1

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

DAN LA BOTZ, )

)

Plaintiff, )

)

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

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

PLAINTIFF'S RESPONSE TO DEFENDANT'S

MOTION TO DISMISS

Oliver B. Hall

September 23, 2011 DC Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

PO Box 21090

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)

Case 1:11-cv-01247-BAH Document 13 Filed 09/23/11 Page 1 of 34
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TABLE OF CONTENTS

Page

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

Statement of Facts ......................................................................................................................... 6

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

I. Plaintiff Has Article III Standing ........................................................................................... 18

II. The FEC's Legal Conclusions Contradict the FECA ............................................................ 26

A. Reasonableness Precludes Confining Debates to the Two Major Parties ............................. 27

B. Objectivity Demands Transparency ...................................................................................... 30

Conclusion ................................................................................................................................... 32

Certificate of Service .................................................................................................................. 34

Case 1:11-cv-01247-BAH Document 13 Filed 09/23/11 Page 2 of 34
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TABLE OF AUTHORITIES

Cases Page

Alliance for Democracy v. Federal Election Commission,

335 F. Supp. 2d 39 (D.D.C. 2004) .............................................................................................. 25

American Federation of Labor v. Federal Election Commission,

177 F. Supp. 2d 48 (D.D.C. 2001), aff’d, 333 F.3d 168 (D.C. Cir. 2003) ................................... 33

* Akins v. Federal Election Commission, 101 F.3d 731 (D.C. Cir. 1997) ................. 19, 22, 23, 24

Arkansas Educational Television v. Forbes, 523 U.S. 666 (1998) .............................................. 29

Becker v. Federal Election Commission, 230 F.3d 381 (1st Cir. 2000) ............................... 19, 25

Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939 (D.C. Cir. 2005) .......................... 25

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

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

69 F.3d 600 (D.C. Cir. 1995) ....................................................................................................... 18

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

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

Common Cause v. Federal Election Commission, 729 F. Supp. 148 (D.D.C. 1990) .................. 18

Davis v. Federal Election Commission, 554 U.S. 724 (2008) ..................................................... 24

Democratic Congressional Campaign Committee v. Federal Election Commission,

831 F.2d 1131 (D.C. Cir. 1987) ................................................................................................... 18

Democratic Senatorial Campaign Committee v. Federal Election Commission,

1996WL34301203 (D.D.C. 1996) .............................................................................................. 18

Democratic Senatorial Campaign Committee v. Federal Election Commission,

918 F. Supp. 1 (D.D.C. 1994) ...................................................................................................... 18

Federal Elections Commission v. Akins, 524 U.S. 11 (1998) ........................................ 18, 21, 22

Federal Election Commission v. Democratic Senatorial Campaign Committee,

454 U.S. 27 (1981) ....................................................................................................................... 17

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ................. 25

Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.1989) ............................ 20

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

* Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ................................ 6, 15

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

Libertarian Party of Ohio v. Husted, 2011WL3957259 (S.D. Ohio, Sept. 7, 2011) ) .................. 6

Merle v. United States, 351 F.3d 92 (3d Cir. 2003) ..................................................................... 26

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

Moore v. Hosemann, 591 F.3d 741(5th Cir. 2009) ...................................................................... 26

Natural Law Party v. Federal Election Commission, 111 F. Supp.2d 33 (D.D.C. 2000) ........... 25

North Carolina Right to Life Committee Fund for Independent Political Expenditures

v. Leake, 524 F.3d 427 (4th Cir. 2008) ....................................................................................... 25

Real Truth About Obama, Inc. v. Federal Election Commission,

2011 WL 2457730 (E.D. Va., June 16, 2011) ............................................................................ 25

Reuters Ltd. v. FCC, 781 F.2d 946 (D.C. Cir.1986) .................................................................... 17

Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000) ................................................................ 26

Shays v. Federal Election Commission, 424 F. Supp. 2d 100 (D.D.C. 2006) ............................ 25

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

Utility Workers Union of America, Local 369, AFL-CIO v. Federal Election Commission,

691 F. Supp. 2d 101 (D.D.C. 2010) ...................................................................................... 16, 17

Virginia Society for Human Life, Inc. v. Federal Election Commission,

263 F.3d 379 (4th Cir. 2001) ....................................................................................................... 17

Statutes

2 U.S.C. § 431(9)(A)(i) ................................................................................................................ 26

2 U.S.C. § 431(9)(B)(ii) ............................................................................................................... 26

2 U.S.C. § 437g(a)(1) ................................................................................................................... 18

2 U.S.C. § 437g(a)(8)(A) ............................................................................................................. 18

2 U.S.C. § 437g(4)(A)(8) ............................................................................................................. 12

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2 U.S.C. § 437g(5)(C) .................................................................................................................. 12

2 U.S.C. § 437g(6)(A)................................................................................................................... 12

* 2 U.S.C. § 437g(a)(8) ................................................................................................................ 18

2 U.S.C. § 437g(a)(8)(C) ............................................................................................................. 19

* 2 U.S.C. § 441b(a) ......................................................................................................... 14, 15, 26

2 U.S.C. § 441b(b)(2) .................................................................................................................. 26

Regulations

11 C.F.R. § 110.13(a) ................................................................................................................... 26

11 C.F.R. § 110.13(b) ..................................................................................................... 27, 28, 33

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

Federal Register

* 60 Fed. Reg. 64260-01 (1995 WL 735941) ........................................................... 17, 27, 30, 32

Federal Rules of Civil Procedure

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

Miscellaneous

JAMES CHACE, 1912: WILSON, TAFT & DEBS—THE ELECTION THAT CHANGED THE

COUNTRY (2004) ......................................................................................................................... 12

RAY GINGER, THE BENDING CROSS:A BIOGRAPHY OF EUGENE VICTOR DEBS (1949) ........... 12

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

Commission on Presidential Debates, 90 IOWA L. REV. 313 (2004) ........................................... 29

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STATEMENT OF FACTS1

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

States Senate in Ohio. See Complaint at ¶ 11. The Socialist Party of Ohio for the first time in

more than fifty years won ballot access in Ohio in 2008. 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 minor-party 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).2The Sixth

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

these suits, 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."

Ohio's primaries in non-presidential election years, including 2010, are held in May of

the general election year. Following his winning the Socialist Party of Ohio's primary for Ohio's

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 Ohio kicked all minor parties off its ballots again in July 2011. Ohio's new law, however, was

enjoined in Libertarian Party of Ohio v. Husted, 2011WL3957259 (S.D. Ohio, Sept. 7, 2011).

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United States Senate seat on May 4, 2010, see Complaint at ¶ 15, Plaintiff was duly recognized

by Ohio's Secretary of State as a qualified candidate for Ohio's United States Senate seat. See

Complaint at ¶ 11. Joining Plaintiff on that list of qualified candidates were the Democratic

Party's choice, Lee Fisher, see Complaint at ¶ 3, and the Republican candidate, Rob Portman.

See Complaint at ¶ 4.3

Not long after the May 4, 2010 primaries, a consortium of eight major newspapers in

Ohio known as the Ohio News Organization ("ONO" or "OHNO")4began negotiating with the

Democratic and Republican Party senatorial candidates about the possibility of a series of

televised debates between the two candidates. See Complaint at ¶ 19. These negotiations, which

began no later than early June 2010, see Complaint at ¶ 19, were kept secret from the Plaintiff

and Ohio's other qualified senatorial candidates. See Complaint at ¶ 30. 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 ¶ 30-31.

On September 1, 2010, ONO publicly announced a series of televised debates between

Portman, the Republican candidate for United States Senate, and Fisher, the Democratic

candidate for United States Senate, to be held on October 4, 8, and 12, 2010. See Complaint at

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). Thus, 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 ¶ 2.

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¶¶ 17-20; ONO's Response to Administrative Complaint, dated Oct. 21, 2010, Certified

Administrative Record5(hereinafter "Adm. Record") (AR0080). Plaintiff was never contacted

by ONO or anyone else about possibly being included in these debates. See Complaint at ¶ 30.

Plaintiff was never informed by ONO before this public disclosure that senatorial debates in

Ohio were being staged. See Complaint at ¶ 30. ONO never announced to Plaintiff or anyone

else before this public disclosure what pre-existing objective criteria were being employed to

select the debates' participants. See Complaint at ¶¶ 30 and 41. ONO never announced after

scheduling these debates and publicly releasing the schedule what pre-existing objective criteria

were used to select the two major-party participants. See Complaint at ¶ 41.

Plaintiff first learned of the ONO's efforts to schedule debates on July 20, 2010, when a

short article ran in the COLUMBUS DISPATCH reporting that "negotiations" were under way. See

Complaint at ¶ 31. Plaintiff immediately began attempting to uncover the details behind these

reported debates. For example, he published a letter-to-the-editor in the DISPATCH on July 25,

2010, asking to be included, see Plaintiff's Administrative Complaint at ¶ 20, Admin. Record

(AR0008), but received no response from the DISPATCH or anyone else associated with the ONO.

On September 5, 2010, Plaintiff sent letters to all of ONO's members requesting that he "be

included in the debates which your organization is helping to organize." See Complaint at ¶ 32.

No one responded. See Complaint at ¶ 32. On August 23, 2010, Plaintiff’s campaign created an

online petition for open and inclusive political debates. Plaintiff's campaign directed the petition

toward the attention of Ohio’s Secretary of State and asked that the Secretary of State intervene

to insure that Plaintiff was allowed to participate in whatever debates were scheduled. See

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http://www.change.org/petitions/petition-for-inclusive-political-debates-in-ohio (last visited

Sept. 15, 2011).

On September 5, 2010, following the ONO’s September 1, 2010 announcement that only

Portman and Fisher would be included in its debates, Plaintiff sent a letter to the eight

newspapers in the ONO consortium asking that he “be included in the debates which your

organization is helping to organize.” See Complaint at ¶ 32. None of the recipients responded.

See Complaint at ¶ 32.

On September 6, 2010, Plaintiff phoned Mr. Tom Callinan, editor of the CINCINNATI

ENQUIRER, and left a message protesting his exclusion from the debates. See Complaint at ¶ 33.

Callinan never returned the call. See Complaint at ¶ 33. Plaintiff that same day issued a press

release calling for inclusion in the debates, but none of the ONO’s members responded. See

Administrative Complaint at ¶ 21, Adm. Record (AR0008).

On September 7, 2010, Plaintiff's campaign launched a new on-line petition targeting the

editors of the eight newspapers that joined ONO. See Complaint at ¶ 34;

http://www.change.org/petitions/view/petition_for_inclusive_senate_candidate_debates_in_ohio

(last visited Sept. 15, 2011). In response to this second on-line petition effort, 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 ¶ 35. Winges admitted that

the ONO "allows for only the major-party candidates to debate." See Complaint at ¶ 35

(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

5

The Certified Administrative Record was filed by Defendant with its Motion to Dismiss on

September 12, 2011. See Doc. No. 11.

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that voters hear from the two candidates who are clearly the front-runners for the office." See

Complaint at ¶ 35.

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 ¶ 38. On September 14, 2010,

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

to Brown. See Complaint at ¶ 39. 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 ¶ 39. Little did not identify or explain any thresholds, standards,

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

at ¶ 40. Other than "party affiliation," Little's letter did not identify any reasonable, "pre-existing

objective criteria" that would be used to identify candidates who would be invited to the debates.

See Complaint at ¶ 40.

On September 14, 2010, after receiving Little’s electronically-transmitted letter, Brown

e-mailed to Little, at the latter's invitation, 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?

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).

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

September 16, 2010. See Complaint at ¶ 42. 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 ¶ 42. Little's letter closed by inviting Brown to

meet him at the courthouse if Brown sought additional information. See Administrative

Complaint, Attachment 12, Adm. Record (AR0054).

On September 10, 2010, Plaintiff mailed letters to the Portman and Fisher campaigns

advising them that their participations in the debates organized by the ONO and its corporate

members violated the FECA. See Complaint at ¶ 43.6 On September 21, 2010, Plaintiff mailed

to the Defendant an Administrative Complaint charging the ONO, its corporate members, and

the Fisher and Portman campaigns, with violating the FECA, 2 U.S.C. § 441b(a), as well as 11

C.F.R. § 110.13(c). See Complaint at ¶ 44.

Plaintiff's Administrative Complaint specifically 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).

6

Portman's response to the FEC was perfunctory; the Portman campaign essentially claimed that

'if the ONO violated the FECA that is the ONO's problem.' See Letter from Natalie K. Baur,

dated October 5, 2010, Adm. Record (AR0064). Fisher's response, meanwhile, was more

nuanced. The Fisher campaign alluded to the media's First Amendment rights as well as the

great latitude the press must enjoy when staging debates. Fisher closed by arguing that if the

ONO violated the FECA, then only the ONO would be liable. See Letter from Marc E. Elias,

dated Nov. 15, 2010, Adm. Record (AR0106-08).

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Plaintiff also demanded "EXPEDITED PROCEEDINGS AND EMERGENCY RELIEF,"

see Administrative Complaint at 11, Adm. Record (AR0013) (capitals in original), in an effort to

obtain inclusion in the impending debates. Specifically, Plaintiff requested that the Defendant

"take whatever action it may deem necessary and appropriate to expedite its proceedings and

cause emergency relief to be entered to prevent the ONO’s planned debates from taking place

without Complainant’s participation." See Administrative Complaint at 11, Adm. Record

(AR0013). "This includes," Plaintiff added, "attempting immediate conciliation under 2 U.S.C. §

437g(4)(A), instituting emergency proceedings in the United States District Court for the

Southern District of Ohio in order to obtain a temporary restraining order and/or preliminary

injunction prohibiting Respondents from violating the FECA, see 2 U.S.C. § 437g(6)(A), and/or

referring the matter to the Attorney General of the United States for immediate prosecution. See

2 U.S.C. § 437g(5)(C)." See Administrative Complaint at 11-12, Adm. Record (AR0013-14).

Defendant did not address, let alone resolve, Plaintiff's Administrative Complaint until it

dismissed it on May 19, 2011. See Complaint at ¶ 54. In the interim, the ONO held its scheduled

debates and included only the Democratic and Republican candidates. See Complaint at ¶ 45.

The Republican candidate, Portman, won the November 2010 election. See Complaint at ¶ 46.

Plaintiff, notwithstanding his exclusion from the debates, received over 25,000 votes, see

Complaint at ¶ 47, apparently the single highest showing for a Socialist Party candidate in Ohio

since the Great Depression.7

7

Today’s Socialist Party USA and its local affiliate the Socialist Party of Ohio are direct

descendants of Eugene Debs’s Socialist Party of America. Eugene Debs ran for President five

times from 1900 to 1920. See RAY GINGER, THE BENDING CROSS: A BIOGRAPHY OF EUGENE

VICTOR DEBS (1949) (recounting Debs’s presidential campaigns). In 1912, Debs won 6% of the

popular vote—more than 900,000 votes all told. See JAMES CHACE, 1912: WILSON, TAFT &

DEBS--THE ELECTION THAT CHANGED THE COUNTRY (2004) (describing the 1912 presidential

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ARGUMENT

Defendant concedes that the ONO and its corporate members are subject to the

restrictions on debate-staging organizations found in the Federal Election Campaign Act

(FECA), 2 U.S.C. § 441b(a). See Federal Election Commission's Memorandum in Support of its

Motion to Dismiss (hereinafter "FEC Memorandum") at 18. Defendant also concedes that ONO's

scheduled debates in Ohio between candidates for the United States Senate are subject to those

limitations. Id. Specifically, this means that the ONO was required by the FECA and its

implementing regulations to follow 11 C.F.R. § 110.13(c), which requires that reasonable,

disclosed, "pre-existing objective criteria" be used to select the candidates allowed to participate

in debates. See infra at 26-32.

The two legal questions8presented by Plaintiff's challenge here are:

election). Debs performed even better in Ohio in 1912, winning 8.69% of Ohio's official vote

total, or 90,144 votes. See 1912 Presidential General Election Results—Ohio

(http://uselectionatlas.org/RESULTS/). In 1920, Debs and the Socialist Party won 57,147 votes

in Ohio, or 2.83 % of those cast for President. See 1920 Presidential Election Results—Ohio

(http://uselectionatlas.org/RESULTS/). In 1928, Norman Thomas, running on the Socialist Party

ticket, recorded 8,683 votes in Ohio. See 1928 Presidential Election Results—Ohio

(http://uselectionatlas.org/RESULTS/). Thomas increased this number in 1932, winning 64,094

Ohioans’ votes. See 1932 Presidential Election Results—Ohio

(http://uselectionatlas.org/RESULTS/). Because of these Socialist successes, the Ohio legislature

decided to exclude minor parties. According to Richard Winger, editor of BALLOT ACCESS

NEWS, the Socialist Labor Party in 1946 surprisingly won 13,885 votes for Ohio's United States

Senate seat and 11,203 votes for Ohio's Governor. See Richard Winger, Ballot Format: Must

Candidates be Treated Equally?, 45 CLEVE. ST. L. REV. 87, 90 (1997). This development,

Winger reports, did not please Ohio’s legislators. Id. In an effort to keep Socialist candidates off

the ballot and stop Henry Wallace’s “progressive” campaign for President in 1948, the Ohio

legislature in 1947 erased party labels from minor candidates’ ballot-listings and attempted to

prevent independent presidential candidates from using Ohio’s petition process. Id. at 90-91. In

1951, the Ohio legislature went farther and increased the petition requirement seven-fold for

non-major candidates. Id. at 92. From that time forward, the Socialist Party of Ohio did not run

any candidate for federal office in Ohio, that is, until Plaintiff's 2010 run for the U.S. Senate.

8 Defendant argues that Plaintiff's challenge presents "only factual issue[s]." See FEC

Memorandum at 18. Defendant therefore devotes a significant portion of its argument to proving

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1. Whether a staging organization subject to the FECA can necessarily exclude all qualified

minor-party and independent candidates from a series of televised senatorial debates by

employing criteria that are designed to allow only the two Democratic and Republican Party

candidates to participate in the debates; and

2. Whether a staging organization subject to the FECA can secretly negotiate with two

Republican and Democratic candidates and secretly plan a series of televised debates including

only these two candidates while categorically and necessarily excluding all other qualified

minor-party and independent candidates.

The Defendant's General Counsel answered the first question in the affirmative. See

Complaint at ¶ 52 ("The General Counsel concluded that ONO's 'debate selection criteria were

pre-existing and objective'"). It ruled that the ONO could categorically exclude all ballotqualified candidates (including the Plaintiff) who were not running as Democrats or Republicans

from its senatorial debates. See Complaint at ¶ 7 ("The General Counsel's conclusion, which was

accepted by the Commission, was that ONO's ... categorical inclusion of only the 'top-two,'

'frontrunner,' Republican and Democratic candidates, and the categorical exclusion of all other

ballot-qualified candidates (including Plaintiff) for Ohio's 2010 U.S. Senate election from its

debate as a matter of law satisfied the FECA, 2 U.S.C. § 441b(a), and 11 C.F.R. § 110.13(c).");

that there exists factual support for ONO's conclusion that the Democratic and Republican

candidates were the "two front runners." See FEC Memorandum at 18-23. Indeed, Defendant's

effort often takes it well-beyond the four corners of Plaintiff's Complaint in search of facts to

support its contention that the Republican and Democratic candidates were correctly deemed to

be the two front runners. Plaintiff, however, does not challenge the fact that the ONO had

sufficient information to conclude that the Democratic and Republican candidates were the two

front runners. Rather, Plaintiff's claim is that the ONO cannot legally use this "two front runners"

formula, at least not knowing (as it did) that the standard could only be met by the Republican

and Democratic candidates. See infra at 26-32. Plaintiff's challenge is one of law, not one of

fact.

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Complaint at ¶ 69 ("The Commission's conclusion that a staging organization's decision to

exclude all qualified candidates ... other than the 'top-two' 'frontrunners' ... is permissible, in a

state that until that very election unconstitutionally excluded all parties other than the

Democratic and Republican Parties, violates the FECA's ban on corporate contributions. See 2

U.S.C. § 441b(a); 11 C.F.R. § 110.13.").

Defendant's General Counsel reasoned that "given the limited time available to hold the

debates and the anticipated large field of candidates," it was permissible for the ONO "to extend

invitations only to the frontrunners ...." See Complaint at ¶ 50. The General Counsel drew this

conclusion notwithstanding the Sixth Circuit's conclusion in 2006 that in Ohio "elections have

indeed been monopolized by two parties," and "[o]f the eight most populous states, Ohio has had

by far the fewest minor political parties on its general election ballot." Libertarian Party of Ohio

v. Blackwell, 462 F.3d 579, 589 (6th Cir. 2006). See Complaint at ¶ 26 ("Because of

unconstitutional ballot access restrictions existing in Ohio before the 2008 election cycle, minorparty candidates, including those running as Socialists, have been routinely and

unconstitutionally prevented from running for office in Ohio since the late 1940s.") (citations

omitted). Defendant ruled as a matter of law that ONO's top-two approach satisfied the FECA

and 11 C.F.R. § 110.13(c), even though the formula necessarily excluded minor-party candidates

from ONO's televised debates. See Complaint at ¶ 73 ("ONO ... knew to an absolute certainty in

May 2010 that the Republican and Democratic candidates ... would constitute the 'two

frontrunners' who would be allowed to debate"); Complaint at ¶ 74 ("ONO's ... reliance on their

'top-two' formula necessarily constituted criteria 'designed to result in the selection of certain

pre-chosen participants.") (citation omitted). It reached this conclusion even though the ONO's

formula made it impossible--and consequently unreasonable as a matter of law, see infra at 26-

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32--for minor-party candidates to gain inclusion in the debates. See Buchanan v. Federal

Election Commission, 112 F. Supp.2d 58, 74 (D.D.C. 2000) ("the objectivity requirement

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).

Defendant effectively answered the second question in the affirmative, too, see

Complaint at ¶ 80 ("The Commission's conclusion that secret criteria and negotiations can

legally be used to select candidates for senatorial debates and otherwise satisfies 11 C.F.R. §

110.13 is contrary to law"), though the General Counsel's Report did not address this specific

issue and offered no explanation for why secret negotiations are consistent with the FECA's

commands. See Complaint at ¶ 78 ("ONO and its corporate members kept their intent to limit

their debates to the Republican and Democratic candidates secret from Plaintiff and the public

for several months until the eve of the debates, when only after repeated requests and public

demands by Plaintiff was their 'top two' 'front running' explanation revealed.").

Only now in its Motion to Dismiss, see FEC Memorandum at 24, does the Defendant

explain that secrecy is permissible: "there is no requirement that debate sponsors publicly

disclose the criteria. Nor is there any requirement that sponsors notify all candidates who are not

selected and offer them an opportunity to challenge the sponsor's decision." Id. Staging

organizations, Defendant argues, can therefore lawfully keep their negotiations with the two

major parties, as well as whatever criteria they employ, secret from the public and all other

ballot-qualified candidates. See Complaint at ¶¶ 8-9.9 Notwithstanding the FEC's admonishment

9

This Court in Utility Workers Union of America, Local 369, AFL-CIO v. Federal Election

Commission, 691 F. Supp. 2d 101, 106 (D.D.C. 2010), ruled that the FEC is under an obligation

to provide explanations for dismissing administrative complaints. In the face of an explanatory

void in the administrative record, "the Court cannot sustain the FEC Order ... and the proper

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17

in 1995 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," 60 Fed. Reg.

64260-01 (1995 WL 735941) (emphasis added), see infra at 32, Defendant now argues that they

need not.

Both legal conclusions violate the FECA and its implementing Regulations. See infra at

26-32. Both 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."). Both

conclusions should be reversed because they are contrary to law.

Defendant's dismissal, moreover, is not insulated from review by any form of "agency

discretion" not to pursue enforcement. The District of Columbia Circuit has made clear on

several occasions that 2 U.S.C. § 437g(a)(8), the FECA's judicial review mechanism, "is unusual

course, except in rare circumstances, is to remand to the agency for additional investigation or

explanation.” As in Utility Workers Union, "[h]ere, neither the FEC Order nor the precedent it

cites enable the Court to discern the FEC's rationale," id. at 106, for dismissing Plaintiff's claim

that the ONO illegally, secretly negotiated with the two major parties. At bare minimum, then,

remand is in order for an explanation by the FEC.

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in that it permits a private party to challenge the FEC's decision not to enforce." Chamber of

Commerce of United States v. Federal Election Commission, 69 F.3d 600, 603 (D.C. Cir. 1995).

"[I]if no majority [on the FEC] finds 'reason to believe,' the FEC dismisses the complaint, and

the complainant may seek district court review of whether the dismissal is 'contrary to law.'" See

also Democratic Congressional Campaign Committee v. Federal Election Commission, 831 F.2d

1131, 1134 (D.C. Cir. 1987) (observing that dismissals of administrative complaints are

reviewable under 2 U.S.C. § 437g(a)(8) and can be set aside if contrary to law).10

I. Plaintiff Has Article III Standing.

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

U.S. 11, 19 (1998), 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)).

This Court, relying on Akins and the language of the FECA, concluded in Buchanan v.

Federal Election Commission, 112 F. Supp. 2d 58, 65 (D.D.C. 2000), that the FECA was

intended to "cast the standing net broadly—beyond the common-law interest and substantive

10 The FEC has been reversed on a number of occasions for improperly dismissing or failing to

timely pursue administrative complaints. See, e.g., Utility Workers Union of America, Local

369, AFL-CIO v. Federal Election Commission, 691 F. Supp.2d 101 (D.D.C. 2010) (remanding

because FEC failed to explain its dismissal); Democratic Senatorial Campaign Committee v.

Federal Election Commission, 1996WL34301203 (D.D.C. 1996) (granting summary judgment to

plaintiff where FEC failed to diligently pursue administrative complaint); Democratic Senatorial

Campaign Committee v. Federal Election Commission, 918 F. Supp. 1 (D.D.C. 1994) (reversing

FEC's dismissal of administrative complaint); Common Cause v. Federal Election Commission,

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statutory rights upon which 'prudential” standing traditionally rested." "Thus," this Court stated,

the "FECA's statutory scheme was specifically designed to accommodate suits such as plaintiffs'

which challenge the FEC's dismissal of an administrative complaint." Id. This Court in

Buchanan therefore specifically recognized that candidates who are excluded from debates, and

then have their administrative complaints dismissed by the Federal Election Commission, have

Article III standing to challenge the FEC's decision in District Court.

Plaintiff, moreover, is required to first exhaust his administrative remedies before he can

sue the ONO directly in federal court. See Becker v. Federal Election Commission, 230 F.3d 381,

384 (1st Cir. 2000) (observing that as-applied challenges must proceed first before the FEC).

Only if Plaintiff prevails in this Court can he avail himself of that right. See Akins v. Federal

Election Commission, 101 F.3d 731, 739 (D.C. Cir. 1997) (describing 2 U.S.C. § 437g(a)(8)(C)

as allowing complainants to "bring their own civil action to remedy the violation of the law" if

the FEC fails to "conform" to the court's order). Should the FEC refuse to conform its conduct to

the orders that issue from this Court, Plaintiff will then and only then be permitted to pursue a

direct action in federal court against ONO, Portman and Fisher. This right to proceed directly

against ONO, Portman and Fisher depends on this Court's reviewing the FEC's action. Refusing

review would deny to Plaintiff this statutory right.

In boilerplate fashion, Defendant seeks to litigate once again the claim it lost in

Buchanan. It charges that Plaintiff here, a qualified candidate who was excluded from debates in

Ohio and whose Administrative Complaint was dismissed by the Defendant, lacks Article III

standing. Defendant contends that Plaintiff suffered no injury-in-fact. Defendant claims that

729 F. Supp. 148 (D.D.C. 1990) (holding FEC's dismissal of administrative complaint was

improper).

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Plaintiff can obtain no redress since the election is over. Defendant incorrectly claims that

Plaintiff's Administrative Complaint only sought declaratory and injunctive relief. See

Administrative Complaint at 11-12, Adm. Record (AR0013-14) (demanding any and all relief

authorized by law).

As in Buchanan, Plaintiff is a political competitor, one running against the candidates

who were illegally included in the debates. Plaintiff was necessarily injured by his exclusion

from those debates. See, e.g., Complaint at ¶¶ 3, 4, 11, 45 & 84 (describing Plaintiff, Fisher and

Portman as qualified candidates in Ohio who were running for the same office, that ONO's

debates were held illegally without Plaintiff's participation, and that Fisher and Portman

"knowingly conspired with ONO and its corporate members to construct exclusive debate that

prohibited any candidates other than a Republican and Democrat from participating in violation

of the FECA"). See also Attachment A (Declaration of Dan La Botz) at ¶ 10.

Plaintiff was further injured by Defendant's failure to properly apply federal law and

timely remedy ONO's wrong. This Court in Buchanan 112 F. Supp. 2d at 65, made clear that

"competitor standing" is a sufficient injury-in-fact for purposes of Article III. It quoted Fulani v.

League of Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir.1989), to support its

conclusion:

In this era of modern telecommunications, who could doubt the powerful beneficial effect

that mass media exposure can have today on the candidacy of a significant aspirant

seeking national political office. ... In our view, the loss of competitive advantage

flowing from the League's exclusion of Fulani from the national debates constitutes

sufficient “injury” for standing purposes, because such loss palpably impaired Fulani's

ability to compete on an equal footing with other significant presidential candidates. To

hold otherwise would tend to diminish the import of depriving a serious candidate for

public office of the opportunity to compete equally for votes in an election, and would

imply that such a candidate could never challenge the conduct of the offending agency or

party.

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This Court in Buchanan rightly noted that "[p]recluding candidates from challenging the

CPD's debate rules under the FECA would leave few others to do so." 112 F. Supp.2d at 65.

Indeed, accepting the Defendant's argument would completely insulate FEC decisions from

review. Id. at 65-66 ("if I were to accept the FEC's argument, the FEC's decisions regarding the

legality of debate criteria would be rendered largely unreviewable despite the fact that minor

party candidates such as Buchanan would likely suffer substantial harm to their electoral

prospects. This cannot be.").

Defendant also challenges Plaintiff's standing under the causation requirement of Article

III. Again, however, this issue was resolved in Buchanan, 112 F. Supp. 2d at 68: "As the

Supreme Court has ... recently noted, 'if the reviewing court agrees that the agency

misinterpreted the law, it will set aside the agency's action and remand the case—even though

the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion,

reach the same result for a different reason.'” (Quoting Federal Elections Commission v. Akins,

524 U.S. 11, 25 (1998)). The Buchanan Court explained that the staging organization and

major-party participants "are not intervening causal agents sufficient to break the chain of

causation." 112 F. Supp. 2d at 68. The alleged 'independent actors', this Court observed in

Buchanan, 112 F. Supp. 2d at 68, "are not in a position to make 'unfettered choices' completely

beyond the court's or the FEC's control. They are constrained by the FEC's regulatory

framework which requires that debate-staging organizations use objective criteria and not

endorse, support, or oppose any candidate or party."

Of course, Plaintiff's case differs from Buchanan's in that Plaintiff's judicial challenge

here cannot be resolved before the November 2010 election. This difference, however, is trivial

under Article III. Plaintiff filed his Administrative Complaint with Defendant, which he was

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required to do by law, before the debates were held, and well before the November election.

Defendant, for its part, did not resolve Plaintiff's claims for eight months--meaning that by the

time Plaintiff could seek judicial relief the election was long past.

Defendant's argument that Plaintiff cannot now obtain timely judicial relief was rejected

in Buchanan, 112 F. Supp. 2d at 69. There, the Defendant argued that there was not enough time

on remand to address Buchanan's charges. Thus, the FEC argued, there was no reasonable

likelihood of redress; Buchanan had no standing. Id.

This Court responded that "there is nothing to prevent the FEC from expediting its

review." Id. "More fundamentally," it added, "if the FEC's own enforcement procedures could

frustrate the plaintiffs from challenging the agency's decision, then the FEC's decisions regarding

the propriety of debate criteria or other election-related matters often would be unreviewable."

Id. The Buchanan Court quoted the D.C. Circuit's opinion in Akins v. Federal Election

Commission, 101 F.3d 731, 738 n.7 (D.C. Cir. 1997) (en banc),11 for the proposition that “[i]f

such [an] injury were not redressable, once an election ended virtually all electoral conduct

would be beyond review. Such a result would read FECA's judicial review provision out of the

statute without any constitutionally sound rationale." 112 F. Supp. 2d at 69 (citation omitted).

Likewise, if the Defendant's argument here were accepted, the FEC could defeat judicial

review by simply delaying dismissal until after the election. With elections, of course, problems

ordinarily are not identified years beforehand; they make themselves known only weeks (and

sometimes, if one is lucky, months) before the election. Here, for example, Plaintiff did not

11 As noted by this Court in Buchanan, the D.C. Circuit's judgment in Akins was vacated and

remanded on other grounds by the Supreme Court. Federal Elections Commission v. Akins, 524

U.S. 11 (1998). The Supreme Court's ruling did not address or change the D.C. Circuit's

discussion of redressability, which as demonstrated by Buchanan remains sound.

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learn of ONO's plan to include only the Democratic and Republican candidates in the debates

until September 14, 2010. After repeated attempts to cure the problem through the ONO,

Plaintiff filed his Administrative Complaint with the Defendant, as he was required to do by law,

on September 21, 2010. Plaintiff requested that Defendant expedite its proceedings and award

emergency relief before the debates and before the November election. Defendant did nothing

until May 19, 2011.12

This is not meant necessarily to criticize the Defendant's apparent lack of interest in

Plaintiff's charges.13 Rather, it illustrates what this Court said in Buchanan, 112 F. Supp. 2d at

69: “[i]f such [an] injury were not redressable, once an election ended virtually all electoral

conduct would be beyond review. Such a result would read FECA's judicial review provision out

of the statute without any constitutionally sound rationale."

For this very reason, elections have for time-out-of-mind constituted the classical

exception to Article III's continuing injury requirement. For example, in Akins v. Federal

12 Defendant repeatedly references its enforcement discretion and posits that this discretion

somehow defeats and denies judicial review. See FEC Memorandum at 16-17. The D.C. Circuit

in Akins v. Federal Election Commission, 101 F.3d 731, 738 (D.C. Cir. 1997), clearly rejected

this argument: "If that factor were to mean that an agency's legal determination was not

reviewable, that would virtually end judicial review of agency action."

13 Still, it is worth noting that Defendant, notwithstanding Plaintiff's request for expedited relief,

granted to the Fisher campaign an extension until November 15, 2010 in which to respond to

Plaintiff's Administrative Complaint. See Letter from Kim Collins, dated Oct. 21, 2010, Adm.

Record (AR0105). This ensured that no agency action would be taken on Plaintiff's

Administrative Complaint before the October debates; nor would it be taken before the

November election. Plaintiff has no hesitation indicting the ONO, which kept its formula for the

debates secret for at least four months before disclosing it to Plaintiff's lawyer following its

public announcement of the exclusive debates on September 1, 2010. Had the ONO been

transparent with its two-major-party-candidates formula, Plaintiff could have mounted his

challenge sooner, thereby giving the Defendant and this Court more time before the election to

address the merits of Plaintiff's complaint. The ONO's secrecy should not be rewarded.

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Election Commission, 101 F.3d 731 (D.C. Cir. 1997), where the plaintiffs challenged the

Defendant's dismissal of their administrative complaint claiming that a group (AIPAC) was a

"political committee" required to register and disclose contributions, the FEC argued that

standing was lacking; after all, the FEC asserted, the challenged group was now barred by

another law from making future contributions. See 101 F.3d at 739 n.7. The court responded

that "[t]his is a non sequitur; [plaintiffs] claim that they are injured because AIPAC was

permitted to avoid registering ... and disclosing its past receipts and expenditures. That

disclosure of past activities would presumably affect voters in the future. If such injury were not

redressable, once an election ended virtually all electoral conduct would be beyond review." Id.

at 739 n.7.

Here, the same principle applies. Plaintiff complains about his exclusion from a past

debate. Assuming that the FEC were to properly find that the ONO, Portman, and Fisher violated

the FECA, it could impose fines on all three. This would "presumably" deter future violations

and "presumably affect voters in the future" as well as future candidates. Denying standing, in

contrast, would insulate the wrongs at issue here from judicial review.

Put another way, this case, like all election challenges filed by candidates who (as

competitors) are excluded from ballots and debates, is "capable of repetition, yet evading

review." The Supreme Court has routinely used this exception to Article III's continuing injury

requirement to preserve federal challenges to electoral practices challenged by prospective

candidates after elections have passed. No caveat has been created for the Federal Election

Commission. In Davis v. Federal Election Commission, 554 U.S. 724, 735 (2008), for example,

the Supreme Court stated that challenges to FEC decisions "fit comfortably within the

established exception to mootness for disputes capable of repetition, yet evading review."

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(Quoting Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462

(2007)).

Becker v. Federal Election Commission, 230 F.3d 381 (1st Cir. 2000), presents a specific

example in the context of challenges to the Defendant's debate-staging requirements. There,

Ralph Nader challenged the Defendant's rules that allowed corporations to fund the 2000

presidential debates. Notwithstanding the fact that the debates and election had passed, the First

Circuit found that Nader continued to have standing:

this subsequent redressability problem is one of mootness, not standing. And the FEC

conceded at oral argument that Nader's case is not moot. As other courts have held in

similar cases, this sort of case qualifies for the exception to mootness for disputes

“capable of repetition, yet evading review": corporate sponsorship of the debates is sure

to be challenged again in future elections, yet, as here, the short length of the campaign

season will make a timely resolution difficult.

Id. at 389 (citations omitted). This Court has likewise applied the "capable of repetition, yet

evading review" exception to challenges made against FEC decisions and requirements on a

number of occasions. See Shays v. Federal Election Commission, 424 F. Supp. 2d 100 (D.D.C.

2006) (applying "capable of repetition yet evading review exception to challenge made against

FEC); Alliance for Democracy v. Federal Election Commission, 335 F. Supp. 2d 39 (D.D.C.

2004) (same); Natural Law Party v. Federal Election Commission, 111 F. Supp.2d 33 (D.D.C.

2000) (same). See also Real Truth About Obama, Inc. v. Federal Election Commission, 2011

WL 2457730 (E.D. Va., June 16, 2011) (same).14

14 An often misstated requirement is that a candidate must claim that she will run for office again

to invoke the "capable of repetition, yet evading review" exception. See Beethoven.com LLC v.

Librarian of Congress, 394 F.3d 939, 951 (D.C. Cir. 2005) ("For an action to be 'capable of

repetition' there must be 'a reasonable expectation that the same complaining party would be

subjected to the same action again.'”). Courts that squarely address the issue, however, have

routinely rejected this dictum. See, e.g., North Carolina Right to Life Committee Fund for

Independent Political Expenditures v. Leake, 524 F.3d 427, 435 (4th Cir. 2008) (rejecting the

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II. The FEC's Legal Conclusions Contradict the FECA.

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.15 These debates, however, must meet the criteria found

in 11 C.F.R. § 110.13.

argument that an ex-candidate's claims are capable of repetition, yet evading review "only if the

ex-candidate specifically alleges an intent to run again in a future election"); Moore v.

Hosemann, 591 F.3d 741, 744 (5th Cir. 2009) ("in election cases we have [held that] ... 'even if it

were doubtful' that the plaintiff would again be affected by the allegedly offending election

statute, 'precedent suggest[ed] that [the] case [was] not moot, because other individuals certainly

[would] be affected by the continuing existence' of the statute."); Schaefer v. Townsend, 215 F.3d

1031, 1033 (9th Cir.2000) (candidate need not allege that he plans to run again); Merle v. United

States, 351 F.3d 92, 95 (3d Cir. 2003) (same). In any case, Plaintiff here has included a

declaration stating the he likely will run for federal office again in Ohio. See Attachment A at ¶¶

7, 8, & 9 (Declaration of Dan La Botz).

15 Debate staging organizations must either be nonprofit organizations that “do not endorse,

support, or oppose political candidates or political parties,” or news organizations that are “not

owned or controlled by a political party, political committee or candidate.” 11 C.F.R. §

110.13(a). Plaintiff and Defendant agree that the ONO is a proper debate-staging organization;

that is, ONO is not controlled by a political party and is a bona fide news organization.

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First, the candidate debate must include at least two candidates and not be structured “to

promote or advance one candidate over another.” 11 C.F.R. § 110.13(b). Second, debate staging

organizations are required to use “pre-established objective criteria to determine which

candidates may participate in the debate ....” 11 C.F.R. § 110.13(c). In particular, the FEC’s

regulations state that "[f]or general election debates, staging organizations shall not use

nomination by a particular political party as the sole objective criterion to determine whether to

include a candidate in a debate.” Id.16

Section 110.13(c)'s "pre-established objective criteria" requirement carries with it two

necessary requirements. First and foremost is the command that staging criteria be "reasonable."

Next is the requirement that they be transparent.

A. Reasonableness Precludes Confining Debates to the Two Major Parties.

In its statement explaining § 110.13(c), the FEC explained that

[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).

This reasonableness requirement ensures that the selection of criteria, even those that are

otherwise objective and pre-existing, are not left completely to the discretion of staging

16 Because the FECA prohibits “any candidate” from “knowingly ... accept[ing] or receiv[ing]

any contribution prohibited by this section,” 2 U.S.C. § 441b(a), Fisher and Portman were also

included in Plaintiff's Administrative Complaint. Fisher and Portman knowingly conspired with

ONO and its corporate members to construct exclusive debates in violation of 11 C.F.R. §

110.13(c). Plaintiff, after all, notified the Fisher and Portman campaigns on September 10, 2010

that the debates sponsored by the ONO and its corporate members violated the FECA. See

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organizations. Some criteria are simply unreasonable. In particular, “[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.”

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

FEC statement). Further, debate sponsors cannot set standards so high that only the two majorparties can reasonably achieve them. The Buchanan Court made this clear: "[t]aken together,

these statements by the regulation's drafters strongly suggest that the objectivity requirement

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). By definition, then,

the ONO's application of its "top two frontrunners" formula in Ohio violates § 110.13(c).

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 simply selecting the Republican

and Democratic candidates. Because staging organizations cannot stage debates “to promote or

advance one candidate over another,” 11 C.F.R. § 110.13(b), neither can they stage debates to

promote the two major-party candidates over all others. Simply put, § 110.13(c) prohibits

staging organizations from categorically excluding minor-party candidates from major-party

debates. In states like Ohio, where minor parties have been illegally excluded from ballots for

generations, it prohibits staging organizations from simply selecting the "top two" candidates,

who staging officials know are the Republican and Democratic candidates.

Complaint at ¶ 43. Still, Fisher and Portman chose to participate in the debates and thereby

knowingly accepted the unlawful corporate contributions.

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The ONO's "only the major-party candidates" criterion, see Complaint at ¶ 35 (quoting

the vice-president of an ONO member as stating that ONO "allows for only the major-party

candidates to debate"),17 and the Defendant's approval of it, are unprecedented. The Commission

on Presidential Debates (CPD), for example, has never utilized this kind of formula. During the

1992 and 1996 presidential elections, the CPD's formula was tied to candidates who possessed "a

'realistic chance' of success in the general election." Eric B. Hull, Note, Independent Candidates'

Battle Against Exclusionary Practices of the Commission on Presidential Debates, 90 IOWA L.

REV. 313, 320 (2004). Under this formula, non-major candidates (like Ross Perot in 1992) were

invited to debates. CPD did not categorically limit its debates to the two major candidates; it

never categorically excluded all others. It did not because it could not legally do so.

Following the Supreme Court's decision in Arkansas Educational Television v. Forbes,

523 U.S. 666 (1998), which the CPD felt threatened its "realistic chance" criterion, see Hull,

supra, at 322, the CPD publicly announced new criteria requiring that candidates reach 15% in

opinion polls and have a mathematical chance of winning in the Electoral College. Id. This was

the standard sustained by this Court in Buchanan. Like its forebear, this standard does not

categorically exclude minor-party candidates. It does not categorically limit presidential debates

17 That this is truly the ONO's formula is corroborated by how ONO staged its gubernatorial

debates in Ohio in 2010. Those debates for governor in Ohio in 2010 likewise excluded all

minor-party candidates, while including only the two major-party candidates. 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).

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to the two major-party candidates. CPD does not do this because it cannot lawfully do so.

Limiting debates in this manner violates § 110.13(c).18

B. Objectivity Demands Transparency.

In order to "avoid the real or apparent potential for a quid pro quo, and to ensure the

integrity and fairness of the process," see 60 Fed. Reg. 64260-01 (1995 WL 735941), §

110.13(c)'s "pre-established objective criteria" requirement demands transparency from the

staging organization. Debate-staging cannot be kept secret. Criteria must be testable; and in

order to be testable they must be disclosed.

This Court in Buchanan v. Federal Election Commission, 112 F. Supp.2d 58, 73 (D.D.C.

2000), explained the transparency requirement found in § 110.13(c):

Although the term “objective” is not defined in the regulation, it has generally been

described by courts as referring to evidence of “the sort that can be supplied by

disinterested third parties,” “that can be discovered and substantiated by external testing,”

or evidence that is undistorted “by personal feelings or prejudices and that are publicly or

intersubjectively observable or verifiable, especially by scientific methods.” Objective

representations have also been described “as ‘representations of previous and present

conditions and past events, which are susceptible of exact knowledge and correct

statement.’”

18 Defendant makes much of the fact that Plaintiff never polled more than 1% in Ohio. The first

poll to allow voters to express support for Plaintiff, however, came out several months after the

ONO had already decided to only invite the two major-party candidates. See Complaint at ¶ 28.

Indeed, this September 5, 2010 poll was released after the ONO publicly announced its

scheduled debates between the two major-party candidates on September 1, 2010. See Complaint

at ¶ 17. Plaintiff's polling could therefore not have had any impact on the ONO's choice. More

importantly, Plaintiff's polling and fundraising are beside the point. ONO has admitted that

regardless of what Plaintiff polled or raised, he would not have been invited. See Complaint at ¶

42. The ONO categorically included only the two major-party candidates; it categorically

excluded all other qualified candidates. See Complaint at ¶ 35. Nothing is gained by surmising

what the ONO could have legally done to exclude the Plaintiff; the fact is that it did not take the

lawful steps required by the FECA to stage its "major-party only" debate.

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(Citations omitted). The Buchanan Court's logic is unshakeable. Indeed, the FEC concedes in

its own motion that in order to be “objective,” a staging organization’s criteria must be subject to

“external testing” and “publicly or intersubjectively observable or verifiable.” FEC Mem. at 23

(quoting Buchanan, 112 F. Supp.2d at 73). In order to be discoverable, observable, testable and

verifiable, criteria must be disclosed. They cannot be kept secret.

ONO's belated, post-hoc rationale cannot correct its failure to disclose any pre-existing

objective criteria before extending invitations to the Democratic and Republican candidates. The

fact is that neither the ONO nor the Defendant have identified any evidence suggesting that ONO

actually applied any pre-existing, reasonable, objective criteria. Defendant points to a postlitigation affidavit filed by Benjamin Marrison, editor of the COLUMBUS DISPATCH, as proof that

ONO abided by § 110.13(c)'s requirements. See FEC Memorandum at 21. The Marrison

affidavit, however, at most constitutes a post-litigation rationalization of the ONO's action.

Marrison's explanation was not memorialized or disseminated before the debates. Even if

Marrison's explanation is true, it is only a post-debate recollection of ONO's formula and cannot

satisfy the command of 11 C.F.R. § 110.13(c). It hardly satisfies ONO's burden that it show it

employed pre-existing objective criteria. 19

19 Defendant's additional assertion that ONO satisfied § 110.13(c)'s disclosure requirement on

September 14, 2010, see FEC Memorandum at 23, "several weeks prior to the debates," id. at 24,

allowed Plaintiff to argue for inclusion, id., and "considered his submission but decided not to

change their approach," id., cannot be taken seriously. First, the September 14, 2010 disclosure

came two weeks after the debate schedule between Portman and Fisher was finalized and

formally announced on September 1, 2010. Second, ONO did not reconsider its decision to

exclude Plaintiff; indeed, its attorney, Little, made clear in his September 16, 2010 letter to

Brown that there was absolutely nothing Plaintiff could do to gain inclusion in the debates. See

Complaint at ¶ 42 (Little "made clear to Brown that there was absolutely no showing Plaintiff

could ever make to gain an invitation to ONO's debates"). Third, ONO only "disclosed" what it

did because one of its agents, Winges, had truthfully informed the Plaintiff that ONO only

allowed major-party candidates to debate, see Complaint at ¶ 35, and then only after Plaintiff's

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The FEC has in the past recognized this necessary component of pre-existing objectivity.

In its statement explaining the meaning of § 110.13(c), the FEC observed that while § 110.13(c)

did not expressly require that criteria be committed to writing and disclosed to all candidates, it

implicitly did:

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. This will enable

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

Staging 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.

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

ONO's secret negotiations with the two major-party candidates and its refusal to disclose

the criteria it was using cannot be tolerated. If § 110.13(c) is to have teeth of any kind, staging

organizations must be required to disclose their criteria to all qualified candidates. Here, the

ONO did not disclose its alleged criteria until after scheduling its exclusive debates. Indeed, but

for Plaintiff's persistence, he would never have learned that ONO simply invited the Republican

and Democratic candidates and excluded everyone else.

CONCLUSION

The FEC asks that the Court “defer” to its judgment that ONO’s participation criteria

were “consistent with Commission regulations.” FEC Memorandum at 17. But the agency is

not entitled to deference when its conclusion violates the “plain language” of its own regulations.

attorney had sent correspondence to the ONO advising it of this fact and the fact that ONO was

thereby violating the FECA. See Complaint at ¶¶ 38 & 39. Last, the September 14 and 16

disclosures came only two weeks before the first scheduled debate, set for October 4, 2010, and

was hardly what one might call a timely disclosure. It was clearly not meant to afford Plaintiff

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American Federation of Labor v. Federal Election Commission, 177 F. Supp. 2d 48, 59 (D.D.C.

2001), aff’d, 333 F.3d 168 (D.C. Cir. 2003). On the contrary, errors of law like those described

above are grounds for setting agency action aside. See id. (holding FEC’s post-investigation

disclosure practice contrary to law).

ONO’s secret and categorical exclusion of all but the Democratic and Republican

candidates cannot be reconciled with the plain language of the FEC’s regulations, which require

that staging organizations use “pre-established objective criteria,” prohibit them from using party

affiliation as the “sole objective criteria,” and bar the promotion or advancement of “one

candidate over another.” 11 C.F.R. § 110.13(b), (c). ONO admittedly relied on party affiliation

alone, Complaint at ¶ 35, and only retracted this admission after receiving notification that its

action was illegal. Complaint at ¶¶ 38-39. Even then, ONO’s attorney admitted that there was

“no showing” plaintiff could make that would qualify him for inclusion in the debates that ONO

had negotiated, finalized and publicly announced. See Complaint at ¶ 42. To this day, ONO has

failed to articulate any criteria beyond its post hoc assertion of a “top two,” “frontrunner”

standard, which applied to candidates in Ohio necessarily and unlawfully excludes all but the

two major-party candidates. See Buchanan, 112 F. Supp.2d at 74. Regardless of whether ONO

simply selected the two major-party candidates or employed a top-two formula, the result is the

same--several qualified minor-party candidates in Ohio (including Plaintiff) were secretly and

categorically excluded from ONO's series of televised debates. Debates staged in this fashion

contradict 11 C.F.R. § 110.13 and the FECA.

any opportunity to participate in the debates. As evidenced by Little's invitation in his September

16 letter to meet Brown at the courthouse, it was litigation posturing, pure and simple.

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Respectfully submitted,

/s/ Oliver B. Hall

Oliver B. Hall

DC Bar No. 976463

CENTER FOR COMPETITIVE DEMOCRACY

PO Box 21090

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)

CERTIFICATE OF SERVICE

I certify that 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

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