1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, )

) No. 1:15-cv-01397 (TSC)

v. )

) ANSWER

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S ANSWER

TO PLAINTIFFS’ AMENDED COMPLAINT 

FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendant Federal Election Commission (“Commission” or “FEC”), through its 

undersigned counsel, responds to the civil complaint filed by plaintiffs Level the Playing Field

(“LPF”), Peter Ackerman (“Ackerman”), Green Party of the United States (“Green Party”) and 

Libertarian National Committee, Inc. (“LNC”) on August 27, 2015:

GENERAL DENIAL

I. Any allegation not specifically responded to below is denied.

SPECIFIC RESPONSES AND DENIALS

II. The Commission responds as follows to the paragraphs of the Complaint:

“COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF”

This unnumbered paragraph contains plaintiffs’ characterization of their civil complaint,

which speaks for itself, and therefore no response is necessary. To the extent that this paragraph 

incorporates succeeding paragraphs of the complaint, the Commission incorporates its responses 

to those succeeding paragraphs and its response to plaintiffs’ prayer for relief. 

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“PRELIMINARY STATEMENT”

1. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

2. Deny that major party candidates can lawfully raise up to $834,000 per year more 

from individuals than “unaffiliated candidates” can, because the same limits apply to individual 

contributions to the campaigns of federal candidates regardless of party affiliation. The

Commission is without knowledge or information sufficient to admit or deny the factual 

allegations in this paragraph. 

3. This paragraph contains plaintiffs’ characterization of their civil complaint, which 

speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is necessary. 

To the extent a response is required, deny that the Federal Election Commission is a “‘bipartisan’ 

agency run by members of the two major parties, which refuses to carry out its statutory mandate 

to enforce the federal election laws that CPD is blatantly violating.” The Commission is without 

knowledge or information sufficient to admit or deny the remaining factual allegations in this 

paragraph.

4. This paragraph contains plaintiffs’ characterization of administrative and civil 

complaints, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

response is necessary. To the extent a response is required, admit that Level the Playing Field 

and Ackerman filed an administrative complaint with the Commission on September 11, 2014

naming the Commission on Presidential Debates (“CPD”) and others as respondents, and that 

this administrative complaint was designated Matter Under Review (“MUR”) 6869. LPF and 

Ackerman subsequently submitted supplements dated November 24, 2014 and April 10, 2015 to 

the Commission. Plaintiffs Green Party and LNC were not named complainants in either the 

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initial administrative complaint or the two supplements. Deny that the Commission had reason 

to believe that the conduct described in this administrative complaint violated the law. 

The Commission is without knowledge or information sufficient to admit or deny the remaining 

factual allegations in this paragraph.

5. This paragraph contains plaintiffs’ characterization of the Commission’s 

regulations, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

response is necessary. To the extent a response is required, admit that persons affiliated with 

CPD have also been affiliated with the Republican or Democratic parties and that CPD has 

received corporate funding. The Commission is otherwise without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph. 

6. This paragraph contains plaintiffs’ characterization of the Commission’s 

regulations and the documents cited in this paragraph, which speak for themselves, and 

plaintiffs’ conclusions of law, and therefore no response is necessary. To the extent a response is 

required, the Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph. Deny that the Commission’s decisions to dismiss the 

administrative complaint and to deny the rulemaking petition were contrary to law.

7. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and the documents cited in this paragraph, which speak for themselves, and plaintiffs’ 

conclusions of law, and therefore no response is necessary. To the extent a response is required, 

the Commission is without knowledge or information sufficient to admit or deny the factual 

allegations in this paragraph. Deny that the Commission’s decisions to dismiss the 

administrative complaint and to deny the rulemaking petition were contrary to law.

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8. This paragraph contains plaintiffs’ conclusions of law, and therefore no response 

is necessary. To the extent a response is required, the Commission is without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph. Deny that the 

conduct of CPD described in the administrative complaint in MUR 6869 constituted violations of 

FECA.

9. This paragraph contains plaintiffs’ characterization of the administrative 

complaint, which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response 

is necessary. To the extent that a response is required, admit that on July 13, 2015, the 

Commission decided by a vote of 5-0 (with one Commissioner recused) in MUR 6869 to find 

no reason to believe that CPD or Frank Fahrenkopf, Jr. and Michael D. McCurry as Co-Chairs 

of CPD violated 52 U.S.C. §§ 30116(f) and 30118(a); find no reason to believe that CPD

violated 52 U.S.C. § 30103 or § 30104; approve a Factual and Legal Analysis; and close the file 

in MUR 6869, thus dismissing the administrative complaint. The Factual and Legal Analysis, 

which serves as the statement of reasons for purposes of judicial review of the Commission’s 

dismissal decision, speaks for itself. Deny the remaining allegations in this paragraph.

10. This paragraph contains plaintiffs’ characterization of the rulemaking petition and 

rulemaking record, which speak for themselves, and plaintiffs’ conclusions of law, and therefore 

no response is necessary. To the extent that a response is required, admit that on September 11, 

2014, Level the Playing Field filed a petition for rulemaking requesting that the Commission 

open a rulemaking to revise its regulations concerning the selection criteria used to determine 

participation in candidate debates. This petition was designated REG 2014-06 for administrative 

purposes. Plaintiffs Ackerman, Green Party and LNC were not petitioners. Admit that a Notice 

of Availability was published in the Federal Register, Rulemaking Petition: Candidate Debates, 

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79 Fed. Reg. 68137 (Nov. 14, 2014), and that the Commission received almost 1,260 comments, 

which speak for themselves. Ackerman, the Green Party and LNC did not submit comments, but 

the “Libertarian Party” did. Admit that on July 16, 2015 the Commission failed by a vote of 2-4 

to approve a motion to open a rulemaking, thus deciding not to initiate a rulemaking.

On November 6, 2015, the Commission approved the notice of disposition for REG 2014-06. 

See http://sers.fec.gov/fosers/showpdf.htm?docid=341874; 

http://sers.fec.gov/fosers/showpdf.htm?docid=341936. Deny the remaining allegations in this 

paragraph.

11. This paragraph contains plaintiffs’ characterization of the civil complaint, which 

speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is required. To the 

extent that a response is necessary, admit that about 10 months elapsed between the filing of the 

administrative complaint and rulemaking petition in September 2014 and the Commission’s 

dismissal of the administrative complaint and denial of the rulemaking petition in July 2015, but 

deny that the passage of that amount of time before the dismissal and denial occurred or the 

dismissal and denial themselves were contrary to law. Deny that the Federal Election Campaign 

Act (“FECA” or “the Act”) requires the Commission to act or take final action on administrative 

complaints or rulemaking petitions within 120 days. See 52 U.S.C. § 30109 (authorizing the 

filing of petition for judicial review after 120 days). Deny the remaining allegations in this 

paragraph.

12. This paragraph contains plaintiffs’ conclusions of law and plaintiffs’ 

characterization of the administrative complaint, the rulemaking petition, prior administrative 

enforcement and rulemaking records, the Commission’s decisions in these matters, and 

documents cited in this paragraph, all of which speak for themselves, and therefore no response 

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is required. To the extent that a response is required, deny that “[t]he FEC itself is neither 

nonpartisan nor independent, and in this context should not be entitled to any deference 

whatsoever,” and deny that “it is captive of the two parties.” Deny that “three of the FEC’s six 

Commissioners are Democrats, and the other three are Republicans” or that there is a “3-3 split 

along party lines among the Commissioners.” Admit that currently two FEC Commissioners are 

Democrats, three Commissioners are Republicans, and one is an independent. The General 

Counsel’s recommendations in these and prior matters are irrelevant, since it is the 

Commissioners, not staff, that are authorized by statute to administer and enforce the Act. With 

regard to footnote 7, deny that an FEC General Counsel’s Report can “find[]” reason to believe a 

violation occurred; the General Counsel makes recommendations to the Commission. Deny the 

remaining allegations in this paragraph.

13. This paragraph contains plaintiffs’ characterization of the administrative and civil 

complaints, the Commission’s dismissal of the administrative complaint, and a document cited in 

the paragraph, all of which speak for themselves, and plaintiffs’ conclusions of law, and 

therefore no response is necessary. To the extent that a response is required, the Commission 

states as follows: Deny the first sentence. Admit that 2016 presidential campaigns are 

underway. The Commission is without knowledge of information sufficient to admit or deny the 

remaining factual allegations in this paragraph. 

14. This paragraph contains plaintiffs’ characterization of their court complaint, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is 

necessary. To the extent that a response is required, deny that any relief is warranted in this case

because the Commission’s dismissal of the administrative complaint and denial of the 

rulemaking petition at issue were not contrary to law.

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The relief requested in subparagraphs (a) and (b) regarding the administrative complaint 

in MUR 6869 exceeds the Court’s authority under 52 U.S.C. § 30109(a)(8)(C). Even if the 

Court were to declare that the dismissal of the administrative complaint was contrary to law, the 

statute authorizes remand to the Commission with directions to conform with the Court’s 

declaration within 30 days, not an order that the agency find a violation of law occurred. In the 

unlikely event that the Commission failed to comply, plaintiffs then could move for an order 

granting a private right of action. Moreover, if CPD adopted new rules for the 2016 election as 

suggested in subparagraph (b), pursuing any claim that such new rules were unlawful under

FECA would require the filing of a new administrative complaint.

Similarly, the relief requested in subparagraph (c) regarding the rulemaking petition in 

REG 2014-06 exceeds the Court’s authority under the Administrative Procedure Act (“APA”). 

If the Court determines that denial of the rulemaking petition was contrary to law, the proper 

remedy would be to remand to the Commission for further proceedings consistent with the 

Court’s decision. The Commission’s action on remand would be subject to judicial review under 

the ordinary legal standards. 

“JURISDICTION AND VENUE”

15. Admit that this Court has jurisdiction to review the Commission’s dismissal of the 

administrative complaint in MUR 6869 and the timing of the Commission’s handling of

administrative complaints after 120 days have passed since their filing under 52 U.S.C. 

§ 30109(a)(8)(A). Deny that plaintiffs Green Party and LNC have standing under 52 U.S.C. 

§ 30109(a)(8)(A) to challenge the Commission’s dismissal in MUR 6869 because they were not 

named as complainants in the administrative complaint or subsequent supplements. Although 

counsel for plaintiffs submitted improper requests to the Commission by the Green Party and 

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LNC to join the administrative complaint in MUR 6869 on June 16 and 19, 2015, those requests 

were not granted by the FEC. In any event, those requests were submitted to the Commission 

less than 120 days prior to the filing of this suit on August 27, 2015, and prior to the passage of 

120 days there is no jurisdiction for a suit challenging the timing of the Commission’s handling 

of an administrative complaint under 52 U.S.C. § 30109(a)(8)(A). Admit that this Court has 

jurisdiction to review the Commission’s denial of Level the Playing Field’s rulemaking petition 

in REG 2014-06 under 28 U.S.C. § 1331. 

16. Admit.

“PARTIES”

17. The Commission is without knowledge of information sufficient to admit or deny 

the factual allegations in this paragraph. 

18. The Commission is without knowledge of information sufficient to admit or deny 

the factual allegations in this paragraph. 

19. Admit that candidates of the Green Party of the United States have competed in 

recent presidential elections. The Commission is otherwise without knowledge of information 

sufficient to admit or deny the factual allegations in this paragraph. 

20. Admit, except that the Commission is without knowledge of information 

sufficient to admit or deny the factual allegations regarding the Libertarian Party’s intentions in 

the 2016 election cycle. 

21. Admit.

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“STATUTORY AND REGULATORY FRAMEWORK”

22. This paragraph contains plaintiffs’ characterization of FECA and the decision in 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014), which speak for themselves, and plaintiffs’ 

conclusions of law, and therefore no response is needed. 

23. This paragraph contains plaintiffs’ characterization of FECA and the 

Commission’s regulations and Federal Register notice, which speak for themselves, and 

plaintiffs’ conclusions of law, and therefore no response is needed.

24. This paragraph contains plaintiffs’ characterization of the Act and the 

Commission’s regulations and Federal Register notice, which speak for themselves, and 

plaintiffs’ conclusions of law, and therefore no response is needed.

25. This paragraph contains plaintiffs’ characterization of the Internal Revenue Code 

and the Commission’s regulations, which speak for themselves, and plaintiffs’ conclusions of 

law, and therefore no response is needed.

26. This paragraph contains plaintiffs’ characterization of a Commission regulation, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed.

27. This paragraph contains plaintiffs’ characterizations of the Commission’s 2005 

determination in MUR 5395 (In the Matter of Dow Jones, et al, (“Dow Jones”)), a report of the

Commission’s General Counsel in that matter, and the decision in Buchanan v. FEC, 

112 F. Supp. 2d 58, 74 (D.D.C. 2000), which speak for themselves, and therefore no response is 

needed.

28. This paragraph contains plaintiffs’ characterizations of the Act and Commission 

regulations, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

response is needed.

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”FACTS GIVING RISE TO PLAINTIFFS’ ADMINISTRATIVE COMPLAINT”

29. Admit that CPD has staged presidential general election debates since 1988 and 

that CPD derives its funding from sources that include corporations, foundations, universities, 

and private donations. The Commission is without knowledge or information sufficient to admit 

or deny the remaining factual allegations in this paragraph. To the extent that this paragraph 

incorporates succeeding paragraphs of the complaint, the Commission incorporates its responses 

to those succeeding paragraphs and its response to plaintiffs’ prayer for relief.

A. “The CPD Is Not A Nonpartisan Organization; It Supports The Democratic 

And Republican Parties And Opposes Third Parties And Independents”

30. Deny the heading “A” that precedes this paragraph to the extent it suggests that 

the dismissal of the administrative complaint in MUR 6869 was contrary to law. The paragraph 

contains plaintiffs’ characterizations of the cited Explanation and Justification, Funding and 

Sponsorship of Candidate Debates, 44 Fed. Reg. 39,348 (July 5, 1979), which speaks for itself, 

and plaintiffs’ conclusions of law, and therefore no response is needed. The Commission is 

without knowledge or information sufficient to admit or deny the remaining factual allegations in 

this paragraph. 

31. This paragraph contains plaintiffs’ characterizations of the cited document, which 

speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed. To the 

extent a response is required, deny that the Commission had reason to believe the conduct 

described in the administrative complaint violated Commission regulations. The Commission is 

otherwise without knowledge or information sufficient to admit or deny the factual allegations in 

this paragraph.

32. This paragraph contains plaintiffs’ characterizations of the cited Memorandum of 

Agreement, which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response 

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is needed. To the extent a response is required, the Commission is without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph.

33. This paragraph contains plaintiffs’ characterizations of the cited Press Release, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed. 

To the extent a response is required, the Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

34. This paragraph contains plaintiffs’ characterizations of the cited Press Release, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed. 

To the extent a response is required, the Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

35. This paragraph contains plaintiffs’ characterizations of the cited memoranda of 

understanding, administrative complaints and CPD responses, which speak for themselves, and 

plaintiffs’ conclusions of law, and therefore no response is needed. To the extent a response is 

required, the Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph.

36. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

37. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

38. This paragraph contains plaintiffs’ characterizations of the cited publication, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed. 

To the extent a response is required, the Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

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39. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

40. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

41. Admit the first sentence, subparagraphs (a) and (d). Admit that the American 

Gaming Association Political Action Committee made more than $150,000 in contributions to 

federal political committees in the 2011-2012 election cycle. The Commission notes that the 

cited document speaks for itself. The Commission is otherwise without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph.

42. Admit the first sentence and subparagraph (a). The Commission notes that the 

cited document speaks for itself. The Commission is otherwise without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph.

43. Admit that McCurry has been co-chair of CPD since 2009. Admit that McCurry 

made at least $33,000 in contributions to Democratic Party candidates for federal office from 

2008 through 2012 inclusive, including $200 to Hillary Clinton during this period. Admit 

subparagraph (c) with regard to contributions made to federal candidates. The Commission 

notes that the cited document speaks for itself. The Commission is otherwise without knowledge 

or information sufficient to admit or deny the factual allegations in this paragraph.

44. Admit that John Danforth and Alan Simpson are former Republican Senators. 

Admit subparagraphs (c), (e) and (g) with regard to contributions made to federal political 

committees in 2008 and 2015. Admit that Richard Parsons made at least $61,000 in 

contributions to Republican Party candidates for federal office between 2008 and 2012 inclusive. 

The Commission notes that the cited documents speak for themselves. The Commission is 

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otherwise without knowledge or information sufficient to admit or deny the factual allegations in 

this paragraph.

45. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph, except to note that the referenced documents speak for 

themselves.

46. This paragraph contains plaintiffs’ characterization of the Commission’s 

regulations and a cited interview, which speak for themselves, and plaintiffs’ conclusions of law, 

and therefore no response is needed. To the extent that a response is required, the Commission is 

without knowledge or information sufficient to admit or deny the factual allegations in this 

paragraph.

B. “The CPD Uses Subjective Candidate Selection Criteria That Are Designed 

To Exclude Third-Party And Independent Candidates”

“The CPD’s Selection Criteria”

47. Deny the heading “B” that precedes this paragraph to the extent it suggests that 

the dismissal of the administrative complaint in MUR 6869 was contrary to law. This paragraph 

contains plaintiffs’ characterization of CPD’s candidate selection criteria for 2012 and prior 

presidential elections, which speak for themselves, and therefore no response is necessary. 

To the extent that a response is required, the Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

48. This paragraph contains plaintiffs’ characterization of CPD’s candidate selection 

criteria for 2012 and the cited document, which speak for themselves, and therefore no response 

is necessary. To the extent that a response is required, the Commission is without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph.

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49. This paragraph contains plaintiffs’ characterization of CPD’s 2012 Application of 

Criteria, which speaks for itself, and therefore no response is necessary. To the extent that a 

response is required, the Commission is without knowledge or information sufficient to admit or 

deny the factual allegations in this paragraph.

50. Admit that in 2000, 2004, 2008, and 2012 only the Democratic and Republican 

nominees participated in CPD’s general election presidential debates. The Commission is 

otherwise without knowledge or information sufficient to admit or deny the factual allegations in 

this paragraph. 

51. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

“The CPD’s 15% Rule Is Biased Against Independent and Third Party 

Candidates”

52. Deny the heading that precedes this paragraph to the extent it suggests that the 

dismissal of the administrative complaint in MUR 6869 was contrary to law. This paragraph 

contains plaintiffs’ characterization of the Commission’s regulation, the First General Counsel’s 

Report in MUR 5395 (Dow Jones), and the decision in Buchanan, which speak for themselves, 

and plaintiffs’ legal conclusions, and therefore no response is required. The Commission is 

without knowledge or information sufficient to admit or deny the factual allegations in the 

second sentence of this paragraph.

53. Deny the first sentence to the extent it suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. This paragraph contains plaintiffs’ characterizations of the 

Commission’s regulation, the administrative complaint and supplements, and the cited 

documents, which speak for themselves, and plaintiffs’ legal conclusions, and therefore no 

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response is required. To the extent a response is required, the Commission is without knowledge 

or information sufficient to admit or deny the factual allegations in this paragraph.

54. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

55. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

56. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

57. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

58. This paragraph contains plaintiffs’ characterization of the cited document, which 

speaks for itself, and therefore no response is necessary. To the extent a response is required, 

the Commission is without knowledge or information sufficient to admit or deny the factual 

allegations in this paragraph.

59. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

60. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in the first sentence, which are phrased vaguely and not limited to federal 

elections. Admit the second sentence.

61. Admit that federal candidates incur costs other than paid media. The Commission 

is otherwise without knowledge or information sufficient to admit or deny the other factual 

allegations in this paragraph.

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62. This paragraph contains plaintiffs’ characterization of the Act and a Commission 

publication, which speak for themselves, and therefore no response is needed. To the extent that 

a response is required, the Commission is without knowledge or information sufficient to admit 

or deny the factual allegations in this paragraph.

63. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

64. The first sentence of this paragraph contains plaintiffs’ legal conclusions, and 

therefore no response is required. To the extent a response is required, the Commission is 

without knowledge or information sufficient to admit or deny the factual allegations in the 

sentence. Deny the second sentence. 

65. Deny the second sentence to the extent it suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The Commission is without knowledge or information sufficient to 

admit or deny the factual allegations in this paragraph.

66. This paragraph contains plaintiffs’ characterizations of cited documents and a 

statement by a Commissioner at a Commission meeting, which speak for themselves, and 

therefore no response is needed. The Commission notes that plaintiffs cite a document 

containing the “live captions” of the audio of that Commission meeting, but that document 

expressly states that “[t]his file is not a transcript of the meeting and it has not been reviewed for 

accuracy or approved by the Federal Election Commission.” Admit that the paragraph 

accurately, but selectively, quotes from the live captions. The Commission is without knowledge 

or information sufficient to admit or deny the remaining factual allegations in this paragraph.

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67. The Commission is without knowledge or information sufficient to admit or deny

the factual allegations in this paragraph.

68. This paragraph contains plaintiffs’ characterizations of the cited documents, 

which speak for themselves, and therefore no response is needed. To the extent a response is 

required, the Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph.

69. Admit that the Green Party and the LNC submitted a supplemental letter to the 

FEC dated October 20, 2015. This paragraph contains plaintiffs’ characterizations of the cited 

documents, which speak for themselves, and therefore no response is needed. To the extent a 

response is required, the Commission is without knowledge or information sufficient to admit or 

deny the remaining factual allegations in this paragraph.

70. Deny the second sentence to the extent it suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The Commission is without knowledge or information sufficient to 

admit or deny the factual allegations in this paragraph. 

71. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

72. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

73. Deny the first sentence. The Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in the second sentence.

74. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

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75. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

76. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

C. “The CPD’s Exclusionary Debates Further Corruption Of The Electoral 

Process And The Appearance Of Corruption”

77. Deny the heading that precedes this paragraph to the extent it suggests that the 

dismissal of the administrative complaint in MUR 6869 was contrary to law. Admit that CPD 

derives its funding from sources that include corporations, foundations, universities, and private 

donations. The Commission is otherwise without knowledge or information sufficient to admit 

or deny the factual allegations in this paragraph.

78. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

79. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

80. The Commission notes that reports of receipts on file with the Commission reflect 

contributions by political committees to political party committees. The Commission is 

otherwise without knowledge or information sufficient to admit or deny the factual allegations in 

this paragraph, in part due to the vagueness of the allegations regarding unspecified political 

committees.

81. Deny that corporations can lawfully contribute their treasury funds to federal 

political committees. Admit that some political committees contribute to both Republicans and 

Democrats. The Commission is otherwise without knowledge or information sufficient to admit 

or deny the factual allegations in this paragraph.

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82. Deny this paragraph to the extent it suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The Commission is otherwise without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

83. The Commission is without knowledge or information sufficient to admit or deny

the factual allegations in this paragraph.

84. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

85. This paragraph contains plaintiffs’ characterizations of the cited documents, 

which speak for themselves, and therefore no response is needed. To the extent that a response 

is required, the Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph.

86. This paragraph contains plaintiffs’ characterizations of the cited documents, 

which speak for themselves, and therefore no response is needed. To the extent that a response 

is required, deny that a 50% view constitutes a public preference. The Commission is otherwise

without knowledge or information sufficient to admit or deny the factual allegations in this 

paragraph.

87. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

“THE ADMINISTRATIVE COMPLAINT”

88. Admit that on September 11, 2014, Level the Playing Field and Ackerman filed 

an administrative complaint designated as MUR 6869 with the Commission. LPF and Ackerman 

submitted supplements to the Commission dated November 24, 2014 and April 10, 2015. These 

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filings speak for themselves, and therefore no further response is required. The Commission is 

without knowledge or information sufficient to admit or deny the remaining factual allegations in 

the paragraph and its accompanying footnote. 

89. Admit that counsel for plaintiffs submitted improper requests by the Green Party 

and the LNC to join the administrative complaint in MUR 6869 in June 2015, but those requests 

were not granted by the Commission. To the extent that this paragraph contains plaintiffs’ 

characterization of those requests, the documents speak for themselves, and no response is 

required.

90. This paragraph contains plaintiffs’ characterization of the civil complaint, the

administrative complaint, and material filed in support of the administrative complaint, all of 

which speak for themselves, and plaintiffs’ conclusions of law, and therefore no response is 

needed. To the extent a response is required, deny that the conduct of respondents described in 

the administrative complaint in MUR 6869 was unlawful under the Act or Commission 

regulations. To the extent that this paragraph incorporates preceding and succeeding paragraphs

of the complaint, the Commission incorporates its responses to those paragraphs and its response 

to plaintiffs’ prayer for relief.

91. This paragraph contains plaintiffs’ characterization of the Commission’s 

regulations, which speak for themselves, and plaintiffs’ conclusions of law, therefore no 

response is required. To the extent a response is required, deny that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The Commission is without knowledge or information sufficient to 

admit or deny the remaining factual allegations in this paragraph.

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92. This paragraph contains plaintiffs’ characterization of the Act and a Commission 

regulation, which speak for themselves, and plaintiffs’ conclusions of law, therefore no response 

is required. To the extent a response is required, deny that the conduct of respondents described 

in the administrative complaint in MUR 6869 was unlawful under the Act or Commission 

regulations. The Commission is without knowledge or information sufficient to admit or deny 

the remaining factual allegations in this paragraph.

93. This paragraph contains plaintiffs’ characterization of FECA, which speaks for 

itself, and plaintiffs’ conclusions of law, therefore no response is required. To the extent a 

response is required, deny that the conduct of respondents described in the administrative 

complaint in MUR 6869 was unlawful under the Act or Commission regulations. The 

Commission is without knowledge or information sufficient to admit or deny the remaining 

factual allegations in this paragraph.

94. This paragraph contains plaintiffs’ characterization of FECA and the decision in 

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986), which speak for themselves, and plaintiffs’ 

conclusions of law, therefore no response is required. To the extent a response is required, deny 

that the conduct of respondents described in the administrative complaint in MUR 6869 was 

unlawful under the Act or Commission regulations. The Commission is without knowledge or 

information sufficient to admit or deny the remaining factual allegations in this paragraph.

95. This paragraph contains plaintiffs’ characterization of FECA, which speaks for 

itself, and plaintiffs’ conclusions of law, therefore no response is required. To the extent a 

response is required, deny that the conduct of respondents described in the administrative 

complaint in MUR 6869 was unlawful under the Act or Commission regulations. The 

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Commission is without knowledge or information sufficient to admit or deny the remaining 

factual allegations in this paragraph.

96. Admit.

97. Admit that counsel for CPD and the individual respondents sent a letter dated 

December 15, 2014 to the Commission responding to the administrative complaint in 

MUR 6869.

98. Admit the first sentence. Deny the second sentence, because the Commission 

denied the improper requests of the Green Party and the LNC to join the administrative 

complaint in MUR 6869. 

99. Admit that on June 22, 2015, plaintiffs filed their civil complaint in Level the 

Playing Field v. FEC, No. 1:15-cv-0961 (TCS) (D.D.C. June 22, 2015) (“LPF I”), which speaks 

for itself, and therefore no further response is required. The Commission notes that that suit was 

voluntarily dismissed by plaintiffs on August 27, 2015.

100. Admit that on July 13, 2015, the Commission decided by a vote of 5-0 (with one 

Commissioner recused) in MUR 6869 to find no reason to believe that CPD or Frank 

Fahrenkopf, Jr. and Michael D. McCurry as Co-Chairs of CPD violated 52 U.S.C. §§ 30116(f) 

and 30118(a); find no reason to believe CPD violated 52 U.S.C. § 30103 or §30104; approve a 

Factual and Legal Analysis; and close the file in MUR 6869, thus dismissing the administrative 

complaint. The Factual and Legal Analysis, which serves as the statement of reasons for 

purposes of judicial review of the Commission’s dismissal decision, speaks for itself. Deny the 

remaining allegations in this paragraph. Admit that the Commission notified counsel for Level 

the Playing Field and Ackerman by letter dated July 17, 2015, which enclosed a copy of the 

Commission’s Factual and Legal Analysis.

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101. Deny the first sentence. As to the second sentence, admit that it has been more 

than 120 days since the request of the LNC and the Green Party to join the administrative 

complaint in MUR 6869, but deny that FECA requires any “final action” on a new administrative 

complaint within that period. 

“LEVEL THE PLAYING FIELD’S PETITION FOR RULEMAKING”

102. Admit that LPF filed a petition for rulemaking on September 11, 2014 and that 

the petition was designated REG 2014-06 for administrative purposes. That petition speaks for 

itself, and therefore no further response is needed.

103. This paragraph contains plaintiffs’ characterization of the petition for rulemaking, 

which speaks for itself, and plaintiffs’ conclusions of law, therefore no response is required. To 

the extent a response is required, deny that the Commission’s decision to deny the petition for 

rulemaking was contrary to law. The Commission is without knowledge or information 

sufficient to admit or deny the remaining factual allegations in this paragraph.

104. This paragraph contains plaintiffs’ characterization of the petition for rulemaking, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is required. 

To the extent a response is required, the Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in this paragraph.

105. Admit that a Notice of Availability was published in the Federal Register, 

Rulemaking Petition: Candidate Debates,79 Fed. Reg. 68137 (Nov. 14, 2014), which speaks for 

itself, but deny that the Notice reproduced the petition for rulemaking. Admit the second 

sentence.

106. This paragraph contains plaintiffs’ characterization of comments regarding the 

petition for rulemaking, which speak for themselves, and plaintiffs’ conclusions of law, and 

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therefore no response is required. Admit that almost 1,260 comments were submitted to the 

Commission. These comments speak for themselves, and therefore no further response is 

needed. Deny that the LNC filed a comment in the rulemaking, but admit that the “Libertarian 

Party” filed one.

107. Admit that on July 16, 2015 the Commission failed by a vote of 2-4 to approve a 

motion to open a rulemaking, thus deciding not to initiate a rulemaking, and approved by a vote 

of 4-2 a motion to direct the Commission’s Office of General Counsel to draft a notice of 

disposition that reflects the views of the four Commissioners who voted not to proceed with the 

rulemaking. On November 6, 2015, the Commission approved the notice of disposition for 

REG 2014-06. See http://sers.fec.gov/fosers/showpdf.htm?docid=341874, 

http://sers.fec.gov/fosers/showpdf.htm?docid=341936. The third and fourth sentences include 

plaintiffs’ characterizations of the comments of the Commissioners at the July 16 meeting, which 

speak for themselves, and no further response is required. The Commission notes that plaintiffs 

cite a document containing the “live captions” of the audio of that Commission meeting, but that 

document expressly states that “[t]his file is not a transcript of the meeting and it has not been 

reviewed for accuracy or approved by the Federal Election Commission.” Admit that the 

paragraph accurately, but selectively, quotes from the live captions. Deny the remaining 

allegations in the paragraph. 

“FEC’S UNLAWFUL DISMISSALS”

108. Deny.

109. This paragraph contains plaintiffs’ characterization of the Factual and Legal 

Analysis, which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is 

needed. 

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110. This paragraph contains plaintiffs’ characterization of the Factual and Legal 

Analysis, which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is 

needed. To the extent that a response is required, the Commission denies the allegations in this 

paragraph.

111. This paragraph contains plaintiffs’ characterization of the Factual and Legal 

Analysis, which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is 

needed. To the extent that a response is required, the Commission denies the allegations in this 

paragraph.

112. This paragraph contains plaintiffs’ characterization of the decision in Buchanan, 

which speaks for itself, and plaintiffs’ conclusions of law, and therefore no response is needed. 

To the extent that a response is required, the Commission denies the allegations in this 

paragraph.

113. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, and the Commission’s Factual and Legal Analysis, which speak for 

themselves, and plaintiffs’ conclusions of law, and therefore no response is needed. To the 

extent that a response is required, the Commission denies the allegations in this paragraph.

114. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, and the Commission’s Factual and Legal Analysis, which speak for 

themselves, and plaintiffs’ conclusions of law, and therefore no response is needed. Admit that 

the Commission notified CPD, Fahrenkopf and McCurry of the administrative complaint, but did 

not notify 10 CPD directors named in the complaint. The Commission denies the remaining 

allegations in this paragraph.

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115. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, the responses to the administrative complaint, and the Commission’s 

Factual and Legal Analysis, which speak for themselves, and plaintiffs’ conclusions of law, and 

therefore no response is needed. Admit that the Factual and Legal Analysis cited a declaration 

by Frank Fahrenkopf. The Commission denies the remaining allegations in this paragraph.

116. Deny.

117. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, and the Commission’s Factual and Legal Analysis, which speak for 

themselves, and plaintiffs’ conclusions of law, and therefore no response is needed. To the 

extent that a response is required, the Commission denies the allegations in this paragraph.

118. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, and the Commission’s Factual and Legal Analysis, which speak for 

themselves, and plaintiffs’ conclusions of law, and therefore no response is needed. Admit that 

the paragraph accurately quotes a portion of the Factual & Legal Analysis in MUR 6869, but the 

full sentence states “Even if CDP’s 15% polling criterion may tend to exclude third-party and 

independent candidates, the available information does not indicate – as the available 

information in previous complaints does not indicate – that the CPD failed to use pre-established, 

objective criteria. See 11 C.F.R. § 110.13(c).” Factual and Legal Analysis, MUR 6869 at 7 n.4. 

Deny the remaining allegations in the paragraph.

119. This paragraph contains plaintiffs’ characterization of the administrative 

complaint and supplements, the Commission’s Factual and Legal Analysis, and the decision in 

Buchanan, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

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response is needed. To the extent that a response is required, deny the remaining allegations in 

the paragraph.

120. Deny.

121. Deny.

122. The first sentence contains plaintiffs’ characterization of the Green Party and the 

LNC’s submission, which speaks for itself, and therefore no response is needed. Deny the 

second sentence.

123. Deny the first and third sentences. The second sentence and the accompanying 

footnotes contain plaintiffs’ characterization of the rulemaking petition and statements of 

Commissioners, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

response is needed. The Commission notes that plaintiffs cite a document containing the “live 

captions” of the audio of that Commission meeting, but that document expressly states that

“[t]his file is not a transcript of the meeting and it has not been reviewed for accuracy or 

approved by the Federal Election Commission.” To the extent that a response is required, admit 

that a Notice of Disposition had not been issued on the date plaintiffs’ amended civil complaint 

was filed but on November 6, 2015 the Commission approved the notice of disposition for 

REG 2014-06, and admit that the paragraph accurately, but selectively, quotes from the live 

captions, but deny the remaining allegations in the paragraph.

124. Deny the first and last sentences. The rest of this paragraph contains plaintiffs’

characterization of LPF’s rulemaking petition in REG 2014-06 and documents in current and 

prior FEC rulemaking proceedings, which speak for themselves, and plaintiffs’ conclusions of 

law, and therefore no response is needed. To the extent a response is required, admit that the 

petitions in the prior rulemaking matters (REG 1999-04 and REG 2002-12) were filed in 1999

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and 2002, that the FEC denied those petitions in 2009, and that the paragraph accurately quotes 

three words from an opening statement by then-Chairman Walther, but misidentifies the speaker

(Commissioner, now Chair Ravel, was not yet on the Commission). The Commission also notes

that the Notice of Disposition, Notice 2009-16, Candidate Debates, 74 Fed Reg. 31179 (July 28, 

2009), provides the statement of reasons for the Commission’s 2009 rulemaking decision. The

Commission denies the remaining allegations in this paragraph.

125. Deny the last sentence. This paragraph also contains plaintiffs’ characterizations

of comments by FEC Commissioners in the consideration of LPF’s rulemaking petition in 

REG 2014-06, which speak for themselves, and plaintiffs’ conclusions of law, and therefore no 

response is needed. To the extent that a response is required, admit that the referenced prior 

rulemaking petitions (REG 1999-04 and REG 2002-12) were filed in 1999 and 2002, fifteen and 

twelve years before LNC’s 2014 rulemaking petition (REG 2014-06). To the extent that a 

further response is required, the Commission is without knowledge or information sufficient to 

admit or deny the remaining factual allegations in this paragraph. 

126. This paragraph contains plaintiffs’ characterization of LPF’s rulemaking petition 

and comments by FEC Commissioners, which speak for themselves, and plaintiffs’ conclusions 

of law, and therefore no response is needed. The Commission notes that plaintiffs cite a 

document containing the “live captions” of the audio of that Commission meeting, but that 

document expressly states that “[t]his file is not a transcript of the meeting and it has not been 

reviewed for accuracy or approved by the Federal Election Commission.” To the extent that a 

response is required, admit that the paragraph accurately, but selectively, quotes from the live 

captions, but the Commission is otherwise without knowledge or information sufficient to admit 

or deny the factual allegations in this paragraph. 

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127. Admit that the Commission received almost 1,260 comments in REG 2014-06. 

This paragraph contains plaintiffs’ characterization of those comments, which speak for 

themselves, and therefore no response is needed. To the extent that a response is required, 

the Commission denies the remaining allegations in this paragraph.

128. Admit that currently two FEC Commissioners are Democrats, three 

Commissioners are Republicans, and one is an independent. This paragraph contains plaintiffs’

characterization of a judicial opinion and comments by an FEC Commissioner, which speak for 

themselves, and therefore no response is needed. To the extent that a response is required, 

the Commission denies the remaining allegations in this paragraph. 

129. This paragraph contains plaintiffs’ characterization of the cited documents and

comments by an FEC Commissioner, which speak for themselves, and therefore no response is 

needed. To the extent that a response is required, the Commission denies the remaining 

allegations in this paragraph. 

130. Deny the first, second, and fourth sentences. In 2014 the Commission collected 

$135,813 in civil penalties as part of its Administrative Fines program alone, a figure that does 

not include amounts collected as part of its regular enforcement process. See 

http://www.fec.gov/press/bkgnd/EnforcementStatistics.shtml#search=%22135,813%22. 

In addition, the Commission notes that it plans to publish a report on the occasion of the 

agency’s 40th anniversary. See Minutes of June 18, 2015 Open Meeting at 11, available at 

http://www.fec.gov/agenda/2015/documents/approved_15-34-a.pdf. This paragraph also 

contains plaintiffs’ characterization of the cited document, which speaks for itself, and therefore 

no response is needed. Admit the third sentence.

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131. Admit that the Commission denied LPF’s petition in REG 2014-06 less than 10 

months after it was filed. The remaining allegations in the paragraph are denied. 

132. This paragraph contains plaintiffs’ conclusions of law, and therefore no response 

is needed. To the extent that a response is required, deny that the conduct of respondents 

described in the administrative complaint was unlawful under the Act or Commission 

regulations. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

133. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph.

134. This paragraph contains plaintiffs’ conclusions of law, and therefore no response 

is needed. To the extent that a response is required, the Commission is without knowledge or 

information sufficient to admit or deny the factual allegations in this paragraph.

135. Admit this paragraph’s allegations regarding the Green Party’s prior nomination 

of presidential candidates, and those candidates’ matching funds eligibility and percentages of 

the popular vote in past presidential elections. The Commission is without knowledge or 

information sufficient to admit or deny the remaining factual allegations in this paragraph. 

136. Admit that the paragraph accurately states the Libertarian presidential candidates 

for 1984-2012 and the total votes that Gary Johnson received in 2012. The Commission is 

without knowledge or information sufficient to admit or deny the remaining factual allegations in 

this paragraph. 

137. Deny to the extent this paragraph suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The paragraph contains plaintiffs’ conclusions of law, and therefore no 

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response is needed. To the extent that a response is required, the Commission is without 

knowledge or information sufficient to admit or deny the factual allegations in the paragraph.

138. Deny to the extent this paragraph suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The paragraph contains plaintiffs’ conclusions of law, and therefore no 

response is needed. To the extent that a response is required, the Commission is without 

knowledge or information sufficient to admit or deny the factual allegations in the paragraph.

139. Deny to the extent this paragraph suggests that the conduct of respondents 

described in the administrative complaint in MUR 6869 was unlawful under the Act or 

Commission regulations. The paragraph contains plaintiffs’ conclusions of law, and therefore no 

response is needed. To the extent that a response is required, the Commission is without 

knowledge or information sufficient to admit or deny the factual allegations in the paragraph.

“FIRST CAUSE OF ACTION

FOR DECLARATORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202)”

140. The Commission incorporates its responses to paragraphs 1 through 139.

141. Deny.

142. Deny.

143. Deny.

“SECOND CAUSE OF ACTION

FOR DECLARTORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202)”

144. The Commission incorporates its responses to paragraphs 1 through 139, 

inclusive.

145. This paragraph contains plaintiffs’ characterization of the referenced document, 

which speaks for itself, and therefore no response is required.

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146. The first sentence contains plaintiffs’ characterization of the Factual and Legal 

Analysis in MUR 6869, the referenced document of the Green Party and the LNC, and the 

Commission’s response thereto, which speak for themselves, and plaintiffs’ legal conclusions, 

and therefore no response is needed. To the extent that a response is required, the Commission 

denies the first sentence. As to the second sentence, admit that the Commission has not issued a 

final disposition with regard to the administrative complaints of the Green Party and the LNC. 

147. Deny.

148. Deny.

149. Deny.

150. Deny.

“THIRD CAUSE OF ACTION

FOR DECLARTORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202)”

151. The Commission incorporates its responses to paragraphs 1 through 139, 

inclusive.

152. Deny.

153. Deny.

“REQUESTED RELIEF”

The Court should deny Plaintiffs’ requests for relief and grant no other relief to plaintiffs. 

Such relief is not warranted in this case because the Commission’s dismissal of the 

administrative complaint in MUR 6869 and denial of the rulemaking petition in REG 2014-06

were not contrary to law, nor is the Commission’s handling of the filing of the LNC and the 

Green Party. In addition, the relief requested in subparagraphs (c), ( d), (e), and (f) regarding the 

administrative complaint exceeds the Court’s authority under 52 U.S.C. § 30109(a)(8)(C), and 

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the relief requested in subparagraphs (g)(2) and (h) regarding the rulemaking petition exceeds the 

Court’s authority under the APA. See Response to Paragraph No. 14. 

Affirmative Defenses

1. The Complaint fails to state a claim upon which relief may be granted.

2. One or more plaintiffs lack standing to bring their claim(s). 

3. The relief requested by plaintiffs exceeds the Court’s authority.

Respectfully submitted,

Daniel A. Petalas

Acting General Counsel

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel

Kevin Deeley

Acting Associate General Counsel

Harry J. Summers

Assistant General Counsel

hsummers@fec.gov

 /s/

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

rbonham@fec.gov

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

November 9, 2015

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