UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, )

) Civ. No. 15-1397 (TSC)

v. )

) FEC REPLY BRIEF

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY BRIEF

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Daniel A. Petalas (D.C. Bar No. 467908) Erin Chlopak (D.C. Bar. No. 496370)

Acting General Counsel Acting Assistant General Counsel

dpetalas@fec.gov echlopak@fec.gov

Lisa J. Stevenson (D.C. Bar No. 457628) Robert W. Bonham III (D.C. Bar. No. 397859)

Deputy General Counsel – Law Senior Attorney

lstevenson@fec.gov rbonham@fec.gov

Kevin Deeley Jin Lee (D.C. Bar. No. 484455)

Acting Associate General Counsel Attorney

kdeeley@fec.gov jlee@fec.gov

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

July 13, 2016 (202) 694-1650

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TABLE OF CONTENTS

Page

INTRODUCTION.......................................................................................................... 1

ARGUMENT ................................................................................................................. 2

I. THE FEC IS ENTITLED TO DEFERENTIAL REVIEW....................................... 2

II. THE FEC DISMISSALS OF THE ADMINISTRATIVE COMPLAINTS IN

 MATTERS UNDER REVIEW 6869 AND 6942 WERE NOT CONTRARY TO

 LAW......................................................................................................................... 5

A. The Challenged Dismissal Decisions Were a Lawful Exercise of the 

 FEC’s Broad Discretion and Are Consistent with Prior FEC and Judicial 

 Decisions........................................................................................................ 5

B. The Commission’s Disagreement with Plaintiffs’ Characterization of

 Their Evidence Does Not Render the Dismissal Decisions Contrary to 

 Law ................................................................................................................ 8

C. The FEC’s Determination Regarding CPD’s Polling Criterion Was

 Lawful.......................................................................................................... 12

III. PLAINTIFFS’ HAVE FAILED TO MAKE THE REQUIRED SHOWING TO 

 COMPEL AGENCY RULEMAKING ................................................................. 15

A. Plaintiffs Have Failed to Identify Compelling Circumstances or Legal 

 Error............................................................................................................. 16

B. The Commission’s Choice to Evaluate the Objectivity of Debate 

 Selection Criteria Through the Enforcement Process was Reasonable ....... 19

IV. PLAINTIFFS’ CONTINUE TO SEEK RELIEF CONTRARY TO FECA 

 AND THE APPLICABLE, DEFERENTIAL STANDARD OF REVIEW.......... 22

A. Plaintiffs’ Requests for Relief Under Section 30109(a)(8) Are Improper... 22

B. Plaintiffs’ Request for a Supervised Rulemaking Is Improper .................... 24

CONCLUSION ............................................................................................................ 24

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TABLE OF AUTHORITIES

Cases

Akins v. FEC, 146 F.3d 1049 (D.C. Cir. 1998) ........................................................... 23

Ass’n of Data Processing Serv. Orgs. v. Bd. of Governors of Fed. Reserve Sys., 

745 F.2d 677 (D.C. Cir. 1984) ................................................................................. 8

Atchinson, Topeka & Santa Fe. Ry. Co. v. Wichita Bd. of Trade, 

412 U.S. 800 (1973) ........................................................................................ 18

Becker v. FEC, 230 F.3d 381 (1st Cir. 2000)........................................................... 2, 16

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000), aff’d in part, 

No. 00-5337 (D.C. Cir. Sept. 29, 2000), 

http://www.fec.gov/law/litigation/buchanan00_ac_order.pdf.............................passim

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)........................................................ 18

Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182 

(D.C. Cir. 1985) ................................................................................................. 2, 11

Citizens for Responsibility & Ethics in Washington v. FEC, 

No. 1:14-cv-01419 (CRC), 2015 WL 10354778 (D.D.C. Aug. 13, 2015) ...... 20, 21

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................................... 2

Common Cause v. FEC, 729 F. Supp. 148 (D.D.C. 1990) .......................................... 23

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per curiam) .......................... 2

Crawford v. FCC, 417 F.3d 1289 (D.C. Cir. 2005) .................................................... 19

Defs. of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008) ............................... 3, 15

Elrod v. Burns, 427 U.S. 347 (1976)............................................................................ 11

FEC v. Akins, 524 U.S. 11 (1998) ............................................................................... 22

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ........... 2, 3, 4, 7

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ........... 23

Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir.1970) ..................... 8

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ................................................. 2, 4, 20

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Hagelin v. FEC, 332 F. Supp. 2d 71 (D.D.C. 2004), rev’d on other grounds, 

411 F.3d 237 (D.C. 2005) ................................................................................ 22, 23

Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989) ..................................................... 8

Jordan v. FEC, No. 91-2428-NHJ (D.D.C. May 27, 1994), 

http://www.fec.gov/law/litigation/jordan_dc_order.pdf, aff’d on other grounds, 

68 F. 3d 518 (D.C. Cir. 1995) .................................................................................. 8

Koretoff v. Vilsack, 841 F. Supp. 2d 1 (D.D.C. 2012), aff’d ̧ 707 F.3d 394 

(D.C. Cir. 2013) ..................................................................................................... 20

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ...................................................... 23

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) .................................................... 23

Martin v. District of Columbia, 78 F. Supp. 3d 279 (D.D.C. 2015) ............................ 13

Mass. v. E.P.A., 549 U.S. 497 (2007) .................................................................. 2. 3, 15

McConnell v. FEC, 540 U.S. 93 (2003), overruled on other grounds by Citizens 

United v. FEC, 310 U.S. 558 (2010) ............................................................................. 9

MCI Telecom. Corp. v. FCC, 675 F.2d 408 (D.C. Cir. 1982) ....................................... 2

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ...................................................... 12

Nat’l Customs Brokers & Forwarders Ass’n of Am. v. United States, 883 F.2d 93 

(D.C. Cir. 1989) ..................................................................................................... 15

Nat’l Rifle Ass’n v. FEC, 854 F.2d 1330 (D.C. Cir. 1988) ............................................ 8

Nat’l Wildlife Fed. v. Westphal, 116 F. Supp. 2d 49 (D.D.C. 2000) ..................... 2, 6, 8

Natural Law Party v. FEC, 111 F. Supp. 2d 33 (D.D.C. 2000), 

http://www.fec.gov/law/litigation/NatLaw_dc_order_judg.pdf

aff’d in part, No. 00-5338 (D.C. Cir. Sept. 29, 2000), 

http://www.fec.gov/law/litigation/NatLaw_dc_order.pdf...................... 4, 12, 13, 20

Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031 (D.C. Cir. 1979) ........................... 4

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................... 11

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) (per curiam) ...................................... 7, 10

SEC v. Chenery Corp., 318 U.S. 80 (1943) ................................................................. 22

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Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. denied sub nom,

Miller v. FEC, __ U.S.__, 136 S. Ct. 895 (2016) ....................................................... 10

Statutes and Regulations

2 U.S.C. § 437g(a)(8)(C) ............................................................................................. 23

52 U.S.C. § 30106(a)(1) ................................................................................................. 3

52 U.S.C. § 30109(a)(8) ......................................................................................... 15, 22

52 U.S.C. § 30118(a)...................................................................................................... 5

52 U.S.C. § 30125(a) ..................................................................................................... 9

52 U.S.C. § 30125(d) ..................................................................................................... 9

11 C.F.R. § 100.3.......................................................................................................... 21

11 C.F.R. § 104.1.......................................................................................................... 21

11 C.F.R. § 110.13........................................................................................ 6, 12, 17, 19

11 C.F.R. § 110.13(a)................................................................................................. 6, 7

11 C.F.R. § 110.13(a)(1) ............................................................................................ 6, 7

11 C.F.R. § 110.13(c) .................................................................................. 6, 13, 14, 16

11 C.F.R. § 114.2.......................................................................................................... 21

11 C.F.R. § 300.61........................................................................................................ 21

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INTRODUCTION

In its opening brief, the Federal Election Commission (“FEC”) explained that under the 

highly deferential standard of review that the Court must apply here, the agency’s dismissal of 

plaintiffs’ administrative complaints and denial of Level the Playing Field’s (“LPF”) petition for 

rulemaking were proper exercises of agency discretion and not contrary to law. The FEC 

demonstrated that it applied prior agency and court precedent in a consistent manner to 

reasonably conclude that there was no reason to believe that the Commission on Presidential 

Debates (“CPD”) violated the law. (FEC’s Mem. in Supp. of Mot. for Summ. J. and in Opp’n to 

Pls.’ Mot. for Summ. J. at 16-34 (Docket No. 43) (“FEC Mem.”).) The FEC further 

demonstrated that it had reasonably denied LPF’s rulemaking petition, which sought to impose a 

per se ban on debate staging organizations’ use of polling results in determining candidates’ 

eligibility to participate in general election debates based on the alleged conduct of one entity, 

CPD. (Id. at 34-45.)

Plaintiffs’ responses fail to establish that the FEC’s actions were contrary to law or 

otherwise an abuse of the Commission’s broad discretion. As reflected in plaintiffs’ arguments 

both to the FEC and this Court, their case largely rests on their subjective preferences and 

purported policy reasons for expanding CPD’s general election presidential and vice presidential 

debates in order to ensure inclusion of candidates who were not associated with the two major 

political parties. Such subjective policy preferences fail to demonstrate any basis for finding the 

Commission’s decisions at issue here unlawful. Indeed, rather than attempt to satisfy their heavy 

burden and explain how FEC actions that did not enact plaintiffs’ preferred policies were 

necessarily contrary to law, plaintiffs instead ask the Court to disregard decades of binding 

precedent by declining to defer to the Commission here. Plaintiffs acknowledge that prior 

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reviewing courts have affirmed the FEC’s dismissals of similar allegations against CPD, while 

insisting that their latest characterizations and allegations require a different outcome here. They 

do not. The FEC properly exercised its broad discretion and reasonably found that there was 

insufficient information to establish that CPD violated the law and there were no compelling 

circumstances warranting a new rulemaking. Summary judgment should be awarded to the 

FEC. 

ARGUMENT

I. THE FEC IS ENTITLED TO DEFERENTIAL REVIEW

It has long been settled that the FEC is entitled to deferential review of its administrative 

decisions. See, e.g., FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) 

(“DSCC”) (“[T]he Commission is precisely the type of agency to which deference should 

presumptively be afforded.”); Hagelin v. FEC, 411 F.3d 237, 242-43 (D.C. Cir. 2005); Common 

Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988); Becker v. FEC, 230 F.3d 381, 390 (1st Cir. 

2000). In particular, where, as here, plaintiffs challenge the Commission’s dismissal of an 

administrative complaint, the court must defer to the FEC unless the agency fails to meets the 

“minimal burden of showing a ‘coherent and reasonable explanation [for] its exercise of 

discretion.’” Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 

(D.C. Cir. 1985) (quoting MCI Telecom Corp. v. FCC, 675 F.2d 408, 413 (D.C. Cir. 1982)); see 

Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997) (per curiam) (“A court may not 

disturb a Commission decision to dismiss a complaint unless the dismissal was based on an 

‘impermissible interpretation of [FECA] . . . or was arbitrary or capricious, or an abuse of 

discretion.’”); see generally FEC Mem. at 12-15. The Commission’s decision not to institute 

rulemaking proceedings is similarly subject to an “‘extremely limited’ and ‘highly deferential’” 

standard of review (see FEC. Mem. at 15 (citing Massachusetts v. E.P.A., 549 U.S. 497, 527-28 

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(2007))), and may be overturned “‘only in the rarest and most compelling circumstances,’” Defs.'

of Wildlife v. Gutierrez, 532 F.3d 913, 921 (D.C. Cir. 2008) (citation omitted). 

Indeed, in cases like this one in which an agency has made determinations within its area 

of expertise, “deference is at its zenith.” Nat’l Wildlife Fed. v. Westphal, 116 F. Supp. 2d 49, 57 

(D.D.C. 2000); see Buchanan v. FEC, 112 F. Supp. 2d 58, 70 (D.D.C. 2000) (“Deference is 

particularly appropriate in this case because it involves the FEC’s interpretation of its own 

regulations . . . . [T]he court ‘is not to decide which among several competing interpretations 

best serves the regulatory purpose.’”), aff’d in part, Order, No. 00-5337 (D.C. Cir. Sept. 29, 2000), 

http://www.fec.gov/law/litigation/buchanan00_ac_order.pdf; FEC Mem. at 13. Plaintiffs have 

failed to identify any authority supporting their request that the Court depart from this wellsettled, binding authority here. 

Instead, plaintiffs argue that this Court should decline to defer to the Commission 

because the FEC is supposedly “bias[ed].” (Pls.’ Reply Mem. of P. & A. in Further Supp. of 

their Mot. for Summ. J. and in Opp’n to Def.’s Cross-Mot. for Summ. J. at 4 (Docket No. 47) 

(“Pls.’ Opp’n.”).) But plaintiffs’ only purported support for that accusation is their 

mischaracterization of the Commission’s statutorily required composition as “bipartisan” and 

their reference to the Commission’s prior, consistent decisions to reject similar allegations 

against CPD in past matters. (Id.) Both arguments are unavailing. 

First, plaintiffs’ “bipartisan” characterization is simply incorrect. While some courts 

have imprecisely described the FEC as “bipartisan” in the past, e.g., DSCC, 454 U.S. at 37, 

FECA merely provides that “[n]o more than 3 members of the Commission . . . may be affiliated 

with the same political party.” 52 U.S.C. § 30106(a)(1). The Act clearly does not require 

Commissioners to represent only the two major parties, as plainly reflected by the current 

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composition of the FEC.1

 The no-more-than-three requirement ensures that no single political 

party can dictate FEC decisions where four votes are required and the Commission continues to 

be entitled to deference on that basis. Plaintiffs’ “bias” argument attempts to turn congressional 

will on its head by misrepresenting the agency’s FECA-compliant composition as supposed 

“evidence” of Commission partisanship.

Plaintiffs’ attempt to show bias through the Commission’s consistency in its prior 

rejections of similar allegations against CPD is equally backwards. Plaintiffs’ characterization 

of such past decisions as a “history of acquiescence to the CPD” (Pls.’ Opp’n at 4) ignores that 

courts have uniformly upheld the FEC’s actions in those matters, as the Commission previously 

explained (FEC Br. at 26). See Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005); Buchanan v. 

FEC, 112 F. Supp. 2d 58 (D.D.C. 2000); Order, Natural Law Party, No. 00-02138 (D.D.C. Sept. 

21, 2000), http://www.fec.gov/law/litigation/NatLaw_dc_order_judg.pdf, aff’d per curiam, 

Order, No. 00-5338 (D.C. Cir. Sept. 29, 2000), 

http://www.fec.gov/law/litigation/NatLaw_dc_order.pdf. Plaintiffs’ claim that the Commission’s 

consistency demonstrates bias is also contrary to courts’ recognition that consistency in agency 

decisions “is certainly an indicium of reasonableness.” Buchanan, 112 F. Supp. 2d at 76 (citing 

DSCC, 454 U.S. at 37). Indeed, in Natural Resources Defense Council, Inc. v. SEC, inaptly 

relied upon by plaintiffs (Pls.’ Opp’n at 4), the court determined that it would apply more 

exacting scrutiny where an agency “has had a history of ‘ad hoc and inconsistent judgments’ on a 

particular question. 606 F.2d 1031, 1049 n.23 (D.C. Cir. 1979) (emphasis added).

 1 As the Commission previously explained, (FEC Mem. at 14 n.8), Vice Chairman 

Walther, who has been a member of the Commission for more than ten years, is not registered 

with any political party. 

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In addition, the CDP’s adoption of a 15 percent polling threshold is also a poor candidate 

for demonstrating organizational bias because, as the petition itself acknowledged, the nonpartisan League of Women Voters relied upon that same threshold for presidential debates before 

the CPD’s formation in 1987. (AR0022; see also Comment of CPD, Ex. 1 (AR0437); Br. of 

Amicus Curiae Comm’n on Presidential Debates in Supp. of Def.’s Mot. for Summ. J. at 5-6 

(Docket No. 45) (“Br. of CPD”).) 

Finally, plaintiffs’ arguments (Pls.’ Opp’n at 3) that the deferential standard of review 

that applies here “does not permit ‘judicial inertia’” or “require the court to be a potted plant,” or 

“to accept meekly ‘administrative pronouncements clearly at variance with established facts,’” or 

to “uphold unreasonable decisions” are simply strawmen. The Commission of course has never

suggested any such interpretation of the applicable standard. 

Plaintiffs’ subjective disagreement with the Commission and the courts and their 

unfounded accusations of bias fail to demonstrate any legal basis for departing from the 

deferential review the Court is required to apply here. 

II. THE FEC DISMISSALS OF THE ADMINISTRATIVE COMPLAINTS IN 

MATTERS UNDER REVIEW 6869 AND 6942 WERE NOT CONTRARY TO 

LAW

A. The Challenged Dismissal Decisions Were a Lawful Exercise of the FEC’s 

Broad Discretion and Are Consistent with Prior FEC and Judicial Decisions

The FEC’s opening brief explained (FEC Br. 16-26) that the dismissals here were 

consistent with prior FEC and court decisions and plaintiffs have failed to demonstrate that it 

was contrary to law for the FEC not to revisit those precedents. Similar to plaintiffs here, the

administrative complainants in multiple prior administrative matters, including complainants 

related to the Green Party plaintiff here, alleged that CPD violated FECA’s ban on corporate 

contributions, 52 U.S.C. § 30118(a), in connection with its sponsorship of past presidential 

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debates, because CPD allegedly endorsed, supported, or opposed political candidates or political 

parties and thus was not a qualified debate sponsor under 11 C.F.R. § 110.13(a)(1), or because 

CPD allegedly failed to use pre-established objective criteria to determine which candidate may 

participate as required under 11 C.F.R. § 110.13(c). (See FEC Br. 17-18.) As explained above 

and in the FEC’s opening brief (id. at 18-26), Commissioners unanimously rejected such

allegations and subsequent attempts to challenge the Commission’s dismissals of those prior 

administrative complaints were uniformly unsuccessful. The FEC sensibly relied on this 

precedent in dismissing MURs 6869 and 6942, and those reasonable determinations, in an area 

of the FEC’s expertise, are entitled to the highest deference. DSCC, 454 U.S. at 37; Nat’l 

Wildlife Fed., 116 F. Supp. 2d at 57. 

In their opposition, plaintiffs detail their subjective disagreement with the FEC’s 

dismissal decisions, but they fail to demonstrate that those decisions were contrary to law. In 

particular, plaintiffs’ argument (Pls.’ Opp’n at 4-5) that the Commission adopted “an erroneous 

interpretation” of its own regulation, 11 C.F.R. § 110.13(a), lacks legal support and is directly 

contrary to the court’s decision in Buchanan. Indeed, in Buchanan, the district court concluded 

that the Commission’s “rejection of [similar] allegations . . . was based on a reasonable 

interpretation of 11 C.F.R. 110.13.” 112 F. Supp. 2d at 70 (emphasis added).

Plaintiffs attempt to minimize the significance of Buchanan by focusing on its “control 

over” analysis, which considered whether the major political parties controlled or influenced 

CPD, a claim raised by the administrative complainants (later plaintiffs) in that case (Pls.’ Opp’n 

at 5-7). But the decision is not so limited. The court more broadly found that the Commission 

had reasonably exercised its wide discretion in finding no reason to believe that CPD is a 

partisan organization ineligible for the safe harbor for groups that do not “‘endorse, support, or 

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oppose political candidates or political parties.’” Buchanan, 112 F. Supp. 2d at 70 (quoting 11 

C.F.R. § 110.13(a)(1)); see id. at 71-73. It determined that the Commission had reasonably 

concluded that CPD’s debate selection criteria were “pre-established and objective.” Id. at 73-76

(internal quotation marks omitted). In so concluding, the court specifically observed that the 

Commission’s regulations do “not spell out precisely what the phrase ‘objective criteria’ means” 

and that the regulation accordingly does not mandate any particular criteria but instead provides 

debate staging organizations like CPD “‘leeway to decide what specific criteria to use.’” Id. at 

73 (quoting Perot v. FEC, 97 F.3d 553, 559-60 (D.C. Cir. 1996)). Those conclusions support the 

Commission’s dismissal decisions here as well. 

At the same time, plaintiffs’ insistence (Pls.’ Opp’n at 5) that the Commission “has 

adopted the ‘control over’ test as its governing interpretation of § 110.13(a)” fails to account for 

the Commission’s further reliance on the lack of evidence “‘that any officer or member of the 

DNC or the RNC is involved in the operation of the CPD’” or “‘had input into the development 

of the CPD’s candidate selection criteria.’” (FEC Mem. at 21.) Indeed, rather than respond to 

this aspect of the Commission’s analysis, plaintiffs oversimplify and mischaracterize it as a test 

under which “whether an ‘officer or member’ of a party is ‘involved in the operation of the CPD’ 

is dispositive of the CPD’s partisanship.” (Pls.’ Opp’n at 11 (emphasis added).) But plaintiffs’ 

omissions and mischaracterizations are not evidence in support of their renewed allegations 

against CPD. 

Plaintiffs alternatively challenge the brevity of the FEC’s explanations for its dismissal 

decisions (Pls.’ Opp’n at 7), but Buchanan undermines that argument as well. Indeed, the court 

in Buchanan upheld the Commission’s dismissal decisions notwithstanding the court’s 

observation that the Commission’s “terse explanation could have been more clear and thorough.” 

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112 F. Supp. 2d at 72. Serial administrative complaints by the same or similarly interested 

parties, like the complaints here against CPD, are not uncommon. See also, e.g., Nat’l Rifle 

Ass’n. v. FEC, 854 F.2d 1330 (D.C. Cir. 1988); Jordan v. FEC, No. 91-2428-NHJ (D.D.C. 

May 27, 1994), http://www.fec.gov/law/litigation/jordan_dc_order.pdf (dismissing similar 

complaint by NRA member), aff’d on other grounds, 68 F. 3d 518 (D.C. Cir. 1995). In light of 

that phenomenon, an agency’s adherence to its own precedent is hardly arbitrary. Hall v. 

McLaughlin, 864 F. 2d 868, 872 (D.C. Cir. 1989) (“Reasoned decisionmaking requires treating 

like cases alike”); Ass’n of Data Processing Serv. Orgs. v. Bd. of Governors of Fed. Reserve 

Sys., 745 F. 2d 677, 683 (D.C. Cir. 1984) (noting that “abrupt and unexplained departure from 

agency precedent” amounts to arbitrary and capricious action). On the contrary, “[w]here the 

reviewing court can ascertain that the agency has not . . . diverged from past decisions, the need 

for comprehensive and explicit statement of [the agency’s] current rationale is less pressing.” 

Hall, 864 F. 2d at 872. The agency’s explanation in such cases “need not be elaborate” and 

courts will uphold agency findings “‘of less than ideal clarity, if the agency’s path may 

reasonably be discerned.’” Hall, 864 F. 2d at 872-873 (quoting Greater Boston Television Corp. 

v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970)).

Plaintiffs offer no legal basis for rejecting the FEC’s determinations within its area of 

expertise, when deference to the agency is “at its zenith.” Nat’l Wildlife Fed., 116 F. Supp. 2d at 

57. Under the highly deferential standard of review that applies here, plaintiffs’ have failed to 

carry their burden and the Commission’s dismissal decisions must be affirmed.

B. The Commission’s Disagreement with Plaintiffs’ Characterization of Their 

Evidence Does Not Render the Dismissal Decisions Contrary to Law

Contrary to plaintiffs’ arguments (Pls.’ Opp’n at 7), the FEC’s determination that 

plaintiffs’ factual allegations did not support reason-to-believe findings in MURs 6869 and 6942 

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does not mean that the FEC failed to adequately consider such allegations. Plaintiffs’ propose a 

contrary interpretation of the evidence they submitted to the Commission, but that does not prove 

that the Commission’s assessment of plaintiffs’ administrative complaints was inadequate and 

contrary to law. 

As the Commission previously explained, its Factual and Legal Analyses in these matters 

describe the Commission’s consideration of plaintiffs’ allegations and evidence (see FEC Mem. 

at 8-9), and support the FEC’s dismissal decisions challenged in this case. Plaintiffs continue to 

insist (Pls.’ Opp’n at 10-11) that the personal partisan activities of individuals affiliated with 

CPD are dispositive evidence that CPD itself has engaged in partisan activities. In plaintiffs’ 

view, “the people who run the CPD” are “diehard partisans” and the notion that “somehow the 

organization itself could remain nonpartisan, borders on laughable.” (Id.) The Commission was 

not required to adopt plaintiffs’ hyperbolic characterizations and legally unsupported 

conclusions. Indeed, plaintiffs have provided no authority for the sweeping interpretation they 

advocate, and it is not legally required. In fact, declining to attribute personal, individual actions 

to an entity with which an individual is affiliated is common in various areas of the law, 

including FECA’s soft money restrictions where the Act distinguishes political party committees 

from actions taken by their officers in their individual capacities. Party committees are 

prohibited from soliciting soft money, see 52 U.S.C. § 30125(a), (d), but “officers of national 

parties are free to solicit soft money in their individual capacities.” McConnell v. FEC, 540 U.S. 

93, 157 (2003), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010).

2

 

 2 Plaintiffs’ assertion that the “Internal Revenue Code is not a substitute for FECA” (Pls.’ 

Opp’n at 11) mischaracterizes CPD’s appropriate analogy to the Internal Revenue Services’ 

guidance for churches and religious organizations. (See Br. of CPD at 3 n.1 (May 11, 2016) 

(Docket No. 45)). Neither CPD nor the Commission has suggested that the tax code is 

controlling here.

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Moreover, contrary to plaintiffs’ “‘post hoc rationalization[]’” accusations (Pls.’ Opp’n at 

10), the Commission’s Factual and Legal Analyses in MURs 6869 and 6942, which are before 

the Court here, cited and relied upon authority that addressed this point. (See AR3177-AR3179 

(discussing history of matters with allegations the CPD is partisan); AR5005-AR5010 (same)), 

In MUR 4987 (Buchanan), the administrative complainants similarly alleged that CPD was 

created and controlled by the former chairmen of the Republican and Democratic parties, and 

continued to be controlled by a board of directors consisting of persons “affiliated” or “closely 

identified” with the two parties.”3 The complaint in MUR 5004 contained similar allegations.4 

When the court reviewed the Commission’s dismissals of those matters in Buchanan, it expressly 

acknowledged that the membership of CPD’s board “consisted largely of current and former 

elected officials from both parties as well as party activists,” but nevertheless upheld the FEC’s 

dismissal decisions. Buchanan, 112 F. Supp 2d at 71-73. As explained infra pp. 18-19, the 

Commission properly articulated its rationale for the challenged dismissal decisions by reference 

to other decisions, including in the Buchanan matters, and amplification of those authorities here 

does not constitute post hoc justification.

Requiring CPD and other debate sponsors to prohibit their officers and directors from 

making contributions to major party candidates also would have potentially serious constitutional 

implications, going well beyond even the restrictions in the Hatch Act on most federal 

employees, the rules Congress imposed to ensure a merit-based workforce. See Wagner v. FEC, 

 3 Administrative Complaint, MUR 4987 (Mar. 20, 2000) at 3, 15, 20, 

http://eqs.fec.gov/eqsdocsMUR/000026F4.pdf. 

4 Administrative Complaint, MUR 5004 (April 24, 2000) at 4, 

http://eqs.fec.gov/eqsdocsMUR/00002787.pdf (“As has been true since its inception, ‘[t]he 

members of the CPD include a former chairman of the Democratic National Committee, a 

former chairman of the Republican National Committee, and other representatives of the 

Democratic and Republican parties.’” (quoting Perot, 97 F.3d at 555-556 (emphasis added)).

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793 F.3d 1, 8-9 (D.C. Cir. 2015) (en banc) (explaining that the Supreme Court has upheld the 

Hatch Act’s restrictions on “‘political campaigning’” by federal employees in part because

“‘congressional subordination of those activities was permissible to safeguard the core interests 

of individual belief and association,’” i.e., “‘the Hatch Act aimed to protect employees’ rights, 

notably their right to free expression, rather than to restrict those rights’” (quoting Elrod v. 

Burns, 427 U.S. 347, 371 (1976))), cert. denied sub nom. Miller v. FEC, __ U.S.__, 136 S. Ct. 

895 (2016), and United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 471 (1995)). The 

Commission plainly was not required to attribute to CPD the political activities and affiliations 

of its officers, and it certainly was not arbitrary or capricious for the FEC to decline to do so. 

As the Commission also previously explained (FEC Mem. at 30), it reasonably accepted

the statements in CPD Chairman Frank Fahrenkopf’s declaration explaining his description of

the composition of CPD’s past presidential debates in a prior interview. (AR3119-AR3121.) 

Plaintiffs’ dismissive characterizations of the declaration as “self-serving” and “whitewashing,” 

and of the FEC’s acceptance of the declaration as a “rubber-stamp . . . in violation of its legal 

duties,” are not legal arguments that support a finding that the Commission’s determinations

were contrary to law. (Pls’ Opp’n at 12.) The FEC is not required to agree with plaintiffs’ 

subjective assessments of evidence in the record. On the contrary, and as the Court of Appeals 

has observed, “[t]he ‘reason to believe’ standard . . . itself suggests that the FEC is entitled, and 

indeed, required, to make subjective evaluations of claims.” Orloski v. FEC, 795 F. 2d 156, 168

( D.C. Cir. 1986); see FEC Mem. at 23. The FEC is thus “expected to weigh the evidence before 

it and make credibility determinations” in reaching its ultimate decision, and such decisions

“must be upheld” as long as the Commission presents a “coherent and reasonable explanation.” 

Buchanan, 112 F. Supp. 2d at 72 (citing Orloski, 795 F.2d at 168; Carter/Mondale Presidential 

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12

Comm., Inc, 775 F. 2d at 1185); see also FEC Mem. at 23. Plaintiffs have not sustained their 

heavy burden of demonstrating that the Commission’s explanation was incoherent or 

unreasonable.

Finally, and as also previously explained (FEC Mem. at 30-31), to the extent the FEC 

erred by not formally naming ten additional CPD directors listed in plaintiffs’ administrative 

complaints as respondents in MURs 6869 and 6942, any such error was harmless. See Nader v. 

FEC, 823 F. Supp. 2d 53, 67-68 (D.D.C. 2011). Plaintiffs portray the omission of these 

individuals as respondents as evidence that the Commission was “just protecting the CPD” and 

failing “to conscientiously do its job and consider the allegations on their merits.” (Pls.’ Opp’n 

at 13.) Those unfounded accusations fail to demonstrate any actual harm resulting from the 

oversight. Of course, plaintiffs’ allegations regarding these individuals were before the 

Commission in connection with the CPD, and the agency nevertheless made no reason-to-believe 

findings against CPD and its co-chairs, and closed the entire files in the two matters. (AR3172-

AR3173; AR5000-AR5001.)

In sum, plaintiffs’ hyperbole, baseless and dismissive characterizations, and subjective 

disagreement with the FEC’s dismissal decisions fail to demonstrate that those decisions were 

contrary to law. 

C. The FEC’s Determination Regarding CPD’s Polling Criterion 

Was Lawful

The FEC previously demonstrated (FEC Mem. at 31-33), that it was not contrary to law 

to find CPD’s use of a 15% minimum polling criterion permissible under the Commission’s safe 

harbor regulation, 11 C.F.R. § 110.13. Like the FEC’s determinations discussed above, the 

FEC’s finding regarding CPD’s use of a 15% minimum polling criterion is entitled to substantial 

deference, particularly where, as here, the same interpretation has already been upheld by courts 

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in prior challenges. See, e.g. Buchanan, 112 F. Supp. 2d at 73-76; Natural Law Party v. FEC, 

Order, No. 00-cv-2138 (ESH) (D.D.C. Sept. 21, 2000),

http://www.fec.gov/litigation/NatLaw_dc_order_judg.pdf, aff’d per curiam, Order, No. 00-5338 

(D.C. Cir. Sept. 29, 2000), http://www.fec.gov/law/litigation/NatLaw_dc_order.pdf).

5

 Though 

that unpublished Court of Appeals order is not technically binding precedent, as plaintiffs point 

out (Pls.’ Opp’n. at 18 n.7), it has “some precedential value” as discussed in the very case cited 

by plaintiffs, Martin v. District of Columbia, 78 F. Supp. 3d 279, 308 n.36 (D.D.C. 2015). 

Plaintiffs emphasize the court’s statement in Buchanan that “‘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.’” (Pls.’ Opp’n at 16 (quoting Buchanan, 

112 F. Supp. 2d at 74).) But they conspicuously omit the court’s subsequent, crucial sentence:

“In view of the substantial deference I must accord to the FEC’s interpretation of its own 

regulations, I cannot conclude that it was plainly erroneous or inconsistent with the regulation for 

the FEC to find the15% support level set by the CPD is ‘objective’ for the purposes of 11 C.F.R. 

§ 110.13(c).” Buchanan, 112 F. Supp. at 74. The district court acknowledged that as a policy 

matter, “a lower threshold of support might be preferable to many,” but nevertheless held that 

“such a reading is neither compelled by the regulation’s text nor by the drafters’ intent at the 

time the regulation was promulgated,” and that accordingly, “deference to the FEC’s 

interpretation is warranted.” Id. Plaintiffs’ latest policy arguments in this case do not undermine 

 5 As plaintiffs note, Natural Law Party was a companion case to Buchanan, but it is not 

true that the D.C. Circuit’s summary affirmance had no independent analysis. (Pls.’ Opp’n 

at 18 n.7; contra FEC Mem. at 37.) The order stated that “to the extent that appellants argue that 

even if the safe harbor provisions apply, the fifteen percent electoral support requirement is 

illegal because it favors some candidates over others, the district court’s order filed September 

21, 2000 be affirmed substantially for the reasons stated therein.” Order, Natural Law Party v. 

FEC, No. 00-5338 (D.C. Cir. Sept. 29, 2000), 

http://www.fec.gov/law/litigation/NatLaw_dc_order.pdf. 

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the relevance of Buchanan’s holding nor do they render the Commission’s reliance on it 

unlawful.

Unable to overcome Buchanan’s holding, plaintiffs argue (Pls.’ Opp’n at 14-16) that 

the FEC’s disagreement with their conclusion that CPD’s polling criterion was “systematically 

biased” demonstrates that the Commission “failed to consider” plaintiffs’ allegations. Plaintiffs 

are wrong. As explained in the FEC’s opening brief (FEC Br. at 33), the Commission reviewed 

plaintiffs’ evidence and provided its reasons for concluding that such evidence did not 

undermine the agency’s reliance on its decisions in prior matters that CPD’s 15% polling 

criterion was permissible under section 110.13(c). Plaintiffs criticize (Pls.’ Opp’n at 14) the 

location of this explanation — in a footnote — but once again substitute characterizations and 

labels (“conclusory” and “ipse dixit”) for authority supporting their assertions.

Importantly, plaintiffs’ arguments regarding polling in this case not only are unavailing, 

they are internally inconsistent. For example, plaintiffs previously criticized polling because the 

margins of error could result in flawed decisions (Pls.’ Mem. of P. & A. in Supp. of Mot. for 

Summ. J. at 3-4, 18-19), but as the Commission explained (FEC Mem. at 36), the Buchanan

court recognized that all polls have a margin of error, so “some degree of imprecision is 

inevitable in almost any measurement,” and “[s]uch imprecision alone does not make a predictor 

subjective such that it favors one group of candidates over another.” 112 F. Supp. 2d at 75. The 

court in Buchanan also noted that polling errors work in both directions so polls could just as 

easily overestimate a candidate’s support (resulting in inclusion) as underestimate support 

(resulting in exclusion). Id. As discussed infra p. 19, plaintiff LPF’s own expert recognized this 

very point. (See FEC Br. at 37; AR0190.) 

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Plaintiffs have no response to these logical conclusions (or to their own expert’s 

recognition of them, see infra p. 19). Instead, they have now recast their position as objecting to 

polling only when it is the “exclusive criterion for accessing the general election presidential 

debates” (Pls.’ Opp‘n at 16 (emphasis in original).) But that new argument fails to advance 

plaintiffs’ claims here. CPD uses three different criteria for determining who may participate in 

a general election presidential debate: (1) constitutional eligibility to serve as president;

(2) qualifying for enough state ballots to have at least a mathematical chance of securing an 

electoral majority; and (3) minimum public support. (AR3117-AR3118; AR5006.) Plaintiffs’ 

attempt to fix the flaws of their margin-of-error argument thus ultimately undermine that 

argument entirely. See also infra pp. 18-19.

III. PLAINTIFFS HAVE FAILED TO MAKE THE REQUIRED SHOWING TO 

COMPEL AGENCY RULEMAKING

As explained above and in the FEC’s opening brief, the standard of review for a decision 

not to institute rulemaking proceedings, like judicial review under section 30109(a)(8), is 

“‘extremely limited’ and ‘highly deferential.’” See supra pp. 2-3; FEC. Mem. at 15 (citing 

Massachusetts v. E.P.A., 549 U.S. at 527-28).) The Court of Appeals has thus explained that it 

will overturn an agency’s refusal “‘only in the rarest and most compelling of circumstances,’” 

Defs. of Wildlife, 532 F.3d at 921 (citation omitted), such as “plain error of law” or a 

“fundamental change in the factual premises previously considered by the agency.” Nat’l 

Customs Brokers & Forwarders Ass’n of Am. v. United States, 883 F.2d 93, 94, 97 (D.C. Cir. 

1989) (describing “the extraordinary deference due an agency when it declines to undertake a 

rulemaking”). As the Commission previously explained, no such error of law or fundamental 

change in the facts has occurred here (see FEC Mem. at 34-44), and plaintiffs have failed to 

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carry their heavy burden to demonstrate the “compelling circumstances” necessary to overcome 

the “extraordinary deference” to which the FEC is entitled here. 

A. Plaintiffs Have Failed to Identify Compelling Circumstances or Legal Error 

Plaintiffs fail to identify any legal authority supporting their view that the FEC’s 

interpretation of the debate rules is clearly erroneous; instead, they declare that evidence they 

have submitted proves “that polling thresholds systematically exclude independent candidates 

from debates, permitting debate sponsors to funnel corporate contributions to the major-party 

candidates.” (Pls.’ Opp’n at 17.) Yet, as the FEC previously explained, the Commission’s 

Notice of Disposition (“Notice”) squarely addressed the data presented, finding that the petition 

primarily focused on the conduct of a single debate sponsor, CPD, and failed to establish that 

polls were inherently unobjective. (FEC Mem. at 35, 39.) The Commission also rejected 

plaintiffs’ repackaged arguments that had been rejected by the court in Buchanan, i.e., arguments 

about the inaccuracy of polling and the tendency of polls to exclude certain candidates. (See 

FEC Mem. at 36-37 (citing Buchanan, 112 F. Supp. 2d at 74-75).)6

 Under these circumstances, 

the FEC reasonably determined that a wholesale rulemaking to impose a per se ban on the use of 

polling thresholds for selecting debate participants was not required. 

Plaintiffs also purport to fault the FEC for failing to “demonstrate[] that allowing 

sponsors to use polling thresholds serves a valuable purpose” (Pls.’ Opp’n at 19), but plaintiffs 

bear the burden here and their focus on whether polling thresholds serve a “valuable purpose”

highlights their misconception of the purpose of the regulation at issue. As explained above and 

 6 Plaintiffs have now made clear in their briefs that only Level the Playing Field challenges 

the Commission’s regulation, and not the other plaintiffs. (Pls.’ Opp’n at 17 n.6.) Plaintiff 

Green Party’s decision not to join the petition for rulemaking and related claim for relief may 

spare plaintiffs from claim preclusion, but not the persuasive authority of the First Circuit having 

already rejected a challenge to the Commission’s debate regulation as contrary to FECA. (See 

FEC Br. at 35 (citing Becker, 230 F.3d at 390-97).)

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in the FEC’s opening brief (FEC Br. at 35-36), section 100.13(c) is a safe harbor delineating the 

limits of FECA’s prohibition on corporate contributions; it is not intended to micromanage the 

manner in which debate staging organizations determine how to select debate participants. In the 

Notice, the FEC thus explained that the purpose of section 110.13 “‘is to provide a specific 

exception so that certain nonprofit organizations . . . and the news media may stage debates, 

without being deemed to have made prohibited corporate contributions to the candidates taking 

part in debates.’” (AR1904 (citing Corporate and Labor Organization Activity; Express 

Advocacy and Coordination with Candidates, 60 Fed. Reg. 64,260, 64,261 (Dec. 14, 1995)).) 

Accordingly, “the Commission has required that debate ‘staging organizations use preestablished objective criteria to avoid the real or apparent potential for a quid pro quo, and to 

ensure the integrity and fairness of the process.’” (Id.). 

At the same time, the Commission explicitly “‘left to the discretion of the staging 

organization’” the “‘choice of which objective criteria to use’” and emphasized that “[w]ithin the 

realm of reasonable criteria,” debate staging organizations have “‘great latitude in establishing 

the criteria for participant selection.’” (Id. (quoting Corporate and Labor Organization Activity, 

60 Fed. Reg. at 64,262).) The FEC explained that staging organizations may use selection 

criteria to control the number of participants but must not use criteria “‘designed to result in the 

selection of certain pre-chosen participants.’” (Id. (quoting Corporate and Labor Organization 

Activity, 60 Fed. Reg. at 64262).) Thus, while the FEC acknowledged that the petition provided

some data “intended to demonstrate that polling figures are sometimes inaccurate,” the 

Commission determined that “the fact that polls can be inaccurate does not mean that a staging 

organization acts unobjectively by using them.” (AR1905 n.6.) The FEC reasonably concluded 

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that the petition did not set forth sufficient information indicating that the use of polls resulted in 

prohibited contributions being made to candidates. 

In any event, and as the FEC previously explained (FEC Mem. at 38), plaintiffs have 

undermined their own arguments regarding the use of polling thresholds as a measure of 

candidate viability. Although plaintiffs continue to insist (Pls.’ Opp’n at 19) that polling is not 

sufficiently reliable to exclude candidates from debate participation, they have conceded that 

polling is not so unreliable that they would advocate eliminating polling altogether as a debate 

criterion option. (See FEC Mem. at 38 (responding to LPF Summ. J. Mem. at 41).) Indeed, the 

Notice indicated that LPF relied largely on policy arguments — such as the lack of funds that 

independent/third party candidates need to achieve sufficient name recognition to satisfy polling 

thresholds — in favor of a rulemaking. (AR1904.) However, as reflected in the petition itself, 

polling is not the cause of an independent candidate’s lack of name recognition or electoral 

support but a measure of such conditions. (AR0015-AR0023 (describing independent 

candidates’ lack of campaign funds and media exposure to achieve name recognition among 

voters).) And the Constitution does not permit the government to adjust campaign finance rules 

in order to equalize resources, or “Level the Playing Field,” as plaintiffs seek. Buckley v. Valeo, 

424 U.S. 1, 48-49 (1976) (per curiam) (“[T]he concept that government may restrict the speech 

of some elements of our society in order to enhance the relative voice of others is wholly foreign 

to the First Amendment . . . .”). 

Plaintiffs’ attempt to dismiss the Commission’s response to its margin-of-error argument 

as an improper post hoc rationalization also misses the mark. An agency may articulate its basis 

for action by reference to other relevant sources and adjudicated cases. See, e.g., Atchison, 

Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973) (“An agency ‘may 

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articulate the basis of its order by reference to other decisions. For ‘adjudicated cases may and 

do, of course, serve as vehicles for the formulation of agency policies, which are applied and 

announced therein.’”) (internal citation omitted); Crawford v. FCC, 417 F.3d 1289, 1298 (D.C. 

Cir. 2005) (“‘If the necessary articulation of basis for agency action can be discerned by 

reference to clearly relevant sources other than a formal statement of reasons, we will make the 

reference.’”) (citation omitted). Here, the Notice clearly referenced Buchanan, which explored 

this argument in detail, 112 F. Supp. 2d at 74-75, and the FEC’s other enforcement matters

relying on Buchanan, in finding that polling thresholds “can be objective and otherwise lawful 

selection criteria for candidate debates.” (See AR1904 (citing Buchanan, 112 F. Supp. 2d at 

75).) In particular, the Notice cites to the First General Counsel’s Report in MUR 5530,

http://eqs.fec.gov/eqsdocsMUR/000043F0.pdf, which expressly relied upon Buchanan’s 

rationale to uphold polling thresholds. (See AR1904.) Further, plaintiffs tellingly do not dispute 

that LPF’s own expert made a similar observation concerning the margin of error. (See FEC Br. 

at 37 (explaining that LPF’s own expert acknowledged that with respect to the margin of error in 

a three-way race, “‘it was wholly unclear whether the polling over- or underestimated the 

potential of a third party candidate’”) (citing AR0190).) 

B. The Commission’s Choice to Evaluate the Objectivity of Debate Selection 

Criteria Through the Enforcement Process was Reasonable

Plaintiffs acknowledge the Commission’s “ordinar[y]” discretion to determine whether 

particular debate criteria violate section 110.13 through adjudication rather than rulemaking 

(Pls.’ Opp’n at 21), and their attempts to undermine the adequacy of the Commission’s case-bycase approach here are improper, misleading, and otherwise unavailing. 

First, plaintiffs continue their improper reliance on extra-record statements in news 

articles and other materials outside the Administrative Record. (Pls.’ Opp’n at 19 (citing Pls.’ 

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Summ. J. Br. at 43).) Not only is such material improper, as the Commission previously 

explained (see FEC Br. 12 n.6; FEC Obj. to LPF Statement of Material Facts at 3-6) (Docket No. 

43-1), plaintiffs’ selectively excerpted quotations of statements by individual Commissioners and 

their reference to general statistics concerning the volume of the Commission’s caseload and 

fines do not provide “compelling circumstances” necessary to overcome the “extraordinary 

deference” to which the FEC is entitled here.7

 

Second, plaintiffs’ reliance on the FEC’s supposed “complete failure to bring 

enforcement actions” (Pls.’ Opp’n at 21) is misleading and conveniently ignores that the 

dismissal decisions plaintiffs reference were lawful and, indeed, upheld by courts in subsequent 

actions for judicial review. See supra Section II (citing Hagelin, Buchanan, and Natural Law 

Party).) Plaintiffs cannot demonstrate that a rulemaking was required on the basis of the 

Commission’s decisions in those matters.

 7 The Commission previously detailed the other fundamental problems with plaintiffs’ 

separate filing of a “Statement of Material Facts.” (FEC Obj. to LPF Statement of Material Facts 

at 1-6.) In their response to the Commission’s Objections, plaintiffs do not dispute the 

recognition by another court in this District that freestanding statements of material facts such as 

the one they submitted are “‘improper’” in cases, like this one, involving judicial review of an 

administrative record. (Compare FEC Obj. to LPF Statement of Material Facts at 1-3 (quoting 

Koretoff v. Vilsack, 841 F. Supp. 2d 1, 5 n.3 (D.D.C. 2012), aff’d ̧ 707 F.3d 394 (D.C. Cir. 

2013)), with Pls.’ Response to Def.’s Obj. to Pls.’ Statement of Material Facts at 1 (Docket No. 

47-1).) And they have no response to the Comment to that local rule, which distinguishes “cases 

where review is based on an administrative record” from other types of cases and clarifies that 

because “‘the Court [in an administrative-review action] is not called upon to determine whether 

there is a genuine issue of material fact, but rather to test the agency action against the 

administrative record . . . , the normal summary judgment procedures requiring the filing of a 

statement of undisputed facts is not applicable.’” (FEC Obj. to LPF Statement of Material Facts 

at 2 (quoting Cmt. to LCvR 7(h) (emphasis added).) In addition, and as the Commission 

previously explained (id. at 3 & n.4), plaintiffs’ own summary-judgment brief underscores the 

extraneousness of their separate factual statement as it primarily cites directly to the 

administrative record (and other sources) rather than to the separate statement of facts. Though 

there may be instances where no objection was made to comparable violations of Local Rule 

7(h), plaintiffs’ improper separate factual statement should be disregarded here. 

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Plaintiffs’ attempted reliance on background discussion in Citizens for Responsibility & 

Ethics in Washington (“CREW”) v. FEC, No. 1:14-cv-01419 (CRC), 2015 WL 10354778, at *1 

(D.D.C. Aug. 13, 2015), is likewise misplaced. In CREW, plaintiffs, inter alia, attempted to 

challenge two FEC dismissal decisions as an impermissible “de facto” regulation. Id. at *5. The 

court dismissed those claims, concluding that “the crux of CREW’s complaint is that the FEC 

dismissed its earlier administrative complaints under a faulty and misguided rationale,” and 

“CREW’s exclusive remedy for its disagreement with the FEC’s rationale is to challenge those 

particular decisions under the judicial review provision of FECA.” Id. In reaching that 

conclusion, the court emphasized agencies’ “broad discretion to choose between rulemaking and 

adjudication to carry out their statutory mandate.” Id. at *4. CREW thus undermines plaintiffs’ 

arguments here.

Third and finally, the FEC properly exercised its discretion not to promulgate a separate 

rule for presidential debates versus other federal election debates. Plaintiffs complain that the 

FEC did not explain “why ‘adopting different standards for different races’ would be 

undesirable.” (Pls.’ Opp’n at 21.) Setting aside the lack of any legal basis of plaintiffs’ 

“undesirability” standard, the Commission did explain that the current rule is designed to apply 

to all federal elections, like many other FEC rules,8 and that the agency did not believe that data 

presented by the petition was sufficient to warrant a change in the Commission’s existing 

approach. (See FEC Mem. at 43-44 (citing AR1905).) Here, where the Commission was not 

even required to promulgate a specific debate-sponsor regulation in order to implement the 

 8 See, e.g., 11 C.F.R. § 100.3 (uniform definition of candidate); 11 C.F.R. 104.1 (all 

political committees must file reports with FEC); 11 C.F.R. § 114.2 (prohibitions on 

contributions made by corporations applies to all candidates); 11 C.F.R. § 300.61 (prohibition on 

soliciting, receiving, directing, transferring, spending or disbursing non-federal funds applies to 

all federal elections). 

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prohibition on corporate expenditures in the first place, the agency certainly was not required to 

refine the regulation further with the granular detail about the permissibility of polling that LPF 

sought in its rulemaking petition.

IV. PLAINTIFFS CONTINUE TO SEEK RELIEF CONTRARY TO FECA AND THE 

APPLICABLE, DEFERENTIAL STANDARD OF REVIEW

As the Commission explained in its opening brief, plaintiffs’ requests for relief are 

improper with respect to both their claims under section 30109(a)(8) challenging the 

Commission’s dismissal decisions (see FEC Br. at 33-34), and their claims challenging the 

Commission’s denial of LPF’s rulemaking petition (see id. at 44-45). Plaintiffs’ Opposition 

barely attempts to refute the Commission’s explanation or to otherwise demonstrate that its 

requests are proper.

A. Plaintiffs’ Requests for Relief Under Section 30109(a)(8) Are Improper 

Under section 30109(a)(8)(c), the court may declare the Commission’s dismissal of an 

administrative complaint “contrary to law,” in which case it may “direct the [FEC] to conform 

with such declaration within 30 days.” Courts, including the Supreme Court and D.C. Circuit, 

have clarified that an order to “conform with” a declaration that an administrative dismissal was 

contrary to law does not necessarily mandate a different outcome on remand, and explicitly 

recognized that, following such a remand, the Commission could again dismiss an administrative 

complaint based on a different rationale. See FEC Mem. at 34; FEC v. Akins, 524 U.S. 11, 25 

(1998) (per curiam) (explaining that even where a reviewing court finds that an FEC 

administrative dismissal was contrary to law, the Commission “(like a new jury after a mistrial) 

might later, in the exercise of its lawful discretion, reach the same result for a different reason” 

(citing SEC v. Chenery Corp., 318 U.S. 80 (1943))); Akins v. FEC, 146 F.3d 1049, 1050 (D.C. 

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Cir. 1998) (“A holding that the FEC’s decision was invalid would leave the FEC free to reach the 

same decision on another ground.”).

9

Plaintiffs fail to identify any authority that contradicts these controlling decisions, and 

their subjective conclusion that their administrative complaints “plainly provided reason to 

believe that the CPD was violating FECA and the debate staging regulations” (Pls.’ Opp’n

at 17 n.5), carries no weight. Moreover, neither of the decisions plaintiffs cite supports their 

request that this Court “direct” the Commission to make particular findings regarding plaintiffs’ 

allegations. (Sec. Am. Compl. Requested Relief ¶¶ (c)-(f).) In Common Cause v. FEC, the 

district’s court’s order merely stated “this matter is remanded, pursuant to 2 U.S.C. 

§ 437g(a)(8)(C), to the Federal Election Commission, which is directed to conform with this 

declaration and proceed accordingly within 30 days of the date of this Order.” 729 F. Supp. 148, 

153 (D.D.C. 1990). Nothing in the decision mandated any particular action on remand by the 

FEC. Nor does the court’s discussion of Common Cause in FEC v. National Republican 

Senatorial Committee, 966 F.2d 1471, 1474 (D.C. Cir. 1992), establish the authority of courts to 

mandate a particular outcome on remand. Accordingly, even if the Court finds the FEC’s 

 9 See also Hagelin v. FEC, 332 F. Supp. 2d 71, 81-82 (D.D.C. 2004) (“As the FEC 

correctly maintains, the court may not order the FEC to proceed directly to a probable cause 

determination. It must instead remand the case and allow the FEC to follow statutorily mandated 

procedures”), rev’d on other grounds, 411 F.3d 237 (D.C. Cir. 2005); La Botz v. FEC, 889 F. 

Supp. 2d 51, 63 n.6 (D.D.C. 2012) (clarifying that a judicial determination that an FEC dismissal 

of an administrative complaint was contrary to law does not mean “that the FEC is required to 

reach a different conclusion on remand” and suggesting the “possib[ility]” that “the [dismissal] .

. . could have been justified entirely by the FEC’s prosecutorial discretion, which is 

‘considerable’” (citation omitted)); La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) (dismissing 

judicial-review action on mootness grounds following FEC’s dismissal of plaintiff’s 

administrative complaint upon remand; explaining further that even if the court had jurisdiction, 

FEC’s dismissal represented a reasonable exercise of prosecutorial discretion that was not 

contrary to law under FECA).

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dismissals here were unlawful, the Court may only remand the matter to the Commission and 

order the agency to “conform with” its decision.

B. Plaintiffs’ Request for a Supervised Rulemaking Is Improper 

Plaintiffs offer no response to justify their extraordinary request for a mandatory 

rulemaking to be completed within a specified time. (See Sec. Am. Compl. ¶ 144.) As the 

Commission previously explained (FEC Br. at 44-45), such court-ordered supervision of the 

Commission’s regulatory process is improper and plaintiffs have not even attempted to justify 

such a request based on the particular circumstances here. Thus, even if plaintiffs were to 

prevail, there is no basis for any particular relief beyond a simple remand. 

CONCLUSION

The FEC’s motion for summary judgment should be granted and plaintiffs’ motion for 

summary judgment should be denied.

Respectfully submitted,

Daniel A. Petalas (D.C. Bar No. 467908) /s/ Robert W. Bonham III

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

dpetalas@fec.gov Senior Attorney

rbonham@fec.gov

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

Deputy General Counsel – Law Jin Lee (D.C. Bar. No. 484455)

lstevenson@fec.gov Attorney

jlee@fec.gov

Kevin Deeley

Acting Associate General Counsel COUNSEL FOR DEFENDANT

kdeeley@fec.gov FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Erin Chlopak (D.C. Bar. No. 496370) Washington, DC 20463

Acting Assistant General Counsel (202) 694-1650

echlopak@fec.gov

July 13, 2016

Case 1:15-cv-01397-TSC Document 55 Filed 07/13/16 Page 29 of 29