UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DAN LA BOTZ, )

)

Plaintiff, )

) No. 1:11-cv-01247-BAH

v. )

) REPLY

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

____________________________________)

FEDERAL ELECTION COMMISSION’S REPLY

IN SUPPORT OF ITS MOTION TO DISMISS

Anthony Herman (D.C. Bar No. 424643) 

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel

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

Senior Attorney

FEDERAL ELECTION COMMISSION

999 E Street, N.W. 

Washington, D.C. 20463

October 11, 2011 (202) 694-1650

Case 1:11-cv-01247-BAH Document 16 Filed 10/11/11 Page 1 of 21
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TABLE OF CONTENTS

Page

I. INTRODUCTION 1

II. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT FOR 

LACK OF SUBJECT MATTER JURISDICTION AND FAILURE 

TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 2

A. La Botz Has Not Alleged an Injury-In-Fact and Cannot Show That Any

Alleged Injury Is Likely to Be Redressed by the Court 2

B. The Commission’s Dismissal of Plaintiff’s Administrative Complaint

in MUR 6383 Was Not Contrary to Law 7

1. The Standard of Review Is Exceedingly Deferential 8

2. The Commission Permissibly Concluded that OHNO Applied

Pre-Existing Objective Standards Consistent with the 

Debate Regulation 9

3. The Commission’s Debate Regulation Does Not Require 

That the Candidate Selection Criteria Be Publicly Disclosed, 

and in Any Event, Plaintiff Knew OHNO’s Criteria Well Before

the 2010 Debates 16

III. CONCLUSION 18

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I. INTRODUCTION

The defendant Federal Election Commission (“Commission” or “FEC”) has moved to 

dismiss this suit for lack of subject matter jurisdiction and failure to state a claim upon which 

relief can be granted. See Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Plaintiff Dan La Botz lacks

Article III standing to challenge the Commission‟s dismissal of his administrative complaint

against Ohio newspaper entities that sponsored candidate debates in 2010 because he has not 

alleged a sufficient injury-in-fact that would likely be redressed by a favorable decision in this 

case. (FEC‟s Motion to Dismiss (“FEC Mem.”) (Doc. 10-1) at 10-16.) Plaintiff‟s response to 

the Commission‟s motion includes a new declaration that supplies only vague “some day” 

intentions to run again for federal office and no concrete facts about how he would benefit from 

the purely prospective relief he seeks. (Plaintiff‟s Response to Defendant‟s Motion to Dismiss 

(“Opp.”) (Doc. 13); La Botz Declaration (“Decl.”) (Doc. 13-1).)1 These facts starkly distinguish 

this case from the district court decision on which plaintiff chiefly relies, Buchanan v. FEC, 

112 F. Supp. 2d 58 (D.D.C. 2000), in which the plaintiff was indisputably a candidate in an 

impending election at the time of decision.

Plaintiff has also failed to sustain his burden of showing that the Commission‟s dismissal 

of his administrative complaint was contrary to law under 2 U.S.C. § 437g(a)(8). (FEC Mem. 

at 16-25.) The Commission receives very broad deference when it interprets and applies its own 

regulation governing candidate debates. And the agency acted well within its discretion in 

concluding that the Ohio news organizations had applied pre-existing, objective standards within 

the meaning of 11 C.F.R. § 110.13(c) in choosing to invite only the frontrunner candidates to the 

 

1

Plaintiff‟s certificate of service refers to “this Motion,” but plaintiff‟s submission, styled 

as a “Response,” seeks no relief other than denial of the Commission‟s motion to dismiss. 

Plaintiff has not filed a cross-motion.

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debates, rather than including plaintiff and several other candidates who were polling at about 

one percent or less. Accordingly, for the reasons stated in the Commission‟s motion to dismiss 

and in this reply, plaintiff‟s suit should be dismissed.

II. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF 

SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM 

UPON WHICH RELIEF CAN BE GRANTED 

A. La Botz Has Not Alleged an Injury-In-Fact and Cannot Show That 

Any Alleged Injury Is Likely to Be Redressed by the Court

Plaintiff lacks Article III standing because he has alleged no injury-in-fact that the Court 

could redress regarding his exclusion from the candidate debates sponsored by the Ohio News 

Organization and its corporate members (“OHNO”) in October 2010. It is speculative whether 

La Botz will again be a candidate at all, let alone that a decision in his favor against the FEC 

would lead OHNO to include him in any hypothetical debates among federal candidates in the 

future. Plaintiff‟s court complaint contains no factual allegations regarding plaintiff‟s standing

to sue the Commission in this suit, except for the suggestion that plaintiff has standing merely 

because he filed an administrative complaint which later was dismissed by the Commission. 

As the D.C. Circuit has recognized, however, “(s)ection 437g(a)(8)(A) does not confer standing; 

it confers a right to sue upon parties who otherwise already have standing.” Common Cause v. 

FEC, 108 F.3d 413, 419 (D.C. Cir. 1997) (emphasis added). Thus, plaintiff must meet the three 

requirements for Article III standing: injury-in-fact, causation and redressability. (See

FEC Mem. at 10-11.) Plaintiff‟s failure to allege any actual or imminent injury that could be 

redressed by this Court is fatal to his standing. 

Plaintiff claims that he was injured by OHNO‟s decision to exclude him from the 2010 

Ohio senatorial debates, and he now submits a new declaration asserting that “exclusion from the 

Ohio News Organization‟s senatorial debate caused me injury-in-fact by giving my opponents a 

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competitive advantage.” (La Botz Decl. ¶¶ 9-10.) As the Commission has explained 

(FEC Mem. at 12), however, any competitive injury that La Botz may have suffered from actions 

taken by OHNO prior to the October 2010 senatorial debates cannot now be redressed. Both the

debates and the November 2010 general election have passed, plaintiff has ended his 2010 

campaign for U.S. Senate, and he has terminated his principal campaign committee. (Id.) 

Plaintiff neither responds to these arguments nor addresses Tierney v. FEC, 538 F. Supp. 2d 99, 

102-103 (D.D.C. 2008), aff’d, No. 08-5134, 2008WL5516511 (D.C. Cir. Sept. 12, 2008), which 

dismissed a similar section 437g(a)(8) suit by another former candidate on standing grounds

(see FEC Mem. at 12). Most fundamentally, La Botz has no response to the dispositive cases

that preclude reliance on past injury to establish a “present controversy, or in terms of standing, 

an injury.” American Soc’y for the Prevention of Cruelty to Animals v. Ringling Bros. and 

Barnum & Bailey Circus, 317 F.3d 334, 336 (D.C. Cir. 2003). (See FEC Mem. at 13 (citing 

cases).) 

Nor has plaintiff shown any future or continuing injury that could be redressed by this 

Court and thus could support standing. In his court complaint, plaintiff failed even to suggest

that he intends to seek federal office again, let alone that OHNO will sponsor another candidate 

debate using the same participation criteria that will adversely affect him. Thus, the Commission 

explained that any potential candidacy and injury are too speculative to demonstrate a likelihood 

of redressability necessary to support standing. (FEC Mem. at 13-14.) It is well established that 

a party seeking prospective relief must demonstrate that the threatened injury is real, immediate,

and direct, not “abstract,” “conjectural,” or “hypothetical.” City of Los Angeles v. Lyons, 

461 U.S. 95, 101-102 (1983). 

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Plaintiff has failed to cure this fatal standing defect because he has not shown that he will 

likely be a federal candidate in the future. Plaintiff has not filed a statement of candidacy 

notifying the Commission that he will be a candidate in any specific future federal election, 

see 2 U.S.C. § 432(e)(1); FEC Mem. at 13, and the declaration he has filed with his responsive 

brief contains only vague, inconsistent claims that “I am considering running for office again,” 

“[i]t is likely I will run for federal office in Ohio again in the future,” and “I may run for federal 

office in Ohio‟s 2012 general election.” (La Botz Decl. ¶¶ 7-9 (emphases added). Like the 

affidavits at issue in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) — which professed 

“„some day‟ intentions[,] without any description of concrete plans, or indeed even any 

specification of when the some day will be” — La Botz‟s declaration does not support a finding 

of “actual or imminent” injury that the Constitution requires. Lujan, 504 U.S. at 564. 

(See also FEC Mem. at 13-14 and n.6 (discussing cases).)

Plaintiff‟s heavy reliance (Opp. at 18-23) upon Buchanan is misplaced. In that case, 

another district court upheld the Commission‟s dismissal of an administrative complaint filed by 

a minor party presidential candidate and found that the sponsoring organization‟s requirement 

that candidates show at least fifteen percent voter support was a reasonable, objective criterion 

that satisfies the Commission‟s debate regulation. Although the district court also found that the 

candidate had competitive standing, the case is readily distinguished. In Buchanan, the court 

could have provided meaningful prospective relief; the case was filed and decided prior to both 

the presidential debates and the general election. The plaintiff was a declared and active 

candidate in an election to be held fewer than two months from the court‟s decision. The district 

court found redressability because, while enforcement provisions of the Federal Election 

Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-457 (“FECA” or “Act”), specified 

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procedural steps that had to occur before the Commission could file an enforcement suit against 

the debate sponsor, the district court was “unconvinced that there [wa]s not enough time as a 

practical matter for the plaintiffs to obtain the relief they seek from the FEC.” Buchanan, 

112 F. Supp. 2d at 69. Here, by contrast, the Commission cannot remedy plaintiff‟s past injury,

and it is speculative whether and when he may run again for federal office. Plaintiff describes

these distinctions as “trivial” (Opp. at 21), but in fact they would be dispositive, even if the 

decision in Buchanan were binding precedent.

2

Plaintiff also seems to suggest (Opp. at 20-23), again relying heavily on Buchanan, that 

he should be excused from these jurisdictional requirements because the Commission did not 

timely act on his administrative complaint. That argument is incorrect. Plaintiff criticizes the 

Commission for failing to resolve his September 21, 2010 administrative complaint prior to the 

October 2010 Ohio senatorial debates, or in any event, prior to the November 2010 general 

election. (See Opp. at 23 n.13.) Plaintiff emphasizes that he filed his administrative complaint 

“before the debates were held, and well before the November election” (Opp. at 21-22 (emphasis 

in original)), and he specifically objects to the Commission‟s grant of an extension of time to 

Fisher for Ohio, suggesting that plaintiff was further injured by the Commission‟s alleged 

“failure” to “timely remedy [OHNO‟s] wrong” (Opp. at 20). Plaintiff fails to recognize, 

however, that because his administrative complaint was filed in late September, the statutorilymandated fifteen-day period for the respondents to submit written responses to the administrative 

complaint, see 2 U.S.C. § 437g(a)(1); 11 C.F.R. § 111.6, would not have expired until midOctober, after all three debates had taken place. In particular, even without an extension, the 

 

2

Plaintiff also relies (Opp. at 23-24) upon Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1997), 

vacated 524 U.S. 11, on remand, 146 F.3d 1049 (D.C. Cir. 1998), but, unlike the plaintiffs in 

Akins, La Botz has not alleged an injury-in-fact based on informational injury.

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responses by both Fisher for Ohio and OHNO would have been due on October 15 at the earliest. 

(AR0062, AR0067.) In any event, it is well established that the Commission is not required to 

complete action on administrative complaints by any predetermined deadline, such as an 

upcoming federal election. Perot v. FEC, 97 F.3d 553, 558-559 (D.C. Cir. 1996); In re CarterMondale Reelection Committee, Inc., 642 F.2d 538 (D.C. Cir. 1980). As the D.C. Circuit also 

recognized in Perot, because section 437g(a)(8) specifies that complainants must wait 120 days 

before challenging the Commission‟s handling of a pending complaint, the Commission‟s 

inability to resolve matters within this four-month period is “neither unlawful nor unreasonable.” 

Perot, 97 F.3d. at 559 (citing FEC v. Rose, 806 F.2d 1081, 1084-1085 (D.C. Cir. 1986)). 

Plaintiff also relies (Opp. at 24-25) on cases involving mootness or prudential standing, 

including Becker v. FEC, 230 F.3d 381 (1st Cir. 2000), and on precedent from other circuits 

(Opp. at 25-26 n.14), but those cases do not involve constitutional standing under Article III,

the basis of the Commission‟s arguments. In particular, plaintiff attempts to conflate the 

“capable of repetition yet evading review” exception to the mootness doctrine with constitutional 

standing requirements, but that mootness exception cannot be used to create or maintain an 

Article III case or controversy that never existed at the outset. Standing is a distinct 

jurisdictional requirement for all federal litigation, and plaintiff bears the burden of 

demonstrating that he satisfied all three constitutional standing requirements at the time he filed 

his complaint. See FEC Mem. at 10-11; Del Monte Fresh Produce Co. v. United States, 

570 F.3d 316, 324 (D.C. Cir. 2009) (“standing is assessed as of the time a suit commences,”

citing Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190

(2000)).

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For all these reasons, plaintiff has failed to sustain his burden of establishing standing, 

and plaintiff‟s complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of 

subject matter jurisdiction.

B. The Commission’s Dismissal of Plaintiff’s Administrative Complaint in 

MUR 6383 Was Not Contrary to Law

Even if plaintiff La Botz could demonstrate Article III standing, he still has not shown 

that the Commission‟s dismissal of his administrative complaint in MUR 6383 was “contrary to 

law” under 2 U.S.C. § 437g(a)(8)(C). Particularly in light of the exceptional deference owed to 

the Commission, plaintiff cannot demonstrate that the FEC abused its discretion when it found

“no reason to believe” that OHNO violated the Act; rather, the agency permissibly concluded 

that the record as a whole indicates that OHNO applied pre-existing objective standards in 

selecting participants for its debates, consistent with 11 C.F.R § 110.13(c). As the Commission 

explained, the General Counsel‟s Report (“GCR”) in MUR 6383 (AR0114-AR0122), which 

provides the basis for judicial review here, analyzed the administrative complaint and the 

responses received by the Commission, and concluded that OHNO complied with the debate 

regulation. The Commission unanimously agreed and properly dismissed plaintiff‟s 

administrative complaint. (See FEC Mem. at 16-25.) Plaintiff argues that 11 C.F.R. § 110.13(c)

requires disclosure of the debate invitation criteria and the inclusion of more than the two 

frontrunners, but these arguments lack merit.

As the Commission explained, the Act generally prohibits corporate contributions and 

coordinated expenditures, see 2 U.S.C. § 441(b), but the Act provides an exception for 

“nonpartisan activity designed to encourage individuals to vote,” 2 U.S.C. § 431(9)(B)(ii), and 

the Commission has issued a regulation permitting corporations to sponsor candidate debates if 

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certain requirements are met. (See FEC Mem. at 5-6.) This regulation requires, among other 

things, that debate sponsors use “pre-established objective criteria.”

1. The Standard of Review Is Exceedingly Deferential

Plaintiff‟s claim here is limited to whether the Commission properly interpreted and 

applied its regulation at 11 C.F.R. § 110.13(c). (See, e.g., Opp. at 15, 16, 17, 26, 33.) La Botz 

does not directly challenge the Commission‟s interpretation of the Act as reflected in the current 

debate regulation, nor could he do so in this section 437g(a)(8) suit. (See FEC Mem. at 18 n.7.) 

Plaintiff also does not question the qualifications of OHNO or its members to stage candidate 

debates under 11 C.F.R. § 110.13(a). Instead, plaintiff focuses on OHNO‟s selection and 

application of criteria for inviting candidates to participate in its October 2010 Ohio senate 

debates, and he claims that the Commission unlawfully dismissed his administrative complaint

because, in his view, the Commission‟s “conclusion violates the „plain language‟ of its own 

regulations.” (Opp. at 32.) In plaintiff‟s view, therefore, the Commission merits no deference

and erred as a matter of law. (Id.)

3

 

Plaintiff‟s arguments, however, ignore the fact that the Commission‟s decision in this 

matter turned on its interpretation of its own regulation. While courts apply a highly deferential 

standard of review in all section 437g(a)(8) dismissal cases, deference is at its zenith when the 

Commission interprets its own regulations. (FEC Mem. at 4, 17 (citing cases)). In other words, 

when the construction of a regulation is at issue, deference is even more clearly required than 

when an agency is interpreting its governing statute. Udall v. Tallman, 380 U.S. 1, 16 (1965);

 

3 Contrary to plaintiff‟s suggestion (Opp. at 33), AFL-CIO v. FEC, 177 F. Supp. 2d 48 

(D.D.C. 2001), aff’d, 333 F.3d 168 (D.C. Cir. 2003), a suit challenging the Commission‟s public 

disclosure of information regarding closed administrative enforcement cases, was brought under 

the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), not under 2 U.S.C. § 437g(a)(8). That 

case did not involve review of a Commission decision to dismiss an administrative complaint.

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FEC v. National Republican Senatorial Comm., 966 F.2d 1471, 1475-76 (D.C. Cir. 1992) (FEC 

regulatory interpretation “given controlling weight unless it is plainly erroneous or inconsistent 

with the regulation”). As Buchanan explained:

An agency‟s construction of its own regulations is entitled to an “exceedingly 

deferential standard of review” such that the court “„is not to decide which among

several competing interpretations best serves the regulatory purpose.‟” Trinity 

Broadcasting of Florida, Inc. v. FCC, 211 F.3d 618, 625 (D.C. Cir. 2000) 

(quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, (1994)); see also 

Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 

(D.C. Cir. 1999) (according “substantial deference” to agency‟s interpretation of 

its own regulations). * * * As the D.C. Circuit has stated, when a plaintiff is not 

alleging that the regulation itself violates the statute or the Constitution, “the only 

circumstance in which we do not defer is where „an alternative reading is 

compelled by the regulation‟s plain language or by other indications of the 

[agency‟s] intent at the time of the regulation‟s promulgation.‟” S.G. Loewendick 

& Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C. Cir. 1995) (quoting Thomas 

Jefferson, 512 U.S. at 512) (second internal quotation marks and citation omitted).

Buchanan, 112 F. Supp. 2d at 70.

4

2. The Commission Permissibly Concluded that OHNO Applied 

Pre-Existing Objective Standards Consistent with the Debate 

Regulation

Under the applicable standard of review, the Commission did not abuse its discretion 

when it dismissed plaintiff‟s administrative complaint. As explained in the Commission‟s 

 

4 Of course, contrary to plaintiff‟s suggestion (Opp. at 17), the Commission has not 

claimed that its administrative enforcement decisions are “insulated from review,” and in the 

agency‟s 35-year history some of its decisions have been set aside, but that unsurprising fact 

does not alter the highly deferential standard of review here. Plaintiff cites (Opp. at 18 n.10) 

several cases where the Commission‟s handling of administrative complaints were held 

unlawful, but some of these involved alleged delay, not dismissal, DSCC v. FEC, No. 95-0349, 

1996 WL 34301203 (D.D.C. 1996), or were remanded for a more adequate explanation for the 

dismissal decision, Utility Workers Union of America, Local 369, AFL-CIO v. FEC, 691 F. 

Supp. 2d 101 (D.D.C. 2010). Plaintiff cites only two cases, both more than fifteen years old, in 

which the Commission‟s dismissals were held unlawful, DSCC v. FEC, 918 F. Supp. 1 (D.D.C. 

1994), and Common Cause v. FEC, 729 F. Supp. 148 (D.D.C. 1990). Of course, this list 

includes only a subset of section 437g(a)(8) dismissal cases filed against the Commission, and 

ignores other cases where the Commission‟s dismissal has been upheld. See, e.g., Hagelin v. 

FEC, 411 F. 3d 237 (D.C. Cir. 2005); Buchanan, 112 F. Supp. 2d 58.

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opening brief (FEC Mem. at 18), the only factual issue La Botz raises in this suit is whether 

OHNO applied pre-existing objective criteria in selecting which candidates could participate in 

its 2010 Ohio senate debates. The Office of General Counsel determined, based on its review of 

the record, that OHNO‟s debate selection criteria were pre-existing and objective 

under 11 C.F.R. § 110.13(c), noting in a report that they were “consistent with a number of 

different criteria the Commission has previously found to have been acceptably „objective,‟ 

including percentage of votes [that] a candidate received in a previous election; the level of 

campaign activity by the candidate; his or her fundraising ability and/or standing in the polls; and 

eligibility for ballot access.” (GCR at 5 (AR0119) (citing prior FEC enforcement matters).) The 

Commission, after considering the Office of General Counsel‟s analysis of the record, 

unanimously found no reason to believe a violation of the Act had occurred. (AR0123.) The 

record amply supports that decision. (See FEC Mem. at 17-25.)

Plaintiff argues in essence that debates cannot be limited to the two leading candidates if 

they are the two major parties‟ nominees, but the Commission‟s regulation specifically permits 

debates to include only two candidates, and it forbids the use of major party affiliation as the sole

objective criterion. Plaintiff argues that OHNO has effectively admitted that major party 

affiliation was the sole criterion, but that is a serious distortion of the record. Plaintiff relies on 

an initial, ambiguous three-sentence email message he received from an editor and executive 

with one newspaper (AR0037), though plaintiff acknowledges that he received a more detailed 

explanation of the selection process and criteria from OHNO‟s counsel (AR0019-AR0020) just a 

few days later and still several weeks before the October 2010 debates. (Opp. at 10.) Plaintiff 

also acknowledges that OHNO filed a lengthy written submission with the Commission 

responding to the administrative complaint in MUR 6383 (AR0077-AR0104), and that this 

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response was accompanied by a sworn affidavit from Benjamin Marrison, editor of the 

Columbus (Ohio) Dispatch (AR0083-AR0085). (Opp. at 31.) The General Counsel‟s Report in 

MUR 6383 (AR0115; AR0123) discussed and relied upon these submissions (AR0117). These 

fuller and more authoritative explanations made clear that OHNO relied on accepted objective 

measures like polling data and not simply on party affiliation. Plaintiff asserts that neither 

OHNO nor the Commission has identified any evidence that OHNO “actually applied” preexisting objective criteria (Opp. at 31), but this claim is refuted by OHNO‟s response to the 

administrative complaint and the accompanying affidavit, both of which were submitted pursuant 

to the Commission‟s procedures, see 2 U.S.C. § 437g(a)(1); 11 C.F.R. § 111.5, and were subject 

to the penalties of perjury under 18 U.S.C. § 1001. Plaintiff has cited no record evidence to 

support his interpretation of the facts other than one short email, which was contradicted by 

OHNO‟s later submissions and the Marrison affidavit. 

The Commission‟s duty is to make factual determinations based on its assessment of the 

full record before it, and these determinations are entitled to deference. Indeed, when the facts 

permit the drawing of differing inferences, “the finder of fact „alone is charged with the duty of 

initially selecting the inference which seems most reasonable and his choice, if otherwise 

sustainable, may not be disturbed by a reviewing court.‟” New Valley Corp. v. Gilliam, 192 F.3d 

150, 156 (D.C. Cir. 1999) (quoting O‘Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 

U.S. 359, 361-62 (1965)). See also Schoenbohm v. FCC, 204 F.3d 243, 246 (D.C. Cir. 2000) 

(the possibility of drawing two inconsistent conclusions from the evidence does not prevent an 

administrative agency„s finding from being supported by substantial evidence) (quoting Consolo 

v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966)). Plaintiff characterizes OHNO‟s response 

to the administrative complaint as a “belated, post-hoc rationale” and describes the 

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accompanying Marrison affidavit as a “post-litigation rationalization.” (Opp. at 31 (emphasis in 

original).) In plaintiff‟s view, “[e]ven if Marrison‟s explanation is true, it is only a post-debate 

recollection of [OHNO‟s] formula and cannot satisfy the command of 11 C.F.R. § 110.13(c).” 

(Opp. at 31.) However, the Commission is entitled to examine all the facts presented, and it can 

rely on sworn declarations that report on past events. La Botz presents no evidence that calls 

into question the Commission‟s reliance, in part, on the Marrison affidavit.5

Plaintiff does not dispute that OHNO had sufficient information to conclude that the 

Democratic and Republican candidates were the “two front runners” (Opp. at 13-14 n.8); rather, 

plaintiff argues that OHNO cannot use a “„two front runners‟ formula” when it results in the 

selection of only the two major-party candidates. (Id. at 13-14 n.8.) In this regard, plaintiff 

contends that such debates would “promote the major-party candidates over all others,” and 

would therefore violate the requirement in 11 C.F.R. § 110.13(b)(2) that sponsors “not be 

structured „to promote or advance one candidate over another.‟” (Opp. at 27.) Plaintiff even 

suggests that all five major and minor party candidates who had qualified for the general election 

ballot for U.S. Senate in Ohio should have been invited to participate in the debate. (Id. at 7 n.3.) 

Contrary to plaintiff‟s suggestion, however, the Commission‟s regulation explicitly 

permits debate sponsors to select which candidates to invite, and it does not set limits on the 

number of candidates, except that the “debates [must] include at least two candidates.” 

11 C.F.R. § 110.13(b)(1). As plaintiff concedes, under the Commission‟s regulation “[t]he 

 

5

To the extent that plaintiff may challenge the General Counsel‟s Report‟s lack of 

discussion of one email, there is no requirement in administrative law that an agency‟s 

explanation for its decision must recite or discuss each piece of evidence, whether supportive or 

adverse, that formed part of the record. See, e.g., United States v. Pierce Auto Freight Lines, 

Inc., 327 U.S. 515, 529 (1946) (agency is not compelled to annotate to each finding the evidence 

supporting it); cf. BellSouth Corp. v. FCC, 162 F.3d 1215, 1224 (D.C. Cir. 1999) (the agency is 

not required to author an essay for the disposition of each application) (quoting KCST-TV, Inc. v. 

FCC, 699 F.2d 1185, 1191-92 (D.C. Cir. 1983)).

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

organization.” (Opp. at 27 (quoting 60 Fed. Reg. 64,260, 64,262 (Dec. 14, 1995).) And the 

express language of the regulation plainly does not require more than two candidates. 

The initial debate regulation adopted by the Commission in 1979 contained two 

subsections — former 11 C.F.R. § 110.13(a), which described qualified staging organizations, 

and former 11 C.F.R. § 110.13(b), which specified the required debate structure. This latter 

provision merely stated that “[t]he structure of debates . . . is left to the discretion of the staging 

organization, provided that (1) such debates include at least two candidates, and (2) such debates 

are nonpartisan in that they do not promote or advance one candidate over another.” 11 C.F.R. 

§ 110.13(b) (1980).

In the 1995 rulemaking, which added current 11 C.F.R. § 110.13(c), the Commission 

specifically rejected suggestions that the agency “should establish reasonable, objective, 

nondiscriminatory criteria to be used by staging organizations in determining who must be 

invited to participate in candidate debates” or should “allow staging organizations to use their 

own pre-established sets of reasonable, objective, nondiscriminatory criteria, provided the 

criteria are subject to Commission review and are announced to the candidates in advance.” 

60 Fed. Reg. 64262. Instead, in 1995 the Commission adopted new 11 C.F.R. § 110.13(c), 

which merely required sponsoring organizations to use “pre-established objective criteria.” 

The Explanation and Justification (“E&J”) explicitly recognized that the “objective criteria may 

be set to control the number of candidates participating in a debate if the staging organization 

believes there are too many candidates to conduct a meaningful debate.” Id.

6

 In fact, 

 

6 As noted previously (FEC Mem. at 21-22), this was one of the arguments advanced by 

OHNO in support of its decision to limit the number of candidates it invited to its 2010 Ohio 

senatorial debates. (AR0082.)

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the Commission‟s E&J explicitly states that the rules “continue the [Commission‟s] previous 

policy of permitting staging organizations to decide which candidates to include in a debate, so 

long as the debate includes at least two candidates.” 60 Fed. Reg. 64,260, 64,262 (Dec. 14, 

1995). See 44 Fed. Reg. 39,348 (July 5, 1979); 44 Fed. Reg. 76,734 (Dec. 27, 1979).7

The E&J for the 1995 debate regulation thus confirms the Commission‟s intent to 

continue to confer broad discretion upon sponsoring organizations to establish their own 

objective selection criteria and to conduct debates between just two candidates based on such 

criteria. This history directly refutes plaintiff‟s contention that the debate regulation must be 

interpreted to prohibit debates between two candidates when there are other qualified candidates 

on the ballot who might be placed at a competitive disadvantage.

The sole limitation in section 110.13(c) upon a sponsoring organizations‟ discretion to 

select candidates for general election debates is the requirement that “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.” 11 C.F.R. § 110.13(c) (emphasis added). Contrary 

to plaintiff‟s suggestion, however, this limit does not prevent sponsors from considering a 

candidate‟s major or minor party nomination status. Indeed, the E&J explicitly states that 

“in situations where, for example, candidates must satisfy three of five objective criteria, 

nomination by a major party may be one of the criteria.” 60 Fed. Reg. at 64,262. The E&J 

merely reiterates that “nomination by a particular political party, such as a major party, may not 

be the sole criterion used to bar a candidate from participating in a general election debate.” Id. 8 

 

7

The Federal Register notices containing the Explanations and Justifications for the 

regulation are available on the Commission‟s web site at 

http://www.fec.gov/law/cfr/ej_citation_part110b.shtml. 

8

The E&J noted that this was a significant change from the Commission‟s prior debate 

regulations, which had “expressly allowed staging organizations to restrict general election 

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Contrary to plaintiff‟s suggestion (Opp. at 15-16, 28-30), while the E&J indicates that the revised 

rules are not intended to permit the use of discriminatory criteria, 60 Fed. Reg. at 64,262, neither 

the statute nor the regulation provides any indication that debate sponsors should weigh the 

history of minor parties or remedy alleged past discrimination against them.

In sum, OHNO‟s submissions to the Commission in this case demonstrate that OHNO 

applied multiple criteria and did not base its candidate selection exclusively upon party 

affiliation. Nevertheless, plaintiff contends that “otherwise objective and pre-existing” criteria, 

such as those applied by OHNO, “are simply unreasonable” if they result in the selection of only 

the two major-party candidates. (Opp. at 27-28.) Relying on the district court decision in 

Buchanan, 112 F. Supp. 2d at 74, plaintiff suggests that OHNO‟s criteria were “designed to 

result in the selection of certain pre-chosen participants,” and argues that OHNO “cannot set 

standards so high that only the two major-parties can reasonably achieve them.” (Opp. at 28; 

internal quotation marks omitted.) Plaintiff fails, however, to point to any evidence that 

OHNO‟s pre-existing selection criteria were “designed” as a subterfuge to ensure that particular 

candidates would be the chosen participants. More generally, plaintiff‟s argument proves too 

much: Pre-existing, objective criteria may often lead to predictable results about who will be 

invited to a debate. But otherwise reasonable criteria do not suddenly become unreasonable 

because the results they cause are not a surprise.

 

debates to major party candidates.” Id. Under the prior regulations, sponsors could invite only 

major party candidates and there was no obligation to invite minor party candidates, unless only 

one major party candidate accepted the invitation to debate. See former 11 C.F.R. § 110.13 

(1980). Indeed, the E&J for the 1979 regulations stated that “[a]n organization staging a debate 

may invite candidates to participate in a debate on the basis of party affiliation. Hence, such an 

organization could stage a general election debate to which only major party candidates are 

invited.” 44 Fed. Reg. 76,734, 76,735 (Dec. 27, 1979). 

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Moreover, plaintiff‟s arguments regarding the ability of minor party candidates to qualify 

for candidate debates is undermined by his concession that even under the criteria set by the 

Commission on Presidential Debates — which require that candidates receive at least fifteen 

percent support in the polls — Reform Party candidate Ross Perot was invited to participate in 

the 1992 presidential debates. (Opp. at 29.) As the Buchanan court recognized, several other 

candidates, such as George Wallace and John Anderson, have reached this threshold as well and 

have been invited to participate in general election debates. Buchanan, 112 F. Supp. 2d at 74. 

“Thus, third party candidates have proven that they can achieve the level of support required 

by the CPD.” Id. As the Buchanan court stated, “[w]hile a lower threshold of support might be 

preferable to many, such a reading is neither compelled by the regulation‟s text nor by the 

drafters‟ intent at the time the regulation was promulgated. Accordingly, deference to the FEC‟s 

interpretation is warranted.” Id.

3. The Commission’s Debate Regulation Does Not Require That the 

Candidate Selection Criteria Be Publicly Disclosed, and in Any Event, 

Plaintiff Knew OHNO’s Criteria Well Before the 2010 Debates

La Botz argues (Opp. at 30-32) that OHNO‟s candidate selection criteria for the 2010 

Ohio Senate debates were unlawful because the criteria were not disclosed to plaintiff earlier in 

the selection process, but as the Commission demonstrated (FEC Mem. at 24-25), there is simply 

no requirement in 11 C.F.R. § 110.13(c) that debate sponsors notify all candidates of the 

selection criteria or offer them an opportunity to provide input into the sponsor‟s selection 

decision. Nevertheless, in this case plaintiff was in fact provided information regarding OHNO‟s 

selection criteria before the debates, and he actually presented written objections that OHNO

considered. Thus, even though the debate regulation does not require any procedure for 

candidates‟ comments, plaintiff in fact had an opportunity to be heard. 

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Plaintiff claims that the requirement of “pre-established objective criteria” requires 

greater “transparency” from debate sponsors than OHNO provided here, but plaintiff provides no 

authority for his assertion that “objectivity demands transparency.” (Opp. at 30.) Indeed, 

plaintiff acknowledges that the term “objective” is not defined in the debate regulation, and 

plaintiff concedes (Opp. at 32) that the regulation “did not expressly require that criteria be 

committed to writing and disclosed to all candidates.” Nevertheless, plaintiff quotes general 

statements from Buchanan suggesting that the objective criteria must be “discoverable,” 

“observable,” “testable,” and “verifiable” (Opp. at 30-31), terms that plaintiff interprets as 

requiring some advance disclosure to candidates. But those statements say nothing of the sort. 

While candidate selection criteria obviously must be disclosed at some point if a debate sponsor 

is the subject of an administrative complaint filed with the Commission, that does not speak to 

the timing of disclosure in the absence of a Commission inquiry, let alone require any sort of due 

process for candidates. 

In any event, OHNO disclosed its selection criteria to plaintiff before the first debate (see

FEC Mem. at 24), and OHNO provided additional detail in its response to the administrative 

complaint filed with the Commission. Thus, the Commission was able to gather sufficient 

information to determine whether OHNO‟s selection criteria were sufficiently objective to 

satisfy the debate regulation. It is the Commission‟s role, not plaintiff‟s, to decide whether 

debate selection criteria are lawful, and that determination need not be made before a debate 

takes place. If a debate sponsor wants to reduce the risk of an administrative complaint alleging 

unlawful selection criteria, it has the right to seek an advisory opinion from the Commission 

before it implements those criteria, but neither FECA nor the debate regulation requires a debate 

sponsor to request such an opinion. See 2 U.S.C. § 437f.

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Plaintiff quotes a portion of the E&J for the Commission‟s 1995 revision of the debate 

regulation stating that “those staging debates would be well advised to reduce their objective 

criteria to writing and to make the criteria available to all candidates before the debate” (Opp. 

at 32 (quoting 60 Fed. Reg. at 64,262, italics omitted)), and plaintiff suggests that this statement 

means the criteria must be disclosed in advance. But plaintiff conspicuously omits the phrase 

that immediately precedes the quoted language — “the new rules do not require staging 

organizations to do so,” 60 Fed. Reg. at 64,262 (emphasis added) — which completely belies 

plaintiff‟s suggestion that debate criteria must be disclosed before the debate. Similarly, plaintiff 

quotes the next two sentences in the E&J, which explain that early disclosure “will enable 

staging organizations to show how they decided which candidates to invite to the debate” and

help debate sponsors “show that objective criteria were used to pick the participants . . .” 

In context, however, these sentences clearly were intended only as advisory suggestions to help 

staging organizations make the required evidentiary showing should their criteria later be 

challenged.

Thus, plaintiff has failed to show that the Commission‟s decision to dismiss the 

administrative complaint in MUR 6383 was unlawful under the highly deferential standard of 

review applicable to cases involving the interpretation of agency regulations that are brought 

under 2 U.S.C. § 437g(a)(8).

III. CONCLUSION

For the foregoing reasons and those set forth in the Commission‟s opening memorandum, 

the Commission respectfully requests that the Court dismiss the complaint in this litigation for 

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lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for 

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

Respectfully submitted,

Anthony Herman (D.C. Bar No. 424643)

General Counsel

David Kolker (D.C. Bar No. 394558)

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

/s/ Robert W. Bonham III

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

Senior Attorney

FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

October 11, 2011 (202) 694-1650

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