

Director of National Intelligence and a retired United States Navy admiral. He 

currently serves as the Chairman of the Board and Distinguished Senior Fellow 

of Sasakawa Peace Foundation USA. He also serves as a member of the 

Energy Security Leadership Council and is on the boards of Freedom House, 

the National Bureau of Asian Research, the National Committee on U.S.-China 

Relations, and the Atlantic Council. 

• Mary McInnis Boies serves as counsel to Boies Schiller Flexner LLP. She is a 

member of the Board of Directors of the Council on Foreign Relations and 

chairs its Committee on Nominations and Governance. She is a former Second 

Circuit representative to the American Bar Association’s Standing Committee 

of Federal Judiciary. 

• W. Bowman Cutter is a Senior Fellow and Director of the Next American 

Economy Project at the Roosevelt Institute. He is the immediate past chairman 

of CARE, a global development organization, and has served as a board 

member for 18 years. Mr. Cutter is also the chairman of MicroVest; the 

chairman of the Tunisian American Enterprise Fund; a board member of 

SeaChange; a member of the Governing Council of the IFMR Trust in India; a 

member of the executive committee and immediate past co-chairman of the 

Committee for Economic Development; a board member and immediate past 

chair of Resources for the Future; and a board member of the Russell Sage 

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Foundation. 

• Dr. James J. Fishman is a professor of law Emeritus at the Elisabeth Haub 

School of Law at Pace University and has authored numerous books and 

articles on nonprofit tax law and regulation. He is a co-author of New York 

Nonprofit Law and Practice: With Tax Analysis and a leading law school 

casebook, Nonprofit Organizations: Cases and Materials, now in its fifth 

edition. He previously served as the executive director of the Council of New 

York Law Associates (now The Lawyers Alliance for New York) and 

Volunteer Lawyers for the Arts. 

• Carla A. Hills is the chairman and CEO of Hills & Company, International 

Consultants, which advises companies on global trade and investment issues. 

Ms. Hill serves as co-chair Emeritus of the Council on Foreign Relations and of 

the Inter-American Dialogue; chair of the Advisory Board of the Center for 

Strategic & International Studies, chair of the National Committee on U.S.-

China Relations, member of the executive committees of the Trilateral 

Commission, of the Gerald R. Ford Presidential Foundation, and a member of 

Yale’s President’s Council on International Activities. She also serves as 

honorary board member of the Peterson Institute for International Economics. 

• Dr. Vali R. Nasr is the Dean of the Johns Hopkins University Paul H. Nitze 

School of Advanced International Studies and a Nonresident Senior Fellow at 

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the Brookings Institution. He is a life member of the Council on Foreign 

Relations. Dr. Nasr was previously a Senior Advisor to the U.S. Special 

Representative for Afghanistan and Pakistan and a member of the U.S. 

Department of State’s Foreign Affairs Policy Board.

• Nancy E. Roman is the President and CEO of Partnership for a Healthier 

America (“PHA”). Prior to joining PHA, she was the President and CEO of the 

Capital Area Food Bank, an $80 million NGO addressing hunger and its 

companion problems of obesity and diet-related disease. She has served on the 

leadership team of the United Nation’s World Food Programme and as Vice 

President of the Council on Foreign Relations. Ms. Roman currently serves on 

the board of Global Communities, a $125 million NGO working on global 

development issues in 25 countries, and on the board of the Millennial Action 

Project, an NGO that seeks to engage and work with millennials serving in 

government nationwide. 

For decades, the individual amici have studied, developed, implemented and 

promoted specific standards of governance and accountability within the nonprofit 

community, including with respect to identification and management of apparent 

and actual conflicts of interests, to strengthen public confidence in nonprofit 

organizations. Amici believe that an understanding of these standards in the 

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context of the prevailing policies and practices of the Commission on Presidential 

Debates (“CPD”) will assist the Court’s resolution of this case. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

Plaintiffs-Appellants have demonstrated throughout the course of this 

litigation that the CPD is not, as it claims to be, nonpartisan.3 Indeed, the CPD 

leaders and many of its board members have been extensively involved in highly 

partisan activities for both the Republican and Democratic parties, including 

participating in events for presidential and vice-presidential candidates from both 

such parties. The Executive Director of the CPD claims that an “informal” 

conflict-of-interest policy, allegedly supplemented by a terse “Political Activities 

Policy” that has not even been produced by the CPD and, at most, merely 

“intend[s] to deter,” rather than prohibit, partisan activities, prevents the CPD 

board members from serving in an “official” capacity in a political campaign.4

 

This “policy,” even if supplemented with some portion in writing (which remains 

in doubt), remains wholly inadequate to prevent actual conflicts of interest, much 

less the appearance thereof. The amici would still consider the CPD to be, 

improperly, operating under an informal, unwritten conflict-of-interest policy. 

 

3

 See generally Dkt. No. 1807168, Brief for Plaintiffs-Appellants Level the 

Playing Field, Peter Ackerman, Green Party of the United States, and 

Libertarian National Committee Inc. (“App. Br.”). 

4

 A-1357-58 (emphasis added).

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The Federal Election Commission (“FEC”) acted contrary to law when it 

credited the CPD’s reliance upon these policies. As the district court observed, the 

FEC has “ignored” a “mountain of submitted evidence” that is probative of the 

CPD board members’ partisan conduct.5 Such conduct likely stems from the 

absence of proper governance at the CPD. Because the CPD refuses to follow 

established best practices for conflict-of interest policies in the nonprofit sector, it 

was arbitrary and capricious for the FEC to conclude that the CPD’s purported 

policies sufficiently address actual or potential conflicts arising from partisanship 

at the CPD.6 Indeed, by eschewing formal conflict-of-interest policies that are 

explicit, in writing, accessible, and, importantly, appropriately monitored for 

compliance, the CPD has contravened an essential tenet of responsible governance 

for a nonprofit organization, thereby condoning and even encouraging the partisan 

activities of its board members without safeguarding its nonpartisan tax-exempt 

purposes. Even ignoring the notion that the integrity of the nation’s presidential 

and vice-presidential debates rests on informal and unenforceable conflict-ofinterest policies, such policies by their own terms would permit CPD board 

 

5

 Level the Playing Field v. Fed. Election Comm’n, 232 F. Supp. 3d 130, 142-43 

(D.D.C. 2017). 

6

 Many of the undersigned amici have had working relationships with and 

greatly respect the Commissioners of the FEC and the Directors of the CPD, 

and this brief is not intended to criticize their personal integrity. Rather, amici

question the rules and regulations under which the FEC and CPD operate, 

which require and/or allow the FEC Commissioners and CPD Board of 

Directors to have partisan affiliations.

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members to consult “unofficially” with political campaigns, contribute to 

fundraising efforts, and even endorse candidates. 

The inadequacy of the CPD’s conflict-of-interest policy invites the CPD 

board members to endorse, support, or oppose political candidates and indulge in 

other overtly partisan conduct, and renders the FEC’s post-remand decisions 

holding otherwise arbitrary and capricious.7 

ARGUMENT 

The CPD offers no evidence of having a formal, written conflict-of-interest 

policy that is enforceable and monitored for compliance to govern its board 

members’ partisan political activities.8 One of the two alleged policies, according 

to the very description provided by the CPD, is “informal” and unwritten. Though 

the CPD claims to have another policy that is written, that policy was never 

produced and thus cannot be meaningfully evaluated.9 Moreover, the CPD admits 

that this policy does not even prohibit partisan conduct, and at most is “intended to 

deter” certain types of conduct. Because nothing is prohibited by this alleged 

policy, and no aspect of the policy is or could be enforced, the alleged written 

policy is, in reality, no policy at all. Consequently, even when these two 

 

7

 See, e.g., App. Br. at 35-38. 

8

 See A-1267 n.2. 

9

 A-1297-98.

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components are considered together, the CPD’s conflict-of-interest policy is 

entirely informal, unenforceable, and unmonitored, which renders it meaningless. 

The policy rests on formalistic and unrealistic distinctions between “official” and 

“personal” participation in political campaigns,10 and it tries to create a distinction 

that does not and cannot exist, at an organization whose purpose is to host the 

presidential debates in a nonpartisan way, regarding partisan activities undertaken 

in an individual capacity as opposed to an organizational capacity. 

I. CPD’s Informal Conflict-Of-Interest Policy Willfully Ignores 

Partisan Conduct By Falling Woefully Short Of Basic Standards 

Of Governance Applicable To Nonprofit Organizations. 

The CPD’s failure to establish a formal, written conflict-of-interest policy to 

safeguard its impartiality contravenes the basic standards and practices of good 

governance that are fundamental in the nonprofit community. Such failure directly 

inhibits the CPD’s ability to ensure that its board members perform their duties in a 

nonpartisan manner and, pursuant to their fiduciary duties as board members, in 

the best interest of the CPD in furthering its mission. 

That a nonprofit organization must have written and enforceable conflict-ofinterest policies is hardly controversial.11 In a comprehensive report issued by the 

 

10 A-1356-58. 

11 The nonprofit community has been heavily influenced by the rigorous conflictof-interest guidelines that govern publicly traded corporations and large 

accounting firms. The enactment of the Sarbanes-Oxley Act of 2002, Pub. L. 

No. 107-204, 116 Stat. 745 (“SOX”), brought about renewed scrutiny of the 

governance of nonprofit organizations. See BoardSource, The Sarbanes-Oxley 

Act and Implications for Nonprofit Organizations 2, 10 (Jan. 2006), available 

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Panel on the Nonprofit Sector—which consisted of several leaders of the nonprofit 

community convened by the nonprofit coalition Independent Sector, at the 

encouragement of the leaders of the Finance Committee of the United States 

Senate—the nonprofit community emphasized that “charitable organizations 

should adopt and enforce a conflict-of-interest policy consistent with its state laws 

and organizational needs.”12 The report, which reflected the input of “thousands of 

 

at 

https://www.centerfornonprofitexcellence.org/sites/default/files/SarbanesOxley

.BoardSource.pdf (last accessed Sept. 10, 2019). Specifically, SOX introduced 

a provision pertaining to the adoption and disclosure of a formal “code of 

ethics” for certain officers of a reportable company “to promote . . . the ethical 

handling of actual or apparent conflicts of interest between personal and 

professional relationships.” 15 U.S.C. § 7264. Although not formally 

extended to nonprofit organizations, the corporate governance standards under 

SOX have permanently altered expectations of governance practices for 

nonprofit organizations. Accordingly, adoption of written conflict-of-interest 

policies has increased significantly in the nonprofit community during the past 

decade. In 2007, the Urban Institute reported that only half of the respondents 

in its national survey of nonprofit organizations had a written conflict-ofinterest policy. See The Urban Institute, Nonprofit Governance in the United 

States: Findings on Performance and Accountability from the First National 

Representative Study 9 (2007), available at 

https://www.urban.org/research/publication/nonprofit-governance-unitedstates/view/full_report (last accessed Sept. 10, 2019). By contrast, only five 

years thereafter, the Nonprofit Governance Index 2012, compiled by 

BoardSource, found that 96% of nonprofit organizations surveyed had adopted 

a written conflict-of-interest policy. BoardSource, Nonprofit Governance 

Index 2012, at 15 (Sept. 2012), available at 

https://www.leadingagemn.org/assets/docs/NonProfit_Governance_Index_Rep

ort_2012.pdf (last accessed Sept. 10, 2019). In a more recent survey, out of 

1,378 responding organizations, 94% had adopted a written conflict-of-interest 

policy. See Leading with Intent, 2017 National Index of Nonprofit Board 

Practices 6, 52 (2017), available at https://leadingwithintent.org/wpcontent/uploads/2017/09/LWI2017.pdf (last accessed Sept. 10, 2019). 

12 Panel on the Nonprofit Sector, Strengthening Transparency Governance 

Accountability of Charitable Organizations: A Final Report to Congress and 

the Nonprofit Sector 8 (2005), available at

http://www.kiplinger.com/members/taxlinks/071505/Nonprofit-SectorUSCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 18 of 29
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people representing diverse organizations from every part of the country,” instructs 

nonprofits to: 

[a]dopt and enforce a conflict of interest policy consistent with the laws of 

its state and tailored to its specific organizational needs and characteristics. 

This policy should define conflict of interest, identify the classes of 

individuals within the organization covered by the policy, facilitate 

disclosure of information that may help identify conflicts of interest, and 

specify procedures to be followed in managing conflicts of interest.13

Independent Sector has since issued two additional reports, in 2007 and 

2015, explicating its principles for good governance for nonprofit organizations.14

 

Both reports counsel nonprofits to adopt and implement “policies and procedures 

to ensure that all conflicts of interest (real and potential), or the appearance thereof, 

within the organization and the governing board are appropriately managed 

through disclosure, recusal, or other means.”15 The reports specifically 

contemplate a “written conflict-of-interest policy,” with periodic monitoring for 

compliance, to avoid or manage any financial or non-financial “conflict[] of 

interest that could affect the decisions of board members, staff leaders, and other 

employees.”16

 

 

report.pdf (last accessed Sept. 10, 2019). 

13 Id. at 8, 81.

14 Independent Sector, Principles for Good Governance and Ethical Practice 5-6 

(2015), available at https://www.independentsector.org/wpcontent/uploads/2016/11/Principles2015-Web-1.pdf (last accessed Sept. 10, 

2019). 

15

 Id. at 12 (emphasis added). 

16

 Id. (emphasis added). 

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In many jurisdictions, such best practices for written conflict-of-interest 

policies are reflected in legislation and administrative guidance applicable to 

nonprofit organizations. For example, New York requires nonprofit organizations 

to adopt a conflict-of-interest policy that defines the circumstances constituting a 

conflict of interest, provides procedures for disclosing such a conflict, and 

describes the actions that should be taken after a conflict has been identified.17 

New York law recognizes that “to ensure that [the nonprofit organization’s] 

directors, officers, and key employees act in [such organization’s] best interest,” a 

conflict-of-interest policy may be required to cover “types of conflicts that may 

exist even though there is no financial interest at stake.”18

The Federal government, and in particular the U.S. Internal Revenue Service 

(“IRS”), also recognizes the importance for nonprofit organizations of 

implementing written conflict-of-interest policies to manage all actual and 

potential conflicts, including non-financial conflicts. In addition to routinely 

gathering information about the written policies of nonprofit organizations through 

 

17

 See Nonprofit Revitalization Act of 2013, N.Y. Not-for-Profit Corp. Law 

§ 715-a(a)-(b). 

18 Conflicts of Interest Policies Under the Nonprofit Revitalization Act of 2013, 

Guidance Document 2015-4, at 2-3 (Apr. 2015) (emphasis added).

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the applicable annual information return19 and audit procedures,20 the IRS 

emphasizes that board members of a nonprofit organization should: 

adopt and regularly evaluate a written conflict of interest policy that 

requires directors and staff to act solely in the interests of the charity 

without regard for personal interests; include[] written procedures for 

determining whether a relationship, financial interest, or business 

affiliation results in a conflict of interest; and prescribe[] a course of action 

in the event a conflict of interest is identified.21

The CPD’s only existing formal policy is explicitly limited to “financial 

conflicts of interest that could arise as a result of outside employment” and does 

not prevent the appearance of conflicts-of-interest by the CPD board members.22

 

Prohibiting financial conflicts may remove only one possible source of actual

conflicts of interest; it does nothing to address non-financial conflicts or the 

appearance of conflicts. Moreover, although the informal conflict-of-interest 

 

19 In 2007, the IRS redesigned the annual information return for tax-exempt 

organizations (IRS Form 990) to enumerate several types of written policies 

and procedures that such organizations are expected to adopt, including a 

written conflict-of-interest policy and regular monitoring of such policy. See

IRS Form 990 (2018), Part VI, Section B, Questions 12a-c. 

20 For each audit of a tax-exempt organization, the IRS has directed its agents to 

gather information about the governance practices of such organization so that 

the IRS can determine whether the organization has a written conflict-ofinterest policy and, if so, whether such policy addresses recusals and requires 

annual written disclosures of any conflicts. See IRS Form 14114 (2009), Part 

5, Questions 18a-c. 

21 IRS, Governance and Related Topics - 501(c)(3) Organizations (Feb. 4, 2008), 

at § 4(B) (emphasis added), available at https://www.irs.gov/pub/irstege/governance_practices.pdf (last accessed Sept. 10, 2019). 

22 A-1358; see Conflict of Interest Policy, Comm’n on Presidential Debates, ¶¶ 4-

5.

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13 

policy purports to “reflect[] the CPD’s view that a debate staging organization 

better serves the public when it . . . adopts and adheres to balanced policies 

designed to prevent even the potential for an erroneous appearance of partisanship” 

based on political activities undertaken by CPD-affiliated persons (including Board 

members) in a personal capacity,23 the policy is silent as to any specific mechanism 

for disclosure and management of situations that give rise to a realized or potential 

conflict. 

It is unrealistic to expect that the CPD can “operate[] completely 

independently of any party or political campaign,”24 while governed by an 

unwritten and unmonitored conflict-of-interest policy with no formal procedure for 

disclosing actual or potential non-financial conflicts. Beyond the CPD’s selfserving claim that the unwritten policy prohibits the CPD board members from 

“serving in any official capacity with a political campaign,”25 there is no indication 

as to whether the CPD has procedures to follow for enforcing the informal policy, 

whether the informal policy includes any reporting or monitoring requirements, or 

if there are consequences for violating the informal policy. Indeed, there is no 

suggestion that CPD enforces the informal policy at all. The failure of the CPD’s 

 

23 A-1357-58. 

24 A-1297. 

25

 Id.

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 22 of 29
14 

informal policy to conform to basic principles of nonprofit governance all but 

guarantees the prevalence of partisan conduct within the organization. 

II. CPD’s Informal Conflict-Of-Interest Policy Is Incapable Of 

Preventing The Appearance Of Partisanship. 

It is similarly uncontroversial both within and outside the nonprofit 

community, that organizations charged with the public trust, such as the CPD, must 

prevent not only actual conflicts of interest, but also the appearance of such 

conflicts. In addition to instructing organizations to adopt written policies, 

Independent Sector counsels that “[a] charitable organization should adopt and 

implement policies and procedures to ensure that all conflicts of interest (real and 

potential), or the appearance thereof, within the organization and the governing 

board are appropriately managed through disclosure, recusal, or other means.”26

 

The CPD itself recognizes that avoiding the appearance of conflicts must be part of 

its mandate.27 But the CPD’s conflict-of-interest policy, such as it is, falls short of 

eliminating the appearance of conflicts. 

As described by the CPD Executive Director, the CPD’s informal policy 

prohibits board members only from serving in an “official” capacity on a political 

campaign or with a political party, without any clarification as to the meaning of 

 

26 Independent Sector, Principles for Good Governance, supra, at 12 (emphasis 

added). 

27

 See A-1298 (recognizing “the potential for an erroneous appearance of 

partisanship based on political activities undertaken by CPD-affiliated persons 

(including Board members) in a personal capacity” (emphasis added)). 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 23 of 29
15 

“official.”28 The CPD’s policy already lacks any enforcement mechanism, given 

that it is both unwritten and informal; and the CPD extinguishes what remains of 

the policy’s viability by expressly recognizing a loophole permitting board 

members, who make decisions about the selection of presidential and vicepresidential debate participants, to be actively involved in partisan political 

activities on behalf of those very same debate participants or their parties. 

The CPD compounds the problem by also recognizing a distinction between 

partisan political activities undertaken by the board members in their “personal 

capacit[ies],” as opposed to their “official capacit[ies].”29 For purposes of 

complying with a meaningful conflict-of-interest policy that should be drafted to 

help ensure that the CPD is engaging in its activities in a nonpartisan manner, as 

required pursuant to its tax-exempt status and by its specific mission of hosting the 

presidential and vice-presidential debates, this distinction between board members’ 

individual and official partisan activities is entirely unrealistic. 

Even if a clear line could be drawn between individual and official partisan 

activities, the CPD ignores that even individual partisan conduct by CPD board 

members can taint the organization itself, specifically in light of the mission of the 

CPD. At a minimum, such conduct would create the appearance of a conflict of 

 

28 A-1297. 

29 A-1297-98.

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 24 of 29
16 

interest; the public reasonably would interpret any overtly partisan statement by a 

board member as an expression of the views of the organization itself. Carried to 

its logical conclusion, the CPD would permit openly partisan conduct, so long as it 

is done in board members’ ill-defined “personal capacit[ies].” 

The alleged written “policy” is no more effective than the unwritten 

“informal policy” at avoiding the appearance of conflict. As noted above, the CPD 

failed to disclose this policy, making it impossible to confirm that it would actually 

avoid the appearance of conflict. The CPD’s own description evinces that it would 

not because it only “intends to deter” partisan activities, instead of prohibiting 

them. Thus, the CPD’s leadership may continue to, and apparently does, actively 

support and oppose partisan causes, notwithstanding any supposed “deterrence” 

from the alleged written policy. 

CONCLUSION 

Having a conflict-of-interest policy that is merely informal and unwritten is 

tantamount to having no policy at all. It is readily apparent that the CPD’s current 

provision of informal and incomplete conflict-of-interest policies fails to meet the 

basic standard of governance adopted by the nonprofit community at large. CPD 

board members have engaged in the endorsement of (and opposition to) political 

campaigns and other partisan conduct, while at the same time bearing 

responsibility for ensuring that the CPD conducts its activities in a nonpartisan way 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 25 of 29
17 

in accordance with its tax-exempt purposes. For an organization like the CPD that 

is charged with safeguarding the integrity of the nation’s presidential and vicepresidential debates, more should and must be demanded by the FEC. 

Accordingly, the amici respectfully request that this Court reverse the order of the 

United States District Court for the District of Columbia. 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 26 of 29
18 

Dated: September 26, 2019 Respectfully submitted, 

By: /s/David B. Bergman

DAVID B. BERGMAN 

D.C. Bar Number 435392 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel.: (202) 942-5000 

david.bergman@arnoldporter.com 

Of Counsel: 

EMILY NEWHOUSE DILLINGHAM (IL Bar No. 6290333) 

ARNOLD & PORTER KAYE SCHOLER LLP 

70 West Madison Street 

Chicago, IL 60602-4231 

Tel: (312) 583.2300 

emily.dillingham@arnoldporter.com 

ZENO HOUSTON (NY Bar No. 5360177) 

ARNOLD & PORTER KAYE SCHOLER LLP 

250 West 55th Street 

New York, NY 10019-9710 

Tel: (212) 836-8000 

zeno.houston@arnoldporter.com 

Counsel for Amici Curiae Nonprofit 

Leaders, Scholars and Practitioners 

 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 27 of 29
19 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

1. This document complies with the type-volume limit of Fed. R. App. P. 

29(a)(5) because, excluding the parts of the document exempted by Fed. R. App. P. 

32(f), this document contains 3,768 words, according to the Word Count feature of 

Microsoft Word for Office 365. 

2. This document 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 document has been prepared in a proportionally spaced typeface using 

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

Dated: September 26, 2019 Respectfully submitted, 

By: /s/David B. Bergman

DAVID B. BERGMAN 

D.C. Bar Number 435392 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel.: (202) 942-5000 

david.bergman@arnoldporter.com 

Counsel for Amici Curiae Nonprofit Leaders, 

Scholars and Practitioners 

 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 28 of 29
20 

CERTIFICATE OF SERVICE 

I hereby certify that on this 26th day of September, 2019, I caused true and 

correct copies of the foregoing Corrected Brief Amici Curiae in support of 

Plaintiffs-Appellants, to be served via electronic mail upon all counsel of record, 

by operation of the Court’s ECF system. 

 /s/David B. Bergman

DAVID B. BERGMAN 

D.C. Bar Number 435392 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel.: (202) 942-5000 

david.bergman@arnoldporter.com 

Counsel for Amici Nonprofit Leaders, Scholars 

and Practitioners: Norman R. Augustine, 

Admiral Dennis C. Blair, Mary McInnis Boies, 

W. Bowman Cutter, Dr. James J. Fishman, 

Carla A. Hills, Dr. Vali R. Nasr, and Nancy E. 

Roman 

USCA Case #19-5117 Document #1808275 Filed: 09/26/2019 Page 29 of 29