United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2005 Decided June 10, 2005

No. 04-5312

JOHN HAGELIN, ET AL.,

APPELLEES

v.

FEDERAL ELECTION COMMISSION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00731)

Richard B. Bader, Associate General Counsel, Federal

Election Commission, argued the cause for appellant. With him

on the briefs were David B. Kolker, Assistant General Counsel,

and Erin K. Monaghan, Attorney.

Jason B. Adkins argued the cause for appellees. With him

on the brief were Lynne Bernabei, Alan R. Kabat, and John C.

Bonifaz.

Before: EDWARDS, HENDERSON, and TATEL, Circuit

Judges.
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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: During the run-up to the 2000

presidential election, the Commission on Presidential Debates

(“CPD”) excluded all third-party candidates from the live

audience of the first debate. The excluded candidates

complained to the Federal Election Commission, accusing the

CPD of violating FEC regulations prohibiting debate-staging

organizations from “endors[ing], support[ing], or oppos[ing]

political candidates or political parties.” Rejecting the

complaint, the FEC found that the CPD acted not out of any

preference for major-party candidates or animus toward thirdparty candidates, but rather because it feared one or more thirdparty candidates would disrupt the debate. Because we conclude

that substantial evidence supports the FEC’s decision, we

reverse the district court’s decision to the contrary and remand

with instructions to enter judgment for the FEC. 

I.

Under the Federal Election Campaign Act (“FECA”),

organizations that stage presidential and vice-presidential

debates may accept corporate contributions, see 2 U.S.C. §

431(9)(B)(ii); 11 C.F.R. § 114.4(f), so long as they do not, in the

words of the Federal Election Commission’s (“FEC”)

implementing regulation, “endorse, support, or oppose political

candidates or political parties,” 11 C.F.R. § 110.13(a)(1). Since

1987, presidential and vice-presidential debates have been

staged by the Commission on Presidential Debates. Formed by

the Democratic and Republican parties, the CPD’s co-chairs are

Frank J. Fahrenkopf, Jr., former head of the Republican National

Committee, and Paul G. Kirk, former head of the Democratic

National Committee. 

Under FECA, “[a]ny person who believes a violation of
3

[the] Act . . . has occurred, may file a complaint” with the FEC.

2 U.S.C. § 437g(a)(1). After reviewing the complaint and

providing an opportunity for a response, id., the commissioners

vote on whether they have “reason to believe” a violation has

occurred, id. § 437g(a)(2). If four of the six commissioners find

“reason to believe,” the FEC begins an investigation. Id. But if

no majority finds “reason to believe,” the FEC dismisses the

complaint, and the complainant may seek district court review

of whether the dismissal is “contrary to law.” Id. § 437g(a)(8).

Setting the stage for the issue before us, we begin with an

earlier challenge to the CPD’s handling of the 2000 debates.

Only the two major party candidates—Vice President Al Gore

and Governor George W. Bush—met the CPD’s eligibility

criteria for debate participation. Several third-party candidates

complained to the FEC, arguing (among other things) that the

CPD allowed the two major parties to control the debate,

depriving third-party candidates of “extensive television

exposure and media . . . coverage” and “send[ing] a signal that

[the excluded candidates are] somehow less credible than the

other two candidates invited to the debate.” See Admin. Compl.

MUR 4987 at 11 (hereinafter “Buchanan Admin. Compl.”)

(internal quotation marks omitted). In one of their complaints,

the third-party candidates pointed out that the “CPD is currently,

and has always been” chaired by the former chairmen of the

RNC and the DNC, that “the CPD’s Board of Directors is

divided among representatives of the Democratic and

Republican parties and includes elected officials from those

parties,” and that at its inception the Republican and Democratic

Parties billed the CPD as a “‘bipartisan’ organization created ‘to

implement joint sponsorship of general election . . . debates . .

. by the national Republican and Democratic Committees

between their respective nominees.’” Id. at 14-15 (alterations

and omissions in original) (quoting Joint Press Release, DNC

and RNC (Feb. 18, 1987)). According to the complaint, this

major-party dominance of the CPD combined with the allegedly
4

partisan nature of the eligibility criteria demonstrated that the

CPD “endorse[d], support[ed], or oppose[d] political candidates

or political parties,” 11 C.F.R. § 110.13(a)(1), rendering it

ineligible to stage debates and making illegal its receipt of

corporate donations. See Buchanan Admin. Compl. at 11-13

(citing 2 U.S.C. §§ 431(4), 431(9), 441a, 441b, 434; 11 C.F.R.

§§ 110.13, 114.4(f)); see also First Gen. Counsel’s Report

MURs 4987, 5004, 5021 at 5-6 (hereinafter “Buchanan Gen.

Counsel’s Report”). 

The FEC’s General Counsel, whose report to the FEC

customarily “provides the basis for [its] action,” see FEC v.

Democratic Senatorial Campaign Comm., 454 U.S. 27, 38-39

n.19 (1981) (“DSCC”), and the “record on which [a court may]

base a deferential” decision, id. (quoting Democratic Senatorial

Campaign Comm. v. FEC, 660 F.2d 773, 777 n.23 (D.C. Cir.

1980) (per curiam)), found that the third-party challengers had

failed to provide “evidence that the CPD is controlled by the

DNC or the RNC,” “that any officer or member of the DNC or

the RNC is involved in the operation of the CPD,” or “that the

DNC and the RNC had input into the development of the CPD’s

candidate selection criteria for the 2000 presidential election

cycle.” Buchanan Gen. Counsel’s Report at 15. The General

Counsel therefore recommended that the FEC find “no reason to

believe” that the CPD had violated FEC regulations. See id. at

18-19. The FEC adopted this finding, ending prospects for any

further administrative action. See 2 U.S.C. § 437g(a)(8)(A).

 The complainants sought review in the U.S. District Court

for the District of Columbia. See id. Although the district court

thought that “the evidence [plaintiffs] have marshaled in support

. . . is not insubstantial” and that “the General Counsel’s terse

explanation could have been more clear and thorough,” it

nevertheless upheld the FEC, explaining that “in the absence of

any contemporaneous evidence of influence by the major parties

over the 2000 debate criteria, the FEC found evidence of
5

possible past influence simply insufficient to justify disbelieving

the CPD’s sworn statement” and, “under the extremely

deferential standard of review . . . , the FEC is entitled to the

benefit of the doubt.” Buchanan v. FEC, 112 F. Supp. 2d 58, 72

(D.D.C. 2000). The FEC, the district court concluded, “did not

abuse its discretion in finding . . . ‘no reason to believe’ that the

CPD currently” is in violation of section 110.13(a)(1) of the

FEC’s regulations. Id. at 73.

This brings us, then, to the challenge now before us. Saying

it feared that Green Party presidential candidate Ralph Nader

and possibly other third-party candidates might disrupt the first

debate, the CPD instructed its ticket takers to deny admission to

all such candidates. To ensure that ticket takers would know

whom to exclude, the CPD gave them a “face-book” that

included photographs of third-party candidates. 

Citing their exclusion from the debate audience and

claiming they now had the “contemporaneous evidence” found

missing in Buchanan, Nader and other third-party candidates

again complained to the FEC. In their complaint, they reiterated

the allegations, rejected in the Buchanan proceedings by the

FEC in a ruling upheld by the district court, that the major

parties control the CPD. They also argued that while the CPD

facilitated campaigning by the major parties during the debates,

it explicitly prohibited “‘campaigning’ by third-party

candidates,” including “the modicum of campaigning

purportedly entailed in attending the debates.” Admin. Compl.

MUR 5378 at ¶ 10. In support of this allegation, they cited a

deposition statement by CPD General Counsel Lewis Loss that

the CPD’s “concern was that if a third party candidate who had

not qualified for participation in the debate went to the trouble

to get a ticket and attended the debate that it would be for the

purpose of campaigning in some way, which seemed to imply

the potential for disruption.” Loss Dep. at 100-01 (emphasis

added). Though neither FECA nor FEC regulations address the
6

composition of debate audiences, the complainants argued that

their evidence demonstrated the CPD’s support of major-party

candidates and its opposition to third-party candidates, making

it ineligible to stage debates. See 11 C.F.R. § 110.13(a)(1). In

addition to Nader, the complainants included his running mate,

Winona LaDuke; John Hagelin, Natural Law Party presidential

candidate; Patrick Buchanan, Reform Party presidential

candidate; Howard Phillips, Constitution Party presidential

candidate; and the Green Party of the United States, the

Constitution Party, and the Natural Law Party. (Throughout this

opinion, we shall refer to the complainants collectively as

“Hagelin”). 

In its response to the Hagelin complaint, the CPD asserted

that “Mr. Nader and his supporters engaged in conduct that

reasonably led CPD to be concerned about the risk of disruption

of the live debate.” CPD Resp. at 4. Such conduct included

large rallies “at which the rallying cry was ‘Let Ralph Debate,’”

public statements by Nader “strongly suggesting[] that he sought

to disrupt the Boston debate,” and protests and a break-in at the

CPD’s offices by Nader supporters. Id. In conclusion the CPD

argued: 

[I]t is evident that the decision alleged in the complaint was

made for the purpose of preventing disruption of the live

international television broadcast of the debate. . . . Indeed,

the very testimony cited in the complaint makes plain that

the CPD, having determined the participants in its debates

by lawful process . . . wished to take reasonable measures

to ensure that the debate was not disrupted by . . . audience

member[s] who had not properly qualified for inclusion in

the debate as participants.

Id. at 5.

Considering these arguments, the FEC General Counsel

began by reiterating the FEC’s view that the previously rejected
7

evidence from the Buchanan proceedings failed to establish a

“reason to believe” that the CPD was controlled by the two

major parties and therefore declined to reconsider that evidence.

First Gen. Counsel’s Report MUR 5378 at 4 (hereinafter

“Hagelin Gen. Counsel’s Report”). Turning to the new

allegations, the General Counsel stated: 

[t]he issue presented by the complaint is not whether CPD’s

exclusion decision was a good one, or even whether its

fears of disruption were well-founded. The issue is whether

there is a sufficient basis to conclude the decision may have

been animated by partisanship. There is not. 

Id. at 7. As to the allegation that the CPD aimed to prohibit

third-party “campaigning,” the General Counsel explained that

Hagelin had taken Loss’s use of the word “campaigning” out of

context, particularly given the “substantial information

indicating that [CPD’s] decision was based on concerns of

potential disruption during live television broadcasts, not

partisanship.” Id. The FEC adopted the General Counsel’s

recommendation and dismissed the complaint.

Hagelin brought suit in the U.S. District Court for the

District of Columbia, and the parties filed cross-motions for

summary judgment. In a memorandum opinion, the court

observed that the Buchanan court’s affirmance of the FEC

rested “in part” on the plaintiffs’ concession that “they had no

‘contemporaneous evidence’” of two-party influence over the

CPD. Hagelin v. FEC, 332 F. Supp. 2d 71, 76-77 (D.D.C. 2004)

(quoting Buchanan, 112 F. Supp. 2d at 72). Given the new

evidence that the CPD excluded third-party candidates from the

2000 debates, the district court found the “FEC’s dismissal . . .

contrary to law because the FEC ignored record evidence that

CPD’s exclusion of third party candidates from the debates was

unrelated to a subjective or objective concern of disruption, and

was therefore partisan.” Id. at 77. Although the district court

read the record as “support[ing] the idea that CPD excluded
8

some candidates for fear that they would disrupt the debates,” it

found that the record did “not support the assertion that CPD

feared disruption by all candidates excluded.” Id. at 78.

Evidence that the CPD never considered the threat of disruption

by third-party supporters reinforced the court’s conclusion that

“the exclusion policy appears partisan on its face.” Id. at 80.

The district court accordingly granted summary judgment in part

for Hagelin, reversing and remanding to the FEC on the issue of

partisanship and denying Hagelin’s motion on another matter

not relevant to the issue before us. Id. at 82-83. 

The FEC now appeals, arguing that the district court

inappropriately substituted its view of the evidence for that of

the Commission. Because the district court granted summary

judgment, our review is de novo. See AFL-CIO v. FEC, 333

F.3d 168, 172 (D.C. Cir. 2003).

II.

We may set aside the FEC’s dismissal of a complaint only

if its action was “contrary to law,” see 2 U.S.C. § 437g(a)(8),

e.g., “arbitrary or capricious, or an abuse of discretion,” Orloski

v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “Highly

deferential, [the arbitrary and capricious] standard presumes the

validity of agency action” and permits reversal “‘only if the

agency’s decision is not supported by substantial evidence, or

the agency has made a clear error in judgment.’” AT&T Corp.

v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000) (quoting Kisser v.

Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994)). 

Hagelin urges us to apply a less deferential standard of

review because the FEC held no evidentiary hearing. But we

know of no case, nor has Hagelin cited one, suggesting that

deferential review is appropriate only where the agency holds a

hearing that includes live testimony and an opportunity for

cross-examination, as Hagelin maintains. Indeed, with respect

to the FEC we have held just the opposite. See Orloski, 795
9

F.2d at 167 (applying an “extremely deferential standard” to the

FEC’s determination that a complaint failed to establish “reason

to believe” (internal quotation marks omitted)). 

In a footnote, Hagelin argues that the FEC’s bipartisan

character—it has always had three Democratic and three

Republican commissioners—represents still another reason that

“militates against treating the FEC with the same deference

owed to a review of agency adjudicative decisions.” Appellee’s

Br. at 8 n.2; see also 2 U.S.C. § 437c(a)(1) (mandating that

“[n]o more than 3 [out of 6] members of the Commission . . .

may be affiliated with the same political party”). Yet the

Supreme Court has explained that the FEC is “precisely the type

of agency to which deference should presumptively be afforded”

because the FEC’s bipartisan composition makes it especially fit

to “decide issues charged with the dynamics of party politics.”

See DSCC, 454U.S. at 37;see also Common Cause v. FEC, 842

F.2d 436, 448 (D.C. Cir. 1988) (holding that “[d]eference is

particularly appropriate in the context of the FECA, which

explicitly relies on the bipartisan Commission as its primary

enforcer”). 

At oral argument, counsel for Hagelin explained that what

he meant was that because the FEC is dominated by the two

major parties, courts cannot trust it to deal fairly with third-party

complaints. Assuming Hagelin properly raised this

issue—which we doubt given the footnote’s opacity—we see no

basis for thinking that third-party complaints warrant more

demanding review. To begin with, the FEC’s bipartisan

structure is but one of several reasons the Supreme Court cited

in support of deferential review. As the Court explained, the

FEC also merits deference because (1) “Congress has vested the

Commission with ‘primary and substantial responsibility for

administering and enforcing the Act,’” including “‘extensive

rulemaking and adjudicative powers,’” (2) the FEC “is

authorized to ‘formulate general policy with respect to the
10

administration of this Act,’” and (3) the FEC has “‘sole

discretionary power’ to determine in the first instance whether

or not a civil violation of the Act has occurred.” DSCC, 454

U.S. at 37 (citations omitted). Moreover, the arbitrary and

capricious and substantial evidence standards seem to us fully

adequate to capture partisan or discriminatory FEC behavior. If

the FEC engages in “unjustifiably disparate treatment” of third

parties as compared to major parties, those actions would

“work[] a violation of the arbitrary-and-capricious standard.”

See FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986). 

III.

On the merits, the FEC argues that the district court

undertook the wrong analysis. “[T]he issue for the court . . . is

not whether CPD’s action was reasonably justified, but only

whether the Commission’s decision to credit CPD’s claim that

its subjective motivation was a fear of disruption, which even if

unreasonable was not based upon partisan electoral concerns,

was arbitrary and capricious.” Appellant’s Br. at 16. The FEC’s

point is well taken. The district court, stating that “the record

does not sustain FEC’s finding that CPD excluded each and

every third party candidate[] from the 2000 debates for nonpartisan reasons,” Hagelin, 332 F. Supp. 2d at 78, concluded that

“the exclusion policy appears partisan on its face,” id. at 80. But

given the deferential standard of review, the question before the

district court—and now before us—is not whether the CPD

provided sufficient reasons for its exclusion of each and every

candidate, but rather whether substantial evidence in the record

supports the FEC’s finding that the CPD’s exclusion of the

third-party candidates was not partisan. 

In his deposition, CPD co-chair Fahrenkopf testified that “it

was a question of whether or not . . . based upon the statements

[Nader] made, [he] would attempt to disrupt the debates. . . . I

was convinced that we just couldn’t take the risk of that
11

disruption. And that’s why I supported the decision not to allow

him in the room.” Fahrenkopf Dep. at 42. Fahrenkopf also

stated, “It was a question of what happens if Ralph Nader and/or

Pat Buchanan show up with a ticket into the hall, what will we

do?” Id. at 43. CPD General Counsel Loss testified that “the

CPD had decided that Mr. Nader and third-party candidates

more generally . . . would not be admitted into the debate hall .

. . I want to be clear, we made a decision that was of general

application to third-party candidates, but it really is the case that

our focus was very much on the very concrete threat that we

perceived Mr. Nader posed.” Loss Dep. at 50. With this record

before it, the FEC concluded that the CPD acted out of fear that

Nader, and possibly Buchanan, would disrupt the debate. Given

our highly deferential standard of review, we see no basis for

questioning this conclusion.

 Hagelin argues that because the Fahrenkopf and Loss

statements reveal a concern only about Nader and Buchanan,

partisanship, not fear of disruption, must have been the true

motivation for excluding all third-party candidates. Yet like the

district court, Hagelin fails to accord any weight to Loss’s

testimony that based on the fears about Nader, the CPD “made

a decision that was of general application to third-party

candidates.” Loss Dep. at 50. To be sure, the FEC General

Counsel never quoted Loss’s statement, but his report cites

relevant portions of the deposition and he obviously took the

statement into account, for in his report he referred to the CPD’s

policy toward all third-party candidates. See ACS of Anchorage,

Inc. v. FCC, 290 F.3d 403, 408 (D.C. Cir. 2002) (upholding

agency order that failed to “explicitly invoke” an exception

because the court could “reasonably discern the path from [the

order’s] reasoning and citations”). While the CPD may well

have over-reacted by excluding all third-party candidates, that

possibility hardly required the FEC to find that the CPD’s

actions amounted to “endors[ing], support[ing], or oppos[ing]

political candidates or political parties,” 11 C.F.R. §
12

110.13(a)(1). 

Hagelin insists that the CPD’s failure to consider the

potential for disruption by Nader supporters or supporters of

other third-party candidates demonstrates that its true motivation

was partisan. But just as the CPD’s possible overreaction—excluding all third-party candidates—does not compel

a finding of partisanship, neither does the CPD’s possible underreaction, i.e., failing to exclude third-party supporters as well.

In any event, “[t]he question we must answer . . . is not whether

record evidence supports [Hagelin’s] version of events, but

whether it supports” the FEC’s, see Florida Mun. Power Agency

v. FERC, 315 F.3d 362, 368 (D.C. Cir. 2003), and here it does.

Hagelin relies heavily on Loss’s statement that the CPD’s

“concern was that if a third party candidate who had not

qualified for participation in the debate went to the trouble to get

a ticket and attend the debate that it would be for the purpose of

campaigning in some way, which seemed to imply the potential

for disruption.” Loss Dep. at 100-01. According to Hagelin,

this statement demonstrates the CPD’s interest in preventing

third-party candidates from campaigning. As the FEC General

Counsel pointed out in his report, however, such a reading not

only ignores record evidence revealing the CPD’s concern about

debate disruption during live television coverage, but also overemphasizes the word “campaigning” and disregards the

remainder of the statement, which focuses on “the potential for

disruption.” Hagelin Gen. Counsel’s Report at 7.

Lastly, Hagelin argues that the FEC improperly declined to

revisit the evidence from the Buchanan proceedings. As

Hagelin points out, in Buchanan the district court emphasized

that the absence of “contemporaneous evidence of influence by

the major parties over the 2000 debate criteria” led it to uphold

the FEC’s determination that the “evidence of possible past

influence [was] simply insufficient.” See Buchanan, 112 F.

Supp. 2d at 72. Hagelin reads this as having imposed upon the
13

FEC an obligation to revisit Buchanan now that he has

introduced “contemporaneous evidence” of the CPD’s exclusion

of all third-party candidates from the debate audience. But

according to the FEC, Hagelin has still failed to produce what

the court found wanting in Buchanan, i.e., “hard

contemporaneous evidence that the CPD is being influenced by

the two major parties now,” see id. Given our conclusion that

substantial evidence supports the FEC’s finding that the CPD

did not act in a partisan manner, we find no fault in the FEC’s

refusal to revisit the “evidence of possible past influence.” 

IV.

Applying an appropriately deferential standard of review,

we find the FEC’s decision supported by substantial evidence

and therefore not contrary to law. We reverse the district court’s

judgment and remand with instructions to enter judgment for the

FEC.

So ordered.