IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LEVEL THE PLAYING FIELD 

P.O. Box 25554 

Alexandria, VA 22313 

PETER ACKERMAN 

1775 Pennsylvania Avenue, NW 

Suite 1200 

Washington, DC 20006 

GREEN PARTY OF THE UNITED STATES 

6411 Orchard Avenue 

Suite 101 

Takoma Park, MD 20912 

LIBERTARIAN NATIONAL COMMITTEE, 

 INC. 

1444 Duke Street 

Alexandria, VA 22314 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

 Defendant. 

 

Civil Action No.: 15-1397 (TSC)

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

Plaintiffs Level the Playing Field, Dr. Peter Ackerman, Green Party of the United States 

and Libertarian National Committee, Inc. (“Plaintiffs”) bring this action for declaratory and 

injunctive relief and allege as follows: 

 

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PRELIMINARY STATEMENT

1. The level of discontent among U.S. voters is higher than at any time since World 

War II. In overwhelming numbers, the American people blame the two-party system for the 

failure of the government to address the problems facing our nation. A staggering 66% of 

Americans do not think the federal government has the consent of the governed. American 

voters want greater choice and more competition in politics; 53% are unsatisfied with the two 

party system, and 58% believe a third party is needed. Record numbers of Americans – well 

over 40% – now identify themselves as independent, and 62% say they would vote for an 

independent candidate for president in 2016. 

2. Yet it is unlikely that the American people will ever have a chance to elect the 

independent candidate that they would prefer because the political system is rigged to favor 

Democrats and Republicans.1

 The two major parties have created a series of anti-democratic 

rules that prevent Americans from learning about candidates that they might prefer to the 

candidates of the two major parties. Those numerous anti-competitive measures include 

gerrymandered districts that protect incumbents; laws that make independent candidacies harder 

to mount, such as “sore loser” laws that prohibit losing primary candidates from running in 

general elections; and campaign finance rules that allow Democratic and Republican candidates 

to raise up to $834,000 per year more from individual donors than unaffiliated candidates can 

legally raise. And these are just a few examples of the ways in which the two major parties have 

abused their power as a duopoly to create rules that entrench themselves and prevent Americans 

from electing the leaders they prefer. 

 1

 Throughout this Amended Complaint, the term “independent candidate” refers to candidates who are 

unaffiliated with any political party as well as candidates who are affiliated with political parties other than the 

Democratic and Republican parties, including but not limited to the Green Party of the United States and the United 

States Libertarian Party. 

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3. This case concerns violations of federal law by two institutions the Democratic 

and Republican parties have used to perpetuate their duopoly: the Commission on Presidential 

Debates (“CPD”), an organization the two parties created for the express purpose of keeping 

third-party and independent candidates out of debates, and the Federal Election Commission 

(“FEC”), 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 the CPD is blatantly violating. 

4. It is obvious that no one can be elected President without participating in the 

general election debates. Yet the CPD has rigged the rules governing who can be in the debates 

to ensure that no candidate other than the Democratic and Republican nominees will ever be 

invited to the debates. As Plaintiffs demonstrated in an administrative complaint submitted to 

the FEC, the CPD and its debate rules violate the FEC’s regulations and the Federal Election 

Campaign Act (“FECA”) in multiple ways: 

5. First, FEC regulations require debate-sponsoring organizations like the CPD to be 

“nonpartisan.” But since its inception, the CPD has been bipartisan, not nonpartisan. Leaders of 

the two major parties founded the CPD to create “a permanent framework on which all future 

presidential debates between the nominees of the two political parties will be based.” The CPD 

is run by longtime Democratic and Republican insiders, and individuals who have donated tens 

of thousands dollars, and in some cases even more, to candidates from those parties. And the 

CPD’s funding comes from large multinational corporations that spend millions and millions of 

dollars every year to support and lobby Democratic and Republican candidates and 

officeholders. 

6. Second, FEC regulations require the CPD to use “objective criteria” to select 

debate participants, and prohibit it from using nomination by a particular political party to decide 

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who may be invited to debate. Yet for at least the past four presidential elections, the CPD has 

employed selection criteria that are specifically designed to include the Democratic and 

Republican nominees, and to exclude independent and third-party candidates from the debates. 

The principal architect of these exclusionary rules is CPD co-chairman and co-founder Frank 

Fahrenkopf, Jr., the former Republican National Committee chairman, who refers to the CPD as 

“my commission”2

 and describes himself as “the Wizard of Oz” for his “behind the scenes” 

manipulation of our political system.3

 In April, he freely admitted that the CPD’s “system” for 

selecting candidates consists of “go[ing] with the two leading candidates . . . the two political 

party candidates.”4

 That “system” is hardly the “objective criteria” required by law. 

7. In their administrative complaint, Plaintiffs presented new empirical analysis by 

prominent experts in statistics, public opinion, and political strategy showing that the CPD’s key 

criterion – requiring a candidate to poll at 15% in an average of five national polls taken in midSeptember – is biased against independent and third-party candidates. This analysis 

convincingly shows that it is impossible, as a practical matter, for any candidate who does not 

run in the Democratic or Republican primaries to satisfy the CPD’s 15% rule. Among other 

obstacles, for example, it would cost nearly $270 million for an independent candidate to achieve 

the 60-80% national name recognition necessary to satisfy this polling requirement. The data 

also demonstrate that polling – which is often highly misleading, as recent U.S. and British 

elections confirm – is subject to heightened inaccuracy that can severely underrepresent the 

support for non-major-party candidates in three-way races. Indeed, the Gallup pollster the CPD 

 2

 Interview with Frank Fahrenkopf (Sky News broadcast Apr. 1, 2015), available at 

http://eqs.fec.gov/eqsdocsMUR/15044375447.pdf. 3

 Roland Flamini, Frank Fahrenkopf Sides with Bipartisanship, Capitol File, http://capitolfilemagazine.com/personalities/articles/frank-fahrenkopf-bipartisanship (last visited October 22, 2015). 4

 Fahrenkopf Interview, supra note 2. 

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uses to decide who meets the polling criterion has now effectively conceded that Gallup’s own 

polls are unreliable, announcing that the firm will not conduct “horse race” polls for the 2016 

presidential primary elections. 

8. Third, the CPD’s use of millions of dollars of corporate money to provide free 

televised campaign appearances to the Democratic and Republican presidential and vice 

presidential candidates violates FECA – by making illegal corporate contributions to political 

candidates; by making illegal corporate campaign expenditures; by accepting illegal corporate 

campaign contributions; and by failing to disclose its contributions and expenditures. 

9. Even though Plaintiffs demonstrated that the CPD’s candidate selection criteria 

are designed to protect the major party candidates from competition, the FEC dismissed their 

administrative complaint, finding “no reason to believe” the CPD’s efforts to keep independent 

and third-party candidates out of the debates violated the debate staging regulations. 

10. The FEC also denied a separate, but related, petition for rulemaking requesting 

that it amend its debate regulations to prohibit the use of polling as the sole means of access to 

presidential debates. The FEC denied the petition even though two Commissioners recognized 

that polling has become inherently unreliable and that the debates need to be more inclusive 

because of the increasing numbers of Americans who identify as independents; even though 

1,251 independent individuals and organizations – all but four of whom were unknown to 

Plaintiffs – filed comments supporting a rulemaking; and even though the only commenter 

opposing the proposed rulemaking was the CPD itself. 

11. What is more, the FEC failed to act on the administrative complaint and the 

petition for rulemaking for over 10 months (well beyond FECA’s requirement that the agency act 

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on complaints within 120 days), and then only dismissed the proceedings because Plaintiffs had 

filed a lawsuit seeking an order directing the FEC to act. 

12. The FEC’s disregard of extensive, convincing evidence that the CPD has violated 

the election laws is disturbing but not surprising. Nor is it surprising that the FEC refused to 

open a rulemaking despite overwhelming support for amending the regulation to ensure that 

presidential debates are more open, representative, and inclusive. The FEC itself is neither 

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

whatsoever. Like the CPD, it is a captive of the two parties: three of the FEC’s six 

Commissioners are Democrats, and the other three are Republicans. A 3-3 split along party lines 

among the Commissioners has long prevented the FEC from taking action on complaints lodged 

against major party candidates and political groups aligned with those parties5

 – indeed, the 

FEC’s current chair acknowledges publicly that the agency is “worse than dysfunctional.”6 But 

apparently the only thing the bipartisan Commissioners can agree on today is that the electoral 

system, including the debate rules, should be rigged to exclude independents and third parties 

from competing in a fair fight against the major parties. Indeed, before the CPD adopted its 

current rules, the FEC rejected its own general counsel’s recommendation that the CPD should 

be investigated for violating the debate regulations.7

 

13. The FEC’s disregard of its mandate to enforce FECA will enable the CPD to stifle 

any competition to the two major parties in the 2016 presidential election if the Court does not 

 5 See Ann M. Ravel, How Not to Enforce Campaign Laws, N.Y. Times (Apr. 2, 2014), 

http://www.nytimes.com/2014/04/03/opinion/how-not-to-enforce-campaign-laws.html?_r=0. 6

 Eric Lichtblau, F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says, N.Y. Times (May 2, 

2015), http://www.nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-election-abuse-commission-chiefsays.html. 7 See First General Counsel’s Report, MURs 4451 and 4473 (Commission on Presidential Debates) (Feb. 6, 

1998) (finding reason to believe CPD violated FEC’s debate regulations), rejected in Statement of Reasons, MURs 

4451 and 4473 (Commission on Presidential Debates) (Apr. 6, 1998). 

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intervene quickly. The 2016 presidential campaign is already under way, and potential thirdparty and independent candidates need to begin organizing and fundraising now if they want to 

compete. In particular, the monumental task of getting the signatures necessary to secure ballot 

access in all 50 states requires significant organizational and fundraising capacity and needs to 

begin imminently, as the earliest deadlines in some jurisdictions are later this year. There are 

many accomplished American citizens who could make good, or even great, Presidents, but are 

deterred from running because they do not want to participate in the Democratic or Republican 

primary process. These potential independent candidates, moreover, will be deterred from 

engaging in efforts necessary to obtain ballot access if the current discriminatory debate rules 

remain in place, because there will be no point to running a campaign if they have no chance to 

present their ideas to the public in the debates.8

 And those candidates who might still attempt a 

campaign will find it more difficult to raise money and build staff because would-be supporters 

will decline to assist knowing that the candidate will be denied access to the debates, and thus 

denied a legitimate chance to compete, under the current system. 

14. Accordingly, Plaintiffs bring this action for declaratory and injunctive relief to 

prevent another election under a skewed and illegal debate system. Specifically, Plaintiffs 

request that the Court either: 

a. Declare that the FEC’s dismissal of Plaintiffs’ administrative complaint 

was arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, and direct the 

FEC, within 30 days, to find that the CPD has violated 11 C.F.R. § 110.13 by staging candidate 

debates in a partisan manner and without pre-established, objective criteria; violated 52 U.S.C. § 

30118(a) by making prohibited contributions and expenditures; violated 52 U.S.C. § 30116(f) by 

 8 See James K. Glassman, Presidents All Around Us, Politico Magazine (Apr. 26, 2015), 

http://www.politico.com/magazine/story/2015/04/presidents-all-around-us-117366.html#.VT2KRor3bCQ. 

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accepting prohibited contributions; and violated 52 U.S.C. §§ 30103 and 30104 by failing to 

register as a political committee and by failing to make required reports and disclosures; or 

b. If the FEC fails to so act, authorize Plaintiffs to bring a civil action against 

the CPD, its executive director, and the 11 directors who have participated in these past 

violations, and if the CPD adopts rules for the 2016 election that violate § 110.13, the six 

remaining directors who joined the CPD after the 2012 election, to remedy those violations of 

federal election law; and 

c. Declare the FEC’s denial of the petition for rulemaking was arbitrary, 

capricious, an abuse of discretion, and otherwise contrary to law, and order the FEC to open a 

rulemaking to revise its rules governing presidential debates to ensure that debate sponsors do 

not unfairly exclude independent and third-party candidates from participating. 

JURISDICTION AND VENUE 

15. This Court has jurisdiction under 52 U.S.C. § 30109(a)(8)(A) and 28 U.S.C. 

§ 1331. 

16. Venue in this district is proper pursuant to 52 U.S.C. § 30109(a)(8)(A) and 28 

U.S.C. § 1391(e). 

PARTIES 

17. Plaintiff Level the Playing Field (“LPF”) is a nonpartisan, nonprofit corporation 

not affiliated with any candidate or candidate committee. Its purpose is to promote reforms that 

allow for greater competition and choice in elections for federal office, particularly for the 

Presidency and Vice Presidency. LPF is the successor to Americans Elect (“AE”), which 

obtained signatures sufficient to qualify for ballot access in 41 states in connection with the 2012 

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presidential election. LPF intends to recruit qualified independent candidates to run for President 

and Vice President on an LPF ticket in the 2016 election. 

18. Plaintiff Dr. Peter Ackerman is a United States citizen and a registered voter in 

the District of Columbia who is interested in the presidential electoral process and is committed 

to reforming politics and elections in the United States. 

19. Plaintiff Green Party of the United States (the “Green Party”) evolved from 

gatherings of people concerned with various matters that included ecology, civil rights, and 

peace to a more formalized and structured political party. Candidates of the Green Party and 

predecessor organizations competed in presidential elections in 2000, 2004, 2008 and 2012, and 

the Green Party intends to nominate candidates for President and Vice President in the 2016 

election. 

20. Plaintiff Libertarian National Committee, Inc. controls and manages the affairs 

and resources of the United States Libertarian Party (the “Libertarian Party”), the third largest 

political party in the country. The Libertarian Party has nominated presidential candidates in 

every presidential election since its formation in 1971, and intends to nominate candidates for 

President and Vice President in the 2016 election. 

21. Defendant FEC is an independent federal agency charged with the administration 

and civil enforcement of FECA. 52 U.S.C. § 30106(b). 

STATUTORY AND REGULATORY FRAMEWORK 

22. The primary purpose of FECA is to “limit quid pro quo corruption and its 

appearance.” McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1444 (2014). To achieve 

this purpose, FECA prohibits corporations from making many types of contributions or 

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expenditures “in connection with” any federal election. 52 U.S.C. § 30118(a). It also requires 

disclosure of most federal political contributions and expenditures. See, e.g., id. § 30104. 

23. Absent a specific exemption, FECA’s prohibitions on corporate campaign 

spending would preclude corporate funding of candidate debates. FECA’s definitions of 

contribution and expenditure are broad, see id. § 30101(8)(A), 9(A), and corporate funding of a 

public forum in which a candidate can appear to influence voters is generally prohibited by 

FECA. See 11 C.F.R. § 100.52(d)(1) (noting that “[u]nless specifically exempted” under the 

FEC’s regulations, “the provision of any goods or services without charge or at a charge that is 

less than the usual and normal charge for such goods or services is a contribution”); id. 

§ 100.111(e)(1) (same for expenditures). The FEC has expressly recognized that corporate 

funding of candidate debates creates “the real or apparent potential for a quid pro quo” corrupt 

payment and jeopardizes the “integrity and fairness of the [debate] process.” Corporate and 

Labor Organization Activity; Express Advocacy and Coordination With Candidates, 60 Fed. 

Reg. 64,260, 64,262 (Dec. 14, 1995). 

24. Since 1980, however, the FEC has created an exception to FECA’s bans on 

corporate contributions and expenditures that permits corporations to fund debates, but only 

under certain specified conditions. See Funding and Sponsorship of Federal Candidate Debates, 

44 Fed. Reg. 76,734, 76,734 (Dec. 27, 1979). Pursuant to that exception, the FEC has adopted 

rules to ensure that debates are not a means for corporate donors to give favored candidates an 

improper advantage. 

25. First, debate staging organizations must be nonpartisan. That means a debate 

sponsor (that is not a media outlet) must be a nonprofit organization that qualifies for tax-exempt 

status under Sections 501(c)(3) or 501(c)(4) of the Internal Revenue Code and “do[es] not 

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endorse, support, or oppose political candidates or political parties.” 11 C.F.R. § 110.13(a).9 In 

addition, staging organizations “shall not use nomination by a particular political party as the 

sole objective criterion to determine whether to include a candidate in a debate.” Id. § 110.13(c). 

The resulting debate must be nonpartisan too, and cannot favor one candidate over others. See 

id. § 110.13(b)(2). 

26. Second, debate staging organizations must use “pre-established objective criteria 

to determine which candidates may participate in a debate.” 11 C.F.R. § 110.13(c). 

27. The FEC has determined that to be objective, a criterion “must be free of content 

bias, and not geared to the selection of certain pre-chosen participants.” First General Counsel’s 

Report at 7, MUR 5395 (Dow Jones) (dated Jan. 13, 2005, approved by the FEC on Jan. 19, 

2005). Under this definition, objectivity means more than subject to verifiable measurement. It 

incorporates a “reasonableness” requirement. Buchanan v. Fed. Election Comm’n, 112 F. Supp. 

2d 58, 74 (D.D.C. 2000). In particular, a criterion that “only the Democratic and Republican 

nominees could reasonably achieve” does not satisfy the FEC’s rules. Id. 

28. A debate staging organization cannot use corporate money to pay for candidate 

debates unless it satisfies these criteria. See 11 C.F.R. § 114.4(f). Likewise, if a debate staging 

organization does not meet these criteria, it must publicly disclose its contributors as any other 

political committee would. 

 9 See 26 U.S.C. § 501(c)(3) (prohibiting 501(c)(3) organizations from “participat[ing] in, or interven[ing] in 

(including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any 

candidate for public office”); id. § 501(c)(4) (limiting 501(c)(4) status to entities that “operate[] exclusively for the 

promotion of social welfare”). 

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FACTS GIVING RISE TO PLAINTIFFS’ ADMINISTRATIVE COMPLAINT 

29. The CPD has sponsored every general election presidential and vice presidential 

debate since 1988, including four in 2012. The CPD pays for these events using millions of 

dollars provided by large multinational corporations, as explained infra at ¶¶ [77-79, 83]. 

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

And Republican Parties And Opposes Third Parties And Independents 

30. Nonpartisanship has been a core requirement for debate sponsors since the FEC 

first authorized corporate debate funding more than thirty years ago. At that time, the FEC 

contemplated that debate sponsors would have “a history of nonpartisanship” that would be a 

bulwark against partisan rigging of the debates. Explanation and Justification, Funding and 

Sponsorship of Federal Candidate Debates, 44 Fed. Reg. 39,348, 39,348 (July 5, 1979). 

31. The CPD violates this requirement today, and has done so since its inception. The 

CPD as a debate sponsor endorses and supports only the Democratic and Republican parties and 

their candidates for president and vice president, and opposes third parties and third-party and 

independent candidates for president and vice president. 

32. In 1985, the respective chairmen of the Republican and Democratic National 

Committees, Frank Fahrenkopf, Jr. and Paul G. Kirk, Jr., agreed that the two major parties 

should wrest control of the presidential debates away from the League of Women Voters (the 

“League”), which had sponsored the general election presidential debates in 1976, 1980, and 

1984. Fahrenkopf and Kirk entered an agreement expressing their intention to replace Leaguesponsored debates with “nationally televised joint appearances conducted between the 

presidential and vice presidential nominees of the two major political parties.”10 That agreement 

 10 Frank Fahrenkopf & Paul Kirk, Memorandum of Agreement on Presidential Candidate Joint 

Appearances (Nov. 26, 1985), available at http://www.opendebates.org/theissue/memo.jpg. 

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envisaged the use of these “televised joint appearances” as a means to cement the two parties’ 

electoral position: 

It is our bipartisan view that a primary responsibility of each major political party is to 

educate and inform the American electorate of its fundamental philosophy and policies as 

well as its candidates’ positions on critical issues. One of the most effective means of 

fulfilling that responsibility is through nationally televised joint appearances conducted 

between the presidential and vice-presidential nominees of the two major political parties 

during general election campaigns. Therefore, to better fulfill our parties’ responsibilities 

for educating and informing the American public and to strengthen the role of political 

parties in the electoral process, it is our conclusion that future joint appearances should be 

principally and jointly sponsored and conducted by the Republican and Democratic 

National Committees.11

The Democratic and Republican National Committees formally approved Fahrenkopf and Kirk’s 

proposal for the parties to take over presidential debates soon thereafter. 

33. The CPD is the direct outgrowth and implementation of Fahrenkopf and Kirk’s 

agreement and reflects their expressed intention to limit access to the presidential debates to the 

major parties’ nominees. Announcing the CPD’s formation in 1987, Fahrenkopf and Kirk 

explained, “We have no doubt that with the help of the Commission we can forge a permanent 

framework on which all future presidential debates between the nominees of the two political 

parties will be based.”12 Fahrenkopf and Kirk made clear at the announcement their hope that 

the CPD would exclude third-party and independent candidates from the debates. 

34. At the founding of the CPD, the Democratic and Republican parties described the 

organization as “a bipartisan, non-profit, tax-exempt organization formed to implement joint 

sponsorship of general election presidential and vice-presidential debates, starting in 1988, by the 

national Republican and Democratic committees between their respective nominees.”13 

 11 Id. 12 Press Release, News from the Democratic and Republican National Committees, Feb. 18, 1987 

(emphasis added), available at http://www.opendebates.org/theissue/CPDrelease.pdf. 13 Id. (emphases added). 

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Consistent with that intention, the CPD has routinely deferred to the major parties’ and/or their 

nominees’ preferences for how to conduct the debates. 

35. Since 1988, the Democratic and Republican nominees have entered into 

memoranda of understanding dictating myriad aspects of how they want the general election 

debates to be conducted, addressing dates, places, formats, camera placement, audience reaction 

shots, selection of moderators and panelists, etc. The CPD has accepted the campaigns’ agreedupon debate terms reflected in these memoranda without question. The CPD has thereby 

enabled the major-party candidates to agree on moderators, put checks on candidate-to-candidate 

questioning, pre-screen town hall questions, and limit the response times and number of followup questions. When a complainant brought this practice to the FEC’s attention in 2004, the CPD 

was not able to point to a single instance where it had contravened the major party candidates’ 

wishes. In its response to Plaintiffs’ administrative complaint, the CPD did not identify any such 

instance. 

36. The CPD has also deferred to the major parties and their candidates to determine 

who to invite to the general election debates. 

37. In 1992, the CPD’s Advisory Committee concluded that third-party candidate 

Ross Perot should be invited to the first debate and his inclusion in the second and third debates 

should be subject to further review, and communicated that conclusion to the campaigns of the 

Republican and Democratic nominees, President George H.W. Bush and Governor Bill Clinton. 

The Bush and Clinton campaigns, however, both wanted Perot to be included in all three debates 

because each perceived this to be politically advantageous. The campaigns jointly instructed the 

CPD to include Perot in all three debates, and the CPD, disregarding its own Advisory 

Committee, complied. 

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38. In 1996, the CPD excluded Ross Perot from the debates, even though he had 

received nearly 19% of the vote in the 1992 general election. It did so because this time, the 

campaigns of the Republican and Democratic nominees decided that he should not participate. 

As a senior Clinton campaign official explained, “[The Dole campaign] didn’t have leverage 

going into the negotiations. They were behind, they needed to make sure Perot wasn’t in it. As 

long as we would agree to Perot not being in it we could get everything else we wanted going in. 

We got our time frame, we got our length, we got our moderator.”14 The CPD, as it did in 1992, 

honored the major-party candidates’ self-interested agreement about whether to permit Perot to 

debate. 

39. The CPD’s leadership structure is purposefully designed to permit this type of 

partisan rigging of the debates. The CPD’s leadership includes Republican and Democratic 

partisans with partisan interests, who are accountable to no one, and who have not created any 

mechanism for considering the interests of third-party and independent candidates, or adopted 

rules that would ensure that its Board members are not laboring under conflicts of interest 

because of their partisan activities. 

40. The CPD has always had chairmen with deep ties to the Republican and 

Democratic parties. 

41. Fahrenkopf has been a co-chair of the CPD from its founding to the present. 

Before and during his time on the CPD, Fahrenkopf has remained an active Republican partisan 

and influential lobbyist: 

a. He was chair of the Republican National Committee from 1983 to 1989. 

 14 David Broder, Campaign For President: The Managers Look at ’96 at 170 (1997). 

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b. He has given over $90,000 to Republican candidates and causes during his tenure 

at the CPD, including more than $23,000 in between 2008 and 2012 and more than $35,000 in 

the 2014 election cycle. 

c. In 2011, Fahrenkopf authored an op-ed calling for the Republican Party to find a 

“dynamic and hardworking new chairman” who could win the trust of “our major-donor base” 

and “rebuild the tattered reputation and organization of our great party.”15 

d. Fahrenkopf has even donated to the presidential campaign of at least one 

candidate appearing in the CPD’s debates, George W. Bush. 

e. During the last presidential election, Fahrenkopf was the head of the American 

Gaming Association, which spent more than $3.5 million on lobbying activities in 2011 and 

2012 and gave over $150,000 to Democratic and Republican candidates in that span. 

42. Kirk was a co-chair of the CPD from its founding until 2009. Before and during 

his time on the CPD, Kirk was a leading Democratic activist: 

a. From 1985 to 1989, he served as chairman of the Democratic National 

Committee. 

b. While still co-chairman of the CPD, Kirk served as a Democratic superdelegate 

who publicly declared support for Barack Obama in May 2008. Kirk touted that Obama would 

“bring young and new and independent voters to the Democratic banner in November.”16 

c. Kirk left his CPD position to accept an appointment from Deval Patrick, a 

Democratic governor and close Obama ally, to take Ted Kennedy’s seat as a Democratic 

member of the Senate. 

 15 Frank Fahrenkopf and Jim Nicholson, Don’t Repeat Error of Picking Steele, Politico (Jan. 12, 2011, 4:37 

a.m.), http://www.politico.com/news/stories/0111/47440.html (emphases added). 16 Jonathan D. Salant, Former Democratic Party Leader Paul Kirk Backs Obama, Bloomberg.com (May 2, 

2008 2:22 p.m.), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aBtdfyDJEwZM&refer=home. 

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43. Mike McCurry, a longtime Democratic insider – the holder of “a variety of 

leadership roles in national campaigns for the Democratic ticket from 1984 to 2004” according to 

his professional biography17 – replaced Kirk as co-chair in 2009 and remains in that position. 

Before and during his time at the CPD, McCurry has remained an active Democratic partisan and 

influential lobbyist: 

a. McCurry was a key player in the Clinton campaign when, upon information and 

belief, it and Bob Dole’s campaign ensured that the CPD excluded Ross Perot from the 1996 

debates. 

b. From 2008 through 2012, McCurry gave nearly $85,000 to various Democratic 

candidates, including $7,500 during this period to 2016 presidential candidate Hillary Clinton. 

c. Moreover, just a few months after Plaintiffs filed their administrative complaint 

highlighting the inappropriate partisan bias of the CPD’s leadership, McCurry donated to 

Clinton’s campaign in April 2015. 

d. McCurry is a principal at Public Strategies Washington, Inc., a lobbying firm for 

major corporations whose clients include CPD sponsors Anheuser-Busch and Southwest 

Airlines, which give hundreds of thousands of dollars to Democratic and Republican candidates. 

44. There is a network of ties between the other members of the CPD leadership and 

the major parties: 

a. The CPD’s executive director, Janet Brown, served as an aide to top Republicans 

before taking over her present office in 1987. 

b. Two former Republican senators, John Danforth and Alan Simpson, are on the 

CPD board. Senator Danforth remains actively involved with the Republican Party, even serving 

 17 Michael D. McCurry, Public Strategies Washington Inc., http://www.psw-inc.com/team/member/

michael-d.-mccurry (last visited Oct. 20, 2015). 

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on a host committee for a fundraising event for Jeb Bush’s super PAC.18 And Senator Simpson 

has been particularly vocal about his views that independent and third-party candidates should 

“not be included in the debates” because “it’s obvious that independent candidates mess things 

up.”19 Simpson has stated: 

It is a two-party country. It seems to work better when you have the embracing of 

the two-party system. I’d like to preserve that. I have seen enough in my time, in 

my lifetime, with three very capable people – Anderson, Perot, and Nader – who 

have messed things up, who have ruined the cake mix. Whichever side you’re on, 

they hurt or helped and made a significant difference. I do not believe in 

independent party status. . . . The purpose of the [CPD], it seems to me is to try to 

preserve the two-party system that works very well, and if you like the multiparty 

system, then go to Sri Lanka and India and Indonesia and get picking around it 

instead of all this ethereal crap.20 

c. Democratic board representatives include Newton Minow, a close aide to Adlai 

Stevenson and a Kennedy appointee to the Federal Communications Commission; and Antonia 

Hernandez, who served as counsel to the Senate Committee on the Judiciary when it was led by 

Ted Kennedy. Hernandez donated $2,700 to Hillary Clinton’s presidential campaign in April 

2015. 

d. CPD board member Richard Parsons and his wife gave more than $100,000 to 

Republican candidates and party committees between 2008 and 2012. In addition, he donated 

$2,700 to each of the presidential campaigns of both Hillary Clinton and Jeb Bush in June 2015. 

e. Howard Buffett, a CPD board member since at least 2000, contributed to Barack 

Obama’s 2008 presidential campaign the very same month that the CPD sponsored the debates 

between Obama and John McCain. 

 18 See Maeve Reston, Jeb Bush heads to California fundraisers, some hosted by former Romney donors, 

CNN (Jan. 14, 2015), http://www.cnn.com/2015/01/13/politics/jeb-bush-california-fundraisers/. 

19 George Farah, No Debate: How the Republican and Democratic Parties Secretly Control the Presidential 

Debates 41 (2004). 20 Id. at 40-41 (emphasis added). 

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f. CPD board member Dorothy Ridings has contributed to Democratic campaigns. 

In addition, she has expressed her preference for “the two-party system” because “[i]t’s a lot 

better than the [political system in] France.”21

g. The CPD has six new directors who joined the board in April 2014.22 These six 

directors were not involved in the CPD’s past decisions regarding debate access, but are 

participating in setting the rules for the 2016 election. Nonetheless, and even though the CPD 

must be nonpartisan, one of the new members, Leon Panetta (a former Democratic congressman 

who served in the Cabinet under Presidents Clinton and Obama), has publicly endorsed Hillary 

Clinton’s 2016 presidential campaign,23 and another, Olympia Snowe (a former Republican 

senator and congresswoman), donated to Jeb Bush’s presidential campaign in June 2015. 

45. In contrast to these partisan ties, nothing suggests that the CPD has any 

institutional mechanisms to check Democratic and Republican influence or to protect the 

interests of third parties and independents: 

a. According to one CPD board member, the board may meet as infrequently as 

once a year, and generally by conference call. 

b. For years, the CPD reported in IRS filings under penalty of perjury that its board 

members devoted zero hours per week to the organization, even in presidential election years. 

c. Many board members do not even bother to attend the debates. Five of eleven 

board members were absent from the first presidential debate in 2012, and Fahrenkopf noted that 

that attendance level was an accomplishment. 

 21 Farah, supra n.19, at 9. 22 The six new members are Mitchell E. Daniels, Jr., Charles Gibson, Jane Harman, Leon E. Panetta, 

Olympia Snowe and Shirley M. Tilghman. 23 Lucy McCalmont, Leon Panetta goes all in for Hillary Clinton, Politico (Oct. 14, 2014 11:52 p.m.), 

http://www.politico.com/story/2014/10/leon-panetta-hillary-clinton-111892.html. 

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d. The CPD board nominates its own members, without any oversight. Moreover, 

its bylaws have given the two chairmen of the organization – i.e., veteran insiders of the two 

major parties – the unilateral power to determine which directors could nominate candidates for 

board admission, and unchecked discretion in filling vacancies occurring before a director’s 

official term expired. 

e. The CPD apparently has no rules preventing board members from cultivating and 

maintaining active partisan ties. Its conflict of interest policy, for example, is entirely silent 

when it comes to partisan activity. 

46. Fahrenkopf recently confirmed this overwhelming evidence of the CPD’s 

bipartisan bias. Appearing in a television news interview in his role as co-chair of the CPD to 

discuss its debate sponsorship activities, Fahrenkopf admitted that the CPD’s “system” for 

selecting candidates consists of “go[ing] with the two leading candidates, it’s [sic] been the two 

political party candidates.”24 The FEC’s rules, of course, prohibit a debate sponsor from having 

a candidate selection system designed to include the Republican and Democratic nominees and 

exclude all others. Yet Fahrenkopf admitted that that is exactly what the CPD does: it uses a 

“system” designed to include only “the two leading candidates,” i.e., “the two political party 

candidates.” 

 

 24 Fahrenkopf Interview, supra note 2. 

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

To Exclude Third-Party And Independent Candidates 

The CPD’s Selection Criteria 

47. In 2012, as well as in the three previous presidential elections, the published 

criteria for participation in a CPD debate were that the candidate: (1) be constitutionally eligible 

for office, (2) have his or her name appear on enough state ballots to have a mathematical chance 

of securing an Electoral College majority, and (3) have a level of support of at least 15% of the 

national electorate as determined by five selected national public opinion polling organizations, 

using the average of those organizations’ most recent publicly-reported results at the time of the 

determination. 

48. The date for determining satisfaction of the 15% rule is not specified in advance; 

the CPD states that it makes its determination after Labor Day but “sufficiently in advance of the 

first-scheduled debate to allow for orderly planning.”25 The determination typically first occurs 

in mid-September. 

49. The polls that the CPD claims to rely upon are not announced, either in advance 

or upon application of the criteria. In 2012, the CPD announced that it applied its polling 

criterion “with the assistance of the Editor-In-Chief of the Gallup Polling Organization, Dr. 

Frank Newport,” but did not disclose the five polls it purportedly consulted until it had to 

respond to Plaintiffs’ administrative complaint.26 

 25 2012 Candidate Selection Criteria, Commission on Presidential Debates, http://www.debates.org/

index.php?page=candidate-selection-process (last visited Oct. 20, 2015). 26 See 2012 Application of Criteria, Commission on Presidential Debates (Sept. 21, 2012), http://www.

debates.org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=42&cntnt01origid=

27&cntnt01detailtemplate=newspage&cntnt01returnid=80. 

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50. The CPD has purported to rely on these criteria in the 2000, 2004, 2008, and 2012 

elections. In each of those elections, the CPD invited only the Democratic and Republican 

nominees to the debates it sponsored. 

51. The CPD has begun preparations to host the general election debates for the 2016 

election, having already requested proposals from sites interested in hosting a 2016 presidential 

or vice presidential debate. Upon information and belief, the CPD intends to use the same or 

similar candidate selection criteria for the 2016 presidential elections that it used in the 2012 

cycle, and the three cycles before that. 

The CPD’s 15% Rule Is Biased Against Independent And Third-Party Candidates 

52. The FEC requires debate sponsors to “use pre-established objective criteria to 

determine which candidates may participate in a debate.” 11 C.F.R. § 110.13(c). Many rules 

can seem objective on the surface but nonetheless operate in practice as a means for improperly 

excluding independent candidates. To guard against this possibility, the FEC has explained that 

the objectivity requirement means that the criteria “must be free of ‘content bias,’ and not geared 

to the selection of certain pre-chosen participants.” First General Counsel’s Report at 7, MUR 

5395 (Dow Jones) (dated Jan. 13, 2005, approved by the FEC on Jan. 19, 2005). And in 

particular, “the objectivity requirement precludes debate sponsors from selecting a level of 

support so high that only the Democratic and Republican nominees could reasonably achieve it.” 

Buchanan, 112 F. Supp. 2d at 74. 

53. The CPD’s 15% rule does not satisfy the objectivity requirement of the FEC 

regulations. No third-party or independent candidate has satisfied this polling criterion in the 

four election cycles in which it has been in place; nor would Ross Perot have satisfied it had it 

been in effect in 1992 or 1996. Plaintiffs have submitted new empirical studies demonstrating 

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that as a practical matter, it is impossible for a candidate unaffiliated with the major parties – no 

matter how qualified to be president – to reasonably be expected to achieve the required 15% 

level of support.27 

54. A candidate seeking to satisfy the CPD’s rule needs to become sufficiently well 

known nationally in order to attract the support of 15% of the electorate. Data show that, on 

average, a candidate would have to achieve, at a minimum, 60% national name recognition to 

have a chance at achieving 15% voter support. It is likely, moreover, that the necessary name 

recognition is much higher, approaching 80% or above. 

55. Achieving those levels of name recognition is much easier for candidates who 

compete in the major party primaries than it is for those who do not. The primary process 

provides a mechanism for Democratic and Republican hopefuls to generate name recognition, 

and, in turn, voter support, at a manageable cost. Candidates without a national profile can raise 

the money necessary to become competitive in the small, early primary states. That, in turn, 

leads to media coverage, inclusion in the primary debates, and other free avenues to enhanced 

name recognition. 

56. By contrast, candidates unaffiliated with the Democratic and Republican parties 

have no similar opportunities to build name recognition within a relatively modest budget; as a 

practical matter it is virtually impossible for such candidates to satisfy the 15% threshold. 

 27 The data and conclusions in paragraphs 53 through 63 and 70 through 72 are taken from two expert 

reports submitted with Plaintiffs’ administrative complaint. One report, by Dr. Clifford Young, head of U.S. Public 

Affairs at the polling firm Ipsos, contains a detailed, quantitative analysis demonstrating (1) that a non-major-party 

candidate would need extremely high name recognition to satisfy the CPD’s rule, and (2) that, even if he or she 

could achieve it, the inaccuracies of polling in a three-way race would often result in his or her exclusion from the 

debates. The other report, by veteran campaign consultant and pollster Douglas Schoen, demonstrates that the cost 

of achieving the name recognition necessary to satisfy the CPD’s rule is prohibitively expensive for an independent 

or third-party candidate. Both reports can be found online at http://www.changetherule.org/wp-content/themes/rule/

pdfs/ChangeTheRule_Book.pdf. 

Case 1:15-cv-01397-TSC Document 17 Filed 10/22/15 Page 23 of 51
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57. First, these candidates do not have the benefit of a party brand identity to inflate 

their vote share. Democratic and Republican candidates receive a default level of vote share by 

virtue of their partisan affiliation alone. 

58. Second, unlike Democratic and Republican hopefuls who benefit from press 

coverage of the primary process, independent and third-party candidates lack an institutionalized 

process for obtaining free media that can generate name recognition. Indeed, the media pay little 

attention to these candidates at all; as leading political analyst Chuck Todd put it, these 

candidates “typically don’t get the media attention – and thus name ID – that Democrats and 

Republicans get.”28 

59. As a result, an independent candidate would have to rely on paid media to become 

known and to communicate his or her message. Experienced pollster and campaign strategist 

Doug Schoen estimates that the cost of just the advertising necessary to achieve 60% name 

recognition for an independent candidate would be in the ballpark of $113 million, at an absolute 

minimum. To achieve 80% name recognition – the amount more likely necessary to clear the 

15% hurdle – the candidate would have to spend $150 million on paid media. 

60. No third-party or independent candidate has ever raised $113 million, much less 

$150 million. Indeed, $113 million is more than what Mitt Romney’s campaign spent to win the 

Republican nomination in 2012. 

61. That $113 million, moreover, is only the cost directly associated with paid media. 

Campaigns must incur many other costs to boost a candidate’s name recognition and publicize 

his or her message to voters. For example, campaigns must pay for staff, consultants, polling, 

 28 Chuck Todd, Mary Murray & Carrie Dan, Independents’ Day? Game Rigged Against Third-Party 

Candidates, NBC News (July 3, 2014 9:12 a.m.), http://www.nbcnews.com/politics/first-read/independents-daygame-rigged-against-third-party-candidates-n147331. 

Case 1:15-cv-01397-TSC Document 17 Filed 10/22/15 Page 24 of 51
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legal advice, travel, events, direct mail, and many other things. A candidate seeking to be 

competitive with the major party candidates would likely budget to spend more than $133 

million on these other campaign costs (roughly 75% of what Mitt Romney’s campaign paid for 

nonmedia related expenses in the 2012 general election). Adding up these costs for paid media, 

campaigning generally, and ballot access, a third-party or independent candidate is looking at a 

budget of more than $253 million to mount a competitive bid and achieve poll results of 15% or 

more in September. Factor in the approximate 5% growth in costs that occurs from one 

presidential cycle to the next, and that number rises to $266 million in 2016. 

62. It is simply not reasonably feasible for a third-party or independent candidate to 

raise this kind of money just to achieve the necessary name recognition. Most political donors 

are repeat donors who are invested in the success of one or both of the major parties, and are 

extremely unlikely even to consider a contribution to a candidate unaffiliated with those parties. 

And given the $5,400 limit for individual contributions to candidates, a candidate would need to 

solicit millions of people to raise the necessary funds and would have to achieve massive 

fundraising success before obtaining significant name recognition, which makes fundraising 

much harder. There is no evidence that it is reasonably possible for an independent or thirdparty candidate to achieve this level of fundraising.29

63. In sum, without unparalleled amounts of campaign cash that no independent or 

third-party candidate has ever raised or spent, it is not reasonably possible for a third-party or 

independent candidate to achieve the name recognition necessary to poll at 15%. 

 29 Unaffiliated candidates also have no ability to benefit from party donations. Under new rules adopted by 

the current Congress, individuals can give up to $1,668,000, to party committees for the 2015-16 election cycle. 

(That total includes contributions of up to $334,000 to national party committees and party committee accounts for 

each of 2015 and 2016, and an additional $500,000 to state, district and local party committees for each of 2015 and 

2016 ($10,000 per state, district or local committee of each state per year, with total contributions unlimited under 

McCutcheon, 134 S. Ct. at 1462), i.e., $834,000 per year or $1,668,000 for the 2015-16 cycle.) See Fed. Election 

Comm’n, http://www.fec.gov/ans/answers_general.shtml#How_much_can_I_contribute (last visited Oct. 20, 2015). 

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64. Even if that were possible, however, the CPD’s rule still systematically and 

arbitrarily disadvantages third-party and independent candidates. This bias is a second reason 

why the 15% rule is not objective. 

65. The CPD’s rule leaves third-party and independent candidates at the mercy of 

arbitrary decisions of pollsters and the CPD on whom to poll, when to poll, what polls to 

consider, and when to make the debate selection determination. Indeed, the CPD does not use 

objective, pre-determined criteria to select which five polls to average or precisely when to take 

that average. As a result, the selection of which polls to include and when to average them is 

subject to manipulation to achieve particular results. 

66. Moreover, as recent election results demonstrate, polls are often highly 

misleading.30 FEC Chairwoman Ravel herself has stated that while “polling thresholds in 2009 

were once a valid, fair, and unbiased way to determine eligibility for debates,” “[w]e now know 

that things have changed in the last couple of years,” and has recognized that “the world may 

have a polling problem, and it is harder to find an election in which polls did all that well.”31

67. The polls of the Gallup Organization, which assists the CPD in applying its 

polling criterion, demonstrate the unreliability of polling. In each year since the CPD adopted its 

15% rule, it has relied on Dr. Frank Newport, the Editor-in-Chief of the Gallup Organization to 

assist in the application of the polling criterion, including by selecting the five national public 

 30 For example, pre-election polls in the 2014 midterm elections were grossly inaccurate, as evidence 

Plaintiffs submitted to the FEC shows. See Comment of Level the Playing Field, Rulemaking Petition: Candidate 

Debates at (Dec. 2, 2014), available at http://sers.fec.gov/fosers/showpdf.htm?docid=310980. More recently, polls 

taken on the eve of the 2015 U.K. elections were far off the mark. See Dan Bilefsky, British Election’s Other 

Losers: Pollsters, N.Y. Times (May 8, 2015), http://www.nytimes.com/2015/05/09/world/europe/uk-britishelection-polling.html. 31 FEC Open Meeting, July 16, 2015 [hereinafter FEC Meeting] (statement of Chairwoman Ann Ravel), 

available at http://www.fec.gov/agenda/2015/documents/transcripts/Open_Meeting_Captions_07_16_2015.txt. 

Case 1:15-cv-01397-TSC Document 17 Filed 10/22/15 Page 26 of 51
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opinion polls upon which the CPD has relied. In each of these elections, the CPD has included 

Gallup polls as one of the five national public opinion polls. 

68. Dr. Newport has also submitted declarations on the CPD’s behalf in response to 

administrative complaints filed against the CPD, including in response to Plaintiffs’ 

administrative complaint. In his declaration in response to Plaintiffs’ complaint, Dr. Newport 

asserted that polling is a “scientific process,” and touted polling’s “improv[ing]” and 

“evolv[ing]” methodology, and the inherent “reliability of the public opinion polls CPD has 

relied upon over the years.”32 

69. However in actuality, Gallup’s polls exhibited substantial innacuracies during the 

2012 presidential election, “consistently show[ing] Mr. Romney ahead by about six percentage 

points” in an election that President Obama won by 3.87%, and possessing an average margin of 

error of 7.2%.33 Dr. Newport has publicly admitted that Gallup does not “have a definitive 

answer” for its errors, and that Gallup’s polls were toward the “inaccurate end of the 

spectrum.”34 These inaccuracies have subsequently led Gallup – just a few months after Dr. 

Newport submitted his sworn statement defending polling to the FEC – to withdraw entirely 

from polling for the 2016 Democratic and Republican presidential primary races.35

 32 See Decl. of Frank Newport at 4-5, Exhibit 2 to Ltr. of Lewis K. Loss to Office of General Counsel of the 

FEC, MUR 6869 (Dec. 15, 2014), available at http://eqs.fec.gov/eqsdocsMUR/15044375237.pdf. 33 Nate Silver, Which Polls Fared Best (and Worst) in the 2012 Presidential Race, N.Y. Times (Nov. 10, 

2012), http://fivethirtyeight.blogs.nytimes.com/2012/11/10/which-polls-fared-best-and-worst-in-the-2012-

presidential-race/?_r=0. 34 Scott Clement, Gallup explains what went wrong in 2012, Wash. Post (June 4, 2013), 

http://www.washingtonpost.com/news/the-fix/wp/2013/06/04/gallup-explains-what-went-wrong-in-2012/; Steven 

Shepard, Gallup Blew Its Presidential polls, but Why?, Nat’l J. (Nov. 18, 2012), 

http://www.nationaljournal.com/s/88751/gallup-blew-its-presidential-pollswhy?q=gallup%20steven%20shepard&a=&t=&c=&s=None&e=None. 35 See Steven Shepard, Gallup gives up the horse race, Politico (Oct. 7, 2015), 

http://www.politico.com/story/2015/10/gallup-poll-2016-pollsters-214493. On October 20, 2015 Plaintiffs the 

Green Party and the Libertarian Party submitted a supplemental letter to the FEC informing them of Gallup’s 

withdrawal from public opinion polling for the presidential primary races. 

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70. Moreover, data taken from 95 firms over 1,000 polls and approximately 2,500 

observations prove that polls in three-way races are subject to heightened inaccuracy due to 

increased sampling errors that occur as a result of the unique challenges posed by polling a threeway race. Because of the inaccuracy, the CPD’s rule can often exclude a candidate who actually 

draws 15% support. 

71. At the expected average error rate of three-way polls, a hypothetical candidate 

with 17% support would nonetheless fail to satisfy the CPD’s 15% rule 40.2% of the time. In 

contrast, at the same error rate, a hypothetical candidate with 42% support would only fail to 

satisfy the CPD’s rule .04% of the time. In other words, 4 out of 10 times, the CPD’s rule will 

exclude the 17% candidate from the debates, but only 4 out of 1000 times will it exclude the 

42% candidate from the debates. 

72. The high risk of a false negative resulting from the application of the CPD’s rule 

hurts only the third-place candidate, which, in almost all cases, will be the third-party or 

independent candidate under the present system. As a result, because of the inaccuracy of threeway polling, the CPD’s rule is systematically skewed to reduce an independent candidate’s 

chance of satisfying it. 

73. Additionally, the mid-September timing of the CPD’s 15% determination also 

violates the FEC’s objectivity requirement. By postponing the application of its 15% 

determination until September, the CPD forces third-party and independent candidates to endure 

months of uncertainty about whether they will be in the debates, while their Democratic and 

Republican competitors will know by May (when their nominations have become certain) that 

they will be invited to the debates. 

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74. Because they know the CPD has never and would never exclude a Republican or 

Democratic nominee from the debates, the Republican and Democratic candidates can be sure 

that they can participate in the debates from the moment they secure their parties’ nominations. 

Even if the CPD actually applied the 15% rule to Democratic and Republican candidates, those 

candidates could rely on the support of devout partisans to clear that hurdle, as explained supra. 

Thus, the Democratic and Republican nominees face no uncertainty when it comes to debate 

participation. 

75. In contrast, a third-party or independent candidate must campaign for months 

under uncertainty as to whether he or she will have access to the debates. This uncertainty 

creates concrete harms that themselves make it even more impossible to poll at 15% in 

September. Without guaranteed access to the debates, the media is much less likely to cover the 

candidate, which inhibits the candidate’s ability to raise money and build support. Moreover, 

given that participation in the debates is a prerequisite to victory, many prospective donors will 

not contribute to a candidate who has not yet qualified for the debates. 

76. That uncertainty puts the non-major party candidates at an enormous 

disadvantage, and creates yet another Catch-22: The CPD requires independent candidates to 

raise an unprecedented sum of money in order to reach 15% in the polls in September, yet by 

postponing the determination of debate access to September, the CPD creates additional hurdles 

to raising that money. 

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

Process And The Appearance Of Corruption 

77. The CPD takes in millions of dollars of contributions from large multinational 

corporations each presidential cycle. Its roster of known corporate backers has included The 

Anheuser-Busch Companies, Southwest Airlines, BBH New York, Electronic Data Systems, 

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American Airlines, AT&T, Ford, Philip Morris Companies, Inc., IBM, J.P. Morgan & Co, and 

other major corporations. 

78. The CPD received nearly $8 million in contributions in 2011 and 2012. Upon 

information and belief, most of that money came from large corporations. 

79. Upon information and belief, the CPD in 2012 spent nearly $3.7 million to 

organize, produce, finance and publicize the general election debates. These expenditures paid 

for extensive media exposure for the Democratic and Republican candidates, both through the 

debates themselves and through media coverage of them. 

80. In addition to funding the debates, the political action committees of the corporate 

sponsors of the CPD, upon information and belief, donate more than $1.5 million to the two 

major parties every year in order to sustain a two-party system that supports their interests, and 

spend millions more lobbying elected officials from the two parties. In light of their investment 

in the two-party system, these corporations would necessarily disfavor the prospect of a thirdparty candidate winning the Presidency; it would render their existing investment in the twoparty system much less valuable. 

81. Upon information and belief, the CPD’s sponsor corporations often contribute to 

both Republicans and Democrats in order to buy broad influence. It is cheaper to pay for 

influence over two candidates than it is three, which is yet another reason corporations do not 

want a viable third alternative to emerge. 

82. The CPD’s biased 15% rule thus allows corporations to further a corrupt interest 

in limiting political competition. 

83. The CPD’s corporate sponsors also effectively pay for the more than $350,000 in 

annual compensation that CPD executive director Janet Brown receives, thereby ensuring that 

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the CPD’s purportedly full-time leader will not challenge corporate interest in stifling political 

competition. 

84. Corporate sponsorship of exclusionary, partisan debates also contributes to the 

public’s perception that the two parties are beholden to corporate interests. 

85. The public is dissatisfied with the Republican and Democratic parties. Sixty-two 

percent of Americans do not think the federal government has the consent of the governed,36 and 

86% feel the political system is broken and does not serve the interests of the American people.37

86. At the same time, the public prefers more inclusive presidential debates; 50% of 

Americans believe that the debates would be improved if a third candidate from outside the two 

major parties were included.38 The numbers are even higher when a specific third candidate is at 

issue: Fifty-six percent of respondents in a 2000 poll said that Ralph Nader and Pat Buchanan 

should have been included in the presidential debates,39 and 62% of Americans wanted Perot to 

participate in the 1996 debates.40

87. In light of these public attitudes, there is a clear risk that the public will view 

corporate sponsorship of exclusionary debates as a corrupt bargain between the major parties and 

their corporate patrons to deny the American people true electoral choice. 

 36 68% Think Election Rules Rigged for Incumbents, Rasmussen (July 13, 2014), http://www.

rasmussenreports.com/public_content/politics/general_politics/july_2014/68_think_election_rules_rigged

_for_incumbents. 37 Douglas E. Schoen, Independents and the Presidential Debate System at 9 (Aug. 29, 2014), available at

http://www.changetherule.org/wp-content/themes/rule/pdfs/ChangeTheRule_Book.pdf. 38 See id. at 14. 

39 Thomas E. Patterson, Election 2000: How Viewers ‘See’ a Presidential Debate 5 (2000), available at

http://shorensteincenter.org/wp-content/uploads/2012/03/vv_debate_paper.pdf. 40 Debate Commission Excludes Perot, CNN, (Sept. 17, 1996), http://cgi.cnn.com/ALLPOLITICS/1996/

news/9609/17/debate.announce/. 

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THE ADMINISTRATIVE COMPLAINT 

88. On September 11, 2014, Plaintiffs Level the Playing Field and Peter Ackerman 

filed an administrative complaint against the CPD, its executive director, and the 11 members of 

its board of directors who participated in adopting its rules for the last presidential election.41 

89. On June 16, 2015, Plaintiff the Green Party submitted a request to join that 

administrative complaint. On June 18, 2015, Plaintiff the Libertarian Party also submitted a 

request to join the administrative complaint. The Green Party and the Libertarian Party requests 

raised no new facts, and incorporated and relied solely on the facts and allegations contained in 

LPF’s and Dr. Ackerman’s administrative complaint. 

90. Based on the facts and evidence documented in the administrative complaint and 

exhibits appended thereto, Plaintiffs alleged that the CPD and these 12 directors violated the 

FEC’s debate sponsorship regulations. For the reasons set forth above, and presented in greater 

detail in the administrative complaint and the extensive evidence submitted in support of that 

complaint, Plaintiffs established that the CPD’s sponsorship of the debates violated FEC 

regulations because (1) the CPD is not a nonpartisan organization and (2) the CPD’s 15% polling 

criterion is not objective as required by the FEC’s rules. 

91. Because the CPD violated the FEC’s debate regulations, its expenditures on 

debates, receipt of corporate contributions to fund those expenditures, and failure to report those 

expenditures and contributors all also violated FECA. 

92. First, the CPD violated FECA by making illegal corporate campaign 

contributions. FECA prohibits corporations, including the CPD, from making contributions to 

 41 The 11 directors are: Frank Fahrenkopf, Jr., Michael D. McCurry, Howard G. Buffett, John C. Danforth, 

John Griffen, Antonia Hernandez, John I. Jenkins, Newton N. Minow, Richard D. Parsons, Dorothy Ridings, and 

Alan K. Simpson. The executive director is Janet Brown. 

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political candidates, 52 U.S.C. § 30118(a), and defines contributions broadly to include the 

provision of any good or service free of charge, see 11 C.F.R. § 100.52(d)(1) (defining in-kind 

contribution as “the provision of any goods or services without charge or at a charge that is less 

than the usual and normal charge for such goods or services”). The CPD’s provision of free 

televised campaign fora to the Democratic and Republican candidates were illegal corporate 

campaign contributions. 

93. Second, the CPD violated FECA by making illegal corporate campaign 

expenditures. Under FECA, an “expenditure” includes “any purchase, payment, distribution, 

loan, advance, deposit, or gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A)(i). FECA 

prohibits corporations like the CPD from making such expenditures. Id. § 30118(a). The CPD’s 

spending on a forum for Democratic and Republican presidential candidates to influence voters 

was an illegal corporate campaign expenditure. 

94. Third, the CPD violated FECA by accepting campaign contributions from its 

corporate sponsors. FECA prohibits corporations from making contributions to political 

committees. Id. A political committee includes any group that has as its “major purpose” the 

election of a candidate, Fed. Election Comm’n v. Mass. Citizens for Life, 479 U.S. 238, 252 n.6 

(1986), and that “makes expenditures aggregating in excess of $1,000 during a calendar year,” 

52 U.S.C. § 30101(4)(A). The CPD qualifies as a political committee: its major (and indeed, 

primary) purpose is to promote the election of the Democratic or Republican nominee for 

president by hosting debates that showcase those candidates and exclude all others, and it 

devotes virtually all, if not all, of its multimillion dollar spending in service of that purpose. The 

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CPD’s acceptance of corporate “donations” was an illegal receipt of corporate campaign 

contributions. See id. § 30116(f). 

95. Fourth, the CPD violated FECA by failing to disclose its contributors and 

expenditures. FECA requires a political committee to file a Statement of Organization with the 

FEC and to file reports detailing contributions received and expenditures made. See id.

§§ 30103, 30104. Although the CPD is a political committee, it ignored these requirements. The 

CPD’s decision to keep its contributors and expenditures secret violated FECA. 

96. On September 17, 2014, the FEC acknowledged receipt of the administrative 

complaint and numbered the matter MUR 6869. 

97. The CPD and the 12 directors named in the administrative complaint responded to 

it on December 15, 2014. 

98. On June 19, 2015, the FEC acknowledged receipt of the Green Party and the 

Libertarian Party requests to join the administrative complaint, and gave them a single matter 

number, MUR 6942. The FEC did not indicate whether it had granted the requests to join the 

administrative complaint, or whether it was treating the requests as the filing of a new 

administrative complaint. 

99. On June 22, 2015, Plaintiffs filed a complaint with this Court, challenging the 

FEC’s then-nine-month delay in acting on Plaintiffs’ administrative complaint. 

100. On July 14, 2015, the FEC dismissed Plaintiffs’ administrative complaint, finding 

that the CPD complied with the FEC’s debate staging regulations, and therefore that there was 

“no reason to believe” that the CPD, Fahrenkopf, or McCurry violated FECA. The FEC sent 

Plaintiffs its “Factual and Legal Analysis” on July 17, 2015. 

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101. To date, the FEC has not explained whether its July 14, 2015 dismissal of 

Plaintiffs’ administrative complaint disposed of the Green Party’s and the Libertarian Party’s 

requests to join the administrative complaint or whether it intends to treat the requests as the 

filing of a new administrative complaint, even though they presented no new evidence and 

simply requested to join the administrative complaint. In the event that the FEC intends to treat 

the requests as a new complaint, it has been more than 120 days since the FEC received both the 

Green Party’s request and the Libertarian Party’s request, yet the FEC has still not indicated that 

it has taken final action on them. 

THE PETITION FOR RULEMAKING 

102. LPF also filed a petition for rulemaking on September 11, 2014 seeking a revision 

of the FEC rules governing debates. 

103. Based on the facts and evidence documented in the petition for rulemaking and 

exhibits appended thereto, LPF’s petition demonstrated that use of the polling criterion to 

determine debate admission discriminates against independent and third-party candidates, 

because as a practical matter it is impossible for them to meet the requirement. 

104. To cure this problem, the petition sought a revision of the FEC rules governing 

debates to require the CPD or any other debate sponsor to use objective, unbiased criteria that do 

not require candidates to satisfy a polling threshold as the exclusive means of access to 

participating in presidential and vice presidential general election debates.

105. The FEC published the petition for rulemaking for public comment on November 

14, 2014. The public comment period closed on December 15, 2014. 

106. During the public comment period, 1,252 individuals and entities besides LPF 

submitted comments on the petition. 1,251 of those commenters – 1,247 of whom were 

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unknown to LPF – rejected the CPD’s exclusionary system and requested that the FEC open up a 

rulemaking to ensure a debate system that is fair to independent and third-party candidates. 

Plaintiff the Libertarian Party was among the commenters who filed a comment in support of 

LPF’s petition. The CPD was the only commenter opposing the initiation of a rulemaking. 

107. On July 16, 2015, in a 4-2 vote, the FEC denied LPF’s petition for rulemaking. 

To date, the FEC has not issued a notice of disposition setting forth the reasons for the decision 

not to open a rulemaking. The Commissioners who voted to deny the petition cited the FEC’s 

2009 denial of an earlier petition for rulemaking that sought to amend the debate staging 

regulations, and claimed that “the reasons . . . cited back in 2009 are still in force now.”42 In 

addition, they reasoned that the petition sought merely to expand the debates to include more 

candidates, and that that goal was unrelated to the FEC’s mandate to prevent corruption in the 

electoral process. 

FEC’S UNLAWFUL DISMISSALS

108. Both the FEC’s dismissal of Plaintiff’s administrative complaint and its denial of 

LPF’s petition for rulemaking are arbitrary, capricious, an abuse of discretion, and otherwise 

contrary to law. In each case, the FEC failed to consider extensive evidence set forth by 

Plaintiffs, and instead relied on stale reasoning from its prior precedent that no longer applies to 

the CPD or contemporary presidential campaigns. 

109. The FEC’s cited rationale for dismissing Plaintiffs’ administrative complaint was 

that it had rejected previous administrative complaints brought against the CPD’s selection 

criteria, and that therefore Plaintiffs made “the same allegations regarding the same candidate 

selection criteria that the Commission has considered and found insufficient.” In particular, the 

 42 See FEC Meeting, supra n.31 (statement of Vice Chairman Matthew Petersen). 

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FEC claimed that it had previously rejected claims that the CPD was bipartisan as opposed to 

non-partisan, and that this Court had previously sanctioned the CPD’s use of pre-debate polling 

numbers as an objective criterion. 

110. However, the FEC disregarded the significant differences between Plaintiffs’ 

administrative complaint and these prior challenges to the CPD’s candidate selection criteria, and 

failed to grapple with Plaintiffs’ new evidence of the CPD’s partisan affiliation with the two 

major parties, and with Plaintiffs’ empirical evidence conclusively demonstrating that the CPD’s 

15% rule is biased against independent and third-party candidates. 

111. First, in blindly relying on its obsolete precedent, the FEC ignored substantial 

new evidence regarding the CPD’s bipartisan bias. 

112. As this Court explicitly recognized in Buchanan, the FEC’s past deference to the 

CPD’s self-serving assertions of its non-partisan nature has only withstood scrutiny because the 

complainants in those cases had failed to present contemporaneous evidence of the CPD’s 

partisanship. See Buchanan, 112 F. Supp. 2d at 72. 

113. Here, by contrast, Plaintiffs’ administrative complaint did exactly that, 

highlighting evidence of recent campaign contributions by CPD directors to the Republican and 

Democratic parties and major party candidates, and evidence of their recent public endorsements 

of current and past presidential candidates. The FEC ignored all of this. 

114. The FEC also erroneously treated Plaintiffs’ administrative complaint as if filed 

solely against the CPD, Fahrenkopf, and McCurry. In doing so, it ignored the other ten CPD 

directors named as respondents in the complaint (Howard G. Buffett, John C. Danforth, John 

Griffen, Antonia Hernandez, John I. Jenkins, Newton N. Minow, Richard D. Parsons, Dorothy 

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Ridings, Alan K. Simpson, and Janet Brown), and, crucially, Plaintiffs’ specific allegations of 

partisanship regarding these directors. 

115. The only piece of new evidence the FEC considered was Fahrenkopf’s admission 

that the CPD’s system for selecting candidates consists of “go[ing] with the two leading 

candidates.” The FEC dismissed the comment based solely on a self-serving declaration by 

Fahrenkopf, and assumed that he must have been merely “describing historical fact,” not the 

CPD’s selection criteria. However, that conclusion was unreasonable in light of Fahrenkopf’s 

history and current role as an active Republican partisan, his past campaign contributions, his 

public comments espousing his support for and affiliation with the Republican party, and his 

work as a lobbyist for an organization that donated over $150,000 to Democratic and Republican 

candidates in the 2011-12 election cycle alone. In addition, the FEC’s conclusion was 

inconsistent with the CPD’s own response to the administrative complaint, in which it described 

its “primary mission” as ensuring “that general election debates are held every four years 

between the leading candidates for the offices of President and Vice President.”43 

116. The FEC’s failure to consider virtually all of Plaintiffs’ evidence of the CPD’s 

partisanship, and its failure to even acknowledge, much less consider, the allegations against 

Respondents Buffett, Danforth, Griffen, Hernandez, Jenkins, Minow, Parsons, Ridings, Simpson, 

and Brown renders its decision arbitrary, capricious, and contrary to law. 

117. Second, the FEC’s cursory analysis also failed to meaningfully address the 

significance of Plaintiffs’ new empirical evidence and expert analyses demonstrating that the 

CPD’s 15% rule is fundamentally biased against independent and third-party candidates. 

Notably, the FEC did not dispute the accuracy of that evidence, which showed that, as a practical 

 43 See Loss Ltr., supra n.32 at 1. 

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matter, it is impossible for a candidate unaffiliated with the two major parties to achieve a 15% 

level of support in light of the prohibitive cost of obtaining the name recognition necessary to 

reach that level of support; the inherent unreliability of polls in general, and in three-candidate 

races in particular; and the timing of the CPD’s determination, which forces independent and 

third-party candidates to campaign and fundraise for months without any certainty as to their 

ability to participate in the debates. 

118. The FEC appeared to accept the validity of the data, as it did not credit the CPD’s 

unpersuasive attempt to attack the evidence. The FEC’s sole response to Plaintiffs’ empirical 

data demonstrating the bias inherent in the CPD’s 15% rule was a conclusory assertion in a 

footnote that “[e]ven if CPD’s 15% polling criterion may tend to exclude third-party and 

independent candidates,” the CPD’s criterion is still “objective.” 

119. But the FEC failed to explain how this could possibly be the case, in light of the 

evidence showing that the necessary result of the CPD’s 15% rule is to include the major party 

candidates while excluding independent and third-party candidates who did not run in a major 

party primary. Indeed, as this Court has explained, a criterion that “only the Democratic and 

Republican nominees could reasonably achieve” is not objective. Buchanan, 112 F. Supp. 2d at 

74. 

120. Upon information and belief, the Green Party and the Libertarian Party joined the 

administrative complaint, and the FEC’s dismissal of the administrative complaint addressed and 

disposed of the Green Party’s and the Libertarian Party’s allegations. 

121. However, in the event the FEC intends to treat the requests to join the 

administrative complaint as the filing of a new administrative complaint, the FEC’s failure to act 

on that complaint is arbitrary, capricious, an abuse of discretion, and otherwise contrary to law. 

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122. The Green Party and the Libertarian Party requests to join raised no new facts and 

fully incorporated the allegations of Plaintiffs’ administrative complaint. Accordingly, there is 

no rational basis that would warrant treating the requests differently from Plaintiffs’ 

administrative complaint, and, if that is what the FEC has done, its delay in deciding a matter 

identical to one it has already disposed of is unlawful. 

123. The FEC’s denial of LPF’s petition for rulemaking was similarly arbitrary, 

capricious, and contrary to law. Though the FEC has not yet issued a notice of disposition, the 

statements of the Commissioners voting against the petition indicate two bases for the denial: 

(1) the FEC’s denial of a prior petition for a rulemaking to address the debate staging 

regulations;44 and (2) the FEC’s misguided view that the petition was unrelated to FECA’s 

purposes of preventing corruption.45 Neither of these rationales can sustain the FEC’s denial of 

LPF’s petition. 

124. Though the Commissioners relied on the denial of a prior petition for rulemaking, 

the rationale for dismissing that petition has no bearing on LPF’s petition. The prior petition in 

question was filed in 1999, and the FEC waited more than eight years after the close of the 

public comment period to reject it. In rejecting the petition, the FEC cited the fact that two of the 

petitioners had passed away and the “passage of time” – i.e., the eight-year delay of its own 

creation – as the primary bases for the denial.46 That decision had nothing to do with the merits 

of the 1999 petition, and therefore is not a rationale for dismissing the merits of LPF’s petition. 

 44 See FEC Meeting, supra n.31 (statement of Vice Chairman Matthew Petersen) (stating that a “similar 

petition” was before the FEC in 2009, and that “the reasons I cited back in 2009 are still in force now”). 45 Id. (statements of Vice Chairman Matthew Petersen and Commissioners Lee Goodman, Caroline Hunter, 

and Steven Walther) (asserting that debate staging regulations are not concerned with “encourag[ing] fairness and 

representativeness” or “ensuring as many people get on the debate stage as possible”). 46 See FEC Open Meeting at 1:10:10-35, July 16, 2009 (statement of Chairwoman Ann Ravel), available at 

http://www.fec.gov/audio/2009/20090716_06.mp3; Candidate Debates, 74 Fed. Reg. 37,179, 37179 (July 28, 2009). 

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125. Indeed, the LPF petition was filed 15 years later, at a time when polling has 

become far more inaccurate, and it has become evident that it is impossible as a practical matter 

for an independent candidate who has not competed in the major party primaries to satisfy the 

CPD’s polling criterion. Other significant factors that have changed since 1999, but which the 

FEC ignored, include the enormous changes to communications technology in the intervening 

years; the substantial increase in the amount of money in politics; and the changing landscape of 

the American electorate, where far more voters (well over 40%) now identify as independents, 

with only 25% identifying as Democrats and 20% identifying as Republicans. Indeed, the two 

Commissioners who voted to open a rulemaking cited some of these factors, and the 

Commissioners in the majority offered no substantive response to their arguments.47 The FEC’s 

failure to consider these changed circumstances and instead to rely on its inapposite and obsolete 

precedent was arbitrary, capricious, and contrary to law. 

126. Moreover, the FEC’s suggestion that the petition should be denied because the 

anti-corruption purpose of the debate staging regulations does not require making the debates 

more inclusive fundamentally misunderstands the petition before the FEC. As Commissioner 

Goodman noted, the purpose of the debate regulations is to “prevent[] corruption and corporate 

contributions” so that “things styled as debates don’t become corporate sponsored rallies for one 

or two candidates alone.”48 But that is exactly the point of the petition. The CPD’s debates are 

funded by major corporations who are interested in influencing the Democratic and Republican 

candidates, and who have a vested interest in excluding independent and third-party candidates. 

 47 FEC Meeting, supra n.31 (statement of Chairwoman Ann Ravel) (stating that while “[p]olling 

thresholds . . . were once a valid, fair, and unbiased way to determine eligibility for debates,” “things have changed 

in the last couple of years,” and that “the world may have a polling problem”); id. (statement of Commissioner Ellen 

Weintraub) (citing the need to “be more inclusive and encouraging of greater political participation,” as a “really 

important goal”). 48 Id. (statement of Commissioner Lee Goodman). 

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127. The FEC also ignored the overwhelming public support for LPF’s petition. 

During the comment period, the FEC received 1,251 comments in favor of the petition and a 

single comment opposed to it – from the CPD itself. 

128. Upon information and belief, the FEC dismissed the administrative complaint and 

the petition for rulemaking because the six Commissioners of the FEC are partisans and 

members of the Republican and Democratic parties. As the Supreme Court has noted, because 

of this structure the FEC is “inherently bipartisan.” Fed. Election Comm’n v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (emphasis added). As an “inherently 

bipartisan” institution, the FEC is invested in the bipartisan control of our politics in the same 

way that the CPD is; upon information and belief, both organizations seek to perpetuate 

Democratic and Republican control over the political system. Indeed, in addressing LPF’s 

petition, one Commissioner admitted that “everyone at the table talks about their desire to 

strengthen party organizations.”49 As a result of this bipartisan bias, the FEC cannot act 

disinterestedly in addressing Plaintiffs’ administrative complaint or LPF’s petition for 

rulemaking. 

129. In recent years, the FEC’s partisanship has rendered it dysfunctional and largely 

unable to enforce the federal election laws. The FEC’s current chairwoman has publicly 

lamented that the FEC “is failing to enforce the nation’s campaign finance laws” because the sixmember Commission is “paralyzed” by a three-member block that reflexively refuses to 

“pursu[e] investigations into potentially significant fund-raising and spending violations.”50 

Indeed, she recently told the New York Times that the agency is “worse than dysfunctional” and 

 49 Id. (statement of Commissioner Ellen Weintraub). 50 Ann M. Ravel, How Not to Enforce Campaign Laws, N.Y. Times (Apr. 2, 2014), 

http://www.nytimes.com/2014/04/03/opinion/how-not-to-enforce-campaign-laws.html?_r=0. 

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that “there is not going to be any real enforcement” of the campaign finance laws in the next 

election.51 

130. This paralysis had stymied the FEC’s ability to prosecute complex violations of 

the federal election laws, leading it to collect just $135,813 in penalties for complex cases in 

2014, one of the lowest totals in 30 years and a nearly 80% drop from the prior year, and a total 

of $600,000 in fines in 2014, less than half of the amount of fines issued in the previous year and 

the lowest amount ever recorded since the current system for issuing fines began in 2001. It has 

even made what should be noncontroversial activities impossible to accomplish. For example, 

the FEC has published reports of its activities and the key issues it was addressing at its 10th, 

20th, and 30th anniversaries. It had to abandon this practice for its 40th anniversary in April 

2015 because the ideological gridlock made agreement on a description of the current state of the 

agency impossible.52 

131. However, apparently the one thing the partisan Commissioners of the FEC can 

agree on is the need to keep the electoral system rigged to protect the major parties from 

competition with independents and third parties. And even then, the FEC sat on Plaintiffs’ 

administrative complaint for nearly 10 months before acting, and upon information and belief, 

only acted because the Plaintiffs had filed a complaint before this Court challenging the unlawful 

delay. See Level the Playing Field v. Fed. Election Comm’n, No. 15-cv-961 (TSC) (D.D.C.). 

 51 Eric Lichtblau, F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says, N.Y. Times (May 2, 

2015), http://www.nytimes.com/2015/05/03/us/politics/fec-cant-curb-2016-election-abuse-commission-chiefsays.html. 52 Rebecca Ballhaus & Brody Mullins, Party Politics: FEC at Loggerheads on How to Celebrate 

Anniversary, Wall Street Journal (Apr. 16, 2015 8:00 p.m.), http://www.wsj.com/articles/party-politics-fec-atloggerheads-on-how-to-celebrate-anniversary-1429228827. 

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132. The CPD’s violation of the debate regulations and the FEC’s dismissal of 

Plaintiffs’ administrative complaint and LPF’s petition have caused and continue to cause injury 

to Plaintiffs. 

133. As explained above, LPF is the successor to AE, which obtained signatures 

sufficient to qualify for ballot access in 41 states and sought to nominate a nonpartisan 

presidential ticket in 2012. Qualified candidates for the Presidency declined to participate in 

AE’s nomination process in 2012 because the CPD’s debate rule made it impossible for them to 

secure access to the debates. The CPD’s rule thus deprived AE of the robust competition for its 

nonpartisan nomination that it sought to achieve in 2012. 

134. LPF intends to recruit qualified independent candidates to run on a nonpartisan 

presidential ticket in 2016. If the CPD’s rule remains in place, it will injure LPF’s ability to field 

a 2016 ticket, just as it injured AE’s ability to do so. 

135. As explained above, the Green Party and its predecessors have nominated 

candidates for the Presidency and Vice Presidency in each of the past four presidential elections, 

and it intends to do so again in 2016. Ralph Nader was the presidential candidate of several state 

Green Party organizations in 1996, with a self-imposed campaign spending limit of $5,000. The 

Association of State Green Parties (which changed its name to the Green Party of the United 

States in 2001) nominated Ralph Nader to be its presidential candidate again in 2000, when he 

received 2,833,105 votes (2.7% of all votes cast). In 2004, the Green Party’s presidential 

candidate was David Cobb, who earned ballot status in 28 states. The Green Party presidential 

candidate in 2008 was former six-term Congresswoman Cynthia McKinney, who achieved a 

ballot line in 31 states and the District of Columbia, all of which, combined, comprised more 

than 70% of all votes and 68% of electoral votes. In 2012, the Green Party presidential 

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candidate, Jill Stein, was the second Green Party candidate to qualify for matching funds from 

the FEC and qualified to be on the ballots in 36 states and the District of Columbia, representing 

81.6% of electoral votes. After being denied inclusion in the 2012 presidential debates by the 

CPD, she received 469,501 votes (0.36% of the popular vote). Green Party presidential 

candidates, including Dr. Stein in 2012, have been excluded from all general election presidential 

debates since the CPD adopted the selection criteria challenged in the administrative complaint. 

The Green Party intends to nominate a presidential candidate in 2016. 

136. As explained above, the Libertarian Party was founded in 1971 and has 

nominated presidential candidates during every presidential election since its formation, 

including Ed Clark in 1980, who appeared on the ballot of all 50 states and the District of 

Columbia; David Bergland in 1984, who received the third greatest number of votes in the 

presidential election; Ron Paul in 1988, who was on the ballot in 46 states and the District of 

Columbia and received the third most votes in the presidential election; Andre Marrou in 1992, 

who was on the ballot of every state and the District of Columbia; Harry Browne in 1996, who 

was on the ballot of every state and the District of Columbia – the first time in United States 

history a “third party” earned ballot status in all 50 states and the District of Columbia for a 

second consecutive time; Harry Browne again in 2000, who headed a ticket of 1,436 Libertarian 

Party candidates, including 256 candidates for the U.S. House of Representatives; Michael 

Badnarik in 2004, who was on the ballot in 48 states; Bob Barr in 2008, who led a ticket in an 

election in which fifty Libertarians were elected or re-elected; and Gary Johnson in 2012, who 

received 1,275,951 votes, in an election during which six of the Libertarian Party candidates for 

office also received a total of over one million votes. Libertarian Party presidential nominees, 

including Governor Johnson in 2012, have been excluded from all general election presidential 

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debates since the CPD adopted the selection criteria challenged in the Complaint. The 

Libertarian Party intends to nominate a presidential candidate in 2016. 

137. The CPD’s current rules will also harm LPF, the Green Party and the Libertarian 

Party, as well as their 2016 nominees, by causing them to suffer a competitive political 

disadvantage relative to the Republican and Democratic nominees. The application of the CPD’s 

biased, non-objective criteria will deny the nominees of LPF, the Green Party, and the 

Libertarian Party the opportunity to be fairly considered for inclusion in the 2016 debates and 

increase the probability that they will be unfairly excluded from the 2016 debates. The CPD’s 

use of biased selection criteria will also cause a relative diminution of the political voices of 

LPF, the Green Party, and the Libertarian Party and their eventual nominees and injure their 

ability to influence the political process by conferring a prohibited corporate campaign 

contribution on the Republican and Democratic nominees. In addition, Plaintiffs’ fundraising 

and LPF’s candidate recruitment efforts are also hindered by the fact that the CPD’s exclusionary 

rules are virtually certain to exclude their eventual nominees from the debates. The Democratic 

and Republican parties do not operate with those disadvantages, since they know that the biased 

CPD will ensure their nominees are included in the debates. The FEC’s dismissals therefore 

force Plaintiffs to conduct their current preparations for seeking ballot access and efforts for 

nominating a candidate in 2016 in an illegally structured campaign environment. 

138. In addition, the CPD’s FECA violations and the FEC’s dismissal of Plaintiffs’ 

administrative complaint harm Dr. Ackerman. Dr. Ackerman has a statutory right to know 

which political committees are supporting which candidates, and also is entitled to information 

concerning individuals and entities that have chosen to support the Democratic and Republican 

nominees. Possession of this information would assist Dr. Ackerman, and others to whom he 

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would communicate the information, in evaluating the various candidates for President and Vice 

President. The CPD, in violation of the law, fails to disclose information on its donors and 

expenditures. Dr. Ackerman’s inability to obtain information that the law requires be made 

available will result in a substantial, concrete, and particularized injury to him and similarly 

situated voters. 

139. Dr. Ackerman, moreover, is committed to getting the CPD to change its rules for 

the 2016 election by any lawful means possible. This would include making efforts to 

discourage the CPD’s previous donors from contributing to the CPD unless the CPD changes the 

debate rules to conform to the requirements of FECA and the FEC’s debate staging regulation. 

The CPD’s failure to provide information on its donors harms Dr. Ackerman’s ability to 

undertake these efforts. The FEC’s dismissal of Plaintiffs’ complaint risks diminishing or 

preventing altogether his intended efforts to dissuade donors from continuing to support the 

CPD. 

FIRST CAUSE OF ACTION 

FOR DECLARATORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202) 

140. Plaintiffs repeat and reassert the allegations in paragraphs 1 through 139 as 

though fully set forth herein. 

141. The FEC’s dismissal of Plaintiffs’ administrative complaint was arbitrary, 

capricious, an abuse of discretion, and otherwise not in accordance with law. See 52 U.S.C. 

§ 30109(a)(8)(A); 5 U.S.C. § 706. 

142. The FEC’s dismissal of Plaintiffs’ administrative complaint reflects the agency’s 

unwillingness and inability to investigate the CPD. 

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143. The Court should declare that the FEC’s dismissal is contrary to law and direct 

the FEC, within 30 days, to find that the CPD has violated FECA as set forth in the 

administrative complaint, and, if the FEC fails to so act, order that Plaintiffs may bring a civil 

action to remedy the violations of FECA alleged in their administrative complaint. 

SECOND CAUSE OF ACTION 

FOR DECLARATORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202) 

144. Plaintiffs repeat and reassert the allegations in paragraphs 1 through 139 as 

though fully set forth herein. 

145. The Green Party’s and the Libertarian Party’s requests to join the administrative 

complaint raised no new facts and incorporated wholesale the allegations of Plaintiffs’ 

administrative complaint. 

146. The FEC has not explained whether its dismissal of Plaintiffs’ administrative 

complaint addressed the allegations of the Green Party and the Libertarian Party. In the event it 

did not, the FEC has failed to act on the Green Party’s and the Libertarian Party’s administrative 

complaint to date. 

147. Assuming that the FEC failed to act on that administrative complaint within 120 

days of its filing, that failure to act was arbitrary, capricious, an abuse of discretion, and 

otherwise not in accordance with law. See 52 U.S.C. § 30109(a)(8)(A); 5 U.S.C. § 706. 

148. Requiring the Green Party and the Libertarian Party to exhaust administrative 

process before the FEC would be futile in light of the FEC’s repeated refusals to investigate the 

CPD, its dismissal of a complaint making identical allegations based on the same evidence, and 

its failure to expressly act on an administrative complaint that presented no new evidence and 

raised no new allegations. 

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149. The Court should declare that any such failure to act by the FEC is contrary to law 

and, as a result of the futility of exhaustion of administrative remedies, order that the Green Party 

and the Libertarian Party may bring a civil action to remedy the violations of FECA alleged in 

their administrative complaint. 

150. In the alternative, the Court should declare that the FEC’s apparent failure to act 

is contrary to law and direct the FEC, within 30 days, to find that the CPD has violated FECA as 

set forth in the administrative complaint, and if the FEC fails to so act, order that the Green Party 

and the Libertarian Party may bring a civil action to remedy the violations of FECA alleged in 

their administrative complaint. 

THIRD CAUSE OF ACTION 

FOR DECLARATORY AND INJUNCTIVE RELIEF

(28 U.S.C. §§ 2201-2202) 

151. LPF repeats and reasserts the allegations in paragraphs 1 through 139 as though 

fully set forth herein. 

152. The FEC’s denial of LPF’s petition for rulemaking was arbitrary, capricious, an 

abuse of discretion, and otherwise not in accordance with law. See 5 U.S.C. § 706. 

153. The Court should declare that the FEC must act within 30 days to open a 

rulemaking to revise the regulations governing presidential debates and further declare that the 

FEC must complete that rulemaking in sufficient time to ensure that the revised rules will be in 

place for the 2016 presidential election. 

REQUESTED RELIEF 

WHEREFORE, Plaintiffs, by their undersigned counsel, respectfully request that the 

Court grant the following relief: 

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a) Declare that the FEC’s dismissal of Plaintiffs’ administrative complaint was 

arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, and, if applicable, 

that the FEC’s failure to act on the Green Party’s and Libertarian Party’s requests to join the 

administrative complaint was arbitrary, capricious, an abuse of discretion, and otherwise contrary 

to law; 

b) Declare that the FEC’s denial of LPF’s petition for rulemaking was arbitrary, 

capricious, an abuse of discretion, and otherwise contrary to law; 

c) Direct that the FEC find that the CPD has violated 11 C.F.R. § 110.13 by staging 

candidate debates in a partisan manner and without pre-established, objective criteria; 

d) Direct that the FEC find that the CPD has violated 52 U.S.C. § 30118(a) by 

making prohibited contributions and expenditures; 

e) Direct that the FEC find that the CPD has violated 52 U.S.C. § 30116(f) by 

accepting prohibited contributions; 

f) Direct that the FEC find that the CPD has violated 52 U.S.C. §§ 30103 and 30104 

by failing to register as a political committee and by failing to make required reports and 

disclosures; 

g) Order the FEC to conform to such declaration and directives within 30 days and, 

if the FEC fails to so act, order that Plaintiffs may bring a civil action (1) to remedy the 

violations of FECA alleged in their administrative complaint and, (2) if the CPD adopts rules for 

the 2016 election that violate 11 C.F.R. § 110.13, to remedy the ensuing violations of FECA as 

well; 

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h) Order that the FEC within 30 days open a rulemaking to revise its rules governing 

presidential debates and that the FEC conclude that rulemaking in sufficient time to ensure that 

the revised rules will be in place for the 2016 presidential election; 

i) Award legal fees and costs of suit incurred by Plaintiffs; and 

j) Grant such other and further relief as this Court deems just and proper. 

Dated: October 22, 2015 

 

 Respectfully submitted, 

 

 /s/ Alexandra A.E. Shapiro 

_______________________ 

Alexandra A.E. Shapiro (D.C. Bar No. 438461) 

Chetan A. Patil (D.C. Bar No. 999948) 

SHAPIRO ARATO LLP 

500 Fifth Avenue 

40th Floor 

New York, New York 10110 

Phone: (212) 257-4880 

Fax: (212) 202-6417 

Attorneys for Plaintiffs 

 

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