Oral Argument Not Yet Scheduled 

19-5117 

IN THE 

United States Court Of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

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

AND LIBERTARIAN NATIONAL COMMITTEE, INC. 

Plaintiffs-Appellants, 

―v.― 

FEDERAL ELECTIONS COMMISSION, 

Defendant-Respondent. 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CORRECTED BRIEF OF AMICI CURIAE INDEPENDENT VOTER 

PROJECT, ADMIRAL JAMES STAVRIDIS, SENATOR JOSEPH ROBERT 

KERREY, SENATOR JOSEPH ISADORE LIEBERMAN, THE 

HONORABLE CLARINE NARDI RIDDLE, THE HONORABLE DAVID M. 

WALKER, AND THE HONORABLE CHRISTINE TODD WHITMAN IN 

SUPPORT APPELLANTS 

CORY J. BRIGGS

BRIGGS LAW CORPORATION

99 East “C” Street, Suite 111 

Upland, CA 91786 

cory@briggslawcorp.com 

STEPHEN CHAD PEACE

PEACE & SHEA LLP 

2700 Adams Avenue, Suite 204 

San Diego, CA 92116 

Pending Admission 

chad@peaceshae.com

Attorneys for Amici Curiae Independent Voter Project, Admiral James Stavridis, Senator Joseph 

Robert Kerrey, Senator Joseph Isadore Lieberman, The Honorable Clarine Nardi Riddle, The 

Honorable David M. Walker, and The Honorable Christine Todd Whitman 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 1 of 26
i

CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW, AND 

RELATED CASES 

A. Parties and Amici 

Pursuant to Circuit Rule 28(a)(1)(A), Amici Curiae certify that the parties and 

amici curiae in this case are as follows: Plaintiffs-Appellants Level the Playing Field, 

Dr. Peter Ackerman, Green Party of the United States, Libertarian National 

Committee, Inc.; Defendant-Appellee is the Federal Elections Commission (“FEC”); 

and Amici FairVote, Coalition for Free and Open Elections, Independent Voter 

Project, Norman R. Augustine, Dennis C. Blair, Scott Blackmun, Mary McInnis 

Boise, W. Bowman Cutter, James J. Fishman, Carla A. Hills, Daniel L. Kurtz, Vali R. 

Nasr, Nancy E. Roman, James Stavridis, Joseph Robert Kerrey, Joseph I. Lieberman, 

Honorable Clarine N. Riddle, Hon. David M. Walker, Honorable Christine Todd 

Whitman, and the Commission on Presidential Debates. 

B. Rulings Under Review 

The rulings under review, each entered by the Honorable Tanya S. Chutkan, 

are (i) the Order, dated March 31, 2019, denying Appellants’ motion for summary 

judgment, denying Appellants’ motion to supplement the record, granting FEC’s 

motion for summary judgment, and granting in part and denying in part FEC’s motion 

to strike (Docket no. 111); and (ii) the Memorandum Opinion dated March 31, 2019, 

addressing these motions (Docket no. 110), which appears at 381 F. Supp. 3d 78. 

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C. No Related Cases 

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

for the district court. Counsel for Amici Curiae is not aware of any related cases 

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

Dated: September 27, 2019 

Respectfully submitted, 

 /s/ Cory J. Briggs 

Cory J. Briggs 

Briggs Law Corporation 

99 East “C” Street, Suite 111 

Upland, CA 91786 

 /s/ S. Chad Peace 

S. Chad Peace, CA State Bar #290274, 

Pending Admission

Peace & Shea LLP 

2700 Adams Avenue, Suite 204 

San Diego, CA 92116 

Attorneys for Amici Curiae Independent Voter Project, Admiral James Stavridis, 

Senator Joseph Robert Kerrey, Senator Joseph Isadore Lieberman, The Honorable 

Clarine Nardi Riddle, The Honorable David M. Walker, and The Honorable 

Christine Todd Whitman

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Independent 

Voter Project makes the following disclosure: 

1. Amicus is not a publicly held corporation or other publicly held entity. 

2. Amicus has no parent corporation. 

3. No publicly held corporation or other publicly held entity owns 10% or 

more of Amicus. 

4. Amicus is not a trade association. 

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TABLE OF CONTENTS 

CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW, AND 

RELATED CASES ....................................................................................................... i 

CORPORATE DISCLOSURE STATEMENT ........................................................... iii 

TABLE OF AUTHORITIES ....................................................................................... v 

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE ............... 1 

INTRODUCTION ....................................................................................................... 3 

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

I. CPD’S 15% RULE CONFLICTS WITH ITS MISSION STATEMENT AND 

IGNORES THE IMPORTANT ROLE THAT THIRD-PARTY CANDIDATES 

PLAY IN A HEALTHY REPUBLIC ...................................................................... 7 

II. CPD’s 15% RULE HAS, AND WILL CONTINUE TO, PREVENT THIRDPARTY AND INDEPENDENT CANDIDATES FROM PARTICIPATING IN 

THE DEMOCRATIC PROCESS, LEAVING NON-PARTISAN VOTERS 

UNREPRESENTED ................................................................................................ 9 

III. CPD’S 15% RULE IS INCONSISTENT WITH THE MANNER IN 

WHICH WE ELECT OUR PRESIDENT AND OUTSOURCES 

DETERMINATION FOR PARTICIPATION TO PRIVATE COMPANIES ...... 12 

A. CPD’S 15% RULE OFFENDS THE VERY DEMOCRATIC PRINCIPLES 

THE UNITED STATES PROMOTES ABROAD ............................................. 13 

B. CPD’S 15% RULE IS PART OF AN ANTICOMPETITIVE ELECTION 

FRAMEWORK THAT DISENFRANCHISES A PLURALITY OF 

AMERICAN VOTERS ....................................................................................... 14 

IV. CONCLUSION ............................................................................................. 16 

CERTIFICATE OF COMPLIANCE ........................................................................ 18 

CERTIFICATE OF SERVICE .................................................................................. 19 

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 TABLE OF AUTHORITIES 

CASES 

Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................................. 6 

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) .............................................. 11 

Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173 (1979) ..................... 6 

Nader v. Schaffer, 429 U.S. 989 (1976) .................................................................... 11 

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ............................................... 6 

Williams v. Rhodes, 393 U.S. 23 (1968)................................................................ 6, 10 

 

OTHER AUTHORITIES 

David Paleologos, Paleologos on the poll: Voters want third-party candidates on 

debate stage, USA TODAY (Sept. 1, 2016), 

https://www.usatoday.com/story/news/politics/elections/2016/09/01/paleologospoll-johnson-stein-debates/89710228/ ..................................................................... 7 

David Wright, Poll: Trump, Clinton score historic unfavorable ratings, CNN (Mar. 

22, 2016) ................................................................................................................... 7 

Debate History, CPD, http://www.debates.org/index.php?page=debate-history ....... 6 

Democracy, Human Rights and Governance, USAID (Aug. 17, 2017) 

https://www.usaid.gov/democracy ......................................................................... 10 

DRL Programs, U.S. DEPT. OF STATE, https://www.state.gov/j/drl/p/ ...................... 10 

Gallup Presidential Election Trial-Heat Trends, 1936-2008, GALLUP, 

http://www.gallup.com/poll/110548/gallup-presidential-election-trialheat-trends19362004.aspx#4 .................................................................................................. 6, 7 

Heidi M. Przybyla, Hillary Clinton prepares for ‘Reality Show’ debates, USA

TODAY (Sep. 15, 2016), 

https://www.usatoday.com/story/news/politics/elections/2016/09/21/hillaryclinton-donald-trump-debates/90310878/ ................................................................ 3 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 6 of 26
vi

Katherine M. Gehl and Michael E. Porter, Why Competition in the Politics Industry 

is Failing America (Harvard Business School ed., 2017) ........................ 4, 5, 11, 12 

National Conference of State Legislatures. State Primary Election Types, 

http://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx ........ 11 

Our Mission, CPD, http://www.debates.org/index.php?page=about-cpd ................... 5 

Party Affiliation, GALLUP (2017), http://www.gallup.com/poll/15370/partyaffiliation.aspx .................................................................................................... 3, 10 

Republican Party Platform of 1860, THE AMERICAN PRESIDENCY PROJECT (May 17, 

1860), http://www.presidency.ucsb.edu/ws/index.php?pid=29620 ......................... 6 

Socialist Labor Party Platform -1896 (Jul. 4, 1896), 

http://projects.vassar.edu/1896/slpplatform.html ..................................................... 6 

Ted G. Jelen, Ross For Boss: The Perot Phenomenon and Beyond (2001). ............... 6 

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STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY TO FILE 

Cory J. Briggs and Stephen Chad Peace 

Cory J. Briggs is admitted as a member of this Court. Stephen Chad Peace is a 

member of the California State Bar and is pending admission to this Court. They are 

attorneys for the Independent Voter Project (“IVP”) and represent the additional amici 

for purposes of this brief of amici curiae. They have no other financial or client interest 

in the outcome of this litigation, and no attorney for a party has helped write this brief 

or defrayed the cost of its preparation. 

Independent Voter Project (“IVP”) 

Founded in 2006, IVP is a 501(c)(4) organization that seeks to educate voters 

about voters’ non-partisan rights and other important public policy issues, to create a 

climate for otherwise disenfranchised voters to engage in the political process, and to 

encourage non-partisan voters to vote and participate in the democratic process. IVP 

is most well-known for authoring California’s “top-two” non-partisan primary, passed 

by the voters in 2010. 

Admiral James Stavridis 

 Admiral Stavridis is a retired Navy admiral. He was 15th Commander, U.S. 

European Command and NATO’s 16th Supreme Allied Commander Europe. Admiral 

Stavridis has been working for several years to change the 15% rule.

Senator Joseph Robert Kerrey 

Senator Kerrey served as the Governor of Nebraska from 1983 to 1987 and as a 

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United States Senator from Nebraska from 1989 to 2001. He has been a leading 

advocate for changing the 15% rule for several years. 

Senator Joseph Isadore Lieberman 

 Senator Lieberman served as a United States Senator from Connecticut from 

1989 to 2013. He has been working to remove the 15% rule for over 3 years. 

The Honorable Clarine Nardi Riddle 

Clarine Nardi Riddle served as the Attorney General of Connecticut from 1989 

to 1991. She served as chief of staff for Senator Lieberman from 2003 until 2013. She 

co-founded and works with No Labels, an organization of Republicans, Democrats and 

Independents dedicated to addressing issues of hyper-partisanship in the United States 

to promote problem-solving. 

The Honorable David M. Walker 

 David M. Walker served as the seventh Comptroller General of the United States 

from 1998 to 2008. He is also a national co-founder of No Labels and an original 

signatory on the “Change the Rule” letter to modify the 15% rule. 

The Honorable Christine Todd Whitman 

 Christine Todd Whitman served as the Governor of New Jersey from 1994 to 

2001 and was the Administrator of the Environmental Protection Agency from 2001 

to 2003. Whitman was an original signatory of the “Change the Rule” letter that 

challenged the 15% rule. 

 

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This brief is timely filed and is submitted with amici’s Motion for Leave to 

Participate. 

INTRODUCTION 

A healthy democracy promotes the free flow of ideas and embraces different 

perspectives. The presidential debates are the most important conversation between 

candidates for the Presidency of the United States of America and the American 

people. The Commission on Presidential Debates (“CPD”) has established a 15% rule 

of entry to presidential debates that, in practice, prevents popular third-party and 

independent candidates from participating in the debates, narrows the flow of ideas in 

our political discourse, and insulates well-heeled major party candidates from the 

hazard of confronting different perspectives. 

Limitations on the participation of third-party and independent candidates from 

our presidential debates exacerbates divisions in America. A substantial plurality of 

American voters no longer identifies with either the Republican or Democratic 

Parties.1 As hyper-partisanship plagues our media, our political discourse, and our 

electoral options, the non-partisan plurality of voters is forced to either embrace one 

side of this artificial division or not participate in the national dialogue at all. 

The more pernicious consequence of the 15% rule is its shaping of the American 

mind. By many estimates, audiences neared 100 million viewers for the most recent 

 

1 Party Affiliation, GALLUP (2017), http://www.gallup.com/poll/15370/partyaffiliation.aspx. 

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CPD 2016 presidential general election debates. Nearly one-third of all Americans 

were exposed to the calculated barbs traded by the Republican candidate Donald J. 

Trump and the Democratic candidate Hillary Clinton. This was pugilism by personal 

attack and not a debate of ideas about the state of our country and its future. As stated 

by Mrs. Clinton herself—this was reality television.2 It’s the consequence of limiting 

the governing flow of participants and ideas. And, although the spectacle may drive 

media ratings up, its consequence is devastating to the body politic, as perception 

drives real behaviors. 

A study published in September of 2017 by the Harvard Business School 

concluded that the public’s distrust in government is directly connected to the lack of 

real competition in the electoral process: 

By nearly every measure, the industry of politics, itself, is thriving. There’s 

just one problem. The people whom the politics industry is supposed to 

serve have never been more dissatisfied. Public trust in the federal 

government is hovering at a near 60-year low. [¶] Competition in politics 

appears intense, which is usually good for customers. But today’s 

competition is failing, delivering gridlock and growing division instead of 

offering practical solutions to the nation’s problems. The parties compete 

on ideology and unrealistic promises, not on action and results. The parties 

compete to divide voters and serve special interests, rather than weigh and 

balance the interests of all citizens and find common ground to move the 

country forward. And there is no accountability for results. . . . The 

underlying root cause is the kind of political competition that the parties 

have created, including their insulation from new competition that would 

better serve the public interest. 

 

2

 Heidi M. Przybyla, Hillary Clinton prepares for ‘Reality Show’ debates, USA

TODAY (Sept. 15, 2016), 

https://www.usatoday.com/story/news/politics/elections/2016/09/21/hillary-clintondonald-trump-debates/90310878/. 

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Katherine M. Gehl and Michael E. Porter, Why Competition in the Politics Industry is 

Failing America 2 (Harvard Business School ed., 2017) (emphasis in original). 

The rules of our republic should support civil disagreement rather than 

encourage hostile behavior in political discourse or undermine confidence in our 

government. CPD defends its 15% rule as a reasonable and objective measure of 

candidate viability. CPD’s purpose, however, is not to choose winners. CPD has failed 

to articulate how the 15% rule supports its organizational mission to “provide the best 

possible information to viewers and listeners.” Limiting participation by the arbitrary 

15% rule undermines this objective by providing a pedestal for the major party 

candidates and their platforms that exacerbates the perception that the American 

people have only binary policy and candidate choices. CPD’s candidate viability based 

defense of its 15% rule is a model of the contrived political competition dissected by 

Gehl and Porter to its root purpose of limiting any competition of new ideas. 

CPD is an extra-governmental organization originally sponsored by the major 

political parties and sanctioned by the federal government, the effect of which is to 

calcify an existing ruling political class. Our forefathers never could have 

contemplated such a system for controlling presidential debates and, given their 

predisposition to oppose political parties, would have opposed any such granting of 

governmental powers to a private corporation simply because it enjoyed the mantle of 

the major political parties. The insidiousness of this husbanding of the duopoly is so 

perverse that even in academia the American system is regularly referred to as a “twoUSCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 12 of 26
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party system.” 

Nowhere in the Constitution, the documents published in preparation of its 

establishment, or its successor amendments is there an allusion to, or contemplation 

of, our form of government being a “two-party system.” Yet, CPD’s 15% rule results 

in our presidential debates accommodating only the two major political parties’ 

candidates and it was designed to produce this outcome. 

It’s important to recognize that much of what constitutes today’s political 

system has no basis in the Constitution. As our system evolved, the 

parties—and a larger political industrial complex that surrounds them—

established and optimized a set of rules and practices that enhanced their 

power and diminished our democracy. These changes—often created 

behind closed doors and largely invisible to the average citizen—continue 

to take their toll at both the federal and the state levels. 

Gehl and Porter, at 2. 

There is a difference between a natural result of constitutional construction that 

has led to the ebb and flow of societal change being channeled into coalitions of two 

broadly defined political parties and the institutionalization of two particular parties 

as permanent impermeable forces. CPD’s 15% rule serves the latter rather than the 

former. Rather than accommodate the ebb and flow of societal change that has been at 

the heart of the Constitution’s survival, CPD’s 15% rule acts as an agent to suppress 

debate, limit access, and, ultimately, alienate the public from their government. 

With these considerations, amici argue in support of Appellants. 

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ARGUMENT

I. CPD’S 15% RULE CONFLICTS WITH ITS MISSION STATEMENT 

AND IGNORES THE IMPORTANT ROLE THAT THIRD-PARTY 

CANDIDATES PLAY IN A HEALTHY REPUBLIC 

CPD’s nonprofit and “non-partisan” mission is to, “provide the best possible 

information to viewers and listeners.”3 Throughout this case, however, the CPD has 

defended its 15% rule without regard to how the rule supports or subverts its own 

mission statement. Instead, and by CPD’s admission, the 15% rule is designed to 

determine a candidate’s viability to win the general election. This determination does 

not have a qualitative component as it relates to the information the candidates may 

provide to the viewers. 

As the Supreme Court has recognized time and again,4 a healthy republic is one 

that embraces debate about minority opinions as well as more popular ones. Anderson 

v. Celebrezze, 460 U.S. 780, 794 (1983) (citing Illinois Elections Bd. v. Socialist 

Workers Party, 440 U.S. 173, 186 (1979)) (“Historically political figures outside the 

two major parties have been fertile sources of new ideas and new programs; many of 

their challenges to the status quo have in time made their way into the political 

 

3 Our Mission, CPD, http://www.debates.org/index.php?page=about-cpd (last visited 

Sept. 15, 2017). 

4 See, e.g., Williams v. Rhodes, 393 U.S. 23, 32 (1968) (“The fact is, however, that 

[it] does not merely favor a ‘two-party system’; it favors two particular parties -- the 

Republicans and the Democrats -- and in effect tends to give them a complete 

monopoly.”); Anderson v. Celebrezze, 460 U.S. 780, 794 (1983) (“In short, the 

primary values protected by the First Amendment ... are served when election 

campaigns are not monopolized by the existing political parties.”) (citing New York 

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)) . 

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mainstream.”). Many of the ideas viewed today as fundamentally American were first 

introduced by third parties or candidates. The Socialist Party, for example, introduced 

women’s suffrage as an issue in the late 1800s.5 Abraham Lincoln was elected from a 

third party (at the time) on an anti-slavery platform.6 

H. Ross Perot is one of only two third-party candidates to ever qualify for a place 

on the presidential debate stage when he ran as an independent candidate for president 

in 1992.7 Perot ultimately received 18.9% of the popular vote in the general election.8

Many of Perot’s ideas were incorporated into legislation and even the major parties’ 

political platforms.9 Yet, had the 15% rule been in place in 1992, Perot would have 

been barred from participating in any of the presidential debates.10 Although Perot did 

not win the presidency, and even if he didn’t have a chance of being the winner, the 

value of his ideas improved the health of our democracy. 

 

5 Socialist Labor Party Platform -1896 (Jul. 4, 1896), 

http://projects.vassar.edu/1896/slpplatform.html. 

6Republican Party Platform of 1860, THE AMERICAN PRESIDENCY PROJECT (May 17, 

1860), http://www.presidency.ucsb.edu/ws/index.php?pid=29620. 

7 Debate History, CPD, http://www.debates.org/index.php?page=debate-history (last 

visited Sept. 15, 2017). 

8 Gallup Presidential Election Trial-Heat Trends, 1936-2008, GALLUP, 

http://www.gallup.com/poll/110548/gallup-presidential-election-trialheat-trends19362004.aspx#4 (last visited Sept. 15, 2017). 

9

 Ted G. Jelen, Ross For Boss: The Perot Phenomenon and Beyond (2001). 

10 Although CPD argues he would not have been barred as his support had been over 

15% at other points in the race, in September (prior to the debates when the polling 

determination is made), he was only at 8% support. Gallup Presidential Election 

Trial-Heat Trends, 1936-2008, supra note 8.

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II. CPD’s 15% RULE HAS, AND WILL CONTINUE TO, PREVENT 

THIRD-PARTY AND INDEPENDENT CANDIDATES FROM 

PARTICIPATING IN THE DEMOCRATIC PROCESS, LEAVING 

NON-PARTISAN VOTERS UNREPRESENTED 

CPD’s 15% rule has prevented every third-party and independent candidate 

from participating in the presidential debates since its adoption nearly two decades 

ago. In 2016, the 15% rule prevented an alternative voice from participating despite 

both major party candidates having record-setting disapproval ratings11 and 76% of 

voters wanting to see a third-party candidate in the debates.12 We should not deny 

voters their desired, more inclusive debate process, and we should not rely on the 

partisan CPD’s 15% rule to predict potential victors of our democratic process. 

Institutional barriers can be such a powerful force that they render the 

measurement of their impact impossible. The number of qualified candidates that 

would run for President of the United States absent the 15% rule cannot be quantified. 

Several amici to this brief are amongst those who would be judged as credible 

candidates for President of the United States as either third-party or independent 

candidates, but for the practical institutional barrier presented by the 15% rule. 

 

11 David Wright, Poll: Trump, Clinton score historic unfavorable ratings, CNN (Mar. 

22, 2016), 

 http://www.cnn.com/2016/03/22/politics/2016-election-poll-donald-trump-hillaryclinton/index.html. 

12 David Paleologos, Paleologos on the poll: Voters want third-party candidates on 

debate stage, USA TODAY (Sept. 1, 2016), 

https://www.usatoday.com/story/news/politics/elections/2016/09/01/paleologos-polljohnson-stein-debates/89710228/.

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Admiral James Stavridis served as the Commander of U.S. European Command 

and 16th NATO Supreme Allied Commander from 2009 to 2013. He was vetted as a 

potential running mate for Hillary Clinton in July 2016 and later interviewed as a 

possible U.S. Secretary of State and Director of National Intelligence by Presidentelect Donald J. Trump in December 2016. He was approached to run as an independent 

in the 2016 election, but, in part due to CPD’s 15% rule, declined. With the 15% rule 

in place, Stavridis had no reasonable expectations that he could achieve the name 

recognition necessary to be a competitive candidate. Stavridis believes many qualified 

candidates would consider running for President in 2020 if the debate rules were 

changed to allow unaffiliated candidates a fair chance to compete with the nominees 

of the two major parties. 

Former Governor and United States Senator Joseph Robert Kerrey, a Navy Seal 

and Medal of Honor recipient, sought the Democratic Party nomination for president 

in 1992. Based upon his experience, he would not consider an independent candidacy 

viable in 2020, absent a change in the CPD rules. 

Senator Joseph Isadore Lieberman was the Democratic Party nominee for Vice 

President in the 2000 election. He sought the Democratic nomination in 2004. In 2006, 

Lieberman was elected as an Independent. He believes that independents do not seek 

the presidency, in great part, because access to the presidential debate is critical and 

the CPD’s 15% rule pre-emptively disqualifies even serious challengers from such 

access. 

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The Honorable Clarine Nardi Riddle was the first female Attorney General of 

Connecticut and is a co-founder of No Labels, an organization of Republicans, 

Democrats and Independents that promotes the politics of problem-solving. She argues 

that the 15% rule blocks not only independent and non-partisan candidates, but even 

has the effect of excluding the consideration of independent and non-partisan ideas. 

The Honorable David M. Walker is the immediate former Comptroller General 

of the United States and head of the U.S. Government Accountability Office. He was 

urged to consider running as an independent for President or Vice President in 2012 

but ultimately decided against doing so, in part due to the fact he knew it would be 

vitrually impossible to draw the support necessary in the polls to get into the fall 

presidential debates. He then embarked on a nationwide tour promoting sensible 

solutions to our nation’s serious fiscal challenge. 

In 2012, the Honorable Christine Todd Whitman, former two-term Governor of 

New Jersey, was asked to consider running for President or Vice President as an 

independent candidate. While other personal factors may have gone into that decision, 

ultimately, it is her judgment that the 15% rule precluded any practical expectation of 

access to the debates. 

These highly qualified Americans represent the tip of the iceberg. It is 

impossible to know how many others whose ideas, energy, and hopes for America’s 

future are held captive by the arbitrary and impenetrable barrier to participation 

represented by the CPD’s 15% rule. 

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III. CPD’S 15% RULE IS INCONSISTENT WITH THE MANNER IN 

WHICH WE ELECT OUR PRESIDENT AND OUTSOURCES 

DETERMINATION FOR PARTICIPATION TO PRIVATE 

COMPANIES 

Given the well-documented declining accuracy of polling, it is difficult to miss 

the irony of CPD’s decision to, in effect, outsource the enforcement of its 15% rule by 

relying on five national political polls conducted by media organizations. Such polls 

are a measurement, at best, of a candidate’s pre-debate popularity on a national level. 

Rightly or wrongly, presidential elections are determined not by popular vote, but by 

the Electoral College in a methodology that is fundamentally different. 

For example, a candidate may hold viewpoints that resonate with a substantial 

portion of the population in states that are most directly impacted by those viewpoints 

or the issues that underlie them. But, on a national level, he or she may not achieve the 

15% threshold across the five national polls required to participate in the presidential 

debates. The 15% rule, in that regard, artificially homogenizes public discourse, having 

the perverse effect of discouraging the diversity of ideas critical to a rational public 

debate. 

Just as importantly, by relying on privately constructed and controlled polls, 

CPD has assigned the gatekeeper function to a democratic process with no public 

oversight as to methodology, policy bias, or conflicts of interest (real or perceived). 

Conferring the power to limit access to private media corporations is both 

inappropriate and, inevitably, subject to a level of public skepticism that only serves 

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to undermine the public’s confidence in the system and to reinforce a growing belief 

that “the system is rigged.” 

A. CPD’S 15% RULE OFFENDS THE VERY DEMOCRATIC 

PRINCIPLES THE UNITED STATES PROMOTES ABROAD 

The United States of America spends hundreds of millions of dollars promoting 

democracy abroad.13 A centerpiece of those programs is to introduce and spread 

democratic best practices, including “the promotion of free, transparent and fair 

political competition.”14 The goal of these programs is to ensure “that all have the 

opportunity to participate and have a voice in how they will be governed,” so “citizens’ 

preferences are represented.”15 

At the heart of any democracy is political competition. As the Supreme Court 

recognized when it struck down an Ohio law that effectively gave the two major parties 

a “total monopoly” on ballot access, “[c]ompetition in ideas and governmental policies 

is at the core of our electoral process and of the First Amendment freedoms.” Rhodes, 

393 U.S. at 32. Today, however, a vast plurality of American voters now self-identifies 

as independent of the two major parties.16 Yet, these voters are not represented at all 

on the presidential debate stage because independent and third-party candidates cannot 

gain access. 

 

13 DRL Programs, U.S. DEPT. OF STATE, https://www.state.gov/j/drl/p/ (last visited 

Sept. 15, 2017). 

14 Democracy, Human Rights and Governance, USAID (Aug. 17, 2017), 

https://www.usaid.gov/democracy. 

15 Id. 

16 Party Affiliation, supra note 1. 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 20 of 26
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Similar to the onerous ballot access requirements in Rhodes, CPD’s 15% rule 

has prevented a single voice outside of the two major parties from participating in the 

presidential debates since the rule was first adopted in 2000. On this fact alone, we 

should embrace the democratic policies we promote abroad, consider our own Supreme 

Court precedent recognizing the importance of political competition, and reject the 

monopoly CPD’s 15% rule has given the Republican and Democratic Parties over our 

presidential debates. 

B. CPD’S 15% RULE IS PART OF AN ANTICOMPETITIVE ELECTION 

FRAMEWORK THAT DISENFRANCHISES A PLURALITY OF 

AMERICAN VOTERS 

The framework of our entire election process, including the presidential debates, 

gives the two major parties and their members a decided advantage. Politics is an 

industry, and many of the rules governing our election process were established not by 

a neutral arbitrator to achieve fair competition, but by the major political parties to 

distort the rules of competition in their favor. If CPD’s defense of its 15% rule is rooted 

in a bright-line test of “candidate viability,” then it can only be fully understood within 

the broader context of the rules that govern the candidate nomination process and voter 

access to that process.17 

The interplay of CPD’s 15% rule with primary elections provides a good 

example of this systematic distortion of competition in our electoral process. 

Presidential primaries and caucuses, in every state, are private activities that serve 

 

17 Gehl and Porter, at 9. 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 21 of 26
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political parties.18 In many states, only major political party members can participate 

at all.19 The primary election season now runs nearly a full year, and there is near 

constant media coverage directed almost exclusively on the major party candidates. 

These primary elections are finalized less than two months prior to CPD’s presidential 

debates. And the polls used by CPD to determine whether a candidate is qualified to 

participate in the “non-partisan” presidential debates are conducted right after the grand 

finale: the nationally televised Republican and Democratic Party conventions. 

As summarized by Gehl and Porter: 

One of these hidden rules involves access to the fall presidential debates. 

A person running as a Democrat or Republican knows that if they win the 

nomination they will be guaranteed a place in the debates. The 

Commission on Presidential Debates (CPD), a private organization 

dominated by partisan loyalists, requires every other candidate to meet a 

15% polling hurdle in a three-way race decided just seven weeks before 

the election. While 15% may seem reasonable, the poll taken so late in the 

election cycle creates an insurmountable “Catch-22.” The practical effect 

of this rule is to create a major anticompetitive barrier to any candidates 

outside the duopoly, and that is why there hasn’t been a third candidate on 

the Presidential debate stage since 1992. 

Gehl and Porter, at 40. 

At a time when voter turnout is declining, we must change CPD’s 15% rule to 

 

18 Notwithstanding taxpayer funding of primary elections, they serve the private 

purpose of selecting party nominees. See Cal. Democratic Party v. Jones, 530 U.S. 

567, 574 (2000), (holding that political parties have the right to exclude nonmembers 

from their primary elections because the corollary of the private right of association is 

the right to not associate.); see also, Nader v. Schaffer, 429 U.S. 989 (1976). 

19 See National Conference of State Legislatures. State Primary Election Types, 

http://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx (last 

visited Sept. 15, 2017). 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 22 of 26
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allow a broader spectrum of ideas on the presidential debate stage. CPD’s 15% rule is 

the ultimate affirmation of a broader set of preliminary rules designed to limit true 

electoral competition. While CPD’s 15% rule may measure candidate viability in a 

system that promotes the two major political parties, its relationship to the viability of 

a candidate’s views in a competition of ideas is lacking, at best. 

IV. CONCLUSION 

CPD has the sober responsibility of promulgating the rules that govern the most 

important political conversation candidates can have with the American people: the 

presidential debates. As part of this responsibility, it is CPD’s duty to embrace the true 

competition of ideas in our political discourse and electoral process. CPD, in conflict 

with its stated mission, has abdicated this responsibility by defending a rule that is so 

limiting on the marketplace for new ideas that no third-party or independent candidate 

has qualified for the presidential debates in more than two decades. When a significant 

plurality of voters does not feel represented by either major party, we have a 

heightened obligation to change the rule. 

Therefore, the Court should rule in favor of Appellants. 

[Signatures on following page.] 

 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 23 of 26
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Dated this 25th day of September, 2019. 

Respectfully submitted, 

 /s/ Cory J. Briggs 

Cory J. Briggs 

Briggs Law Corporation 

99 East “C” Street, Suite 111 

Upland, CA 91786 

 /s/ S. Chad Peace 

S. Chad Peace, CA State Bar #290274, 

Pending Admission

Peace & Shea LLP 

2700 Adams Avenue, Suite 204 

San Diego, CA 92116 

Attorneys for Amici Curiae Independent Voter Project, Admiral James Stavridis, 

Senator Joseph Robert Kerrey, Senator Joseph Isadore Lieberman, The Honorable 

Clarine Nardi Riddle, The Honorable David M. Walker, and The Honorable 

Christine Todd Whitman 

 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 24 of 26
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CERTIFICATE OF COMPLIANCE

1. This document complies with the word limit of the Fed. R. App. P. Rule 29(a)(5) 

because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), 

this document contains 3,927 words. 

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 2013 in 14-point, Times New Roman font. 

Respectfully submitted, 

 /s/ Cory J. Briggs 

Cory J. Briggs, esq. 

Briggs Law Corporation 

99 East “C” Street, Suite 111 

Upland, CA 91786 

 /s/ S. Chad Peace 

S. Chad Peace, esq. 

Pending Admission

Peace & Shea LLP 

2700 Adams Avenue, Suite 204 

San Diego, CA 92116 

Attorneys for Amici Curiae Independent Voter Project, Admiral James Stavridis, 

Senator Joseph Robert Kerrey, Senator Joseph Isadore Lieberman, The Honorable 

Clarine Nardi Riddle, The Honorable David M. Walker, and The Honorable 

Christine Todd Whitman 

DATED: September 26, 2019 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 25 of 26
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CERTIFICATE OF SERVICE

I hereby certify that on September 27, 2019, I electronically filed the foregoing amici

brief with the Clerk of the Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system. The participants 

in this case are registered CM/ECF users and service will be accomplished by the 

appellate CM/ECF system. 

Dated: September 27, 2019 

Respectfully submitted, 

 /s/ Cory J. Briggs 

Cory J. Briggs 

Briggs Law Corporation 

99 East “C” Street, Suite 111 

Upland, CA 91786 

 /s/ S. Chad Peace 

S. Chad Peace, CA State Bar #290274, 

Pending Admission

Peace & Shea LLP 

2700 Adams Avenue, Suite 204 

San Diego, CA 92116 

Attorneys for Amici Curiae Independent Voter Project, Admiral James Stavridis, 

Senator Joseph Robert Kerrey, Senator Joseph Isadore Lieberman, The Honorable 

Clarine Nardi Riddle, The Honorable David M. Walker, and The Honorable 

Christine Todd Whitman 

USCA Case #19-5117 Document #1808397 Filed: 09/27/2019 Page 26 of 26