UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

DAN LA BOTZ, )

)

Plaintiff, )

)

VS. ) No. 1:13-cv-00997-RC

)

FEDERAL ELECTION COMMISSION, )

)

 Defendant. )

PLAINTIFF'S RESPONSE TO DEFENDANT'S

MOTION TO DISMISS

September 23, 2013 Oliver B. Hall

DC Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

1835 16th Street NW, Suite 5

Washington, DC 20009

(202) 248-9294 (ph)

(202) 248-9345 (fx)

oliverhall@competitivedemocracy.org

Mark R. Brown

303 E. Broad Street

Columbus, OH 43220

(614) 236-6590 (ph)

(614) 2236-6956 (fx)

mbrown@law.capital.edu

Pro hac vice (pending)

1

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 1 of 32
TABLE OF CONTENTS

Page

Table of Authorities ................................................................................................................................3

Statement of Facts and Procedure..........................................................................................................6

Argument ...............................................................................................................................................13

I. Prosecutorial Discretion Does Not Insulate the FEC's Legal Conclusions ................................13

II. Plaintiff Has Continuing Article III Standing. .............................................................................16

III. The FEC Erred as a Matter of Law. ..............................................................................................22

A. The FEC's Policy Allowing Debate-Staging Organizations to Employ a "Two-Frontrunner" 

Formula Violates the FECA. ..............................................................................................................23

B. The FEC's Conclusion that Oral Evidence is Sufficient to Prove Pre-existing Objective 

Criteria Contradicts this Court's Conclusion. .....................................................................................28

C. The FEC Erroneously Relieved the ONO of its Burden of Proof. ..............................................30

Conclusion ..............................................................................................................................................31

Certificate of Service ............................................................................................................................32

2

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 2 of 32
TABLE OF AUTHORITIES

Cases Page

Allen v. Wright, 468 U.S. 737 (1984) ..................................................................................................15

Buchanan v. Federal Election Commission, 112 F. Supp. 2d 58 (D.D.C. 2000) ......................26, 30

Chamber of Commerce of United States v. Federal Election Commission,

69 F.3d 600 (D.C. Cir. 1995) ..........................................................................................................16, 21

Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 

2011WL3268079 (D.D.C. 2011) ............................................................................................................6

Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983) ..................................30

Coit v. Green, 404 U.S. 997 (1971), affirming 330 F. Supp. 1150 (D.D.C. 1971) .........................15

Envirocare of Utah, Inc. v. Nuclear Regulatory Commission, 194 F.3d 72 (D.C. Cir. 1999) .....18

Federal Election Commission v. Akins, 524 U.S. 11 (1998) ............................................................16

Federal Election Commission v. Beaumont, 539 U.S. 146 (2003) .............................................15, 22

Federal Election Commission v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981) .................................................................................................................................21

Federal Election Commission v. National Rifle Association of America,

254 F.3d 173 (D.C. Cir. 2001) ........................................................................................................15, 22

Federal Election Commission v. National Right to Work Comm., 459 U.S. 197 (1982) ...............16

Fund for the Study of Economic Growth and Tax Reform v. Internal Revenue Service,

161 F.3d 755 (D.C. Cir. 1998) ..............................................................................................................30

Johnson v. Federal Communications Commission, 829 F.2d 157 (D.C. Cir. 1987) ......................21

Kassem v. Washington Hospital Center, 513 F.3d 251 (D.C. Cir. 2008) .........................................6

La Botz v. Federal Election Commission, 889 F. Supp.2d 51 (D.D.C. 2012) .......................passim

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) ........................................................................20

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ..............................................6

Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S.D. Ohio 2008) .............................6

3

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 3 of 32
Libertarian Party of Ohio v. Husted, 2011WL3957259 (S.D. Ohio, Sept. 7, 2011) ) ....................6

Moore v. Brunner, 2008WL38887639 (S.D. Ohio 2008) ...................................................................6

Nader v. Federal Election Commission, __ F.3d __ (D.C. Cir. 2013) .......................................19, 20

Nader v. Saxbe, 497 F.2d 676 (D.C. Cir. 1974) ............................................................................14, 15

Senior Citizens Stores, Inc. v. United States, 602 F.2d 711 (5th Cir. 1979) ....................................30

Smith v. Meese, 821 F.2d 1484 (5th Cir. 1987) ..................................................................................14

St. David's Health Care System v. United States, 349 F.3d 232 (5th Cir. 2003) ) .........................31

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ...................................................6

Statutes

2 U.S.C. § 431(9)(A)(i) .........................................................................................................................28

2 U.S.C. § 431(9)(B)(ii) ........................................................................................................................28

2 U.S.C. § 437g(a)(1) ............................................................................................................................16

2 U.S.C. § 437g(a)(8)(A) ......................................................................................................................16

2 U.S.C. § 441b(a)..................................................................................................................................28

2 U.S.C. § 441b(b)(2) ............................................................................................................................28

Regulations

11 C.F.R. § 110.13(b) ...........................................................................................................................24

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

Federal Register

* 60 Fed. Reg. 64260-01 (1995 WL 735941) ....................................................................................26

Federal Rules of Civil Procedure

Fed. R. Civ. P. 12(b)(6) ...........................................................................................................................6

4

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 4 of 32
Miscellaneous

Eric B. Hull, Note, Independent Candidates' Battle Against Exclusionary Practices of the 

Commission on Presidential Debates, 90 IOWA L. REV. 313 (2004).................................................25

Ohio Secretary of State Directive 2013-02 (Jan. 31, 2013) ................................................................6

5

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 5 of 32
STATEMENT OF FACTS AND PROCEDURE1

Plaintiff, Dan La Botz, was the 2010 Socialist Party of Ohio candidate for the United

States Senate in Ohio. See Complaint at ¶ 9. The Socialist Party of Ohio for the first time in

more than fifty years won ballot access in Ohio in 2008. See Complaint at ¶ 30. Its access was

achieved through a series of federal lawsuits that declared Ohio's ballot access restrictions

unconstitutional. See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006)

(holding Ohio's ballot access law for minor parties unconstitutional); Libertarian Party of Ohio

v. Brunner, 567 F. Supp.2d 1006 (S.D. Ohio 2008) (holding Ohio's new regulations for minorparty access unconstitutional); Moore v. Brunner, 2008WL38887639 (S.D. Ohio 2008) (ordering

that the Socialist Party candidate for President be included on Ohio's 2008 election ballot). 

Because of a federal court's order in 2011, Libertarian Party of Ohio v. Husted,

2011WL3957259 (S.D. Ohio, Sept. 7, 2011), the Socialist Party continues to enjoy ballot access

in Ohio as a qualified party.2See Ohio Secretary of State Directive 2013-02 (Jan. 31, 2013),

Continued Ballot Access for Minor Political Parties in Ohio in 2013

(http://www.sos.state.oh.us/SOS/Upload/elections/directives/2013/Dir2013-02.pdf) (last visited

1

 All factual allegations in the context of a Rule 12(b)(6) motion must be taken as true and all

reasonable inferences drawn in the Plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights,

Ltd., 551 U.S. 308, 322 (2007) ("faced with a Rule 12(b)(6) motion to dismiss ..., courts must, as

with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all

factual allegations in the complaint as true."); Kassem v. Washington Hospital Center, 513 F.3d

251, 252 (D.C. Cir. 2008) (stating that all reasonable inferences must be drawn in plaintiff's

favor when faced with Rule 12(b)(6) motion); Citizens for Responsibility and Ethics in

Washington v. Federal Election Commission, 2011WL3268079 (D.D.C. 2011) (applying these

same standards in an action reviewing FEC action). 

2 The Sixth Circuit in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 589 (6th Cir. 2006),

the first of several suits enjoining Ohio's draconian ballot access laws, succinctly stated that

Ohio's "elections have indeed been monopolized by two parties," and that "[o]f the eight most

populous states, Ohio has had by far the fewest minor political parties on its general election

ballot."

6

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 6 of 32
Sept. 16, 2013) (announcing that the Socialist, Green, Libertarian, and Constitution Parties

continue to qualify for Ohio's ballots because of the Husted decision).

Plaintiff was duly recognized by Ohio's Secretary of State as a qualified candidate for

Ohio's United States Senate seat in 2010. Joining Plaintiff on that list of qualified candidates

were the Democratic Party's choice, Lee Fisher, and the Republican candidate, Rob Portman.

See Complaint ¶¶ 12 & 13.3 

A consortium of eight major newspapers in Ohio known as the Ohio News Organization

("ONO" or "OHNO")4 announced on September 1, 2010 a series of televised senatorial debates

between the Democratic and Republican Party candidates. See Complaint at ¶ 24. The

negotiations behind these debates began no later than June 2010, see Complaint at ¶ 26, and were

kept secret from the Plaintiff and Ohio's other qualified senatorial candidates. See Complaint at

¶ 33. Neither Plaintiff, nor anyone else outside the consortium and the Democratic and

Republican campaigns was aware of the substance of these meetings, or that they were taking

place. See Complaint at ¶¶ 33 & 34.

3

 Two additional candidates qualified for Ohio's 2010 United States Senate ballot: Eric Deaton

(Constitution Party); and Michael Pryce (no party). A write-in candidate, Arthur Sullivan, also

ran, but was not qualified to appear on the ballot. See 

http://www.sos.state.oh.us/SOS/elections/electResultsMain/2010results/20101102senator.aspx

(stating results of the 2010 senatorial election in Ohio) (last visited Sept. 16, 2013). Had the

ONO simply opened the debates to all ballot-qualified candidates, only five would have been

eligible. 

4

 The ONO is a for-profit, unincorporated business association consisting of the eight largest

newspapers in Ohio, which are all for-profit corporations: The Toledo Blade, the (Canton)

Repository, the (Cleveland) Plain Dealer, the Columbus Dispatch, the Cincinnati Enquirer, the

Dayton Daily News, the Akron Beacon Journal, and the (Youngstown) Vindicator. See

Complaint at ¶ 11. 

7

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 7 of 32
Plaintiff made several attempts following the public announcement of ONO's senatorial

debates to contact ONO in an effort to be included. See Complaint at ¶¶ 34-36. In response to

an on-line petition effort put together by Plaintiff's campaign, Plaintiff on September 8, 2010

received a written response (via e-mail) from Mr. Bruce Winges, editor and vice-president of the

AKRON BEACON JOURNAL. See Complaint at ¶ 38. Winges admitted in his e-mail that the ONO

"allows for only the major-party candidates to debate." See Complaint at ¶ 38 (emphasis added).

He continued: "The logic is sound: In a television debate format, when time constraints limit the

number of questions and answers to be heard, it is of the utmost importance that voters hear from

the two candidates who are clearly the front-runners for the office." See Complaint at ¶ 38.

On September 10, 2010, Plaintiff, through legal counsel (Mr. Mark R. Brown), mailed to

each of ONO’s eight corporate members letters advising that ONO’s secretive and exclusive

structuring of the debates violated the FECA. See Complaint at ¶ 41. On September 14, 2010,

ONO responded via an electronically transmitted letter (through its attorney, Mr. Marion Little)

to Brown. See Complaint at ¶ 42. Little asserted that “the ONO considered front-runner status

based on then-existing Quinnipiac and party polling, fundraising reports, in addition to party

affiliation.” See Complaint at ¶ 42. Little did not identify or explain any thresholds, standards,

or guidelines for using polls and fundraising to determine "front-runner status." See Complaint

at ¶ 42. Little did not refer to any documentation that established the ONO's policy for including

and excluding candidates. See Complaint at ¶ 43. 

On September 16, 2010, Brown e-mailed to Little, at the latter's invitation, three

additional questions about ONO’s planned debates. See Administrative Complaint at ¶ 32, Adm.

Record (AR0010-11). Among the questions posed, Brown asked: 

Is it your position, on behalf of the ONO, that it was prepared to only invite two

candidates to these debates?

8

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 8 of 32
What objective criteria did Mr. La Botz (or any other candidate) have to satisfy to be

invited to the structuring of the senatorial debates or the debates themselves?

When were these criteria reported to the campaigns or otherwise made generally

available so that qualified candidates might attempt to satisfy them?

See Administrative Complaint at ¶ 32, Adm. Record (AR0010-11).

Little responded to Brown’s follow-up questions via an electronically-submitted letter on

September 16, 2010. See Complaint at ¶ 45. Little's letter did not answer Brown's questions, but

instead made clear that "there was absolutely no showing Plaintiff could ever make to gain an

invitation to ONO's debates." See Complaint at ¶ 45. 

A. MUR 6383.

On September 21, 2010, Plaintiff filed an Administrative Complaint with Defendant, the

Federal Election Commission (FEC), charging the ONO, its corporate members, and the Fisher

and Portman campaigns, with violating the FECA, 2 U.S.C. § 441b(a); 11 C.F.R. § 110.13(c).

See Complaint at ¶ 47. Plaintiff's Administrative Complaint (MUR 6383) claimed, inter alia,

that the ONO's alleged "two frontrunner" policy was designed to simply select the candidates of

the Democratic and Republican Parties. See Adm. Record (AR0012); Complaint at ¶ 49. Indeed,

the "two frontrunner" policy was not a policy employed beforehand at all: rather, it was

shorthand for selecting the major-party candidates. See Adm. Record (AR0013); Complaint at ¶

50. Plaintiff requested that the Defendant "investigate the allegations contained in this

Complaint, declare that the Respondents are in violation of the Federal Election Campaign Act

and applicable FEC regulations, and impose sanctions commensurate with these violations." See

Administrative Complaint at 11, Adm. Record (AR0013). Plaintiff also demanded expedited

relief. See Administrative Complaint at 11, Adm. Record (AR00013).

9

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 9 of 32
Defendant dismissed Plaintiff's Administrative Complaint on May 19, 2011. See Adm.

Record (AR0123). In the interim, the ONO held its scheduled debates and included only the

Democratic and Republican candidates. See Complaint at ¶ 48. The Republican candidate,

Portman, won the November 2010 election. Plaintiff, notwithstanding his exclusion from the

debates and his being ignored by Ohio's press, received over 25,000 votes, apparently the single

highest showing for a Socialist Party candidate in Ohio since the Great Depression.

The FEC's May 19, 2011 dismissal of Plaintiff's complaint concluded that the ONO's

"two frontrunner" standard was permissible under the FECA and 11 C.F.R. § 110.13(c), and that

the ONO had produced substantial evidence establishing that it had actually employed its

permissible "two frontrunner" formula to its debates. See General Counsel's Report, Adm.

Record (AR0115).

B. La Botz v. Federal Election Commission I.

This Court reversed the FEC's dismissal in La Botz v. Federal Election Commission, 889

F. Supp. 2d 51, 55 (D.D.C. 2012) (La Botz I). It never reached the legality of the FEC's

determination that a "two frontrunner" or "top two" formula is permissible because it concluded

that the only documentation presented by ONO to support its application of this or any other preexisting objective criteria, a litigation affidavit prepared by an editor for the Columbus Dispatch

(a member of ONO), was insufficient. The affidavit, the Court stated, "suffers from two serious

flaws." Id. at 61. 

First, as an evidentiary matter, it was unclear to the Court "why the declarant has firsthand knowledge ... or is otherwise competent to testify to such." Id. Second, and more

importantly, the Court observed:

10

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 10 of 32
[S]uch affidavits raise the risk that they will merely provide a vehicle for a party's post

hoc rationalizations. This sole affidavit highlights the absence of any contemporaneous

evidence suggesting that ONO employed pre-established selection criteria. Cf. Ponte v.

Real, 471 U.S. 491, 509 (1985) (“The best evidence of why a decision was made as it

was is usually an explanation, however brief, rendered at the time of the decision.”). In

particular, ONO has not produced any contemporaneously written formulation of the

criteria it purportedly utilized. And while FEC regulations do not specifically require

debate staging organizations to reduce their criteria to writing, it is strongly encouraged.

Id. (footnote omitted).

In an accompanying footnote, the Court stated that "[g]iven that eight newspapers were involved

in organizing the debates and the inherent difficulty in coordinating this many entities, it would

be highly unusual if no contemporaneous evidence existed in the form of meeting notes or e-mail

exchanges." Id. at 61 n.5.

Because the FEC's conclusion that the ONO had applied proper pre-existing objective

criteria was not supported by substantial evidence in the record, the Court remanded the matter to

the FEC for further proceedings.5 The Court noted that although it had "no quarrel" with the use

of polling data, fundraising reports, and party support to objectively demonstrate a "candidate's

viability," id. at 63-64, "the current record does not provide reasoned support for the position

that ONO actually used these objective benchmarks to choose its debate participants." Id. at 64.

5 While Plaintiff's case was on remand to the FEC, the ONO once again staged a series of debates

during the 2012 election cycle between the Republican and Democratic candidates for United

States Senate. See Columbus Dispatch, WBNS, to host senatorial debate, Ohio News

Association (http://www.ohionews.org/2012/09/20/columbus-dispatch-wbns-to-host-senatorialdebate/) (last visited Sept. 16, 2013). As in 2010, the ONO again excluded a minor candidate,

Scott Rupert, who had qualified for Ohio's senatorial ballot, from its 2012 debates. According to

the ONO's attorney, Rupert was excluded under the same "two frontrunner" formula used to

exclude Plaintiff in 2010. See Letter from Marion Little to Jeff Jordan, at 2, Adm. Record (AR

0152) ("OHNO was applying ... the same criteria [to Rupert] that the Commission had previously

accepted as part of the dismissal of the original complaint."). Rupert won over a quarter million

votes in Ohio's 2012 senatorial election, which translates into over 5% of the total votes cast.

See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx (last

visited Sept. 16, 2013).

11

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 11 of 32
The Court made no mention of whether a "two frontrunner" formula that actually employed

polling data, fundraising reports and party support to limit debates to only two candidates would

prove consistent with the FECA and federal regulations. The ONO, after all, had presented no

acceptable documentation proving that it had employed polling data, fundraising records and

party support to select the two frontrunners invited to its debate. 

C. MUR 6383 On Remand.

On remand, the FEC, over one dissent, see Adm. Record (AR0186), again dismissed

Plaintiff's Administrative Complaint. Federal Election Commission, MUR 6383R, Adm. Record

(AR0174). It reiterated its prior holding that the ONO's "selection criteria of 'first ensur[ing] the

eligibility of the candidates and then par[ing] down the field to the two frontrunners ... were

acceptably 'objective'." Id. at 7-8, Adm. Record (AR0180-81). In support of its conclusion, the

FEC cited this Court's holding in La Botz I, 889 F. Supp. 2d at 63-64. Id. at 8, Adm. Record

(AR0181). 

The FEC further ruled that although written documentation is preferred, "undocumented

affirmative statements ... will suffice." Id., Adm. Record (AR0181). Because the "ONO did not

provide a contemporaneous written standard for its 2010 debates," the FEC ruled, it "must

examine the record to analyze whether the ONO did in fact establish its stated selection criteria

in advance and employ those criteria in organizing the events." Id. at 10, Adm. Record

(AR0183). Although the FEC conceded that the available evidence "would suggest that the ONO

may not have used pre-existing objective criteria," id. at 9, Adm. Record (AR0182), it concluded

that Plaintiff had not "conclusively establish[ed] that the ONO used major party status as the sole

12

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 12 of 32
selection criteria in 2010, any more than the Marrison affidavit conclusively establishes the

contrary." Id., Adm. Record (AR0182).

Given "inconsistent statements concerning the ONO's criteria," id. at 10, Adm. Record

(AR0183), and "[b]ecause the ONO did not provide contemporaneous written criteria and the

record does not otherwise reflect that the ONO reduced its criteria to writing in advance of the

debates," id., Adm. Record (AR0183), the FEC determined that it "would need to review the

ONO's internal communications, including those of all eight constituent media entities, to

determine whether the ONO employed pre-established criteria in 2010." Id., Adm. Record

(AR0183). Rather than perform this "resource-intensive" task, id., the FEC exercised its

discretion to again dismiss the complaint. Id. at 11, Adm. Record (AR0184).

ARGUMENT

I. Prosecutorial Discretion Does Not Insulate The FEC's Stated Policies.

The FEC announced three policies in its opinion in MUR 6383R. First, it concluded that

staging organizations may categorically limit debates to the "two frontrunners" in a federal

election. Second, it ruled that staging organizations may rely on oral testimony to support their

pre-existing objective criteria. Third, it held that staging organizations do not bear the burden of

demonstrating that they have followed pre-existing objective criteria. All three, because they are

published as part of the FEC's probable cause determination, represent official positions and

policies of the FEC. See Federal Election Commission v. Beaumont, 539 U.S. 146, 149 (2003)

(stating that the FEC is empowered to "'administer, seek to obtain compliance with, and

formulate policy with respect to the federal electoral laws") (citation omitted); Federal Election

Commission v. National Rifle Association of America, 254 F.3d 173, 185 (D.C. Cir. 2001)

13

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 13 of 32
(holding that probable cause determinations made case-by-case represent binding law because

"in making probable cause determinations, the Commission fulfills its statutorily granted

responsibilities, giving ambiguous statutory language concrete meaning through case-by-case

adjudication."). 

The FEC devotes the bulk of its Motion to Dismiss to a discussion of prosecutorial

discretion. Plaintiff, for its part, does not challenge the FEC's prosecutorial discretion. Rather,

Plaintiff challenges the FEC's three rulings--which are now national policy. In particular,

Plaintiff challenges the FEC's policy that "two frontrunner" formulas, which categorically limit

debates to two candidates and effectively insure that only the major-party candidates can

participate, are permissible under the FECA. 

Consider, for example, if a staging organization were to adopt a racially discriminatory

policy, something like "only white candidates can debate." Following the filing of an

administrative complaint, the FEC concludes that it will exercise prosecutorial discretion to

dismiss it. In the course of invoking this discretion, the FEC states in a formal opinion that "race

is a permissible criterion in staging debates." The FEC's prosecutorial discretion position, argued

here, would likewise shield that obviously illegal "race is allowed" policy from being challenged

in District Court. 

"The decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be

treated as a magical incantation which automatically provides a shield for arbitrariness." Nader

v. Saxbe, 497 F.2d 676, 679 n.19 (D.C. Cir. 1974). Just as the Department of Justice (and FEC)

cannot shield racially discriminatory policies from judicial review by invoking prosecutorial

discretion, see, e.g., Smith v. Meese, 821 F.2d 1484, 1489 (5th Cir. 1987) ("The plaintiffs in this

case, however, do not challenge any particular decision to prosecute or not to prosecute any

14

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 14 of 32
individual. Instead, they challenge a policy and pattern of investigatory and prosecutory

decisions, alleging that the policy has the effect of depriving them of their constitutional rights to

vote and to associate freely."), the FEC cannot insulate its "two frontrunner" policy by magically

pulling prosecutorial discretion out of its hat. 

The District of Columbia Circuit has noted that even though challengers cannot ordinarily

complain about the Justice Department's refusal to enforce campaign finance laws, they still may

have "standing to challenge policies adopted by the Justice Department to enforce the FECA."

Nader v. Saxbe, 497 F.2d at 682 n.30. Likewise, Plaintiff here has continuing standing to argue

that the FEC's stated policy on "two frontrunner" debates is illegal under the FECA.6 

Plaintiff’s claim here is one of political discrimination. Plaintiff has alleged that "ONO's

belatedly announced 'two frontrunner' formula is the equivalent of simply selecting the

candidates of the two major parties for debates in Ohio." See Complaint at ¶ 53. ONO's

formula, according to Plaintiff, "is a proxy for selecting only the candidates of the two major

parties." Id. ¶ 52. The FEC has now twice publicly ruled that a staging organization's politically

discriminatory "two frontrunner" criterion is permissible under the FECA. This is now the law

of the land. If Plaintiff cannot challenge it, no one can. The FEC cannot hind behind the

"magical incantation" of prosecutorial discretion. 

6

 Another example can be found in the contrast between Allen v. Wright, 468 U.S. 737 (1984),

and Coit v. Green, 404 U.S. 997 (1971), summarily affirming Green v. Connally, 330 F. Supp.

1150 (D.D.C. 1971). In the latter, the Supreme Court summarily affirmed a lower court's ruling

that an IRS policy authorizing 501(c)(3) status for racially restrictive schools violated the

Internal Revenue Code. In the former, the Court ruled that so long as the IRS was not operating

under its illegal policy, prosecutorial discretion (through Article III) shielded its enforcement

decisions. Coit and Allen establish that although one cannot ordinarily challenge an agency's

enforcement decision (because of prosecutorial discretion), that same agency's policies can be

challenged.

15

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 15 of 32
II. Plaintiff Has Continuing Article III Standing.

The FECA confers broad standing. In Federal Elections Commission v. Akins, 524 U.S.

11, 19 (1998), for example, the Supreme Court observed that "Congress has specifically

provided in FECA that '[a]ny person who believes a violation of this Act ... has occurred, may

file a complaint with the Commission.'” (Quoting 2 U.S.C. § 437g(a)(1). "'Any party aggrieved

by an order of the Commission dismissing a complaint filed by such party'," the Supreme Court

noted, "'may file a petition'" in the District Court seeking review of that dismissal. 424 U.S. at

19 (quoting 2 U.S.C. § 437g(a)(8)(A)). The FECA "is unusual in that it permits a private party

to challenge the FEC's decision not to enforce." Chamber of Commerce of U.S. v. Federal

Election Commission, 69 F.3d 600, 603 (D.C. Cir. 1995) (citing 2 U.S.C. § 437g(a)(8); Federal

Election Commission v. National Right to Work Comm., 459 U.S. 197, 200-01 (1982)).

This Court ruled in La Botz I, 889 F. Supp.2d at 56, that Plaintiff has satisfied Article III's

standing requirements: "La Botz alleges that he was injured when he was excluded from the

debates. If his exclusion violated the FECA, this injury suffices for the purposes of Article III."

(Citation omitted). "The second element of standing is easily satisfied here: causation may be

established simply by alleging that the FEC failed to enforce the laws it was designed to

implement." Id. (citations omitted). And in terms of the redressability prong, the Court stated:

"It is enough that upon remand, the FEC could determine that ONO violated FEC regulations by

using criteria that systematically disfavored third-party candidates." Id. 

The Court in La Botz I, 889 F.Supp.2d at 58-59, also rejected the FEC's claim that

Plaintiff's challenge was rendered moot by the intervening election. Plaintiff's complaint, it

found, fell neatly within the 'capable of repetition yet evading review exception': "La Botz argues

that his case falls within this exception, and the court agrees." Id. at 58. In response to the FEC's

16

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 16 of 32
claim that La Botz "has not shown that 'the same complaining party would be subjected to the

same action again'," id. at 59, the Court pointed out that "many courts have concluded that a

plaintiff need only show that others similarly situated might suffer a comparable harm in the

future." Id. (citations omitted). Rather than resolve this point, however, the Court noted that "La

Botz has run for office in the past and he declares that 'it is likely that [he] will run for federal

office in Ohio again in the future'.” Id. Thus, the Court concluded he had continuing standing.

Because his wife has taken a job in New York and he will relocate with her in January of

2014, Plaintiff no longer alleges that he will run for congressional office in Ohio. See Complaint

at ¶ 9; Declaration of Dan La Botz at ¶ 6 (attached as Exhibit A). Still, Plaintiff continues to

allege that he will likely run for federal office somewhere in the United States. See Declaration

of Dan La Botz at ¶ 8; Complaint at ¶ 9. 

The FEC argues that because Plaintiff has moved from Ohio, and will therefore not likely

be excluded from the ONO's debates in the future, he now lacks standing. The FEC's position

ignores two important points. First and foremost, Plaintiff's complaint runs against the FEC, not

the ONO. Plaintiff claims the FEC's stated policy that "two frontrunner" formulas are

permissible violates the FECA. The FEC has nationwide authority and jurisdiction to regulate

debates in federal elections. The question (assuming that Plaintiff must show that he is likely to

be harmed again) is whether the FEC's nationwide policy might be used against Plaintiff,

wherever in the country he may run for federal office. Because Plaintiff has sworn that he is

likely to run again for federal office as a minor-party candidate wherever he is domiciled, the

FEC's ruling continues to threaten his participation in future debates.7

7 As far as Plaintiff's Administrative Complaint against the ONO is concerned, Article III's

standing requirement is irrelevant. See, e.g., Envirocare of Utah, Inc. v. Nuclear Regulatory

Commission, 194 F.3d 72, 75 (D.C. Cir. 1999) ("The Commission rightly pointed out ... that it is

17

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 17 of 32
Second, this Court pointed out in La Botz I, 889 F. Supp.2d at 59, that "many" federal

courts have ruled it sufficient that other potential candidates are likely to harmed. Even if

Plaintiff will not run for federal office in Ohio, or anywhere else, in the future, it remains likely

that other third-party and independent candidates will. Indeed, experience indicates that it is

very likely that minor candidates will run for federal office in Ohio and be excluded by the ONO

from its debates. 

In addition to the four qualified minor parties in Ohio, that is, the Socialist Party, the

Libertarian Party, the Constitution Party, and the Green Party, see Ohio Secretary of State

Directive 2013-02 (Jan. 31, 2013)8 (recognizing continuing ballot access in Ohio for these minor

parties), unaffiliated ("independent") candidates are not uncommon. The record makes clear that

the ONO continues to sponsor exclusive debates between the Republican and Democrat

candidates for federal office. The 2010 senatorial debates (from which Plaintiff was excluded)

provide only one example. In 2012 the ONO again sponsored debates for Ohio's United States

Senate seat and again only invited the two major-party candidates. See Columbus Dispatch,

WBNS, to host senatorial debate, Ohio News Association (describing ONO's debates and noting

that only the Democratic and Republican candidates were involved).9 A qualified independent

candidate, Scott Rupert, who wound up winning over 250,000 votes, see Ohio Secretary of State,

not an Article III court and thus is not bound to follow the law of standing derived from the 'case

or controversy' requirement. Judicially-devised prudential standing requirements ... are also

inapplicable to an administrative agency acting within the jurisdiction Congress assigned to it.").

Thus, whether the ONO, as opposed to some other debate sponsor in some other location, is

likely to exclude Plaintiff from its debates in the future is not controlling. 

8

 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2013/Dir2013-02.pdf (last visited

Sept. 16, 2013).

9 http://www.ohionews.org/2012/09/20/columbus-dispatch-wbns-to-host-senatorial-debate/ (last

visited Sept. 16, 2013).

18

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 18 of 32
Ohio Election Results,10 was not allowed to participate in these debates by the ONO because he

was not one of the "two frontrunners." See Letter from Marion Little to Jeff Jordan, at 2, Adm.

Record (AR 0152) ("OHNO was applying ... the same criteria [to Rupert] that the Commission

had previously accepted as part of the dismissal of the original complaint.").11 

Given this history, it is very likely that the ONO will continue its practice of inviting only

the Republican and Democratic candidates to its debates in the future. 

The FEC suggests that Nader v. Federal Election Commission, __ F.3d __ (D.C. Cir.

2013), somehow proves that this Court was wrong about Article III in La Botz I. Nader is

inapposite for a number of reasons, not the least of which is its context. Nader charged that the

FEC refused to investigate "in-kind contributions of legal services to the efforts of the John

Kerry campaign to keep Nader's name off the ballot." Id. at __. His claim was personal and ad

hoc; it was not a challenge to an FEC policy, as is the case here, but was a complaint directed at

the FEC's lack of enforcement. "He asks," the court noted, "the FEC to compel information from

participants in the ballot contests in the hope of showing that they violated the prohibitions on

undisclosed 'contributions' and 'expenditures' ...." Id. at _. He did not claim that he was likely to

run again, nor did he assert that other candidates would be subjected to the same tactics he

10 http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx (last

visited Sept. 16, 2013).

11 The ONO staged Ohio gubernatorial debates between only the Republican and Democratic

candidates. The Libertarian and Green Party candidates were excluded. See

http://www.ohio.com/news/ohio-gubernatorial-debate-to-be-replayed-1.172767 (last visited Sept.

19, 2011) (stating that ONO sponsored gubernatorial debates in Ohio in 2010);

http://www.10tv.com/content/stories/2010/09/15/story-columbus-gubernatorial-candidatescampaign-claims.html (last visited Sept. 19, 2011) (stating that only Republican and Democratic

candidates participated in gubernatorial debates); http://www.votespisak.org/governor/ (last

visited Sept. 15, 2011) (Green Party gubernatorial candidate complains that he and the

Libertarian Party candidate were not invited to ONO's gubernatorial debates). 

19

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 19 of 32
complained of in the future. "Because this amounts to seeking disclosure to promote law

enforcement,” the court concluded, “Nader asserts an injury that is not sufficiently concrete to

confer standing." Id. at __.

In the present case, this Court has already determined that Plaintiff possessed Article III

standing in the first instance to challenge the FEC's actions. That is the law of this case. See

LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (“The same issue presented

a second time in the same case in the same court should lead to the same result.”). Had the FEC

disagreed with this Court's conclusion about standing in La Botz I, it was free to appeal. It did

not. Even if Nader were inconsistent with this Court's conclusion in La Botz I, and it is not, it

would not replace this Court's prior conclusion that Plaintiff possessed standing. That is the law

of this case.

Mootness is a bit different, for the simple reason that a new fact has emerged. Because

Plaintiff is moving to New York, the case--though not moot when originally decided--may have

become moot. Notwithstanding Plaintiff's anticipated move, however, his case remains alive. It

is not moot.

This Court observed in La Botz I, 889 F. Supp. 2d at 59, that the bulk of authority,

including a case in this Circuit, Johnson v. Federal Communications Commission, 829 F.2d 157,

159 n.7 (D.C. Cir. 1987) (observing that case was capable of repetition yet evading review

because "effects on minor-party candidacies, will persist in future elections"), holds that the

'capable of repetition yet evading review' doctrine does not depend on a particular candidate's

actually being injured again. It is enough that the "effects on minor-party candidacies will

20

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 20 of 32
persist in future elections." Johnson, 829 F.2d at 159 n.7. Nader does not address this, let alone

change the established law referred to in La Botz I. 

Here, Plaintiff has alleged and sworn that he is likely to run again for federal office. See

Declaration of Dan La Botz at ¶ 8. This campaign will be subject to the FEC's challenged policy

that a "two frontrunner" formula is permissible. Even if the focus is on federal elections in Ohio,

it is likely that future minor-party candidates will run and experience the same harm, at both the

hands of the ONO and the FEC. Indeed, an independent candidate, Scott Rupert, who ultimately

won a quarter million votes in Ohio's 2012 senatorial election experienced the exact same injury

under the exact same policy at the hands of the ONO. See note 5, supra. Plaintiff's case therefore

falls under the 'capable of repetition yet evading review' doctrine and is not moot.

III. The FEC Erred as a Matter of Law.

Legal conclusions are reviewed de novo, see Virginia Society for Human Life, Inc. v.

Federal Election Commission, 263 F.3d 379, 392 (4th Cir. 2001) ("legal conclusions are

reviewed de novo"), since "an agency 'is not at liberty to depart from its own [clear] rules' and ...

no deference is accorded such an agency decision to depart." Chamber of Commerce of United

States v. Federal Election Commission, 69 F.3d 600, 603 (D.C. Cir. 1995) (quoting Reuters Ltd.

v. FCC, 781 F.2d 946, 947-49 (D.C.Cir.1986)). See also Federal Election Commission v.

Democratic Senatorial Campaign Committee, 454 U.S. 27, 32 (1981) ("the courts are the final

authorities on issues of statutory construction. They must reject administrative constructions of

the statute, whether reached by adjudication or by rule-making, that are inconsistent with the

statutory mandate or that frustrate the policy that Congress sought to implement.").

21

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 21 of 32
Although the FEC couched its dismissal in the language of "prosecutorial discretion," it

preceded its exercise of this discretion with three controversial legal conclusions--legal

conclusions that constitute the policies of the FEC and, if not set aside, binding and precedential

interpretations of the FECA. See Federal Election Commission v. Beaumont, 539 U.S. 146, 149

(2003) (stating that the FEC is empowered to "'administer, seek to obtain compliance with, and

formulate policy with respect to the federal electoral laws") (citation omitted); Federal Election

Commission v. National Rifle Association of America, 254 F.3d 173, 185 (D.C. Cir. 2001)

(holding that probable cause determinations (and even advisory opinions) are binding law

because "in making probable cause determinations, the Commission fulfills its statutorily granted

responsibilities, giving ambiguous statutory language concrete meaning through case-by-case

adjudication."). 

First, it ruled that the ONO's "two frontrunner" formula--which categorically limits a

debate to only two candidates--was a permissible debate-staging criterion under the FECA.

Second, it ruled that a debate sponsor, like the ONO, can prove the existence of preexisting objective criteria it employed without written evidence. 

And third, it ruled that a debate sponsor, like the ONO, does not bear the burden of

proving its pre-existing objective criteria. As explained above, none of these three policies can

be shielded from judicial review by the FEC's ultimate invocation of prosecutorial discretion.

Plaintiff addresses each in turn.

A. The FEC's Policy Allowing Debate-Staging Organizations to Employ a 

"Two-Frontrunner" Formula Violates the FECA.

 The FEC reiterated in its most recent dismissal of Plaintiff's administrative complaint

that ONO's "selection criteria of 'first ensur[ing] the eligibility of the candidates and then

par[ing] down the field to the two frontrunners ... were acceptably 'objective'." Federal Election

22

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 22 of 32
Commission, MUR 6383R, at 7-8 (May 24, 2013); Adm. Record (AR0180-81). The FEC

supported this conclusion with a casual reference to this Court's decision in La Botz I, 889 F.

Supp. 2d at 63-64. Id. at 8, Adm. Record (AR0181). Indeed, the FEC argues to this Court that

its language in La Botz I conclusively establishes that "two frontrunner" formulas are legal under

the FECA: "plaintiff’s challenge to the 'two frontrunner' standard has already been resolved and

plaintiff’s claim here is frivolous." Memorandum in Support of Motion to Dismiss at 25. 

Plaintiff disagrees with the FEC's interpretation of La Botz I. In fact, Plaintiff is baffled

by it. The ONO does not even read the opinion in this fashion.12 The Court in La Botz I merely

observed that staging organizations may use polling data, campaign contributions, and party

support as measures in their pre-existing objective criteria. (Plaintiff has never claimed the

contrary.) It did not say that "polling data, campaign contributions and party support may

permissibly be used to select the two frontrunners who will be allowed to debate." 

Nor does the recognition of polling data and campaign contributions as permissible

measures of candidates' worth necessarily imply that staging organizations can limit debates to

the top two candidates. After all, these same measuring sticks could just as easily be used to

select a single candidate (which would be clearly illegal under 11 C.F.R. § 110.13(b)), the top

12 Two weeks after this Court handed down its decision in La Botz I, the ONO replaced its de

jure criterion of excluding all but the top-two, that is, Democratic and Republican, candidates

with a de facto formula designed to achieve the same result. See Letter from Mark R. Brown to

Anthony Herman, Adm. Record (AR0130); 2012 Candidate Selection Criteria fpr Senatorial

Debate(s), Adm. Record (AR0140). The "new" formula continues to expressly discriminate

against minor candidates by automatically qualifying the two major-party candidates while

requiring that minor candidates not only demonstrate poll support of 10% (like the major-party

candidates), but also show they have "raised at least $500,000" in support. See B.3.a. & b., Adm.

Record (AR0141). The major candidates need not show any financial support. Consequently,

major-party candidates will always qualify for the ONO's debates under this de facto formula,

while minor candidates never will. Scott Rupert, for example, who won over 250,000 votes for

the United States Senate as an independent candidate, raised less than $5,000. See Letter from

Marion Little to Jeff S. Jordan, at page two n.1, Adm. Record (AR0152). Plaintiff's

contributions were similar. 

23

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 23 of 32
three candidates, the top four candidates, or (from the other end) to exclude candidates who do

not meet identified levels of support (which is what the Commission on Presidential Debates

(CPD) does with its 15% polling requirement). All that La Botz I said is that staging

organizations may use polling data, campaign contributions and party support as objective

measures under § 110.13(c). This says nothing about the level of support that can be required or

the number of candidates who can share the stage. 

Plaintiff's argument here is that simply limiting debates to the top two candidates,

knowing that under any combination of polling and financial data they will be the candidates of

the Democratic and Republican Parties, is not permissible under the FECA, FEC regulations and

this Court's pronouncements. This question was not answered in La Botz I. 

Turning to the merits of Defendant's argument that the FECA allows a "two frontrunner"

formula, it is true that 11 C.F.R. § 110.13(b) allows sponsors to stage debates with as few as two

candidates. This is a far cry, however, from authorizing staging organizations to categorically

restrict their debates to two candidates. Take the Commission on Presidential Debates (CPD). It

does not restrict its presidential debates to the "top two" candidates. It does not employ a "two

frontrunner" formula, although at one time its "realistic chance" methodology came close to

doing just that. It was because the CPD recognized that its "realistic chance" formula was of

questionable legality that it switched to its current criteria, which demand that participants reach

15% in opinion polls and enjoy a mathematical chance of winning in the Electoral College. See

Eric B. Hull, Note, Independent Candidates' Battle Against Exclusionary Practices of the

Commission on Presidential Debates, 90 IOWA L. REV. 313, 320 (2004). That its debates

frequently involved only two candidates did not render them illegal under the FECA. That is all

24

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 24 of 32
§ 110.13(b) says, and that is all it means. It does not mean that the CPD, or anyone else, can

simply choose the top two candidates.

Consider what it would mean, moreover, if the FEC's position were to be endorsed by

this Court. By announcing that it is just taking the "two frontrunners," a staging organization

(like the CPD) could exclude a candidate who is polling 32% (versus the top two candidates'

34% and 34%, respectively) and raising significant sums of money. This is clearly not what §

110.13(b) means by saying that staging organizations can stage debates with as few as two

candidates. Section 110.13(b) is only pointing out that if staging organizations otherwise employ

reasonable pre-existing objective criteria, they can hold their debates even though only two

candidates qualify. They cannot hold a debate with one candidate.

Section 110.13(c) solves this case. It requires not only that staging organizations employ

pre-existing objective criteria, but implicitly includes the additional requirement that criteria be

"reasonable." The FEC has formally explained § 110.13(c) in this way: 

[g]iven that the rules permit corporate funding of candidate debates, it is appropriate that

staging organizations use pre-established objective criteria to avoid the real or apparent

potential for a quid pro quo, and to ensure the integrity and fairness of the process. The

choice of which objective criteria to use is largely left to the discretion of the staging

organization. The suggestion that the criteria be “reasonable” is not needed because

reasonableness is implied.

60 Fed. Reg. 64260-01 (1995 WL 735941) (emphasis added).

Interpreting this language and § 110.13(c), this Court specifically ruled that criteria that

are “designed to result in the selection of certain pre-chosen participants” necessarily violate the

FECA. Buchanan v. Federal Election Commission, 112 F. Supp.2d 58, 74 (D.D.C. 2000)

(quoting an FEC statement). Further, this Court in Buchanan concluded that the FECA does not

allow debate sponsors to set standards "so high" that only the two major-parties can reach them:

25

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 25 of 32
"[t]aken together, these statements by the regulation's drafters strongly suggest that the

objectivity requirement [in § 110.13(c)] precludes debate sponsors from selecting a level of

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

Id. (emphasis added). 

The ONO's "two frontrunners" formula fails both prongs. It is "designed to result in the

selection of certain pre-chosen participants," that is, the candidates of the two major parties in

Ohio, and by definition--because it excludes any candidate beyond the top two--it selects "a level

of support so high that only the Democratic and Republican nominees could reasonably achieve

it." It is, after all, more restrictive than criteria demanding 33% or better at the polls and millions

of dollars in fundraising. 

Because staging organizations cannot use criteria that only the Democratic and

Republican candidates can reasonably meet, they a fortiori cannot simply and categorically

exclude all other candidates from the debates. Section 110.13(c)'s reasonable, pre-existing,

objective criteria requirement prohibits debate sponsors from categorically selecting only the

Republican and Democratic candidates for debates. A "two frontrunner" policy does exactly

that, especially in states, like Ohio, that have for years illegally excluded minor parties from

ballots.

This does not mean, of course, that staging organizations must invite all qualified

candidates. They need not. But what they must do is announce reasonable pre-existing objective

criteria that afford all qualified candidates an equal opportunity to gain access. The debate

staging organization cannot say "only two." If a third candidate can meet the criteria, he or she

too must be allowed to participate. 

26

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 26 of 32
The ONO (and the FEC) claim that it does not matter who the two frontrunners are--one

might be a minor-party candidate. Of course, this was not true in 2010, as ONO has failed to

produce any documentation at all suggesting that it would have allowed any candidate other

than the Republican and Democrat to debate. But what about the future? 

For the future, the ONO has adopted a new debate policy, which automatically grants the

candidates of the two major parties debate access while requiring that minor party candidates, in

order to qualify, poll 10% and raise $500,000. See note 12, supra. Although no longer excluded

de jure, minor candidates are excluded de facto. 

The ONO, simply put, is vested in the two major parties. Its new de facto formula, like

its old de jure formula, requires that the two major-party candidates be included. It would never

write a formula that threatened their inclusion. It is beyond belief, then, that its de jure "two

frontrunner" policy was designed as a politically neutral tool that might be used to exclude

major-party candidates. There certainly is no documentation supporting such a claim.

B. The FEC's Conclusion that Oral Evidence is Sufficient to Prove Pre-existing 

Objective Criteria Contradicts this Court's Conclusion.

The FEC ruled on remand that although written documentation is preferred,

"undocumented affirmative statements ... will suffice." Federal Election Commission, MUR

6383R, at 8; Adm. Record (AR0181). Because the ONO had not come forward with a

"contemporaneous written standard for its 2010 debates," the FEC reasoned, it had to peruse the

record, presumably including oral testimony from ONO officials, "to analyze whether the ONO

did in fact establish its stated selection criteria in advance and employ those criteria in organizing

the events." Id. It was this overbearing burden, the FEC concluded, that justified its invoking

prosecutorial discretion to dismiss the administrative complaint.

27

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 27 of 32
As this Court explained in La Botz I, the Federal Election Campaign Act (FECA)

prohibits corporations from making contributions or expenditures “in connection with” any

federal election. 2 U.S.C. § 441b(a). The FECA defines “contribution or expenditure” to

include “any direct or indirect payment ... or gift ... to any candidate, campaign committee, or

political party or organization.” Id. § 441b(b)(2). In addition, the FECA's general definition

section also addresses the term “expenditure,” defining it to include any payments made “for the

purpose of influencing any election for Federal office,” id. § 431(9)(A)(i), but not to include

“nonpartisan activity designed to encourage individuals to vote or to register to vote.” Id. §

431(9)(B)(ii).

The general prohibition on corporate expenditures admits an exception for debate-staging

organizations. Under the FEC’s regulatory scheme, corporate contributions and expenditures

may be used to defray the costs of conducting candidate debates that are staged by proper,

nonpartisan debate-staging organizations. These debates, however, must meet the criteria found

in 11 C.F.R. § 110.13(c), that is, that they employ reasonable, objective pre-existing criteria.

In La Botz I, 889 F. Supp. 2d at 55, this Court rejected the very approach employed here

by the FEC to identify pre-existing objective criteria. The Court rejected as insubstantial a

litigation affidavit prepared by an editor for the Columbus Dispatch (a member of ONO)--the

only evidence presented to the FEC in support of the ONO's allegedly pre-existing objective

criteria. The Court observed:

[S]uch affidavits raise the risk that they will merely provide a vehicle for a party's post

hoc rationalizations. This sole affidavit highlights the absence of any contemporaneous

evidence suggesting that ONO employed pre-established selection criteria. In particular,

ONO has not produced any contemporaneously written formulation of the criteria it

purportedly utilized. And while FEC regulations do not specifically require debate

staging organizations to reduce their criteria to writing, it is strongly encouraged.

Id. (footnote omitted and citation omitted) (emphasis added).

28

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 28 of 32
In an accompanying footnote, the Court stated that "[g]iven that eight newspapers were involved

in organizing the debates and the inherent difficulty in coordinating this many entities, it would

be highly unusual if no contemporaneous evidence existed in the form of meeting notes or e-mail

exchanges." Id. at 61 n.5 (emphasis added).

The Court in La Botz I did not state that "undocumented affirmative statements ... will

suffice." It did not say that oral testimony can be sufficient. It clearly stated the opposite; that

"contemporaneous written formulations," or at least "contemporaneous evidence in the form of

meeting notes or e-mail exchanges," are needed. The FEC's policy to the contrary, which led it

to dismiss based on prosecutorial discretion, cannot be sustained. Had the FEC focused on

contemporaneous written evidence, it would have been clear that the ONO had none. Had the

FEC followed this Court's command, no further investigation would have been needed.

C. The FEC Erroneously Relieved the ONO of its Burden of Proof.

Compounding its error in stating that oral evidence is sufficient, the FEC erroneously

relieved the ONO of its burden of demonstrating that it employed reasonable pre-existing

objective criteria. The FEC concluded that because of "inconsistent statements concerning the

ONO's criteria," Federal Election Commission, MUR6383R at 10, Adm. Record (AR0183), and

"[b]ecause the ONO did not provide contemporaneous written criteria and the record does not

otherwise reflect that the ONO reduced its criteria to writing in advance of the debates," id., it

"would need to review the ONO's internal communications, including those of all eight

constituent media entities, to determine whether the ONO employed pre-established criteria in

2010." Id. Rather than perform this "resource-intensive" task, id., the FEC exercised its

discretion to again dismiss the complaint. Id. at 11, Adm. Record (AR0184).

29

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 29 of 32
This Court in Buchanan, 112 F. Supp.2d at 74, 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.” This Court in La

Botz I, 889 F. Supp. 2d at 61, observed that "ONO has not produced any contemporaneously

written formulation of the criteria it purportedly utilized." Both opinions squarely place the

burden of production on the staging organizations.

Placing the burden on staging organizations to produce documentation showing that they

have complied with § 110.13's safe harbor is consistent with common legal principles teaching

that "[i]t is the burden of the party claiming the exemption ... to prove entitlement to it.” Senior

Citizens Stores, Inc. v. United States, 602 F.2d 711, 713 (5th Cir. 1979). See also Container

Corp. of America v. Franchise Tax Board, 463 U.S. 159, 175-76 (1983) ("The general rule ... is

that a taxpayer claiming immunity from a tax has the burden of establishing his exemption.");

Fund for the Study of Economic Growth and Tax Reform v. IRS, 161 F.3d 755, 759 (D.C. Cir.

1998)("the burden is on the taxpayer seeking exemption to demonstrate that it is in fact entitled

to tax-exempt status"); St. David's Health Care System v. United States, 349 F.3d 232, 234 (5th

Cir. 2003) ("The burden was on St. David's to prove that it qualified for a tax exemption."). 

As this Court explained in La Botz I, 889 F. Supp.2d at 54-55, the FECA prohibits

corporations from making contributions of any kind to candidates. Corporations may sponsor

debates (which might otherwise constitute impermissible contributions), but only if they comply

with regulations promulgated by the FEC. As stated in both Buchanan and La Botz I, the staging

organization must demonstrate that it qualifies under the exemption by proving that it employed

pre-existing objective criteria. When it cannot do so, the corporation is in violation of the FECA.

Here the ONO has done nothing more than submit a litigation affidavit, which this Court has

30

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 30 of 32
already found to be insufficient. It has failed to produce evidence demonstrating that it qualifies

for the exemption. The FEC is under no obligation to search through the ONO's records and take

testimony from its officials. Had it properly placed the burden of production on the ONO, the

FEC would not have had to conduct any further investigation, because the record unequivocally

demonstrates that ONO failed to carry its burden. It would have not been in a position to invoke

prosecutorial discretion. 

CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss should be DENIED. The

FEC's dismissal of Plaintiff's Administrative Complaint should be REVERSED and the matter

REMANDED to the FEC for further proceedings consistent with the Court's instructions.

Respectfully submitted,

/s/ Oliver B. Hall 

Oliver B. Hall

DC Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

1835 16th Street NW, Suite 5

Washington, DC 20009

(202) 248-9294 (ph)

(202) 248-9345 (fx)

oliverhall@competitivedemocracy.org

Mark R. Brown

303 E. Broad Street

Columbus, OH 43220

(614) 236-6590 (ph)

(614) 236-6956 (fx)

mbrown@law.capital.edu

Pro hac vice (pending)

31

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 31 of 32
CERTIFICATE OF SERVICE

I certify that on the 23rd of September, 2013, I filed this Motion and accompanying 

Declaration with the Court using its electronic filing mechanism, which will serve all counsel of 

record.

/s/ Oliver B. Hall 

Oliver B. Hall

32

Case 1:13-cv-00997-RC Document 13 Filed 09/23/13 Page 32 of 32