UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

LEVEL THE PLAYING FIELD, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION, 

Defendant.

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)

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Civil Action No. 1:15-CV-01397-TSC

BRIEF OF AMICUS CURIAE COMMISSION ON PRESIDENTIAL DEBATES IN 

SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Lewis K. Loss

Uzoma N. Nkwonta 

LOSS, JUDGE & WARD, LLP

600 14th Street, N.W., Suite 450

Washington, D.C. 20005

Telephone: 202.778.4060

Facsimile: 202.778.4099

Attorneys for Amicus Curiae Commission on 

Presidential Debates

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

CORPORATE DISCLOSURE STATEMENT ............................................................................. iv

I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF INTEREST........................................................................................... 2

III. ARGUMENT...................................................................................................................... 7

A. A Debate Sponsor’s Selection of Candidates to Participate in the Debate is Protected 

by the First Amendment...................................................................................................... 7

B. Plaintiffs Seek to Impose Unconstitutional Restrictions on the CPD and other Debate 

Sponsors.............................................................................................................................. 8

CONCLUSION............................................................................................................................. 10

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TABLE OF AUTHORITIES

Federal Cases

Ark. Educ. Television Comm’n v. Forbes, 

523 U.S. 666 (1998)................................................................................................................. 4, 8

Buchanan v. Fed. Election Comm’n, 

112 F. Supp. 2d 58 (D.D.C. 2000) ............................................................................................... 5

Buckley v. Valeo, 

424 U.S. 1 (1976)......................................................................................................................... 9

Citizens United v. Fed. Election Comm’n, 

558 U.S. 310 (2010)................................................................................................................... 10

DeBauche v. Trani, 

191 F.3d 499 (4th Cir. 1999)........................................................................................................ 8

Eu v. San Francisco Cty. Democratic Cent. Comm., 

489 U.S. 214 (1989)..................................................................................................................... 8

Fulani v. Brady, 

935 F.2d 1324 (D.C. Cir. 1991) ................................................................................................... 5

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 

515 U.S. 557 (1995)..................................................................................................................... 8

McCutcheon v. Fed. Election Comm’n, 

134 S. Ct. 1434 (2014)....................................................................................................... 1, 9, 10

Perot v. Fed. Election Comm'n, 

97 F.3d 553 (D.C. Cir. 1996) ....................................................................................................... 8

Wisc. Right to Life State Political Action Comm. v. Barland, 

664 F.3d 139 (7th Cir. 2011)........................................................................................................ 9

Federal Regulations

11 C.F.R. § 110.13(a)...................................................................................................................... 2

11 C.F.R. § 110.13(c)...................................................................................................................... 5

Corporate and Labor Organization Activity,

60 Fed. Reg. 64 (Dec. 14, 1995).................................................................................................. 9

Other Authorities

2012 Presidential Form 2 Filers, FEDERAL ELECTION COMMISSION, 

http://www.fec.gov/press/resources/2012presidential_form2pty.shtml.....................................4

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League of Women Voters Educ. Fund, Resp. at 6, MUR 1287 (1980)

http://www.fec.gov/disclosure_data/mur/1287.pdf ..................................................................... 6

Letter from Lee Ann Elliott, Chairman, FEC, to Michael A. Nemeroff (May 31, 1984), A.O. 

1984-12, 1984 WL 1022490........................................................................................................... 4

Tax Guide for Churches & Religious Organizations, IRS Pub. 1828

2012 WL 8144695 (Jan. 1, 2012) ................................................................................................ 3

The Commission on Presidential Debates, 

http://www.debates.org/index.php?page=overview............................................................. 2, 6, 7

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amicus Curiae

Commission on Presidential Debates hereby certifies that it is a nonprofit, 501(c)(3) corporation. 

It has no parent corporation and no publicly held corporation owns ten percent or more of its 

stock.

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I. INTRODUCTION 

The Commission on Presidential Debates (“CPD”) is a private, nonprofit, 501(c)(3) 

organization that has sponsored televised general election debates between or among the leading 

candidates for president in each election cycle since 1988. The CPD invites to participate in its 

debates any candidate who is qualified under the Constitution to be president, is on the ballot in 

enough states to garner a theoretical Electoral College majority, and has a level of public support 

of at least fifteen percent as reflected in the average of five national public opinion polls 

conducted shortly before the debates. 

Plaintiffs prefer a different approach. Through administrative complaints and a petition 

for rulemaking filed with the Federal Election Commission (“FEC”), Plaintiffs seek to have the 

government require the CPD (and any other sponsor of general election presidential debates) to 

invite to participate in its debates at least one candidate who is unable to muster even fifteen 

percent in the polls. Plaintiffs suggest a signature gathering competition as an alternate path to 

qualifying for debate participation and achieving their ultimate goal of (as the lead Plaintiff’s 

name suggests) “level[ing] the playing field.”

While the FEC correctly dismissed Plaintiffs’ complaint and petition for rulemaking for 

multiple reasons, the CPD seeks to elaborate on a critical point that Plaintiffs have failed to 

address: their lawsuit seeks relief that would violate the CPD’s First Amendment rights. The 

sponsorship of a presidential debate involves political speech, and when regulating such speech, 

the government must tread lightly. The Supreme Court has expressly admonished that “it is not 

an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral 

opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’” McCutcheon v. Fed. 

Election Comm’n, 134 S. Ct. 1434, 1450 (2014). The constitutional questions raised by the relief 

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Plaintiffs seek, and their flawed interpretation of the FEC’s regulations, require the dismissal of 

Plaintiffs’ lawsuit.

II. STATEMENT OF INTEREST

The Commission on Presidential Debates. The CPD is a private, nonpartisan 501(c)(3) 

organization. As a 501(c)(3) organization, it is eligible under federal law to serve as a debate 

sponsor. See 11 C.F.R. § 110.13(a). The CPD’s primary mission is to ensure, for the benefit of 

the American electorate, that general election debates are held every four years between and 

among the leading candidates who have a realistic (i.e. more than theoretical) chance of being 

elected for the offices of President and Vice President of the United States. See Commission on 

Presidential Debates, Candidate Selection Criteria, http://www.debates.org/index.php?page=over

view. The CPD has sponsored general election presidential debates in every election since 1988, 

and it is planning on bringing a series of high quality, educational debates to the electorate in 

2016.

The CPD is an independent organization. It is not controlled by any political party or 

outside organization and it does not endorse, support, or oppose political candidates or parties. It 

receives no funding from the government or any political party, political action committee or 

candidate. The CPD is governed by an independent Board of Directors. The CPD Board 

presently is jointly chaired by Frank J. Fahrenkopf, Jr. and Michael D. McCurry. Mr. McCurry 

succeeded CPD co-founder Paul Kirk in 2009. Although at the time the CPD was formed, 

Messrs. Kirk and Fahrenkopf served, respectively, as chairmen of the Democratic National 

Committee and Republican National Committee, their terms ended in 1989. In the intervening 

25-plus years, no sitting officer of either major party has had any affiliation with the CPD and 

the major parties have no role whatsoever in running the CPD or setting its policies. In addition 

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to the Co-Chairs, the current Board consists of the following distinguished Americans, all of 

whom volunteer their time to serve on the CPD Board: 

Howard G. Buffett, Chairman and CEO, The Howard G. Buffett Foundation

John C. Danforth, Former U.S. Senator

Mitchell E. Daniels, Jr., President, Purdue University

Charles Gibson, Former Anchor, ABC World News with Charles Gibson

John Griffen, Managing Director, Allen & Company LLC

Jane Harman, Director, President and CEO, Woodrow Wilson International 

Center for Scholars

Antonia Hernandez, President and CEO, California Community Foundation

Reverend John I. Jenkins, President, University of Notre Dame

Jim Lehrer, Former Executive Editor and Anchor of the NewsHour on PBS

Newton N. Minow, Senior Counsel, Sidley Austin LLP

Richard D. Parsons, Senior Advisor, Providence Equity Partners LLC

Dorothy S. Ridings, Former President, the League of Women Voters and Former 

President and CEO, Council on Foundations

Olympia Snowe, Former U.S. Senator

Shirley M. Tilghman, Former President, Princeton University

The CPD obtains the funds required to produce its debates every four years and to 

support its ongoing voter education activities from the communities that host the debates and, to 

a lesser extent, from corporate, foundation, and private donors. Donors have no input into the 

management of any of the CPD’s activities and have no input into the process by which the CPD 

selects debate participants.1

 

1

Plaintiffs strenuously challenge, but provide no legitimate evidence to dispute, the CPD’s independence. They rely 

heavily on CPD Board members’ isolated references to “bipartisanship” (rather than “nonpartisanship”) and other 

events that transpired nearly thirty years ago, but the only remotely contemporaneous evidence they offer is a list of 

personal political contributions and other examples of CPD members, in their individual capacities, engaging in the 

political process. See, e.g., Pls.’ Mem. in Supp. of Mot. for Summ. J. (“Pls.’ Mot.”) 14-16, ECF No. 37. The FEC 

rightfully dismissed these allegations as ignoring the key distinction between acts committed in a board member’s 

official capacity and acts committed in his or her personal capacity. Notably, even the IRS respects this distinction 

in determining whether an organization participated in a political campaign in violation of section 501(c)(3). See, 

e.g., Tax Guide for Churches & Religious Organizations, IRS Pub. 1828, 2012 WL 8144695, at *7 (Jan. 1, 2012) 

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Candidate Selection Criteria. One of the most challenging issues faced by any debate 

sponsor is candidate selection. As noted, the nonpartisan, voter education goal of the CPD’s 

debates is to afford the members of the public an opportunity to sharpen their views, in a focused 

debate format, of the leading candidates who have a realistic chance of being elected President 

and Vice President of the United States. The CPD’s approach to candidate selection has been 

driven by this goal. 

Scores of candidates run for president every election cycle, including dozens who do not 

seek the nomination of either major party. See 2012 Presidential Form 2 Filers, 

FEDERAL ELECTION COMMISSION, http://www.fec.gov/press/resources/2012presidential_form2pt

y.shtml (last visited May 11, 2016) (reporting over 240 declared candidates who were not 

identified as members of the Democratic or Republican party). The CPD applies its nonpartisan 

candidate selection criteria in the final weeks of a long general election campaign. The CPD’s 

selection criteria have always sought to identify the individuals whose public support has made 

them the leading candidates.2

In addition, candidates for federal office are not required to debate. History teaches that it 

is speculative at best to assume that the leading candidates would agree to share the stage with 

candidates enjoying only scant public support. See, e.g., Pls.’ Statement of Material Facts ¶ 33. 

Thus, a sponsor of general election debates that aims to provide the electorate with a focused 

debate that includes the leading candidates faces a difficult task. The sponsor needs to be 

 

(recognizing that a religious leader’s endorsement of a candidate in his or her individual capacity does not constitute 

political campaign intervention by the section 501(c)(3) tax exempt church); see also Letter from Lee Ann Elliott, 

Chairman, FEC, to Michael A. Nemeroff (May 31, 1984), A.O. 1984-12, 1984 WL 1022490 (acknowledging the 

distinction between a 501(c)(3) organization, and the political action committee created by its board members in 

their individual capacities). Few if any organizations would qualify for 501(c)(3) status if their members were 

prohibited from supporting candidates or otherwise participating in the political process in an individual capacity.

2 Even when the debate sponsor is a state actor (unlike the CPD) and, therefore, subject to the limitations of the First 

Amendment when issuing debate invitations, the Supreme Court has expressly approved as lawful the sponsor’s 

exclusion of a candidate based on his or her lack of voter support. See Ark. Educ. Television Comm’n v. Forbes, 523 

U.S. 666, 683 (1998). 

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inclusive enough to invite each of those candidates, regardless of party affiliation, whose level of 

public support genuinely qualifies him or her as a leading candidate. At the same time, the 

sponsor should not take an approach so inclusive that invitations to candidates with scant public 

support deprives the public of the opportunity to see debates that include the candidates in whom 

they have the greatest interest. The CPD strives to strike this balance in an appropriate fashion.3

FEC regulations require a debate sponsor to make its candidate selection decisions on the 

basis of “pre-established, objective” criteria. See 11 C.F.R. § 110.13(c). After a thorough and 

wide-ranging review of alternative approaches to determining who is invited to participate in the 

general election debates it will sponsor, the CPD adopted, on October 28, 2015, its 2016 NonPartisan Candidate Selection Criteria. Under the 2016 criteria, in addition to being 

constitutionally eligible, candidates must appear on a sufficient number of state ballots to have a 

mathematical chance of winning a majority vote in the Electoral College, and have a level of 

support of at least fifteen percent 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. The polls to be relied upon will 

be selected based on the quality of the methodology employed, the reputation of the polling 

organizations, and the frequency of the polling conducted. The CPD will identify the selected 

polling organizations well in advance of the time the criteria are applied. Although only adopted 

for 2016 after a thorough review of alternatives, the 2016 criteria and fifteen percent threshold 

are substantially the same as those employed by the CPD since 2000.4 Notably, the fifteen 

 

3

See Fulani v. Brady, 935 F.2d 1324, 1329 (D.C. Cir. 1991) (acknowledging that it is speculative at best to assume 

the leading candidates would agree to share the stage with candidates enjoying only scant public support).

4

See Buchanan v. Fed. Election Comm’n, 112 F. Supp. 2d 58, 75 (D.D.C. 2000) (noting that “[i]t is difficult to 

understand why it would be unreasonable or subjective to consider the extent of a candidate’s electoral support prior 

to the debate . . .” and upholding the FEC’s determination that the CPD’s fifteen percent threshold was objective and 

lawful).

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percent threshold was also relied upon by the League of Women Voters prior to the CPD’s 

formation in 1987. See League of Women Voters Educ. Fund, Resp. at 6, MUR 1287 (1980), 

available at http://www.fec.gov/disclosure_data/mur/1287.pdf.

The CPD’s determination with respect to participation in the first-scheduled debate will 

be made after Labor Day 2016, but sufficiently in advance of the first-scheduled debate to allow 

for orderly planning. Invitations to participate in the vice-presidential debate will be extended to 

the running mates of each of the presidential candidates qualifying for participation in the CPD’s 

first presidential debate. Invitations to participate in the second and third scheduled presidential 

debates will be based upon satisfaction of the same multiple criteria prior to each debate.

The CPD adopted its 2016 criteria based on the recommendations of a working group of 

its Board chaired by former League of Women Voters President Dorothy Ridings, who serves as 

a CPD Director. At the time the criteria were announced, Ms. Ridings stated, “We considered a 

wide array of approaches to the candidate selection issue. We concluded that CPD serves its 

voter education mission best when, in the final weeks of the campaign, based on pre-established, 

published, objective and transparent criteria, it identifies those individuals whose public support 

places them among the leading candidates and invites them to debate the issues of the day. We 

also concluded that the best available measure of public support is high-quality public opinion 

polling conducted near the time of the debates.” Commission on Presidential Debates: An 

Overview, http://www.debates.org/index.php?page=overview. 

Ms. Ridings also noted that, “Under the CPD’s non-partisan criteria, no candidate or 

nominee of a party receives an automatic invitation. The CPD’s objective criteria are applied on 

the same basis to all declared candidates, regardless of party affiliation or lack thereof.” Id. Ms. 

Ridings explained, “During the course of the campaign, the candidates are afforded many 

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opportunities in a great variety of forums to advance their candidacies. The purpose of the 

criteria is to identify those candidates whose support among the electorate places them among 

the candidates who have a realistic chance of being elected President of the United States.” Ms. 

Ridings added, “The realistic chance need not be overwhelming, but it must be more than 

theoretical.” Id.

Also at the time the 2016 criteria were adopted, CPD Co-Chairs Frank J. Fahrenkopf, Jr. 

and Michael D. McCurry noted that, “It is appropriate for a debate sponsor to take the campaign 

as it finds it in the final weeks leading up to Election Day. The CPD’s debates are not intended 

to serve as a springboard for a candidate with only very modest support. Participation in the 

debates is determined by the level of public support a candidate enjoys as Election Day 

approaches.” Id.

This Litigation. Plaintiffs challenged the CPD’s nonpartisan criteria by filing a 

complaint and a petition for rulemaking before the FEC. The complaint alleged that the CPD’s 

criteria violate the FEC’s regulations and various provisions of the FECA, and the petition for 

rulemaking urged the FEC to prohibit debate sponsors from using polling thresholds as the only 

criterion for selecting debate participants. The FEC dismissed both, finding that the CPD had 

complied with the applicable laws, that the use of polling is consistent with applicable 

regulations, and that additional restrictions on candidate selection criteria were unnecessary. As 

a result, Plaintiffs filed this action in which they allege that the FEC’s rulings are contrary to law. 

III. ARGUMENT

A. A Debate Sponsor’s Selection of Candidates to Participate in the Debate is Protected 

by the First Amendment.

The CPD and other debate sponsors engage in protected speech and expressive conduct: 

they develop candidate selection criteria, identify the candidates who meet the criteria, and invite 

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them to debate in a forum created by the debate staging organization. Forbes, 523 U.S. at 674 

(debate sponsor’s compilation of the speech of third parties is a communicative act); Perot v. 

Fed. Election Comm'n, 97 F.3d 553, 559 (D.C. Cir. 1996) (“[I]f this court were to enjoin the 

CPD from staging the debates or from choosing debate participants, there would be a substantial 

argument that the court would itself violate the CPD’s First Amendment rights.”). See also 

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (holding 

that a parade organizer is a speaker that has the autonomy to choose the content of his own 

message). The Supreme Court has cited Hurley in acknowledging the expressive acts of a public 

broadcaster that sponsored candidate debates, Forbes, 523 U.S. at 674, as did the D.C. Circuit 

when it acknowledged that enjoining the CPD from staging debates would be unconstitutional, 

Perot, 97 F.3d at 559. In other words, it is well settled that restrictions on candidate selection 

criteria implicate debate sponsors’ First Amendment rights. See also DeBauche v. Trani, 191 

F.3d 499, 509 (4th Cir. 1999) (“[T]he First Amendment protects private parties’ rights to put on 

(and select the content of) debates.”)

B. Plaintiffs Seek to Impose Unconstitutional Restrictions on the CPD and other 

Debate Sponsors.

“[T]he First Amendment has its fullest and most urgent application to speech uttered 

during a campaign for political office.” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 

U.S. 214, 223 (1989) (internal quotation marks omitted). Congress enacted the FECA to limit 

quid pro quo corruption and its appearance, but the Supreme Court has recognized that its 

restrictions “operate in an area of the most fundamental First Amendment activities.” Buckley v. 

Valeo, 424 U.S. 1, 14 (1976). As a result, the Court determined that restrictions on political 

speech imposed by the Act or by the FEC’s regulations must be drawn and construed narrowly to 

target quid pro quo corruption or some other sufficiently important government interest in order 

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to avoid “unnecessary abridgment of First Amendment rights.” McCutcheon, 134 S.Ct. at 1446 

(quoting Buckley, 424 U.S. at 25).

When the FEC adopted the candidate debate rules at issue in this lawsuit, it was mindful 

of the First Amendment interests at stake. The agency sought to strike the appropriate balance 

between the FECA’s objectives and the rights of debate sponsors and candidates by tailoring its 

regulations to target quid pro quo corruption, while avoiding any further restrictions that would 

unduly inject government into the debate over who should govern. See Corporate and Labor 

Organization Activity, 60 Fed. Reg. 64, 260, 64, 262 (Dec. 14, 1995), available at 1995 WL 

735941. Thus, rather than impose its own pre-established set of criteria as some commenters 

suggested, the agency left to debate staging organizations the discretion to “decide which 

candidates to include in the debates.” Id. The requirement that staging organizations use preestablished, objective criteria was imposed specifically to avoid the appearance of a quid pro 

quo, the only government interest deemed sufficient by the Supreme Court to justify the FECA’s 

restrictions on political speech. See, e.g., Wisc. Right to Life State Political Action Comm. v. 

Barland, 664 F.3d 139, 143 (7th Cir. 2011) (identifying quid pro quo corruption as “the only 

governmental interest strong enough to justify restrictions on political speech”). Had the FEC 

gone further and narrowed debate sponsors’ discretion in selecting the pre-established objective 

criteria on which they would rely, the rule would not have survived constitutional scrutiny. It 

would have imposed restrictions on speech that went beyond what was required to avoid quid 

pro quo corruption, and the Supreme Court has unequivocally disclaimed any permissible 

government interest in leveling the playing field among candidates. See McCutcheon, 134 S. Ct. 

at 1450. A rule that would place additional restrictions on a debate sponsor’s discretion, on top 

of the regulations already in place, is exactly the type of “prophylaxis-upon-prophylaxis” 

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approach that the Supreme Court has warned against to avoid the unnecessary abridgment of 

political speech. Id. at 1444.5 

Plaintiffs’ effort in this lawsuit plainly is not directed at addressing quid pro quo

corruption. It is designed to advance a particular political goal that the Supreme Court has stated 

is not a permissible objective of the federal election laws. The relief Plaintiffs seek runs afoul of 

the First Amendment. 

CONCLUSION

For the reasons stated above, the CPD respectfully requests that the Court grant the 

FEC’s motion for summary judgment and dismiss Plaintiffs’ lawsuit.

 

5

It is no answer to suggest that the CPD may retain its selection criteria by registering as a political action 

committee (“PAC”) and disclosing its contributors and expenditures. See Pls.’ Mot. 7. That would require the CPD, 

a 501(c)(3) organization, to transform itself into a PAC, or to create a separate organization to stage the debates. 

Neither option allows the CPD in its current form to engage in the political speech challenged here, and that, by 

itself, violates the CPD’s First Amendment rights. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 337 

(2010). As the Supreme Court also explained in Citizens United, “PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive regulations.” Id. To condition the CPD’s speech on its willingness 

to navigate this regulatory labyrinth imposes a prior restraint that cannot be justified by any sufficiently important 

government interest. See id. at 334.

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Dated: May 11, 2016 Respectfully Submitted,

By:/s/Lewis K. Loss___________

Lewis K. Loss, Bar No. 375793

LLoss@ljwllp.com

Uzoma Nkwonta, Bar No. 975323

UNkwonta@ljwllp.com

LOSS, JUDGE & WARD, LLP

600 14th Street, N.W., Suite 450

Washington, D.C. 20005

Telephone: 202.778.4060

Facsimile: 202.778.4099

Attorneys for Amicus Curiae Commission on 

Presidential Debates

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CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2016, I electronically filed the foregoing with the Clerk 

of the United States District Court for the District of Columbia by using the CM/ECF system. 

Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.

Respectfully submitted,

/s/ Lewis K. Loss

Lewis K. Loss, Bar No. 375793

LLoss@ljwllp.com

LOSS, JUDGE & WARD, LLP

600 14th Street, N.W., Suite 450

Washington, D.C. 20005

Telephone: 202.778.4060

Facsimile: 202.778.4099

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