UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, ) Civ. No. 15-1397 (TSC)

) 

v. )

) 

FEDERAL ELECTION COMMISSION, ) MOTION FOR SUMMARY

) JUDGMENT

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

In accordance with the Court’s Minute Order of August 17, 2017, defendant Federal 

Election Commission (“Commission”) respectfully cross-moves this Court for an order 

(1) granting summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of 

Civil Procedure and Local Civil Rule 7(h), and (2) denying plaintiffs’ motion for summary 

judgment (Docket No. 83). In support of this motion, the Commission is filing a Memorandum 

in Support of Its Motion for Summary Judgment and in Opposition to Plaintiffs’ Motion for 

Summary Judgment and a Proposed Order. 

Respectfully submitted,

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

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

lstevenson@fec.gov Senior Attorney 

rbonham@fec.gov 

Kevin Deeley

Associate General Counsel Haven G. Ward (D.C. Bar No. 976090)

kdeeley@fec.gov Attorney 

hward@fec.gov 

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel COUNSEL FOR DEFENDANT

ckitchner@fec.gov FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Case 1:15-cv-01397-TSC Document 90 Filed 10/13/17 Page 1 of 56
2

Washington, DC 20463

October 13, 2017 (202) 694-1650

Case 1:15-cv-01397-TSC Document 90 Filed 10/13/17 Page 2 of 56
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

Plaintiffs, ) Civ. No. 15-1397 (TSC)

) 

v. )

) SUMMARY JUDGMENT

FEDERAL ELECTION COMMISSION, ) MEMORANDUM

) 

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel

ckitcher@fec.gov

October 13, 2017

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

Senior Attorney 

rbonham@fec.gov

Haven G. Ward (D.C. Bar No. 976090)

Attorney

hward@fec.gov 

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

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TABLE OF CONTENTS

 Page

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

BACKGROUND .......................................................................................................................2

I. STATUTORY AND REGULATORY BACKGROUND .............................................2

A. The FEC and Its Administrative Enforcement and Rulemaking 

Processes............................................................................................................2

1. The Commission .....................................................................................2

2. FECA’s Administrative Enforcement and Judicial-Review 

 Provisions................................................................................................3

3. The FEC’s Rulemaking Petition Process................................................4

B. FECA’s Regulation of Debate Sponsoring Organizations and Candidate 

Debates Sponsored by Such Organizations .......................................................4

C. Prior FEC Administrative Complaints Involving CPD......................................6

II. FACTUAL BACKGROUND ....................................................................................... 7

A. The Commission’s Previous Dismissals of Plaintiffs’ Administrative 

 Complaints, Notice of Disposition, and the Court’s Remand............................7

B. The FEC’s Dismissal of Plaintiffs’ Administrative Complaints on 

 Remand ............................................................................................................10

C. The FEC’s Supplemental NOD Regarding LPF’s Petition for Rulemaking ...16

D. Post-Remand Procedural History.....................................................................18

ARGUMENT...........................................................................................................................18

I. THE COMMISSION’S DISMISSAL OF PLAINTIFFS’ ADMINISTRATIVE 

 COMPLAINTS CONFORMS WITH THE COURT’S REMAND OPINION AND 

 IS NOT OTHERWISE CONTRARY TO LAW .........................................................19

A. Standard of Review For Dismissal of Plaintiffs’ Administrative 

 Complaints.......................................................................................................19

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1. Section 30109(a)(8)’s Contrary to Law Standard of Review Is 

 “Limited” and “Extremely Deferential” 19

2. Plaintiffs’ Arguments for Reduced Deference are Contrary to 

 Controlling Supreme Court and D.C. Circuit Decisions, as

 well as the Court’s Own Remand Opinion ...........................................21

3. The Court Cannot Consider Evidence That Was Not Before the 

 FEC .......................................................................................................23

B. The Commission’s Dismissal Decision Is Not Contrary to Law......................24

1. The FEC’s Dismissal Decision Conforms With the Court’s Remand 

 Opinion and Is Not Contrary to Law or Arbitrary................................24

2. Plaintiffs Cannot Meet Their Burden to Show that the Commission 

 Acted Contrary to Law or Arbitrarily ...................................................28

a. Plaintiffs’ Policy-Based Arguments Misperceive the Issues 

Before the Court ........................................................................28

b. The Commission’s Evaluation of Plaintiffs’ Evidence Allegedly 

Demonstrating CPD’s Partisanship Was Not Arbitrary...........30

c. The Commission’s Evaluation of Plaintiffs’ Evidence Regarding 

CPD’s 15 Percent Polling Threshold Was Not Arbitrary.........36

i. Young’s Report..............................................................36

ii. Schoen’s Report ............................................................39

iii. The 15 Percent Threshold .............................................40

II. THE FEC’S DENIAL OF LPF’S RULEMAKING PETITION WAS NOT 

ARBITRARY OR CAPRICIOUS ...............................................................................41

A. Standard of Review for Denial of Rulemaking Petition ..................................41

B. The FEC’s Denial of LPF’s Rulemaking Petition Conforms with the Court’s 

 Remand Decision and Is Not Otherwise Arbitrary or Capricious ..................42

C. Plaintiffs’ Requested Relief Is Improper.........................................................45

CONCLUSION........................................................................................................................45

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TABLE OF AUTHORITIES

Cases 

Am. Horse Prot. Ass’n., Inc. v. Lyng, 812 F. 2d 1 (D.C. Cir. 1987)....................................... 42

Appalachian Power Co. v. E.P.A., 135 F.3d 791 (D.C. Cir. 1998) ........................................ 37

Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 681 (1998) .................................... 33

Auer v. Robbins, 519 U.S. 452 (1997)...................................................................................... 4

Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63 (D.D.C. 2011)............................ 38

Becker v. FEC, 230 F.3d 381 (1st Cir. 2000) ........................................................................... 5

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) ....................................................... 7, 11

Buckley v. Valeo, 424 U.S. 1 (1976)....................................................................................... 22

Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182 (D.C. Cir. 1985)............. 36

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)............................ 20

Citizens United v. FEC., 558 U.S. 310 (2010)........................................................................ 25

City of Los Angeles v. U.S. Dept. of Transp., 165 F.3d 972 (D.C. Cir. 1999)........................ 22

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ........................................................ 19

Conkright v. Frommert, 559 U.S. 506 (2010)......................................................................... 22

Consarc Corp. v. U.S. Treasury Dep’t, Office of Foreign Assets Control, 

71 F.3d 909 (D.C. Cir. 1995)...................................................................................... 20

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013).................................................. 20, 23, 25

Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008).................................... 4, 42

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)............... 20, 21, 22, 23

Galvin v. Eli Lilly & Co., 488 F.3d 1026 (D.C. Cir. 2007)..................................................... 35

Greyhound Corp. v. ICC, 668 F.2d 1354 (D.C. Cir. 1981) .................................................... 22

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)................................................................. 7, 21

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Hannon v. Clark, 70 F. App’x 519 (10th Cir. 2003) .............................................................. 22

Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir. 2013)........................................... 23

Johnson v. Comm’n of Presidential Debates, 869 F.3d 976 (D.C. Cir. 2017) ....................... 30

Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 84 (D.D.C. 2009)..................................... 34

Lane v. Franks, 134 S. Ct. 2369 (2014).................................................................................. 34

Lee v. Metrocare Servs., 980 F. Supp. 2d 754 (N.D. Tex. 2013) ..................................... 35, 36

*Level the Playing Field v. FEC, 232 F. Supp. 3d 130 (D.D.C. 2017) ........................... passim

Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006).................................................................... 37

McConnell v. FEC, 540 U.S. 93 (2003).................................................................................. 25

McCutcheon v. FEC, 134 S. Ct. 1434 (2014)......................................................................... 29

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 2-, 30

463 U.S. 29 (1983)................................................................................................ 20, 30

N. Broward Hosp. Dist. v. Shalala, 172 F.3d 90 (D.C. Cir. 1999)......................................... 21

Natural Law Party v. FEC, 111 F. Supp. 2d 33 (D.D.C. 2000) ............................................... 7

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004)................................................... 45

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)................................................................ 19, 20

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)....................................................................... 7, 30

Sataki v. Broadcasting Bd. of Governors, 733 F. Supp. 2d 54 (D.D.C. 2010)....................... 34

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007).................................................................. 45

Tex. Neighborhood Servs. v. U.S. Dep’t of Health & Human Servs.,

172 F. Supp. 3d 236 (D.D.C. 2016)............................................................................ 30

Tex. Neighborhood Servs. v. U.S. Dep’t of Health & Human Servs., No. 16-5150,

2017 WL 3389275 (D.C. Cir. Aug. 8, 2017).............................................................. 30

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)....................................................... 20

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U. S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

413 U.S. 548 (1973).................................................................................................... 34

United States v. Dickson, 816 F.2d 751 (D.C. Cir. 1987)....................................................... 25

United States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004).................................................... 31

United Steelworkers of Am, AFL-CIO v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) ............ 21

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ............................................................... 21

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) ................... 23, 24

Wisc. Valley Improvement v. F.E.R.C., 236 F.3d 738 (D.C. Cir. 2001)................................. 38

Statutes and Regulations

5 C.F.R. § 734.402.................................................................................................................. 34

5 C.F.R. § 734.404.................................................................................................................. 34

11 C.F.R. § 100.92.................................................................................................................... 5

11 C.F.R. § 100.154.................................................................................................................. 5

*11 C.F.R. § 110.13......................................................................................................... passim

*11 C.F.R. § 110.13(a)............................................................................................................ 10

*11 C.F.R. § 110.13(a)(1)......................................................................................... 5, 7, 24, 25

*11 C.F.R. § 110.13(b) ............................................................................................................. 5

*11 C.F.R. § 110.13(c).......................................................................................... 1, 5, 8, 13, 16

11 C.F.R. § 114.4(f).................................................................................................................. 5

11 C.F.R. § 200......................................................................................................................... 4

11 C.F.R. § 200.2...................................................................................................................... 4

11 C.F.R. § 200.3...................................................................................................................... 4

11 C.F.R. § 200.4(a).................................................................................................................. 4

11 C.F.R. § 200.4(b) ................................................................................................................. 4

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11 C.F.R. § 200.4(c).................................................................................................................. 4

5 U.S.C. § 553(e) ...................................................................................................................... 4

5 U.S.C. § 7323....................................................................................................................... 34

26 U.S.C. § 501(c)(3)................................................................................................................ 5

26 U.S.C. § 501(c)(4)................................................................................................................ 5

52 U.S.C. § 30101(9)(B)(ii).................................................................................................. 4, 5

52 U.S.C. § 30103................................................................................................................... 10

52 U.S.C. § 30104................................................................................................................... 10

52 U.S.C. § 30106(a)(1).......................................................................................................... 22

52 U.S.C. § 30106(b)(1) ....................................................................................................... 2, 3

52 U.S.C. § 30106(c) ................................................................................................................ 3

52 U.S.C. § 30107(a)(8)............................................................................................................ 3

52 U.S.C. § 30109(a)(1)............................................................................................................ 3

52 U.S.C. § 30109(a)(2)............................................................................................................ 3

52 U.S.C. § 30109(a)(4)(A)(i) .................................................................................................. 3

52 U.S.C. § 30109(a)(6)............................................................................................................ 3

52 U.S.C. § 30109(a)(6)(A)...................................................................................................... 3

*52 U.S.C. § 30109(a)(8)................................................................................................. passim

*52 U.S.C. § 30109(a)(8)(A).................................................................................................... 3

*52 U.S.C. § 30109(a)(8)(C) ........................................................................................ 3, 19, 30

52 U.S.C. § 30111(a)(8)............................................................................................................ 3

52 U.S.C. § 30116(a)(7)(B) ...................................................................................................... 4

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52 U.S.C. § 30116(f)............................................................................................................... 10

52 U.S.C. § 30118(a) .................................................................................................. 4, 6, 7, 10

Miscellaneous

Carlin E. Bunch, New Commissioners Join the FEC, FEC Record, Feb. 2006, 

https://www.fec.gov/resources/record/2006/feb06.pdf............................................... 22

Corporate and Labor Org. Activity; Express Advocacy and Coordination with

Candidates, 60 Fed. Reg. 64,260 (Dec. 14, 1995)........................................ 5, 6, 27, 29

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INTRODUCTION 

Level the Playing Field (“LPF”) and its co-plaintiffs again challenge the Federal Election 

Commission’s (“FEC” or “Commission”) handling of (1) their administrative complaints

alleging certain campaign-finance violations by the Commission on Presidential Debates 

(“CPD”) and a dozen individual respondents and (2) LPF’s petition to change the Commission’s 

debate regulation, 11 C.F.R. § 110.13. Plaintiffs’ administrative complaints alleged that CPD 

and the other respondents violated the Federal Election Campaign Act (“FECA” or “Act”) by 

making impermissible contributions and expenditures and by failing to register CPD with the 

Commission as a political committee and filing the reports required of such groups. LPF’s 

rulemaking petition requested that the agency amend section 110.13(c) to preclude sponsors of 

presidential and vice-presidential debates from using a polling threshold to determine debate 

participation. Reviewing a previous challenge under FECA’s relevant judicial review provision, 

52 U.S.C. § 30109(a)(8), and the Administrative Procedure Act (“APA”), this Court found that 

deficiencies in the FEC’s earlier dismissals of plaintiffs’ administrative complaints and its denial 

of the rulemaking petition required remanding the matters to the agency for further 

consideration. Level the Playing Field v. FEC, 232 F. Supp. 3d 130 (D.D.C. 2017) (“LPF I”).

On remand, the Commission reconsidered plaintiffs’ administrative complaints and the 

rulemaking petition in light of the Court’s instructions and with particular focus on the evidence 

plaintiffs submitted in those administrative matters. Following that review, the FEC again 

dismissed plaintiffs’ administrative complaints, explaining in a lengthy new Factual & Legal 

Analysis why plaintiffs’ evidence did not provide reason to believe that CPD is ineligible as a 

debate sponsor or that its 15 percent polling threshold was not objective under the regulation. 

Similarly, the FEC detailed in a Supplemental Notice of Disposition the numerous shortcomings 

contained in the expert evidence plaintiffs submitted in support of the petition as well as the 

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reasons for the agency’s decision not to initiate the requested rulemaking. Plaintiffs again 

contend that these decisions were contrary to law or arbitrary or capricious.

Plaintiffs’ contentions are meritless. The Court must reject their request that it disregard 

longstanding and controlling authority requiring it to evaluate the FEC’s actions under the 

extremely deferential standards of review that apply here. By vociferously advancing policy 

arguments about the benefits of forcing CPD, a private organization, to include uncompetitive 

candidates in their widely-viewed debates in order to give them a boost, plaintiffs profoundly 

misconceive the nature of this case. The Court’s task is not to evaluate plaintiffs’ policy agenda

but to determine, based on the records that were submitted to the agency, whether plaintiffs have 

met their heavy burden of showing that the FEC acted contrary to law or arbitrarily. Plaintiffs’ 

limited arguments addressed to this question are insubstantial. They may disagree with the 

Commission’s assessment of the evidence, but the Commission’s thorough explanations

demonstrate that it fully complied with the Court’s instructions by carefully considering, under 

the Commission’s regulation, both whether CPD is nonpartisan and whether its polling criterion 

is objective. Because the Commission’s conclusions that the evidence did not warrant initiation 

of enforcement investigations or rulemaking proceedings were neither contrary to law nor

arbitrary, the Court should grant summary judgment to the Commission.

BACKGROUND 

I. STATUTORY AND REGULATORY BACKGROUND

A. The FEC and Its Administrative Enforcement and Rulemaking Processes

1. The Commission 

The FEC is a six-member, independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA. Congress authorized the 

Commission to “formulate policy” with respect to the Act, 52 U.S.C. § 30106(b)(1); “to make, 

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amend, and repeal such rules . . . as are necessary to carry out the provisions of [FECA],” id.

§§ 30107(a)(8), 30111(a)(8); and to investigate possible violations of the Act, id. § 30109(a)(1)-

(2). The FEC has exclusive jurisdiction to initiate civil enforcement actions for violations of 

FECA in the United States district courts. Id. §§ 30106(b)(1), 30109(a)(6). 

2. FECA’s Administrative Enforcement and Judicial-Review Provisions

Any person may file an administrative complaint with the FEC alleging a violation of the 

Act. Id. § 30109(a)(1). After considering an administrative complaint and any response, the 

FEC determines whether there is “reason to believe” that FECA has been violated. Id.

§ 30109(a)(2). If at least four of the FEC’s six Commissioners vote to find reason to believe, the 

FEC may investigate the alleged violation; otherwise, it dismisses the administrative complaint. 

Id. §§ 30106(c), 30109(a)(2). If the FEC proceeds with an investigation, it then must determine 

whether there is “probable cause” to believe that FECA has been violated. Id.

§ 30109(a)(4)(A)(i). A probable cause determination also requires an affirmative vote of at least 

four Commissioners. Id. §§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is 

statutorily required to attempt to reach a conciliation agreement with the respondent. Id. The 

FEC’s assent to a conciliation agreement requires an affirmative vote of at least four 

Commissioners. Id. If the FEC is unable to reach a conciliation agreement, FECA authorizes 

the FEC to institute a de novo civil enforcement action in federal district court, upon an 

affirmative vote of at least four Commissioners. Id. §§ 30106(c), 30109(a)(6)(A). 

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

the complainant may file suit in this District against the Commission to obtain judicial review of 

the Commission’s dismissal decision. 52 U.S.C. § 30109(a)(8)(A). The standard of review in 

such cases is whether the dismissal decision was “contrary to law.” Id. § 30109(a)(8)(C).

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3. The FEC’s Rulemaking Petition Process

A person seeking amendments to the Commission’s regulations may petition for a 

rulemaking under the APA. 5 U.S.C. § 553(e); 11 C.F.R. § 200; Auer v. Robbins, 519 U.S. 452, 

459 (1997). If the petition meets requirements specified in 11 C.F.R. § 200.2, the Commission

publishes a Notice of Availability in the Federal Register stating that the petition is available for 

public inspection, and that comments supporting or opposing the petition may be filed within a 

stated time period. 11 C.F.R. § 200.3. After consideration of the comments, the FEC decides 

whether to initiate a rulemaking. 11 C.F.R. § 200.4(a). If the FEC decides not to initiate a 

rulemaking, it gives notice of this action by publishing a Notice of Disposition (“NOD”) in the 

Federal Register and sending a letter to the petitioner. The NOD will include a “brief statement 

of the grounds for the Commission’s decision,” except in an action affirming a prior denial. 

11 C.F.R. § 200.4(b). Petitioners may submit a written request for reconsideration within 

30 days after the date of the denial. See 11 C.F.R. § 200.4(c). 

Under the APA, a petitioner dissatisfied with an agency’s decision not to initiate a 

rulemaking may seek judicial review. 5 U.S.C. § 553(e). But “[a]n agency’s refusal to institute 

rulemaking proceedings is at the high end of the range of levels of deference [courts] give to 

agency action under our arbitrary and capricious review.” Defs. of Wildlife v. Gutierrez, 532 

F.3d 913, 919 (D.C. Cir. 2008) (internal quotation marks omitted).

B. FECA’s Regulation of Debate Sponsoring Organizations and Candidate 

Debates Sponsored by Such Organizations

FECA does not permit corporations to make contributions to federal candidates. 52 

U.S.C. § 30118(a). Although expenditures that are coordinated with candidates or their 

campaigns are deemed in-kind contributions, id. § 30116(a)(7)(B), the Act excludes “nonpartisan 

activity designed to encourage individuals to vote” from the definition of “[e]xpenditure,” id.

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§ 30101(9)(B)(ii). As relevant here, the Commission has construed these statutory provisions to 

mean that “[f]unds provided to defray costs incurred in staging candidate debates . . . are not 

contributions” and “not expenditures” if done so “in accordance with the provisions of 

11 CFR 110.13 and 114.4(f),” additional Commission regulations regarding debates. 11 C.F.R. 

§§ 100.92, 100.154. 

The FEC’s principal regulation regarding sponsorship of debates, 11 C.F.R. § 110.13,

provides that “[n]onprofit organizations described in 26 U.S.C. 501(c)(3) or (c)(4) and which do 

not endorse, support, or oppose political candidates or political parties may stage candidate 

debates in accordance with this section . . . .” Id. § 110.13(a)(1). “[T]he structure of debates 

staged in accordance with” the regulation “is left to the discretion of the staging organizations(s) 

[sic], provided that: (1) Such debates include at least two candidates; and (2) The staging 

organization(s) does not structure the debates to promote or advance one candidate over 

another.” Id. § 110.13(b). In addition, other requirements apply to the selection of debate 

participants: “For all debates, staging organization(s) must use pre-established objective criteria 

to determine which candidates may participate in a debate. For general election debates, staging 

organization(s) shall not use nomination by a particular political party as the sole objective 

criterion to determine whether to include a candidate in a debate.” Id. § 110.13(c). The FEC’s 

debate regulations have been upheld as “easily fall[ing] within the reasonable ambit of the 

statutory terms.” Becker v. FEC, 230 F.3d 381, 397 (1st Cir. 2000).

The Commission’s Explanation and Justification for these debate rules explains 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.” FEC, Corporate and 

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Labor Org. Activity; Express Advocacy and Coordination with Candidates, 60 Fed. Reg. 64,260, 

64,261 (Dec. 14, 1995) (“1995 E&J”). The FEC observed that “[t]his exception is consistent 

with the traditional role these organizations have played in the political process.” Id.

C. Prior FEC Administrative Complaints Involving CPD 

Between the enactment of the Commission’s current debate regulations in 1996 and 

2004, nine administrative complaints were filed with the FEC alleging violations by the 

Commission on Presidential Debates (“CPD”) in connection with its general election debates 

held in 1996, 2000, and 2004.1 Five of these administrative complaints were filed by minor 

parties such as the Green Party, their presidential/vice-presidential nominees, and/or those 

candidates’ campaign committees. 

All nine administrative complaints alleged that CPD had violated what is now 52 U.S.C. 

§ 30118(a) by making prohibited corporate contributions to the Republican and Democratic

Party presidential candidates or their campaign committees. The complainants alleged that CPD 

was partisan and therefore not a qualified “staging organization,” that CPD’s candidate selection 

criteria did not satisfy 11 C.F.R. § 110.13, or both. In each matter and without dissent, the 

Commission voted to find no reason to believe that CPD and the other respondents violated the 

Act and therefore dismissed the administrative complaints.2 The complainants in the five 

administrative enforcement matters initiated by minor party plaintiffs sought judicial review 

under 52 U.S.C. § 30109(a)(8), but all those cases were dismissed or decided in the FEC’s favor. 

 1 See FEC Statement of Reasons in Matters Under Review (“MUR”) 4451 and 4473 

(April 6,1998); First General Counsel’s Reports in MURs 4897, 5004 and 5021 (Jul. 13, 2000), 

MUR 5207 (Aug. 2, 2002), MUR 5378 (Mar. 12, 2004), MUR 5414 (Dec. 7, 2004), and 

MUR 5530 (May 4, 2005). Documents from these matters are available on the FEC’s website.

2 Certifications of Commission Action in MURs 4451 and 4473 (Feb. 25, 1998), 

MURs 4987, 5004 and 5021 (July 19, 2000), MUR 5207 (Aug. 8, 2002), MUR 5378 (Mar. 18, 

2004), MUR 5414 (Dec. 13, 2004), and MUR 5530 (May 9, 2005). The votes for these 

dismissals were 6-0, 5-0, or 4-0, with certain Commissioners not voting or recused. Id. 

Case 1:15-cv-01397-TSC Document 90 Filed 10/13/17 Page 16 of 56
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See, e.g., Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) (per curiam); Buchanan v. FEC, 

112 F. Supp. 2d 58 (D.D.C. 2000); Natural Law Party v. FEC, 111 F. Supp. 2d 33 

(D.D.C. 2000); Hagelin v. FEC, 411 F.3d 237, 244 (D.C. Cir. 2005) (concluding that substantial 

evidence supported the FEC’s finding that CPD’s exclusion of third-party candidates from 

debate audience was not to endorse a particular party and upholding FEC’s decision not to revisit 

the evidence from Buchanan).

II. FACTUAL BACKGROUND

A. The Commission’s Previous Dismissals of Plaintiffs’ Administrative 

Complaints, Notice of Disposition, and the Court’s Remand

In 2014 and 2015, plaintiffs filed lengthy administrative complaints with the FEC

alleging that the CPD and twelve of its officers and directors had violated the Commission’s

debate staging regulations and other provisions of the Act in connection with the general election 

debates that CPD sponsored during the 2012 presidential election. (AR 2001-2771; AR 4001-

4775.) These matters were designated Matters Under Review (“MUR”) 6869 and 6942. (Id.) 

Plaintiffs’ administrative complaints alleged that, during the 2012 presidential election cycle,

CPD was not a nonpartisan debate staging organization under 11 C.F.R. § 110.13(a)(1) because 

it endorsed, supported, or opposed certain political parties, and that therefore the debates held in 

2012 were prohibited corporate contributions to the campaigns of the participating 2012 

candidates in violation of 52 U.S.C. § 30118(a). (E.g., AR 2073; AR 4077.) Plaintiffs further

alleged that CPD was a political committee and had violated FECA by failing to register with the 

FEC and comply with the Act’s reporting requirements for such committees. (Id.) On July 13, 

2015 and December 10, 2015, respectively, the FEC resolved MURs 6869 and 6942 by votes of 

5-0 (with one Commissioner recused). (AR 3172-73; AR 5000-01.) In both matters, the FEC

found no reason to believe that CPD or the other respondents had made prohibited contributions, 

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or that CPD had violated FECA’s political committee requirements. (Id.) The FEC explained 

these dismissals in its Factual & Legal Analyses for the MURs. (AR 3175-81; AR 5003-10.)

On the same day it filed the administrative complaint in MUR 6869, LPF filed a petition 

for rulemaking with the FEC regarding the agency’s debate sponsorship regulation, 11 C.F.R. 

§ 110.13. (AR 0001-0281.) Relying on much of the same evidence submitted in connection 

with the administrative complaint, LPF argued that the CPD’s use of a 15% polling threshold to 

select debate participants unfairly excluded third party and independent candidates and requested 

that the Commission amend section 110.13(c) “to (A) preclude sponsors of general election 

presidential and vice-presidential debates from requiring that a candidate meet a polling 

threshold in order to be admitted to the debates; and (B) require that any sponsor of” such 

debates “have a set of objective, unbiased criteria for debate admission that do not require 

candidates to satisfy a polling threshold to participate in debates.” (AR 0032.) On July 16, 

2015, following the notice-and-comment period, the Commission decided by a vote of 4-2 not to 

initiate the requested rulemaking. (AR 1871.) On November 6, 2015, the Commission approved 

a NOD explaining its reasoning for denying LPF’s petition. (AR 1885; AR 1903-05.)

Plaintiffs sought judicial review of the decisions dismissing their administrative 

complaints and denying LPF’s petition for rulemaking. After briefing and argument, the Court 

remanded to the agency for further consideration of whether to initiate enforcement proceedings 

and a rulemaking and directed the agency to conform with its opinion. LPF I, 232 F. Supp. 3d at

145, 148. 

With respect to the enforcement matters, after finding that the Commission had 

“effectively adopted or relied on [a] control test” the agency had articulated in prior dismissals 

and that “appear[ed] to be contrary to the text of the agency’s own regulations,” the Court 

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ordered the FEC “to articulate its analysis in determining whether the CPD endorsed, supported, 

or opposed political parties or candidates.” Id. at 139-40. The Court next concluded that the 

Commission’s legal analyses did not demonstrate that it had considered the evidence plaintiffs 

had submitted, and ordered the Commission to “demonstrate how it considered the evidence, 

particularly, but not necessarily limited to, the newly-submitted evidence of partisanship and 

political donations and the expert analyses regarding fundraising and polling.” Id. at 142. The 

Court also found that in failing to provide notice of plaintiffs’ complaints to certain respondents, 

namely ten of CPD’s officers and directors, the FEC had erred. Id. at 143. The Court directed 

the FEC to “notify these ten remaining directors, address these allegations, and consider the 

evidence presented against these respondents.” Id. The Court further found that the analyses 

regarding CPD’s objectivity contained two flaws: (1) failing to discuss plaintiffs’ “substantial 

and lengthy evidence and arguments” and (2) “little to no legal analysis applying the agency’s 

regulation.” Id. at 145. The Court ordered the FEC to “demonstrate that it actually considered 

the full scope of this evidence, including the CPD chairmen’s and directors’ partisan political 

activity and the expert reports, as well as explain how and why it rejected this evidence in 

deciding that the CPD’s polling requirement is an objective criterion.” Id.

3

Regarding the rulemaking petition, the Court found that the FEC “acted arbitrarily and 

capriciously by refusing to engage in rulemaking without a thorough consideration of the 

presented evidence and without explaining its decision.” Id. at 148. The Court remanded the 

rulemaking petition to the agency for further consideration. Id.

 3 The Court subsequently clarified that, on remand, the FEC was required “to notify 

respondents, consider their written responses, consider the full evidence submitted by Plaintiffs, 

determine whether there is reason to believe any of the respondents has violated the Act, and 

issue a new statement of reasons in support of that determination.” Order at 1-2 (Feb. 10, 2017) 

(Docket No. 64). It granted the FEC’s request to extend the time to act on plaintiffs’ 

administrative complaints to April 3, 2017. Id. at 2-3.

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B. The FEC’s Dismissal of Plaintiffs’ Administrative Complaints on Remand

One day after receiving the Court’s opinion in LPF I, the Commission sent notice of 

plaintiffs’ allegations to the ten CPD officers and directors who had been named as respondents 

in the original matters but not previously notified. (AR 7001-20; AR 7203 n.2.) These 

respondents submitted a response dated March 3, 2017. (AR 7035-53.) On March 29, 2017, 

within the timeframe established by the Court, the Commission considered plaintiffs’ 

administrative complaints anew and concluded, by a vote of 4-0, that there was no reason to 

believe that CPD, its co-chairs, or the ten named officers and directors had violated section 

30116(f) or 30118(a) by making prohibited contributions and expenditures or accepting 

prohibited contributions, that there was no reason to believe that CPD had violated section 30103 

or 30104 by failing to register and report as a political committee, and that the matters should be 

closed. (AR 7198-99.)

The FEC explained its reconsidered decision in a new Factual & Legal Analysis. (AR 

7202-234.) It first summarized the Court’s remand opinion (AR 7202-03; AR 7211-12), the 

evidence submitted by plaintiffs and respondents, and the procedural history (AR 7204-11). 

Turning to 11 C.F.R. § 110.13(a)’s prohibition on an exempt debate sponsor 

“‘endors[ing], support[ing], or oppos[ing]’ candidates or [political] parties,” the FEC explained 

that it was not applying a control-based standard. (AR 7213 & n.54.) Rather, it applied the plain

meaning of the regulation’s terms. (AR 7213.) To evaluate whether CPD endorsed, supported, 

or opposed candidates or parties, the Commission loosely grouped plaintiffs’ evidence into three 

categories: (1) evidence regarding CPD’s formation as a partisan organization; (2) evidence 

indicating that CPD currently promotes the Democratic and Republican parties; and (3) evidence 

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of CPD directors’ and officers’ connections with and contributions to the Democratic and 

Republican parties and their candidates. (AR 7207; AR 7213.) 

As to CPD’s formation in 1987, the Commission expressed doubt that, when viewed in 

context, this evidence had the negative connotation plaintiffs sought to impart. (AR 7216.) 

Rather, it was necessary for “the Democratic and Republican Parties to play a role in 

institutionalizing the debates in order to ensure the participation of leading candidates who, as 

recent history had shown, at times had a disincentive to participate.” (AR 7204 (footnotes 

omitted).) Moreover, the Commission explained that the evidence did not indicate CPD’s 

organizational endorsement, support, or opposition to any party. (Id.) Indeed, one CPD 

respondent made this distinction explicit, stating that “‘he personally believed the panel should 

exclude third-party candidates, [but] could not speak for the commission.’” (AR 7218 n.79.) 

The Commission further found that the documents did not establish CPD’s bias as to the 

2012 debates. (AR 7215; AR 7217.) After summarizing the 2000 Buchanan decision, 112 F. 

Supp. 2d 58, the Commission found plaintiffs’ evidence to be even less persuasive with respect 

to the 2012 presidential debates, which post-dated that decision by more than a decade. (AR 

7215; AR 7217.) The Commission found that declarations from current and recent directors 

affirmed CPD’s commitment to including leading independent candidates and “conduct[ing] its 

business in a strictly nonpartisan fashion.” (AR 7217-18.)

With respect to the more recent statements, plaintiffs’ principal submission was a 2015 

interview between CPD co-chair Frank Fahrenkopf and Sky News in which he said that CPD 

“‘primarily go[es] with the two leading candidates, it’s been the two political party candidates

. . . except for 1992 when Ross Perot participated in the debates.’” (AR 7219.) The Commission 

found that the statement itself “indicates no categorical support for Democrats or Republicans or 

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opposition to independent candidates.” (Id.) Rather, it merely recited historical facts about the 

participants in prior debates, which was confirmed by Fahrenkopf’s declaration. (Id.) Moreover, 

the statement’s context was within a broader point about “the [negative] impact of multiple 

candidates (the questioner posited seven) on the educational value of debates,” not singling out 

any party or person over another. (Id.) 

As for alleged recent partisanship and political activity by CPD’s officers and directors, 

the Commission recognized — as it has in many other contexts — that there is a distinction 

between someone acting in his or her personal capacity as an individual, as opposed to in an

official capacity on behalf of an organization. (AR 7218 n.79 (collecting examples); AR 7220 & 

n.88 (collecting examples); AR 7221 n.89 (providing example).) The FEC explained that a CPD 

director thus retains “his or her ability to speak freely on political issues or make contributions to 

political committees when he or she does so in his or her personal capacity.” (AR 7220-21.) 

Examining plaintiffs’ evidence, the Commission concluded that it consisted only of 

actions taken in the persons’ individual capacities, not in any official CPD capacities. For 

example, although an op-ed authored by Fahrenkopf may have indicated his “personal allegiance 

to the Republican Party,” the Commission concluded that “there is no indication that Fahrenkopf 

wrote his op-ed in his official capacity as CPD co-chair, nor does the opinion piece express 

positions on behalf of CPD.” (AR 7220; AR 7221.) Regarding political contributions, the 

Commission found that plaintiffs “make no suggestion that any of the contributions by [CPD’s 

co-chairs or directors] originated from CPD resources or any source other than their respective 

personal assets.” (AR 7221.) Turning to employment, the Commission found that “there is no

indication that [any directors] act . . . on behalf of their employer while volunteering for CPD.” 

(AR 7221.) Accordingly, the Commission concluded that plaintiffs’ “information alleging 

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partisan political activity on the part of CPD’s officers and directors in their non-CPD capacities

. . . does not support a reasonable inference that CPD endorses[,] supports[,] or opposes political 

candidates or parties.” (AR 7222.) 

The Commission next turned to plaintiffs’ allegation that CPD did not employ “preestablished objective criteria to determine which candidates may participate in a debate.” (AR 

7222 (quoting 11 C.F.R. § 110.13(c)). In so doing, the Commission addressed the two expert 

reports plaintiffs submitted. After considering this evidence, the Commission found it to be 

unpersuasive due to several significant limitations in the experts’ analyses. (Id.) 

Plaintiffs’ first expert, Dr. Clifford Young, opined that “in order to obtain 15 percent of 

the vote share, a candidate must achieve name recognition” in 60-80% of the population. (AR 

7224) He also alleged an increased inaccuracy of three- versus two-way polling. (Id.) The

Commission found that his analysis suffered from several flaws. First, Young relied solely upon 

the correlation between name recognition and polling results and then drew “conclusions 

regarding hypothetical third-party-candidate performance based on that one factor.” (AR 7225.) 

But, as the Commission found, “polling results are not merely a function of name recognition —

they are a much more complex confluence of factors.” (Id.) 

Second, Young did not establish that “independent candidates do not or cannot meet 60-

80% name recognition.” (Id.) “To the contrary, during the 2016 presidential election, a YouGov 

poll taken at the end of August found that 63 percent of registered voters had heard of 

Libertarian Gary Johnson and 59 percent had heard of Green Party candidate Jill Stein.” (Id.) 

Third, regarding the inaccuracy of three-way polling, the Commission concluded that 

Young’s approach was fundamentally misconceived by defining “polling error” to be “the 

difference between the poll and the actual results on Election Day.” (AR 7231.) CPD uses the 

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polls as “a reliable measure of candidates’ support at a given moment in September,” however, 

not to predict election results. (Id.) As CPD’s expert, Frank Newport, Editor-in-Chief of the 

Gallup Organization, affirmed: “‘[T]here is no doubt that properly conducted polls remain the 

best measure of public support for a candidate . . . at the time the polls are conducted.’” (Id.

(quoting Newport Decl. ¶ 21).) 

Fourth, the FEC found that Young inappropriately relied upon gubernatorial elections as 

the basis for his conclusions. (AR 7231-32.) National presidential election polling, by contrast, 

is “‘inherently more reliable’” than the “‘low turn-out’” election polls relied upon by Young. 

(AR 7232 (quoting Newport Decl. ¶ 19).) And according to Newport, “‘nothing about support 

for a significant third party[] candidate makes it more difficult to measure.’” (AR 7232 (quoting 

Newport Decl. ¶ 21).) The FEC thus concluded that Young did not persuasively demonstrate 

that independent presidential candidates are disproportionally impacted by polling errors. (Id.) 

Plaintiffs’ other expert, Douglas Schoen, opined that it would cost an independent 

candidate over $266 million to exceed 60% name recognition, including approximately $120 

million for paid media, which, in turn, he viewed as prohibitively high for independent 

candidates. (AR 7228) The Commission found that Schoen’s analysis was “similarly based on 

significant assumptions that reduce its value” for five primary reasons. (AR 7226.) First, it 

assumed that Young’s analysis was correct, which itself was flawed. 

Second, Schoen assumed that independent candidates will not receive earned (i.e., free) 

media “‘until they are certainly in the debates’” — an assumption that was “unfounded.” (Id.

(quoting Schoen Report at 3, 5)) In 2016, Gary Johnson and Jill Stein received extensive media 

coverage despite the fact that they did not participate in CPD’s presidential debates. (Id. (citing 

Supp. Brown Decl. ¶ 16).) 

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Third, Schoen assumed that a candidate’s ability to increase his or her name recognition 

was largely limited to traditional, expensive paid media, and failed to sufficiently consider digital 

and social media as cheaper alternative avenues for increasing name recognition. (Id.) As the 

FEC explained, whereas “Hillary Clinton spent more than $200 million on television ads” in the 

last months of the election, “Donald Trump spent less than half of that, by focusing his spending 

on digital platforms like Facebook and Twitter.” (AR 7227) Digital and social media also 

“generated earned [(free)] media when more traditional news outlets covered noteworthy tweets 

and posts,” and reduced other traditional campaign costs, such as field offices. (Id.) 

Fourth, Schoen also failed adequately to account for the rise of independent-expenditureonly committees, or “super PACs,” which can pay for media supporting a candidate. (AR 7227-

28.) “Such independent support likely increases a candidate’s name recognition at no cost to the 

candidate, thereby reducing the total sum that the candidate must spend to achieve 60-80 percent 

name recognition.” (AR 7228.) 

The Commission used the most recent election to illustrate the impact of Schoen’s failure 

to adequately consider the impact of digital and social media and super PACs. (Id.) Gary 

Johnson reached 63% name recognition at the end of August 2016, yet had only spent $5.4 

million since February 2016 — “a mere 2-3 percent of the $266 million that Schoen estimates an 

independent candidate would need to achieve 60-80 percent name recognition.” (Id.)

Fifth, Schoen’s assumptions that candidates would begin with zero name recognition and 

funds was unsupported. “That candidates may start with some name recognition or financial 

resources further belies the Complaints’ critique about the onerous fundraising required to reach 

60-80 percent name recognition and the 15 percent polling threshold.” (AR 7229)

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Lastly, the Commission considered plaintiffs’ allegations that CPD’s polling threshold 

was not objective because CPD can manipulate its selection of polls and dates. The Commission 

concluded that plaintiffs’ allegations were speculative, lacking supporting evidence, and 

“unpersuasive in the face of Newport’s sworn attestations” to the contrary. (AR 7230-31.) 

In sum, “[h]aving carefully weighed and considered the analyses of the parties’ 

respective experts,” as well as its “judicially upheld determination[] that independent candidates 

of the past have reached 15 percent in the polls,” the Commission concluded that there was not 

“a sufficient basis to conclude that CPD’s 15 percent participation threshold is a level of support 

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

was not an objective criteria for debate participation. (AR 7229-32.)

C. The FEC’s Supplemental NOD Regarding LPF’s Petition for Rulemaking

In addition to reconsidering plaintiffs’ administrative complaints, the Commission also 

completed its reconsideration of LPF’s petition for rulemaking. On March 23, 2017, the FEC

voted 4-1 not to initiate a rulemaking to revise 11 C.F.R. § 110.13(c). (AR 1929.) The agency 

then published a Supplemental Notice of Disposition (“Supplemental NOD”), further explaining

the FEC’s decision not to initiate the rulemaking and to continue addressing issues regarding 

debate sponsors’ compliance with the existing regulation’s participation criteria on a case-bycase basis. (AR 1931-37.) 

After overviewing the Court’s remand opinion and the purpose of the Commission’s 

debate regulation, the Commission’s Supplemental NOD summarized LPF’s arguments for 

changing the regulation and the evidence it had submitted. (AR 1931-32.) Assessing the 

petition’s factual submissions, the Commission first examined whether a 15 percent threshold 

cannot be reached by independent and third-party candidates. (AR 1932-35.) As in the Factual 

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& Legal Analysis, the Commission explained that Young’s expert report was problematic in 

several respects, including its one-dimensional focus on name recognition to the exclusion of 

other relevant factors, its reliance upon data from the early stages of the primary process, and its 

conclusion’s tension with the actual experience of Libertarian candidate Gary Johnson. (AR 

1932-33.) Additionally, because Schoen’s report was based upon the foundation of Young’s 

report, the Commission questioned whether Schoen’s report “possesse[d] any meaningful 

evidentiary value.” (AR 1933.) Nevertheless, it further identified a series of additional concerns 

with Schoen’s analysis, including his assertions that “‘the media will not cover’” a candidate 

who is not “‘certainly in the debates,’” that independent and third-party candidates start with 

“zero percent name recognition,” and that earned media is unavailable to such candidates, as well 

as his assumptions that outside groups such as super PACs do not support independent and thirdparty candidates and that digital modes of communication could not more inexpensively get a 

candidate’s name out. (AR 1933-35.) 

Next, the Commission again considered whether polls are unreliable or systematically 

disfavor independent and third-party candidates. (AR 1935-36.) It was unpersuaded for two 

reasons: (1) polling error does not mean that debate staging organizations are acting subjectively 

and (2) there is no evidence that polling error is biased against independent and third-party 

candidates. (Id.) Lastly, the Commission addressed LPF’s policy arguments, explaining why 

LPF’s arguments are “inconsistent with the purposes of the existing regulations.” (AR 1936.) 

Accordingly, the Supplemental NOD concluded that LPF’s evidence about the alleged 

impracticality of reaching the 15% polling threshold and on the unreliability of polling did “not 

lead the Commission to conclude that the CPD’s use of such a threshold for selecting debate 

participants is per se subjective, so as to require initiating a rulemaking to amend” the debate 

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regulation. (AR 1937.) Though the Young and Schoen reports and the historical polling and 

campaign finance data presented with the petition “demonstrate[d] certain challenges that 

independent candidates may face when seeking the presidency,” the FEC concluded “these 

submissions do not demonstrate either that the threshold is so high that only Democratic and 

Republican nominees could reasonably achieve it, or that the threshold is intended to result in the 

selection of those nominees to participate in the debates.” (AR 1937.)

D. Post-Remand Procedural History

Following the FEC’s post-remand decisions, plaintiffs supplemented their complaint, 

including by adding plaintiffs challenging the FEC’s disposition of LPF’s rulemaking petition. 

The FEC has answered and filed certified supplemental lists of the administrative record 

documents in the enforcement and rulemaking contexts. (Docket No. 81.)4

 Plaintiffs filed their 

motion for summary judgment on September 15, 2017. (Docket No. 83.)

ARGUMENT

The Commission’s post-remand evaluations of plaintiffs’ administrative complaints and 

LPF’s rulemaking petition should be sustained. The FEC’s Factual & Legal Analysis and 

Supplemental NOD are free from the deficiencies identified in the Court’s remand opinion and 

are not otherwise contrary to law or arbitrary or capricious. In its Factual & Legal Analysis, the 

Commission fully considered plaintiffs’ evidence — including the materials purporting to show 

that CPD is not a nonpartisan organization and that its 15 percent polling criterion is not 

objective — and carefully articulated its finding that plaintiffs’ administrative complaints did not 

provide reason to believe that CPD or the individual respondents violated FECA by making or 

receiving improper contributions or expenditures. Under the extremely deferential standard of 

 4 Supplemental rulemaking documents begin with page number AR 1906. Supplemental 

enforcement documents begin with page number AR 7001.

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review that applies to plaintiffs’ claims pursuant to 52 U.S.C. § 30109(a)(8), the Commission’s 

dismissal was plainly not contrary to law or arbitrary. The FEC’s Supplemental NOD similarly 

demonstrates the Commission’s reasonable, detailed review of LPF’s evidence supporting its 

rulemaking petition. Plaintiffs’ insubstantial objections to the Commission’s evaluation of their 

expert reports fall far short of their high burden in challenging the agency’s decision not to 

initiate a rulemaking. The Court should grant summary judgment to the Commission. 

I. THE COMMISSION’S DISMISSAL OF PLAINTIFFS’ ADMINISTRATIVE 

COMPLAINTS CONFORMS WITH THE COURT’S REMAND OPINION AND 

IS NOT OTHERWISE CONTRARY TO LAW

The Commission’s comprehensive 33-page Factual & Legal Analysis conforms with the 

Court’s remand opinion and demonstrates that the agency took a hard look at plaintiffs’ 

evidence. The dismissal decision is plainly not contrary to law or arbitrary or capricious.

A. Standard of Review For Dismissal of Plaintiffs’ Administrative Complaints

1. Section 30109(a)(8)’s Contrary to Law Standard of Review Is 

“Limited” and “Extremely Deferential” 

In section 30109(a)(8), Congress mandated that the judicial task in reviewing the 

Commission’s dismissal of plaintiffs’ administrative complaints is to determine whether it was

“contrary to law.” 52 U.S.C. § 30109(a)(8)(C). Well-settled, controlling decisions construing 

section 30109(a)(8) make clear that such review is “limited.” Common Cause v. FEC, 842 F.2d 

436, 448 (D.C. Cir. 1988). As plaintiffs acknowledge (Mem. of P. & A. in Supp. of Pls.’ Mot. 

for Summ. J. at 17 (Docket No. 83-1) (“Pls.’ Mem.”)), the FEC’s dismissal of an administrative 

complaint cannot be disturbed unless it was based on an “impermissible interpretation of” FECA 

or was otherwise “arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 

156, 161 (D.C. Cir. 1986). Under this standard, the Commission’s decision need not be “the 

only reasonable one or even the” decision “the [C]ourt would have reached” on its own “if the 

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question initially had arisen in a judicial proceeding.” FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 39 (1981) (“DSCC”).

Furthermore, where, as here, the FEC is interpreting its own regulations in connection 

with a dismissal decision, deference to the agency is even greater than that ordinarily applying

under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

E.g., Consarc Corp. v. U.S. Treasury Dep’t, Office of Foreign Assets Control, 71 F.3d 909, 915 

(D.C. Cir. 1995) (“[A]n agency’s application of its own regulations, receives an even greater 

degree of deference than the Chevron standard.” (internal quotation marks omitted)). As this 

Court previously recognized, “[c]ourts are to be ‘exceedingly deferential’ when reviewing an 

agency’s construction of its own regulations . . . .” LPF I, 232 F. Supp. 3d at 139-40 (quoting 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). The Supreme Court has 

instructed that an agency’s interpretation of its own regulations must be upheld “unless that 

interpretation is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. 

Ctr., 568 U.S. 597, 613 (2013) (internal quotation marks omitted).

In order to demonstrate that the FEC’s decision was arbitrary, capricious, or an abuse of 

discretion, plaintiffs must show that “the agency . . . entirely failed to consider an important 

aspect of the problem, offered an explanation for its decision that runs counter to the evidence 

before the agency, or is so implausible that it could not be ascribed to a difference in view or the 

product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). As the D.C. Circuit has consistently held, the standard for 

determining whether an FEC determination “was arbitrary or capricious or otherwise an abuse of 

discretion” under section 30109(a)(8) is “extremely deferential” and “requires affirmance if a 

rational basis for the agency’s decision is shown.” Orloski, 795 F.2d at 167 (emphasis added); 

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Van Hollen v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (“State Farm entails a very deferential 

scope of review that forbids a court from substitut[ing] its judgment for that of the agency.” 

(citation and internal quotation marks omitted)). 

2. Plaintiffs’ Arguments for Reduced Deference are Contrary to 

Controlling Supreme Court and D.C. Circuit Decisions, as well as the 

Court’s Own Remand Opinion

Plaintiffs acknowledge that “review of agency decisionmaking is typically deferential.” 

(Pls.’ Mem. at 18.) They nevertheless urge (id. at 18-19) the Court to ignore the foregoing

controlling authority requiring deference here for three reasons, all of which are meritless.

First, despite plaintiffs’ claim of the FEC’s inherent “bias” (id. at 18), the Supreme Court 

and D.C. Circuit have uniformly held that the “FEC ‘is precisely the type of agency to which 

deference should presumptively be afforded.’” LPF I, 232 F. Supp. 3d at 140 (quoting DSCC, 

454 U.S. at 37). In Hagelin v. FEC, the D.C. Circuit rejected a similar argument that the FEC 

cannot be trusted “to deal fairly with third-party complaints,” concluding that there is “no basis 

for thinking that third-party complaints warrant more demanding review.” 411 F.3d 237, 242 

(D.C. Cir. 2005).

5

 Deference to the FEC is warranted not only because of its nonpartisan nature 

resulting from the fact that “no more than three of its six voting members may be of the same 

political party,” but also due to the FEC’s “‘primary and substantial responsibility for 

administering and enforcing [FECA],’” its authority to formulate general policy with respect to 

administration of the Act, and its “‘sole discretionary power’ to determine in the first instance 

 5 See also N. Broward Hosp. Dist. v. Shalala, 172 F.3d 90, 94 (D.C. Cir. 1999) (rejecting 

the argument that “we should deny an agency Chevron deference because of our judicial 

assessment that it has been ‘hostile’ to certain ideas”); United Steelworkers of Am, AFL-CIO v. 

Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980) (“To disqualify administrators because of 

opinions they expressed or developed in earlier proceedings would mean that experience 

acquired from their work . . . would be a handicap instead of an advantage.” (citation and internal 

quotation marks omitted)).

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whether or not a civil violation of the Act has occurred.” DSCC, 454 U.S. at 37 (quoting Buckley

v. Valeo, 424 U.S. 1, 109, 112 n.153 (1976).

6

 The Court rejected plaintiffs’ bias argument when 

it did not adopt plaintiffs’ claims regarding deference to the FEC before, see LPF I,

232 F. Supp. 3d at 140, 145-146, 147, and the Court should do so again.

Second, the D.C. Circuit has rejected plaintiffs’ argument (Pls.’ Mem. at 18-19) that an 

agency’s post-remand decisions that reach the same result are subject to greater scrutiny. In City 

of Los Angeles v. U.S. Department of Transportation, D.C. Circuit held that subjecting an agency 

to stricter review on this basis would be “flatly inconsistent with the Chenery doctrine,” which 

requires review of agency action on the basis of contemporaneous explanation and anticipates 

fresh consideration on remand. 165 F.3d 972, 977 (D.C. Cir. 1999). It further explained that, 

despite “some support” in plaintiffs’ lead case, Greyhound Corp. v. Interstate Commerce 

Commission, 668 F.2d 1354, 1358 (D.C. Cir. 1981), “as we have more recently explained, . . . 

our review is still a matter of determining whether the agency’s final decision was based on a 

consideration of the relevant factors and whether there has been a clear error of judgment.” City 

of Los Angeles, 165 F.3d at 977-78 (internal quotation marks omitted) (emphases added); accord

Conkright v. Frommert, 559 U.S. 506, 513 (2010) (holding that a pension plan administrator’s 

interpretation of the plan on remand receives the same deference as its initial determination); 

Hannon v. Clark, 70 F. App’x 519, 523-24 (10th Cir. 2003) (“The mere fact that the agency 

arrived at the same conclusion after remand that it did initially does not, by itself, demonstrate 

bias or require a stricter standard of review.”). Plaintiffs’ attempt to distinguish City of Los 

 6 Plaintiffs’ characterization of the FEC as “‘bipartisan’” (Pls.’ Mem. at 18) is also 

inaccurate. FECA provides that no more than “3 members of the Commission . . . may be 

affiliated with the same political party.” 52 U.S.C. § 30106(a)(1). One of the five current 

members of the Commission is an Independent, not a Republican or a Democrat. Carlin E. 

Bunch, New Commissioners Join the FEC, FEC Record, Feb. 2006, at 2, 

https://www.fec.gov/resources/record/2006/feb06.pdf.

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Angeles on the grounds that the FEC has reached a similar result in prior matters (Pls.’ Mem. at 

19 n.31) fails because the consistency of the FEC’s view counsels for, not against, deference. 

E.g., Decker, 568 U.S. at 614 (holding that consistency is a reason to accord deference to an 

agency’s view); DSCC, 454 U.S. at 37 (holding that “thoroughness, validity, and consistency of 

an agency’s reasoning are factors that bear upon the amount of deference to be given an agency’s 

ruling” (emphasis added)).

Third, plaintiffs’ claim that the Commission has engaged in “post-hoc rationalization” 

(Pls.’ Mem. at 19) to reach the same result it did previously contradicts their principal argument 

that the FEC “again stuck its head in the sand and refused to actually consider the evidence” (id.

at 2 (internal quotation marks omitted)). The Court remanded these matters in part so that the 

Commission could further consider “the evidence, particularly, but not necessarily limited to, the 

newly-submitted evidence of partisanship and political donations and the expert analyses 

regarding fundraising and polling.” LPF I, 232 F. Supp. 3d at 142. The FEC’s thorough 

evaluation of this evidence, including evidence provided by the newly-noticed respondents, was 

not post-hoc rationalization. It was a fresh consideration, precisely as instructed.

3. The Court Cannot Consider Evidence That Was Not Before the FEC

Plaintiffs also err in relying on numerous extra-record materials in their summary 

judgment motion. It is “black-letter administrative law that . . . a reviewing court should have 

before it neither more nor less information than did the agency when it made its decision.” Hill 

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (per curiam) (citation and internal 

quotation marks omitted). This record rule ensures that the Court’s review of the FEC’s action is 

conducted fairly, because to “review more than the information before the [agency] at the time 

[it] made [its] decision risks . . . requiring administrators to be prescient or allowing them to take 

advantage of post hoc rationalizations.” Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 

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788, 792 (D.C. Cir. 1984). The rule also enables agencies to consider information that 

challengers to agency action deem relevant. See id. Here, plaintiffs’ extra-record evidence, as 

well as their arguments premised on such material, should be disregarded and stricken for the 

reasons set forth in the Commission’s separate motion to strike.

B. The Commission’s Dismissal Decision Is Not Contrary to Law

The FEC’s Factual & Legal Analysis conforms with the Court’s remand opinion by 

thoroughly considering all of the evidence plaintiffs submitted in support of their allegations. 

Under the deferential standard of review under section 30109(a)(8), the Commission reasonably 

concluded that there was no reason to believe that CPD had endorsed, supported, or opposed, any 

political party or candidate and that its 15 percent polling threshold constituted an objective 

criterion. Plaintiffs’ extended policy arguments to the contrary misperceive the question before 

the Court, and their contentions that the FEC arbitrarily analyzed the evidence are meritless.

1. The FEC’s Dismissal Decision Conforms With the Court’s Remand 

Opinion and Is Not Contrary to Law or Arbitrary 

The Commission’s Factual & Legal Analysis directly addressed the deficiencies the 

Court identified in its remand opinion. Responding to the Court’s concern that, “in the absence 

of any articulated standard,” the Commission may have applied an inapplicable “control test” 

when determining whether CPD endorsed, supported, or opposed any candidate or party, LPF I, 

232 F. Supp. 3d at 139, the Commission clarified that it was not applying a control test, but 

instead applying the plain meaning of 11 C.F.R. § 110.13(a)(1) (AR 7212-13). Noting that a 

control standard would be “inapplicable here,” where plaintiffs have made no allegations that 

CPD is controlled by “the two major parties and that the parties ‘had input in’ or were ‘involved 

in’ CPD’s operations and debate decisions,” the Commission applied the “plain meaning of the 

[regulation’s] words” endorse, support, or oppose. (AR 7213 & n.54.) This plain meaning 

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analysis required it to “evaluate whether” plaintiffs’ “evidence on the formation and evolution of 

CPD and on the alleged partisanship of CPD officers and directors either demonstrates directly 

or supports a reasonable inference that the CPD has endorsed or supported the Democratic and 

Republican Parties and their respective presidential nominees (or opposed third parties or 

independent candidates).” (AR 7213.) 

Not only does the Commission’s articulation of the standard it employed in evaluating 

whether the CPD endorsed, supported, or opposed candidates satisfy the Court’s instruction that 

the Commission “articulate its analysis” on remand, LPF I, 232 F. Supp. 3d at 140, but that 

standard is plainly reasonable and not contrary to law. Indeed, the FEC’s conclusion that the 

meaning of endorse, support, or oppose is “plain on its face” accords with the Court’s own 

observations. (AR 7213 n.55 (“According to the Oxford Dictionary, ‘endorse’ means to ‘declare 

one’s approval of’; ‘support’ means ‘contributing to the success of or maintaining the value of’; 

and ‘oppose’ means to ‘set oneself against’ or ‘stand in the way of.’” (quoting LPF I, 232 F. 

Supp. 3d at 139 n.6)).) And the Supreme Court itself has held in another context that the words 

“support” and “oppose” “provide explicit standards for those who apply them and give the 

person of ordinary intelligence a reasonable opportunity to know what is prohibited.” (AR 7213 

and n.56 (quoting McConnell v. FEC, 540 U.S. 93, 170 n. 64 (2003), overruled in other part by 

Citizens United v. FEC, 558 U.S. 310 (2010).) The Commission’s interpretation of 

section 110.13(a)(1)’s plain meaning is therefore not “plainly erroneous [n]or inconsistent with 

the regulation,” Decker, 568 U.S. at 613 (citation and internal quotation omitted), and 

unquestionably satisfies the deferential review that applies here. Accord United States v. 

Dickson, 816 F.2d 751, 752 (D.C. Cir. 1987) (per curiam) (“Where the language is plain and 

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admits of no more than one meaning, the duty of interpretation does not arise . . . .” (citation and 

internal quotation marks omitted)).

Plaintiffs present no serious argument to the contrary. Their claim that the FEC 

continued to rely on a control test “while pretending not to,” based upon the Commission’s 

citation of Buchanan in other portions of its analysis (Pls.’ Mem. at 20) is belied by more than 

eight pages of continuous analysis of plaintiffs’ evidence in the Commission’s Factual & Legal 

Analysis specifically addressing plaintiffs’ claim that CPD is partisan. (AR 7214-22.)

That analysis, combined with the FEC’s equally thorough analysis of plaintiffs’ claim 

that CPD’s 15 percent criterion is not objective (AR 7222-33), also satisfies the Court’s 

requirements that the Commission “demonstrate how it considered the evidence,” including “the 

CPD chairmen’s and directors’ partisan political activity and the expert reports” and why the 

Commission “rejected this evidence in deciding that the CPD’s polling requirement is an 

objective criterion,” LPF I, 232 F. Supp. 3d at 142, 145. In evaluating plaintiffs’ evidence 

regarding CPD’s formation, the Commission relied upon the context provided by respondents’ 

submissions showing that plaintiffs had cherry-picked quotes that “do not fairly or fully reflect 

their respective views” (AR 7214-16), and that, with respect to the Sky News interview with 

Fahrenkopf that plaintiffs highlighted, the statement about which candidates had participated in 

debates did not controvert respondents’ “repeated attestations that CPD operates for the purpose 

of providing meaningful debates for public benefit” (AR 7219-20). The Commission further 

reasoned that, even if such evidence indicated a degree of partisanship, organizations “may 

change over time” and distinguished the activities of CPD’s officers and directors from the 

organization’s activities, a distinction underscored by CPD’s adoption of a “formal ‘Political 

Activities Policy’” aimed at deterring CPD-affiliated persons from certain conduct, even in a 

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personal capacity. (AR 7216-18; AR 7220-22.) Evaluating this evidence, the FEC reasonably 

concluded that plaintiffs’ “information alleging partisan political activity on the part of CPD’s 

officers and directors in their non-CPD capacities therefore does not support a reasonable 

inference that CPD endorses supports or opposes political candidates or parties.” (AR 7222.)

The Commission’s analysis of CPD’s 15 percent polling threshold was also reasonable. 

The Commission explained that it “has previously made clear that a requirement of

‘reasonableness is implied,’” has stated that “‘[s]taging organizations must be able to show that 

their objective criteria were used to pick the participants, and that the criteria were not designed

to result in the selection of certain pre-chosen participants,’” and had previously upheld CPD’s 

15 percent threshold in connection with the 2000 presidential debates. (AR 7223 (quoting 1995 

E&J, 60 Fed. Reg. at 64,262).) 

Turning to plaintiffs’ new evidence, the Commission determined that “[t]he expert 

reports relied upon by Complainants contain significant limitations that undermine their 

persuasiveness.” (AR 7224.) Young’s report was limited in scope and inconsistent with the 

conclusions plaintiffs drew from it. In particular, the FEC noted that, contrary to plaintiffs’ 

assertions, “during the 2016 presidential election, a YouGov poll taken at the end of August 

found that 63 percent of registered voters had heard of Libertarian Gary Johnson and 59 percent 

had heard of Green Party candidate Jill Stein.” (AR 7225 & n.105.) Schoen’s report, dependent 

upon Young’s, also contained numerous deficiencies: it was based upon the erroneous assertion 

“that independent candidates are unable to attract earned media”; it was based on outdated 

research; it failed to account for the rise in digital media or super PACs; and, perhaps most 

importantly, it was contradicted by Libertarian candidate Gary Johnson’s actual experience. AR 

7226-29; see supra pp. 13-16. 

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The Commission further considered plaintiffs’ concerns about the unreliability of polling, 

finding no suggestion of manipulation by CPD or concerns about the polling organizations it 

used, and ultimately agreeing with CPD’s expert, Newport, on the issue of the reliability of 

three-way polling. (AR 7229-32.) The Commission also considered plaintiffs’ policy arguments 

but found that they had framed the issue incorrectly around the desirability of viable alternatives 

to candidates from the Republican and Democratic parties, rather than the applicable issue of 

limiting the potential for actual or apparent quid pro quo arrangements. (AR 7223.) This 

thorough analysis satisfied the Court’s instruction to take a hard look at plaintiffs’ evidence.

Lastly, the Commission conformed with the Court’s instruction to “notify the[] ten 

remaining directors” who had not been previously notified and to address and “consider the 

evidence presented against these respondents.” LPF I, 232 F. Supp. 3d at 143. After notifying 

these respondents, see supra p. 10, the FEC carefully considered plaintiffs’ allegations regarding 

them. (AR 7203 n.2.) For example, the FEC considered and relied upon sworn affidavits 

submitted by these respondents stating that none of them ever “‘observed any [CPD] Board 

member ever approach any issue concerning the CPD or its mission from a partisan perspective 

and the CPD has conducted its business in a strictly nonpartisan fashion.’” (AR 7218.) 

2. Plaintiffs Cannot Meet Their Burden to Show that the Commission 

Acted Contrary to Law or Arbitrarily 

The FEC not only conformed with the Court’s remand opinion but its dismissal decision 

was reasonable and not arbitrary. Plaintiffs have failed to show otherwise.

a. Plaintiffs’ Policy-Based Arguments Misperceive the Issues Before 

the Court

As an initial matter, plaintiffs’ extended focus on the “American people[’s]” supposed 

clamoring “for an alternative to the major party candidates,” as well as the “squander[ing]” of 

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opportunities to address what plaintiffs view as the “harm that CPD is inflicting upon our 

democratic institutions” (e.g., Pls.’ Mem. at 4), misapprehends the purpose of the FEC’s debate 

regulation and distorts the nature of the Court’s review under 52 U.S.C. § 30109(a)(8). The 

FEC’s regulation in section 110.13 is crafted in light of the Act’s goals of limiting the 

appearance and actuality of corruption by providing “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.” 1995 E&J, 60 

Fed. Reg. at 64,261. Plaintiffs’ and their amici’s preference that the FEC interpret the regulation 

to give their preferred candidates access to CPD’s popular debates — in furtherance of CPD’s

mission to bring the leading candidates to the American people — is not supported by the FEC’s 

distinct and Congressionally-authorized purpose in regulating campaign finance. Cf.

McCutcheon v. FEC, 134 S. Ct. 1434, 1450 (2014) (explaining, in the context of evaluating 

FECA’s aggregate contribution limits, that “[n]o matter how desirable it may seem, 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’” (citation omitted)).

Furthermore, by suggesting that this Court should use the force of law to impose 

plaintiffs’ views about the desirability of giving independent and third-party candidates more 

visibility, plaintiffs stray from the actual question confronting the Court in this case. The 

question for the Court is not whether it would be better for the country if CPD would turn over 

its broad platform to relatively uncompetitive independent or third-party candidates, but, far 

more precisely, whether the FEC acted contrary to law in applying its debate regulation not to 

find reason to believe that the CPB is partisan or that its debate selection criteria were not 

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objective.

7

 Though not required to demonstrate a violation of FECA’s prohibition on corporate 

contributions, notably absent from plaintiffs’ appeal to underlying principles and thousands of 

pages submitted to the Commission is any argument that permission for CPD’s existing criterion 

means that illegal quid pro quos involving the Democratic or Republican parties or their 

respective candidates are more likely to occur. In arguing their policy preferences, plaintiffs

have utterly failed to carry their burden of identifying any law that is “contrary” to the 

Commission’s dismissal decision. 52 U.S.C. § 30109(a)(8)(C).

b. The Commission’s Evaluation of Plaintiffs’ Evidence Allegedly 

Demonstrating CPD’s Partisanship Was Not Arbitrary 

As for the portions of plaintiffs’ argument addressing the agency’s consideration of the 

evidence, plaintiffs merely disagree with some of the Commission’s evidentiary findings. Rather 

than demonstrating that “the agency . . . entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to the evidence before the 

agency, or [wa]s so implausible that it could not be ascribed to a difference in view or the 

product of agency expertise,” State Farm, 463 U.S. at 43, plaintiffs themselves entirely fail to 

meet their burden. None of plaintiffs’ arguments regarding the evidence, Fahrenkopf’s Sky 

News interview, the CPD officers and directors’ personal activities, CPD’s policies, or the 

declarations on which the Commission relied remotely demonstrates that the Commission did not 

rationally connect its conclusions to the evidence. Its decision should be upheld. Tex. 

Neighborhood Servs. v. U.S. Dep’t of Health & Human Servs., 172 F. Supp. 3d 236, 243 (D.D.C. 

2016), aff’d, No. 16-5150, 2017 WL 3389275 (D.C. Cir. Aug. 8, 2017) (holding that a reviewing 

 7 CPD’s right to limit its debates to “leading” candidates cannot seriously be questioned. 

See Johnson v. Comm’n of Presidential Debates, 869 F.3d 976, 981 (D.C. Cir. Aug. 29, 2017) 

(noting “‘substantial argument’” that any order “stating [that] the [CPD] is not entitled to exclude 

particular individuals from its debate” would violate the First Amendment) (quoting Perot, 97 

F.3d at 599 (D.C. Cir. 1996)). 

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court “will not disturb the decision of an agency that has examined the relevant data and 

articulated a satisfactory explanation for its action including a rational connection between the 

facts found and the choice made” (internal quotation marks omitted)). 

The Commission’s analysis belies plaintiffs’ claim (Pls.’ Mem. at 21-26) that the FEC 

ignored evidence of the CPD directors’ partisanship and political donations. As this Court 

previously recognized, the FEC is not required “to discuss every single page of evidence in order 

to demonstrate that it had carefully considered the facts.” LPF I, 232 F. Supp. 3d at 142. Like 

the Court, see id. at 140-42, the Commission distinguished between older evidence and 

plaintiffs’ new evidence (AR 7214-22). With respect to the former category, the Commission 

observed that organizations may change over time, and that, accordingly, “it would be 

inappropriate to rely on documents and statements that are more than 30 years old to ascertain

CPD’s present support or opposition to candidates and parties.” AR 7217; accord United States 

v. Whitmore, 359 F.3d 609, 614 (D.C. Cir. 2004) (upholding district court’s exclusion of 

reputational evidence “too remote in time to be relevant”). 

With respect to the newer evidence, plaintiffs assert (Pls.’ Mem. at 23-24) that the 

Commission failed to address a 2011 Politico op-ed that Fahrenkopf co-authored, the CPD 

directors’ political contributions, and certain CPD directors’ employment, including as lobbyist 

for separate, unaffiliated entities. But plaintiffs are wrong. The Commission expressly and 

specifically addressed this evidence. (AR 7220-21.) As to the 2011op-ed, the Commission 

found that there was “no indication” that Fahrenkopf wrote it “in his official capacity as CPD cochair, nor does the opinion piece express positions on behalf of CPD.” (AR 7221.) As to the

contributions, the Commission found that plaintiffs “make no suggestion that any of the 

contributions . . . originated from CPD resources or any source other than their respective 

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personal assets. (Id.) And as to outside employment, the Commission found that “most of the 

information presented involves work that preceded — at times significantly — the individual’s 

service for CPD.” (Id.) Janet Brown stopped being a Republican aide in 1987, Newton Minow 

was President Kennedy’s appointee to the Federal Election Commission whose term ended in 

1963, and Antonia Hernandez worked on the Senate Judiciary Committee over 20 years ago. 

(AR 7221 n.90 (citing AR 2041 (citing AR 2222, 2400)). As the Commission explained, “to the 

extent officers or directors are currently employed by entities with ties to or interests in the 

success of the Democratic or Republican parties, there is no indication that they act on behalf of 

CPD in the course of such employment, or alternatively, on behalf of their employer while 

volunteering for CPD.” (AR 7221.) 

Plaintiffs’ assertion (Pls.’ Mem. at 22 (quoting AR 7219-20)) that the FEC “rotely 

accept[ed] Fahrenkopf’s bogus explanation for why he said the CPD has a ‘system’ that 

‘primarily go[es] with the two leading candidates’ from ‘the two political part[ies]’” is also 

contrary to the record. The FEC analyzed Fahrenkopf’s statement in great detail. It found that, 

by stating that CPD “primarily go[es] with the two leading candidates” and then “immediately 

indicating the exceptions to that trend,” Fahrenkopf was not “categorical[ly]” supporting 

Democratic and Republican candidates or opposing independent candidates. (AR 7219.) The 

FEC also concluded that “the statement appears to be more an assertion of historical fact than an 

admission that CPD favors candidates from the two major political parties over others,” a point

Fahrenkopf confirmed in his sworn declaration. (Id.) The reasonableness of this assessment is 

confirmed by Fahrenkopf’s subsequent summary of historical practice: “‘It’s been the two 

political party candidates . . . except for 1992 when Ross Perot participated in the debates.’” (Id.

(citation omitted)) Further, the FEC examined the circumstances of Fahrenkopf’s statement and 

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found that it was made “in the context of a broader point about the impact of multiple candidates 

(the questioner posted seven) on the educational value of debates,” and thus was “consistent with 

Respondents’ repeated attestations that CPD operates for the purpose of providing meaningful

debates for the public benefit” by focusing on leading candidates. AR 7219-20; accord Ark. 

Educ. Television Comm’n v. Forbes, 523 U.S. 666, 681 (1998) (“On logistical grounds alone, a 

public television editor might, with reason, decide that the inclusion of all ballot-qualified 

candidates would actually undermine the educational value and quality of debates.” (internal 

quotation marks omitted)). 

In addition, in objecting to the Commission’s distinction between the actions of the CPD 

officers and directors in their personal and official capacities (Pls.’ Mem. at 24), plaintiffs urge 

upon the court a view that is contrary to many areas of law. As the Commission recognized, 

“individuals may wear ‘multiple hats’ to represent the interests of multiple people or entities at 

different times.” (AR 7218 n.79 (citing FEC advisory opinions); AR 7220 & n.88 (explaining 

that “an individual may serve as chairman of a state party committee and solicit, direct, and 

spend non-federal funds on its behalf while continuing to serve as chief of staff to a member of 

Congress”; “describing circumstances under which a U.S. Senator may raise non-federal funds 

for his state gubernatorial campaign and other state candidates and committees”; and concluding 

“that an individual may, at different times, act in his capacity as an agent on behalf of a state 

party and in his capacity as an agent on behalf of a U.S. Senator”); AR 7221 n.89 (quoting FEC 

Advisory Ops. 2007-05, 2005-02 and 2003-10 (“recognizing the ability of organization leaders, 

acting in their individual capacities, to establish and govern a separate entity” (quoting FEC 

Advisory Op. 1984-12))).) Consistent with the Commission’s analysis, the law recognizes a 

broad range of contexts in which a person’s personal activities are distinguished from official 

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ones. E.g., Sataki v. Broad. Bd. of Governors, 733 F. Supp. 2d 54, 68 (D.D.C. 2010) (“[N]either 

the fact that the undersigned was appointed by the former Clinton administration nor the Court’s 

alleged connection to the Democratic party warrant or require recusal in the instant case.”); 

Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 84, 93 (D.D.C. 2009) (“[E]ven assuming that 

Magistrate Judge Kay is a ‘liberal’ and/or a ‘Democrat,’ these facts by themselves do not warrant 

disqualification.”). Indeed, the Hatch Act — the purpose of which is to eliminate even the 

appearance of partisanship by federal employees — permits administrative law judges like many 

other federal employees to make political contributions and express personal opinions about 

political parties and candidates outside of work. 5 U.S.C. § 7323; 5 C.F.R. §§ 734.402, 734.404; 

U. S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 565 (1973). 

Here, section 110.13 is limited on its face to debate staging organizations and does not 

purport to restrict the personal lives of the organization’s agents or employees. The Commission 

thus reasonably explained that “an individual’s leadership role in a given organization does not 

restrict his or her ability to speak freely on political issues or make contributions to political 

committees when he or she does so in his or her personal capacity.” AR 7220-21; cf. Lane v. 

Franks, 134 S. Ct. 2369, 2378, 2380 (2014) (holding that, unless the “government’s needs as an 

employer” adequately justified restricting speech, statements made by a public employee “as a 

citizen,” as opposed to as part of “official duties,” were protected by the First Amendment). 

Nor are plaintiffs persuasive in contesting the FEC’s reliance on CPD’s policies as 

additional support for their decision. (See Pls.’ Mem. at 24-26.) Plaintiffs themselves submitted 

CPD’s conflict-of-interest policy, which the Commission found “appear[s] to limit financial 

conflicts of interest that could arise as a result of outside employment.” (AR 7222.) Not only 

are plaintiffs’ assertions that the policy was “violated” reliant on information that is outside the 

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record (Pls.’ Mem. at 25), but that evidence does not support their claim. Even if Fahrenkopf cochaired a fundraiser for a person who was not then campaigning as a candidate for any office, 

much less for the presidential or vice-presidential offices, that would not constitute “serving in 

any official capacity with a campaign.” (AR 7221.)

Additionally, in objecting to the Commission’s reliance on sworn affidavits provided by 

the CPD officers and directors, plaintiffs also incorrectly invoke the sham affidavit rule. (Pls.’ 

Mem. at 33 (“The director affidavits are a sham.”).) The “sham affidavit rule . . . precludes a 

party from creating an issue of material fact by contradicting prior sworn testimony unless the 

shifting party can offer persuasive reasons for believing the supposed correction is more accurate 

than the prior testimony.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007)

(citation and internal quotation marks omitted). Here, plaintiffs’ cherry-picked quotes from 

CPD’s directors were not made under oath, and the quoted statements do not necessarily 

contradict respondents’ declarations. For example, Alan Simpson submitted a declaration that 

directly addressed the quoted statement plaintiffs accuse him of ignoring. (Compare AR 3142, 

with Pls.’ Mem. at 32.) He explained that he did not recall conducting an interview with the 

complainant in MUR 5414 and noted that, by employing ellipses, the quote itself demonstrates 

that it did not reflect his full statement. (AR 3142-43 ¶ 3.) He also averred that the statements 

the complainant attributed to him “do not fairly or fully reflect my views,” and that he 

“believe[d] that the CPD’s debates should include the leading candidates for president and vicepresident, regardless of party affiliation,” but exclude “candidates who have only marginal 

national electoral support.” (Id. ¶ 4.) 

That some of the declarations in the record were nearly identical does not itself render 

them ineligible for consideration. E.g., Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 760 n.1 

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(N.D. Tex. 2013) (denying motion to strike declarations because the fact that they “contain 

virtually identical assertions goes to their weight and credibility, not their admissibility”). 

Plaintiffs’ speculation that the CPD officers and directors committed joint perjury after “one 

person simultaneously distributed a form affidavit to all nine directors, most of whom 

immediately signed it, and none of whom made a single substantive change” (Pls.’ Mem. at 32) 

is unconvincing. The more likely explanation is that the declarations were signed because they 

are accurate, which is why each of them was submitted “under penalty of perjury that the 

foregoing is true and correct.” (E.g., AR 7145.) 

c. The Commission’s Evaluation of Plaintiffs’ Evidence Regarding 

CPD’s 15 Percent Polling Threshold Was Not Arbitrary 

The Commission’s review of plaintiffs’ expert evidence was equally thorough and far 

from arbitrary. In taking issue with several of the Commission’s evidentiary determinations, 

plaintiffs once again misapprehend the nature of the Court’s review. It is not the Court’s role to 

evaluate the evidence de novo but to “defer to the FEC unless the agency fails to meet the 

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

discretion.’” LPF I, 232 F. Supp. 3d at 140 (quoting Carter/Mondale Presidential Comm., Inc. 

v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 1985)). Because the Commission’s detailed evaluation 

of plaintiffs’ expert reports readily passes this standard, plaintiffs cannot meet their burden to 

show that the Commission’s dismissal was arbitrary or capricious.

i. Young’s Report

It was reasonable for the Commission to conclude that Young’s single-variable 

regression model, focusing exclusively on the issue of name recognition, significantly limited the 

probative value of his report. (AR 7224-25.) Young himself admitted that “[m]ultiple factors, 

many of them beyond a candidate’s control, influence a candidate’s vote share.” (AR 2492 

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(Young Rep. ¶ 9)). In finding that Young failed to take account for several significant variables 

that impact vote share, including, inter alia, “‘fundraising, candidate positioning, election results, 

. . . idiosyncratic events,’” and “‘laying the ground work for a run quite early on,’ [such as] 

efforts to ‘hire staff, cultivate early support, [and] brush[ing] up [on] media skills’” (AR 7225 & 

n.104 (quoting Young Rep.¶ 20(d); Nate Silver, A Polling Based Forecast of the Republican 

Primary Field, FiveThirtyEight Politics (May 11, 2011))), the FEC acted in conformance with 

the D.C. Circuit’s own observation that “[i]t is commonly understood that the more variables that 

are included in a regression analysis, the more likely it is that the model describes accurately the 

phenomenon it is being used to explain.” Appalachian Power Co. v. E.P.A., 135 F.3d 791, 804 

(D.C. Cir. 1998) (per curiam); accord Love v. Johanns, 439 F.3d 723, 731-32 (D.C. Cir. 2006) 

(finding unpersuasive expert analysis that did not account for important variables). Because 

Young failed to take account of so many of these important drivers of vote share, it was 

reasonable for the Commission to find that his analysis did not persuasively demonstrate the 

extent of the claimed direct relationship between increasing name recognition and increasing 

vote share. (AR 7225.) As the Commission observed, “no matter how recognizable a candidate 

is, the candidate may, nonetheless, be unpopular.” (Id.)

The Commission also reasonably found that “neither the Young Report nor the 

Complaints and their voluminous exhibits ever establish that independent candidates do not or 

cannot meet 60-80 percent name recognition.” (AR 7225.) In fact, the Commission pointed to a 

YouGov poll from August 25-26, 2016, which “found that 63 percent of registered voters had 

heard of Libertarian Gary Johnson and 59 percent had heard of Green Party candidate Jill Stein.” 

(Id.) Plaintiffs take issue with the YouGov poll the Commission cites (Pls.’ Mem. at 26-27 & 

n.36) by seeking to draw a distinction between registered voters and the population at large. But 

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registered voters plainly are a relevant group when it comes to election polling, which is why 

Young himself used such data in his own analysis. (AR 2494 (Young Rep. ¶ 12(a) (noting that 

the “public opinion data cited in this analysis samples several different portions of the American 

population,” including “registered voters”); id. ¶ 12(b) (“On name recognition questions, this 

analysis includes samples of all Americans, registered voters and likely voters.”); id. ¶ 12(c) 

(stating that “[g]eneral election ballot questions most commonly use samples of registered or 

likely voters”).)

Nor did the Commission err in finding Young’s opinion regarding polling error 

unpersuasive. (Contra Pls.’ Mem. at 28.) The Commission’s decision to give CPD’s expert’s

opinion greater weight was reasonable and should not be disturbed. Wisc. Valley Improvement v. 

F.E.R.C., 236 F.3d 738, 746-47 (D.C. Cir. 2001) (explaining that the presence of disputing 

experts is a “classic example of a factual dispute” implicating agency expertise and requires 

deference to the “informed discretion of the responsible federal agencies” (internal quotation 

marks omitted)); Bean Dredging, LLC v. United States, 773 F. Supp. 2d 63, 81 (D.D.C. 2011) 

(“[A]bsent clear error, an agency’s credibility decision normally enjoys almost overwhelming 

deference.” (citation and internal quotation marks omitted)). And plaintiffs’ attempt to draw out 

a conflict (Pls.’ Mem. at 28) between whether a candidate is leading at the time of the debates in 

September, on the one hand, and whether a candidate has a realistic chance of becoming 

president, on the other, hardly demonstrates arbitrariness given the close overlap between those 

candidate groups. Similarly unpersuasive are plaintiffs’ claims with respect to polling error in 

light of the Commission’s consideration of both experts’ analyses. (AR 7229-32.) As the FEC

observed, “all candidates must abide by the same polls, and thus equally endure whatever errors 

may be present.” (AR 7232.) Having carefully considered Young’s report and weighed it 

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against that of CPD’s expert and its own expertise, the FEC reasonably determined that aspects 

of Young’s report were unpersuasive.

ii. Schoen’s Report

The Commission’s treatment of Schoen’s analysis also was not arbitrary and the opposite 

of “superficial.” (Contra Pls.’ Mem. at 29.) As a preliminary matter, it is undisputed that 

Schoen’s opinion was premised on Young’s conclusions and thus incorporated all of the 

deficiencies the Commission identified in analyzing Young’s report. In addition, the FEC’s 

analysis of Schoen’s opinion can be sustained on the single basis that Schoen’s opinion that an 

independent candidate must spend at least $266 million to reach at least 60% name recognition

(AR 2555 (Schoen Rep. at 2)) was shown to be considerably off the mark given Gary Johnson’s 

actual experience. As the Commission observed, Johnson reached 63% name recognition by 

late-August 2016 but had “raised only $7.9 million and spent only $5.4 million.” (AR 7228.) 

This is “a mere 2-3 percent of the $266 million that Schoen estimates an independent candidate 

would need to achieve 60-80 percent name recognition.” (Id.) 

Plaintiffs’ argument that “[i]ndependent candidates must pay for media exposure” (Pls.’ 

Mem. at 30) is similarly contrary to the experience of the 2016 election. Neither Johnson nor 

Green Party candidate Jill Stein were ever “‘certainly in the debates,’” yet they both received 

free media attention. (AR 7226 (citing as an example Supp. Brown Decl. ¶ 16) (identifying over 

60 appearances by Johnson and Stein in media outlets including ABC, CBS, CNN, PBS, CSPAN, USA Today, Time, People, the New York Times, and others).) Nor are plaintiffs correct in 

supposing that super PACs are unavailable to independent candidates because “Super PAC 

donors contribute to candidates they think can win.” (Pls.’ Mem. at 30.) As the Commission

explained, super PACs spent several million expressly advocating for Johnson in the 2016 

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election. (AR 7227 n.114.) “Such independent support likely increases a candidate’s name 

recognition at no cost to the candidate, thereby reducing the total sum that the candidate must 

spend to achieve 60-80 percent name recognition.” (AR 7228.) And plaintiffs’ complaints about 

the efficacy of digital media (Pls.’ Mem. at 30-31) is discordant with the actual experience of 

social media in the 2016 elections. As the FEC explained, Donald Trump achieved efficiencies 

by “focusing his spending on digital platforms like Facebook and Twitter.” (AR 7227.)

Furthermore, the Commission did not apply a “‘presum[ption]’ that independent 

candidates begin their campaign with meaningful name recognition.” (Pls.’ Mem. at 31.) 

Rather, the Commission noted that Schoen’s analysis did not account for the fact that 

“independent candidates frequently do not start from zero in terms of either name recognition or 

fundraising.” (AR 7228.) As the Commission observed, “Gary Johnson and George Wallace . . . 

were both governors before running for president and thus presumably enjoyed at least regional 

recognition.” (AR 7228.) Again, not starting from zero name recognition may have explained 

why Johnson achieved a high level of name recognition at a fraction of the cost predicted by

Schoen’s model. The Commission’s analysis of Schoen’s report was reasonable.

iii. The 15 Percent Threshold

“Having carefully weighed and considered the analyses of the parties’ respective 

experts,” as well as “the Commission’s judicially upheld determinations that independent 

candidates of the past have reached 15 percent in the polls,” the Commission concluded that 

there was not a sufficient basis to conclude that CPD’s 15 percent polling threshold was not an 

objective debate criteria. (AR 7229, 7232.) CPD selected that threshold to “ensure[] that [the] 

debate itself is not ‘hindered by the sheer number of speakers,’” and to “best balance[] the goal 

of being sufficiently inclusive to invite those candidates considered to be among the leading 

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candidates,” without “creating an unacceptable risk that leading candidates with the highest 

levels of public support would refuse to participate.” (AR 7210 (citation and internal quotation 

marks omitted).) 

The Commission’s conclusion that CPD’s 15 percent threshold is objective is reasonable. 

Indeed, a 15 percent threshold is unquestionably objective on its face. Nor is it biased in effect, 

because “independent candidates have demonstrated that they are able to achieve 15+% support 

in the polls at or near the time of the debates.” (AR 7223 (identifying George Wallace, John 

Anderson, and Ross Perot as examples).) Though plaintiffs now assert that several of these 

independent candidates should not count because they were not “truly independent” (Pls.’ Mem. 

at 34), plaintiffs’ inchoate purity test does not change the fact that these were independent 

candidates who enjoyed significant electoral success. For its part, CPD has demonstrated that it 

will invite an independent candidate to participate in its debates when that candidate satisfies the 

applicable candidate criteria, as in the case of Perot’s invitation to the 1992 debates. 

II. THE FEC’S DENIAL OF LPF’S RULEMAKING PETITION WAS NOT 

ARBITRARY OR CAPRICIOUS

Plaintiffs’ claims regarding the Commission’s decision not to initiate a new rulemaking 

largely overlap with their claims regarding the dismissed enforcement matters and should be 

rejected for the same reasons. Because plaintiffs cannot show that the FEC’s decision was 

arbitrary or capricious, the Court should grant summary judgment to the Commission on 

plaintiffs’ rulemaking claims.

A. Standard of Review for Denial of Rulemaking Petition

As this Court recognized, “[t]he court’s review of an agency’s decision not to engage in 

rulemaking is very limited, and that decision ‘is at the high end of the range of levels of 

deference we give to agency action under our ‘arbitrary and capricious’ review.’” LPF I, 

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232 F. Supp. 3d at 145-46 (quoting Defs. of Wildlife, 532 F.3d at 919 (internal citations 

omitted)). “The proper inquiry is ‘whether the agency employed reasoned decision-making in 

rejecting the petition.’” Id. at 146. “In making this assessment, the court ‘must examine the 

petition for rulemaking, comments pro and con . . . and the agency’s explanation of its decision 

to reject the petition.’” Id. (quoting Am. Horse Prot. Ass’n., Inc. v. Lyng, 812 F. 2d 1, 5

(D.C. Cir. 1987) (internal quotation and citation omitted)). Where, as here, “the proposed rule 

pertains to a matter of policy within the agency’s expertise and discretion,” the scope of review 

is limited to ensuring that the agency has explained the facts and policy concerns it relied upon 

and those facts have some basis in the record. Defs of Wildlife, 532 F.3d at 919 (citation and 

internal quotation marks omitted). For the reasons previously explained, plaintiffs’ arguments 

for reduced deference are unavailing. See supra pp. 21-23.

B. The FEC’s Denial of LPF’s Rulemaking Petition Conforms with the Court’s 

Remand Decision and Is Not Otherwise Arbitrary or Capricious

Like the Factual & Legal Analysis of plaintiffs’ administrative complaints, the 

Supplemental NOD conforms with the Court’s remand decision. As instructed, in more than six, 

single-spaced triple column pages in the Federal Register, the Commission thoroughly identified 

the substantial limitations of LPF’s evidence and thus “why it [rejected petitioner LPF’s] request 

for a specific debate rule for presidential and vice-presidential debates.” LPF I, 232 F. Supp. 3d 

at 147. The Commission’s analysis of the evidence was reasonable. As in the case of plaintiffs’ 

administrative complaints, the Commission’s assessment of the Young and Schoen expert reports 

reasonably demonstrated the agency’s determination that these materials did not provide a 

sufficient basis to initiate a rulemaking. See supra pp. 16-18, 36-40. 

Plaintiffs do not seriously contend otherwise. Rather, they raise a series of insubstantial

objections to the Commission’s assessments of the expert reports, none of which is compelling. 

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Responding to the Commission’s critique that Young’s report inappropriately 

extrapolates from data taken from the early stages of the election (AR 1933), plaintiffs argue that 

“Young said that the 60-80% result is based on polling data from every stage of the election, 

including ‘late primary’ and ‘general’ election polling.” (Pls.’ Mem. at 36.) This is 

unpersuasive because even late primary polling fails to “address or account for differences in the

size of the candidate fields at those points in time” (AR 1933) and, more importantly, because

the page in the Administrative Record plaintiffs cite does not actually show any use of general 

election polling. (AR 2520 (only using early and late primary stages of election cycle).) 

Plaintiffs’ other counterpoint is the incorrect assertion that “causative effect must be implied”

between name recognition and vote share. (Pls.’ Mem. at 36-37.) As the FEC explained, 

however, name recognition does not necessarily lead to a positive opinion about that person. 

(AR 1933.) When Gary Johnson received significant attention regarding his lack of knowledge 

about Aleppo, that attention may have increased the number of Americans who learned his name 

while simultaneously decreasing their likelihood of telling pollsters that they would vote for him. 

(Accord AR 1935 n.12 (mentioning Jeb Bush as an example of a candidate whose name 

recognition did “not translate to high vote share”).)

Plaintiffs’ additional arguments regarding Schoen’s report are similarly without merit. 

Plaintiffs devote nearly five pages and a counsel declaration to criticizing a single statement in 

the Supplemental NOD and its accompanying footnote. (Pls.’ Mem. at 37-42.) Plaintiffs focus 

on the Commission’s response to Schoen’s assertion that “‘the media will not cover an

independent candidate until they are certainly in the debates.’” (AR 1933.) That response 

included the agency’s observation that “the report provides no basis for this assertion other than 

an unexplained reference to the number of publications ‘follow[ing]’ one particular candidate” 

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and the agency’s awareness “of at least three non-major-party candidates who did not participate 

in the general election debates but received significant media attention in 2016.” (Id.) In the 

accompanying footnote, the Commission described searches of Westlaw’s Newspaper database 

for the names of Gary Johnson, Jill Stein, and Evan McMullin. (AR 1933 n.6.) Plaintiffs do not 

dispute that Schoen’s authority for his assertion regarding earned media was unpersuasive. Nor 

do they dispute the FEC’s assertion that Johnson, Stein, and Evan received significant media 

attention in 2016. (Pls.’ Mem. at 38 (acknowledging that the total number of articles mentioning 

the candidates “appear[ed] sizeable”).) Rather, they rail against the unsurprising fact that 

Republican and Democratic party candidates like Donald Trump and Hillary Clinton received 

considerably more media attention and devote extensive evidence to the FEC’s failure to ensure 

that every single one of more than 3,000 news articles referencing “Gary Johnson” was about the 

candidate. (Pls.’ Mem. at 39-40.) Plaintiffs’ lavish attention on footnote six — without 

disputing the essential point that the media does cover independent candidates — does nothing 

but betray the thinness of their claim that the entire Supplemental NOD is arbitrary. 

Plaintiffs also fail to rehabilitate Schoen’s use of “obsolete data” (AR 1934) by relying on 

scant references to a few more recent online articles (Pls.’ Mem. at 42) and incorrectly argue that 

party nominating processes are available only to Democrats and Republicans (id.). Plaintiffs’ 

contortions over what Rick Santorum spent in Iowa (id.) misstate what Schoen plainly said 

(“Rick Santorum . . . spent only $21,980 in the state” (AR 0169)) and fails to undermine the 

FEC’s observation that the data filed with the agency shows that “Santorum spent over $112,000 

in Iowa between October 1 and December 31, 2011” (AR 1934). Lastly, plaintiffs challenge 

without any basis the FEC’s note that it did not have Schoen’s underlying media data. (Pls.’ 

Mem. at 43.) As plaintiffs themselves explain (see id.), they chose not to include this data with 

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LPF’s rulemaking petition, thus deliberately excluding from the administrative record data they 

now apparently wish to rely upon. 

C. Plaintiffs’ Requested Relief Is Improper 

In addition to their meritless arguments that the FEC erred in denying LPF’s rulemaking 

petition on remand, plaintiffs improperly request that the Court order the FEC to open a 

rulemaking within 30 days and adopt a new regulation regarding presidential debates “in 

sufficient time to ensure that the revised rules will be in place for the 2020 presidential election.” 

(Am. Supp. Compl. For Declaratory and Injunctive Relief ¶ 82 (Docket No. 76).) Plaintiffs are 

nowhere near the very high threshold required to compel rulemaking. As previously concluded 

in this District, “[e]ven if the Court believes as a matter of policy that rulemaking is viable for 

the [statutory] test, the Court may not substitute this judgment for the agency’s decision.” Shays 

v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007) (holding that FEC’s explanation following remand 

was sufficient and, applying the applicable standard of review, upholding the agency’s decision 

to proceed on a case-by-case basis despite prior contrary arbitrary and capricious decision). 

Moreover, the speed and procedures an agency chooses to conform its regulations to court 

decisions are normally left to the discretion of the agency. See, e.g., Norton v. S. Utah 

Wilderness All., 542 U.S. 55, 67 (2004) (“The prospect of pervasive oversight by federal courts 

over the manner and pace of agency compliance with . . . congressional directives is not 

contemplated by the APA.”). Accordingly, even if the Court could credit plaintiffs’ arguments, 

the appropriate remedy would be remand, not compelling the agency to complete plaintiffs’ 

proposed rulemaking without regard to other agency priorities.

CONCLUSION

For the foregoing reasons, the Court should grant the Commission’s motion for summary 

judgment and deny plaintiffs’ motion for summary judgment.

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Respectfully submitted,

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

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

lstevenson@fec.gov Senior Attorney 

rbonham@fec.gov 

Kevin Deeley

Associate General Counsel Haven G. Ward (D.C. Bar No. 976090)

kdeeley@fec.gov Attorney 

hward@fec.gov 

Charles Kitcher (D.C. Bar No. 986226)

Acting Assistant General Counsel COUNSEL FOR DEFENDANT

ckitchner@fec.gov FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, DC 20463

October 13, 2017 (202) 694-1650

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