UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LEVEL THE PLAYING FIELD, et al., )

)

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

) 

v. )

) REPLY IN SUPPORT OF MOTION 

FEDERAL ELECTION COMMISSION, ) FOR SUMMARY JUDGMENT

) 

Defendant. )

)

FEDERAL ELECTION COMMISSION’S REPLY

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

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

Acting General Counsel

lstevenson@fec.gov 

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

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

Acting Assistant General Counsel

ckitcher@fec.gov

December 8, 2017

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

Senior Attorney 

rbonham@fec.gov

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

Attorney

hward@fec.gov 

COUNSEL FOR DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

Case 1:15-cv-01397-TSC Document 104 Filed 12/08/17 Page 1 of 31
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TABLE OF CONTENTS

 Page

ARGUMENT............................................................................................................................ 1

I. DISMISSING PLAINTIFFS’ COMPLAINTS WAS NOT 

CONTRARY TO LAW.................................................................................................2

A. Well-Established, Controlling Law Requires That the FEC’s Dismissal 

Decision Be Accorded Full Deference In this 

Section 30109(a)(8) Case.................................................................................. 2

B. The Commission Reasonably Dismissed Plaintiffs’ Complaints..................... 5

1. The FEC Applied the Plain Meaning of 

11 C.F.R. § 110.13................................................................................ 5

2. The Commission Reasonably Dismissed Plaintiffs’ Allegations that 

CPD Endorsed, Supported, or 

Opposed Any Party or Candidate ......................................................... 7

3. The Commission Reasonably Dismissed Plaintiffs’ Allegations that 

CPD’s Polling Threshold Is Not an Objective Criterion .................... 13

a. Clifford Young’s Report.......................................................... 14

b. Douglas Schoen’s Report........................................................ 18

c. The 15 Percent Threshold....................................................... 20

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

ARBITRARY OR CAPRICIOUS ...............................................................................21

A. The Court’s Review of the FEC’s Rulemaking Decision Is 

Highly Deferential ...........................................................................................21

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

with the Court’s Remand Decision and Is Not Otherwise 

Arbitrary or Capricious....................................................................................22

CONCLUSION....................................................................................................................... 25

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TABLE OF AUTHORITIES

Cases 

Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002)................................................................4

Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984).......................................................................3

Ark. Educ. Television Comm. v. Forbes, 523 U.S. 666 (1998)................................................12

Bazemore v. Friday, 478 U.S. 385 (1986)...............................................................................14

BE & K Const. Co. v. N.L.R.B., 133 F.3d 1372 (11th Cir. 1997)..............................................6

Bellis v. United States, 417 U.S. 85 (1974) ...............................................................................8

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) ..........................................................3, 6

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

Citizens for Responsibility & Ethics in Wash. v. FEC,

 209 F. Supp. 3d 77 (D.D.C. 2016)................................................................................... 22

City of Los Angeles v. U.S. Dep’t of Transp., 165 F.3d 972 (D.C. Cir. 1999).......................... 4

Clegg v. Falcon Plastics, Inc., 174 F. App’x 18 (3d Cir. 2006)............................................... 8

Comcast Corp. v. F.C.C., 526 F.3d 763 (D.C. Cir. 2008)........................................................ 4

Coward v. ADT Sec. Sys., Inc., 140 F.3d 271 (D.C. Cir. 1998).............................................. 14

D.C. Transit Sys. Inc. v. Wash. Metro. Area Transit Comm’n,

 466 F.2d 394 (D.C. Cir. 1972)......................................................................................... 13

Davis v. FEC, 554 U.S. 724 (2008)........................................................................................ 21

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013)................................................................ 8

Defs. of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008).......................................... 21, 24

Elion v. Jackson, 544 F. Supp. 2d 1 (D.D.C. 2008).................................................................. 6

Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981)............................................ 20

FEC v. Akins, 524 U.S. 11 (1998)............................................................................................. 5

Case 1:15-cv-01397-TSC Document 104 Filed 12/08/17 Page 3 of 31
iv

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)................................. 11

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ......................................................................... 4

Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1 (D.C. Cir. 2015)................................ 15

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005)................................................................... 2, 4

Hawkins v. District of Columbia, 923 F. Supp. 2d 128 (D.D.C. 2013).................................... 8

In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013).......................................................... 15

In re Wireless Tel. Servs. Antitrust Litig., 385 F. Supp. 2d 403 (S.D.N.Y. 2005).................. 15

Lane v. Franks, 134 S. Ct. 2369 (2014).................................................................................... 8

*Level the Playing Field v. FEC, 232 F. Supp. 3d 130 (D.D.C. 2017) ............ 1, 2, 5, 9, 17, 21

Munoz v. Orr, 200 F.3d 291 (5th Cir. 2000)........................................................................... 14

N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219 (1947)......................................................... 6

Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031 (D.C. Cir. 1979)...................................... 3

Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005) ....................................... 15

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986).................................................... 2, 13, 15, 21

Penk v. Or. State Bd. of Higher Educ., 816 F.2d 458 (9th Cir. 1987).................................... 15

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .................................................................. 22

Sheehan v. Purolator, Inc., 839 F.2d 99 (2d Cir. 1988) ......................................................... 14

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

 875 F.3d 1 (D.C. Cir. 2017)............................................................................................... 7

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

 172 F. Supp. 3d 236 (D.D.C. 2016)................................................................................... 7

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)......................................................... 9

United States v. Dickson, 816 F.2d 751 (D.C. Cir. 1987)......................................................... 5

United States v. Valencia, 600 F.3d 389 (5th Cir. 2010)........................................................ 15

Case 1:15-cv-01397-TSC Document 104 Filed 12/08/17 Page 4 of 31
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United States v. Whitmore, 359 F.3d 609 (D.C. Cir. 2004)...................................................... 6

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ........................................................... 9, 19

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) ............................................................... 15

Wisc. Valley Improvement v. F.E.R.C., 236 F.3d 738 (D.C. Cir. 2001)................................. 17

Statutes and Regulations

18 U.S.C. § 1621(2)................................................................................................................ 13

52 U.S.C. § 30106(a)(1).......................................................................................................... 11

52 U.S.C. § 30109(a)(8) ....................................................................................................... 2, 5

*11 C.F.R. § 110.13............................................................................................ 1, 3, 5, 8, 9, 20

*11 C.F.R. § 110.13(c)............................................................................................................ 18

Other Authorities

FEC Advisory Op. 2005-02 (Corzine) (Apr. 22, 2005)............................................................ 7

Funding & Sponsorship of Fed. Candidate Debates, 44 Fed. Reg. 76,734, 

 (Dec. 27, 1979) ................................................................................................................ 10

Restatement (Second) of Agency § 288.................................................................................... 7

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ARGUMENT

In its opening brief, the Federal Election Commission (“Commission” or “FEC”) 

demonstrated that the Court should sustain the Commission’s post-remand actions on plaintiffs’ 

administrative complaints concerning the Commission on Presidential Debates (“CPD”) and the 

individual respondents, as well as Level the Playing Field’s (“LPF”) rulemaking petition. With 

respect to plaintiffs’ administrative complaints, the agency conducted a searching and careful 

review of plaintiffs’ evidence on remand and, in a thorough and thoughtful 33-page Factual & 

Legal Analysis, set forth the legal standards guiding its review, as well as why there was no 

reason to believe that respondents violated the FEC’s principal regulation regarding debate 

sponsorship, 11 C.F.R. § 110.13. As for LPF’s rulemaking request, the Commission issued a 

Supplemental Notice of Decision (“Supplemental NOD”) thoroughly considering LPF’s new 

evidence and detailing its reasonable decision not to initiate the requested rulemaking.

With neither law nor facts supporting their requests that the Court reject these wellreasoned decisions, plaintiffs attempt to distract the Court with false accusations and incorrect 

claims that the FEC has “concede[d]” arguments or “abandoned” portions of its analysis. (Pls.’ 

Reply Mem. of P. & A. in Supp. of Their Mot. for Summ. J. and in Opp’n to Def.’s Cross-Mot. 

for Summ. J. at 1, 6, 13, 15, 16 (Docket No. 98) (“Pls.’ Reply”).) The Court should not credit 

these baseless diversions. Instead, it should reject plaintiffs’ meritless plea for reduced deference 

and continue to evaluate the Commission’s actions in accordance with the full deference required 

by law. Level the Playing Field v. FEC, 232 F. Supp. 3d 130, 137-38 (D.D.C. 2017) (“LPF I”). 

Applying the proper standards of review, the Commission’s dismissals of plaintiffs’ 

administrative complaints and Supplemental NOD were fully explained and rational. The Court 

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did not require or expect the Commission to “discuss every single page of evidence,” id. at 142, 

and plaintiffs’ notion that the agency abandons its reasoning or makes concessions by not 

repeating its thorough considerations of plaintiffs’ evidence word-for-word in its legal briefs is 

incorrect. The deferential standard of review that applies here requires plaintiffs to meet a heavy 

burden of showing that the FEC acted contrary to law or arbitrarily. Plaintiffs are not close to 

making such a showing. The FEC’s careful analyses were grounded in the record and 

reasonable. The Court thus should award summary judgment to the FEC.

I. DISMISSING PLAINTIFFS’ COMPLAINTS WAS NOT CONTRARY TO LAW

A. Well-Established, Controlling Law Requires That the FEC’s Dismissal 

Decision Be Accorded Full Deference In this Section 30109(a)(8) Case

As this Court already recognized, it “must defer to the FEC unless the agency fails to 

meet the ‘minimal burden of showing a coherent and reasonable explanation [for] its exercise of 

discretion.’” LPF I, 232 F. Supp. 3d at 140 (quoting Carter/Mondale Presidential Comm., Inc. 

v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 1985)); see also FEC’s Mem. in Supp. of Its Mot. for 

Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. at 19-23 (Docket No. 90) (“FEC Mem.”). 

Neither this Court’s prior ruling, nor the recitation in the FEC’s opening brief of the wellestablished standard of review applying under 52 U.S.C. § 30109(a)(8), is “radical,” as plaintiffs 

suggest. (Pls.’ Reply at 2.) To the contrary, plaintiffs’ wholly unprecedented argument that the 

Commission should receive “no deference” (id. at 3) is radical because it asks this Court to 

disregard longstanding, controlling authority that the Federal Election Campaign Act’s contraryto-law standard is “extremely deferential” and “requires affirmance if a rational basis for the 

agency’s decision is shown.” Orloski v. FEC, 795 F.2d 156, 167 (D.C. Cir. 1986) (emphasis 

added and internal quotation marks omitted); see also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. 

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Cir. 2005) (“Highly deferential, [the arbitrary and capricious] standard presumes the validity of 

agency action and permits reversal only if the agency’s decision is not supported by substantial 

evidence, or the agency has made a clear error in judgment.” (internal quotation marks omitted)). 

In arguing otherwise, plaintiffs conflate the standard of review with the merits. Whether 

the FEC sufficiently considered the evidence (see Pls.’ Reply at 2-3) goes to the merits of this 

Court’s review of the agency’s action — it does not alter the standard by which the Court 

conducts that review. The cases plaintiffs cite echo the deferential nature of such review. E.g., 

Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1053 (D.C. Cir. 1979) (“[O]ur review . . . 

will perforce be a narrow one, limited to ensuring that the [SEC] has adequately explained the 

facts and policy concerns it relied on and to satisfying ourselves that those facts have some basis 

in the record.”); Antosh v. FEC, 599 F. Supp. 850, 853 (D.D.C. 1984) (“The Court must affirm 

the agency’s decision if it is supported by a rational basis, even though [the court] might 

otherwise disagree.” (internal quotation marks omitted)). Plaintiffs similarly conflate the 

standard of review and the merits by arguing for “no deference” because the FEC has, in their 

view, misinterpreted 11 C.F.R. § 110.13. (Pls.’ Reply at 3-4.) However, a court in this District 

previously upheld the Commission’s interpretation as applied to that particular case. Buchanan 

v. FEC, 112 F. Supp. 2d 58, 69-71 & n.8 (D.D.C. 2000). And whether the FEC has interpreted 

section 110.13 in a manner that is contrary to law in evaluating plaintiffs’ administrative 

complaints is precisely the question before this Court. 

Plaintiffs also argue that no deference is warranted because of their claim that they have 

rebutted the presumption of agency regularity. (Pls.’ Reply at 3-4.) They have not. As the FEC 

explained (FEC Mem. at 21-22), the D.C. Circuit already rejected the argument that, “because 

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the FEC is dominated by the two major parties, courts cannot trust it to deal fairly with thirdparty complaints.” Hagelin, 411 F.3d at 242. Rather, the court found that there was “no basis 

for thinking that third-party complaints warrant more demanding review.” Id. Indeed, courts 

“must presume an agency acts in good faith,” Comcast Corp. v. F.C.C., 526 F.3d 763, 769 n.2 

(D.C. Cir. 2008), absent “well-nigh irrefragable proof of bad faith or bias on the part of 

governmental officials.” Adair v. England, 183 F. Supp. 2d 31, 60 (D.D.C. 2002) (internal 

quotation marks omitted). There is no such evidence here. Plaintiffs’ false claims of “three 

decades of shameless dereliction” by the FEC, based on an op-ed endorsing plaintiffs’ policy 

agenda (Pls.’ Reply at 24-25 & n.12), and a former FEC Commissioner’s views about split votes

of the Commissioners (id. at 8 n.3), when the agency’s decision here was unanimous, do not 

support plaintiffs’ assertions. Critically, the D.C. Circuit elaborated on its rejection of plaintiffs’

bias argument, explaining that “the arbitrary and capricious and substantial evidence standards 

seem to us fully adequate to capture partisan or discriminatory FEC behavior” because 

“‘unjustifiably disparate treatment’” of “third parties” would violate those standards. Hagelin, 

411 F.3d at 243 (quoting FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986)). This Court 

previously refused to countenance plaintiffs’ argument that the FEC’s composition changes the 

level of review and should do so again here post-remand.

The Commission’s opening brief also established that D.C. Circuit precedent requires the 

same standard of review for pre- and post-remand agency decisions. (FEC Mem. at 22-23 

(discussing City of Los Angeles v. U.S. Dep’t of Transp., 165 F.3d 972, 977 (D.C. Cir. 1999)).) 

That the FEC reached the same outcome on remand (see Pls.’ Reply at 4-5) is hardly an irregular 

agency action warranting the elimination of agency deference. Indeed, the Supreme Court has 

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expressly recognized that the FEC is free to so do. FEC v. Akins, 524 U.S. 11, 25 (1998). 

Accordingly, this Court should apply the well-established, highly deferential standard of review.

B. The Commission Reasonably Dismissed Plaintiffs’ Complaints

Under section 30109(a)(8)’s deferential standard of review, the FEC reasonably applied 

the plain meaning of section 110.13; carefully considered plaintiffs’ evidence for the allegations 

that CPD endorsed, supported, or opposed any candidate or party; and reasonably found that 

plaintiffs’ evidence that CPD’s polling threshold is not objective was unpersuasive. (FEC Mem. 

at 24-41.) Plaintiffs’ response fails to show otherwise and does not meet their heavy burden of 

showing that the FEC’s actions were contrary to law or arbitrary or capricious.

1. The FEC Applied the Plain Meaning of 11 C.F.R. § 110.13

In remanding to the FEC, the Court instructed the agency to “articulate its analysis in 

determining whether the CPD endorsed, supported, or opposed political parties or candidates.” 

LPF I, 232 F. Supp. 3d at 140. The Commission accordingly clarified that it was applying the 

plain meaning of section 110.13. (FEC Mem. at 24-25; AR 7213 & n.54.) Plaintiffs do not 

contest that the regulation’s meaning is plain. Rather, plaintiffs argue that the Commission’s 

explanation nonetheless fell short because it did not further explain the meaning of the 

regulation. (Pls.’ Reply at 5.) But “[w]here the language is plain and admits of no more than 

one meaning, the duty of interpretation does not arise.” United States v. Dickson, 816 F.2d 751, 

752 (D.C. Cir. 1987) (per curiam) (internal quotation marks omitted). There thus is no legal 

basis to require the Commission to do more. (FEC Mem. at 25.)

Plaintiffs next incorrectly argue that — despite the FEC’s express statements to the 

contrary — the Commission applied a “control test.” (Compare Pls.’ Reply at 5-6, with AR 

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7213 & n.54.) Plaintiffs first point to the Commission’s quotation of Buchanan when discussing 

the evidence from the time of CPD’s formation. (Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. 

for Summ. J. at 20 (citing AR 7215) (Docket No. 83-1) (“Pls.’ Mem.”); Pls.’ Reply at 5.) But the 

context demonstrates that the FEC relied on Buchanan, as well as a 2004 decision in another 

administrative FEC matter, to support its finding that evidence over 20 years old is not probative 

of whether CPD currently “endorses, supports, or opposes” a candidate or party. (AR 7215; 

AR 7217-18.) This is not controversial. Indeed, courts and agencies regularly disregard old 

evidence as too remote in time to be probative. (FEC Mem. at 31.)1 

The only other asserted basis for plaintiffs’ control-test allegation is that the Commission 

considered who certain directors were “‘act[ing] on behalf of’” when analyzing plaintiffs’ 

allegations regarding those directors’ outside employment. (Pls.’ Mem. at 20 (quoting AR 

7221); Pls.’ Reply at 5.) Once again, the statement’s context belies plaintiffs’ claim. As the 

Commission explained, to hold the CPD liable for its directors’ actions, the agency needed to 

determine in what capacity the directors were acting. (AR 7218; AR 7220.) Under Commission 

precedent and the law of agency generally, the FEC thus appropriately considered whether there 

was evidence that the directors were “act[ing] on behalf of CPD in the course of such 

employment, or alternatively, on behalf of their employer while volunteering for CPD” for this 

 1 See also, e.g., N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 232 (1947) (finding 

reasonable agency’s exclusion of evidence it determined to be too remote to be probative); 

United States v. Whitmore, 359 F.3d 609, 614 (D.C. Cir. 2004) (upholding district court’s 

exclusion of reputational evidence “too remote in time to be relevant”); BE & K Const. Co. v. 

N.L.R.B., 133 F.3d 1372, 1376 n.10 (11th Cir. 1997) (holding that the agency erred by relying 

upon evidence from more than twelve years ago because, without some contemporaneous 

evidence linking it to the present dispute, it is “too remote in time to be relevant”); Elion v. 

Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008) (excluding evidence that was “too remote in time to 

have significant probative value with respect to the matters at issue in this case”).

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limited purpose. AR 7221; see also, e.g., FEC Advisory Op. 2005-02 (Corzine) at 10 (Apr. 22, 

2005) (“[T]he Commission [has] made clear that a principal may only be held liable under [the 

Bipartisan Campaign Reform Act] for the actions of an agent when the agent is acting on behalf 

of the principal.” (emphasis added)); Restatement (Second) of Agency § 288, comment c (1958). 

Because there was no evidence of any such crossover, the Commission never got to a point 

where it even could have considered whether the Democratic or Republican parties were exerting 

control over the CPD, which is consistent with the Commission’s explanation that such a control 

test would be “inapplicable here.” (AR 7213 & n.54.) 

2. The Commission Reasonably Dismissed Plaintiffs’ Allegations that 

CPD Endorsed, Supported, or Opposed Any Party or Candidate

The Commission’s detailed, careful analysis readily demonstrates that the Commission 

considered the evidence plaintiffs submitted in support of their allegation that the CPD endorsed, 

supported, or opposed a political party or candidate. (FEC Mem. at 26-27, 31-36.) Because the 

agency considered all of the evidence and demonstrated a rational connection between that 

evidence and its conclusions, its decision should be upheld. Accord Tex. Neighborhood Servs. v. 

U.S. Dep’t of Health & Human Servs., 172 F. Supp. 3d 236, 243 (D.D.C. 2016) (rejecting 

Administrative Procedure Act challenge), aff’d, 875 F.3d 1 (D.C. Cir. 2017).

The Commission found that nearly all of plaintiffs’ evidence was (a) too old to be 

probative, (b) pertained to personal action, as opposed to official action on behalf of CPD, or 

(c) both. The Commission’s analysis and conclusions were well-grounded in the record and 

long-established legal principles. First, the Commission reasonably concluded that evidence 

more than 10 years — and often more than 20 years — old was not probative of whether CPD 

recently endorsed, supported, or opposed a political party or candidate. Plaintiffs cite no law 

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demonstrating that this was contrary to law. Nor could they. As discussed above, supra p. 6 & 

n1, courts and agencies regularly disregard old evidence as being too remote in time to be 

probative. (See also FEC Mem. at 31.) This is particularly true here, where the Commission 

found that CPD changed over time. (AR 7217; AR 7221-22.)

Second, the Commission reasonably and rationally drew a distinction between actions 

taken by CPD directors in their personal, as opposed to official, capacity when holding that only 

official actions could give rise to CPD’s liability under section 110.13. (AR 7218; AR 7220-22.) 

Plaintiffs have not, and cannot, show that this interpretation of the Commission’s own regulation 

“is plainly erroneous or inconsistent with the regulation.” Decker v. Nw. Envtl. Def. Ctr., 568 

U.S. 597, 617-18 (2013) (internal quotation marks omitted). Indeed, plaintiffs do not point to 

any law contrary to the FEC’s interpretation. 

As explained in the FEC’s opening brief, the regulation addresses debate staging 

organizations, not their agents’ or employees’ personal conduct. (FEC Mem. at 34.) Further, the 

Commission’s interpretation is entirely consistent not only with Commission precedent, but also 

American law generally. See supra p. 7; FEC Mem. at 33-34.

2

 

Moreover, personal political beliefs do not necessarily render people incapable of doing 

their jobs in a fair and impartial manner. The recusal cases the FEC cited in its opening brief 

merely recognize this established principle, as does the Hatch Act. (FEC Mem. at 34.) Again, 

plaintiffs fail to cite any law contravening this well-recognized principle (or supporting their 

 2 The personal versus official capacity distinction is widely applied in numerous areas of 

American law. E.g., Lane v. Franks, 134 S. Ct. 2369, 2378 (2014); Bellis v. United States, 417 

U.S. 85, 90 (1974); Clegg v. Falcon Plastics, Inc., 174 F. App’x 18, 28 (3d Cir. 2006); Hawkins 

v. District of Columbia, 923 F. Supp. 2d 128, 138 (D.D.C. 2013). 

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theory of heightened recusal obligations for CPD personnel (Pls.’ Reply at 8-9)), much less law 

to which the Commission acted contrary. Nor have plaintiffs cited any law finding inappropriate 

sensitivity when regulating in an area implicating First Amendment rights and erring on the side 

of caution. Cf. Van Hollen v. FEC, 811 F.3d 486, 501 (D.C. Cir. 2016) (approving of FEC’s 

exercise of “its unique prerogative to safeguard the First Amendment when implementing its 

congressional directives”). Accordingly, under the Court’s “‘exceedingly deferential’” review of 

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

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)), the FEC’s interpretation that section 

110.13 focuses on a review of official action by CPD should be upheld.

Merely reciting evidence to which the Commission correctly applied these wellestablished legal principles does not satisfy plaintiffs’ heavy burden to demonstrate that the 

agency acted arbitrarily. For example, the 1985 Memorandum of Understanding and a 1987 

joint press release by the Democratic and Republican national committees that plaintiffs quote 

(Pls.’ Reply at 6 (quoting AR 2244 and AR 2249-50)) are too old and not attributable to CPD as 

an organization. (AR 7214-18.) The quote by Frank Fahrenkopf from a newspaper article dated 

February 19, 1987 that plaintiffs highlight (Pls.’ Reply at 7 (quoting AR 2252)) not only is too 

old to be probative, but also it does not appear that Fahrenkopf was speaking on behalf of CPD, 

as he deferred to CPD on its candidate selection process and was only identified in the article as 

the then-chairman of the Republican National Committee. (AR 7214-15; AR 7218.) Similarly, 

plaintiffs quote a 2001 statement David Norcross purportedly made, which was not only over ten 

years old, but also could not have been made in an official CPD capacity, as he had not served as 

a CPD director since 1993. (AR 7218; AR 3136.)

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And plaintiffs certainly cannot satisfy their burden to demonstrate the Commission acted 

contrary to law by relying on statements that are stale, not made in an official capacity, and

which the Commission found may not have had, in context, the negative meaning plaintiffs 

claim. For example, plaintiffs make much of Barbara Vucanovich being “quoted as praising 

CPD’s executive director for being ‘extremely careful to be bi-partisan’” in 2001. (AR 7216; see 

also Pls.’ Reply at 1, 6.) But this statement is old and could not have been made in an official 

capacity as she left CPD’s board in 1997, and thus can be appropriately disregarded on these 

bases alone. The FEC, however, also noted that Vucanovich later clarified in a sworn 

declaration that she “used the word ‘bi-partisan,’ as many do, to mean not favoring any one party 

over another.” (AR 7216 (internal quotation marks omitted).) Plaintiffs’ claim that the FEC 

wrongly credited this clarification because these words have “opposite meanings” (Pls.’ Mem. at 

22; see also Pls.’ Reply at 1, 6), but the dictionary definitions plaintiffs cited for “nonpartisan” 

and “bipartisan” (Pls.’ Mem. at 22 nn.33-34) demonstrate that the terms can be read 

harmoniously.

3 When the debate staging regulations were initially enacted in 1979, they 

required that the “debates include at least two candidates” and be “nonpartisan in that they do not 

promote or advance one candidate over another.” Funding & Sponsorship of Fed. Candidate 

Debates, 44 Fed. Reg. 76,734, 76,736 (Dec. 27, 1979). The Supreme Court similarly used 

“bipartisan” in this way: “[T]he Commission is inherently bipartisan in that no more than three 

 3 The webpage plaintiffs cite for their definition of “nonpartisan” (Pls.’ Mem. at 22 n.34) 

also defines that term as “not supporting one political party or group over another.” If something 

is “bipartisan” and thus, according to the webpage plaintiffs cite, “marked by or involving 

cooperation, agreement, and compromise between two major political parties” (id. at 22 n.33), it 

is likely not supporting one political party, the Democratic party, over another, the Republican 

party, or vice versa — consistent with the definition of “nonpartisan.”

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of its six voting members may be of the same political party.” FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981) (emphasis added) (citing 52 U.S.C. § 30106(a)(1)).4

 

Indeed, the only CPD director statement submitted by plaintiffs that is both recent and 

made in an official CPD capacity is a 2015 interview between Fahrenkopf and Sky News, which 

the Commission reasonably discounted for three primary reasons. (AR 7219-20.) First, the 

Commission found that, by stating CPD “primarily go[es] with the two leading candidates” and 

then “immediately indicating the exceptions to that trend,” Fahrenkopf was not “categorical[ly]” 

supporting Democratic and Republican candidates or opposing independent candidates. (AR 

7219.) This is a reasonable interpretation, as Fahrenkopf did not say CPD will only go with 

candidates from the two major parties, and indeed provided an example where an independent 

candidate who was deemed to be a “leading” candidate by CPD was included.5

 Second, the 

Commission found that “the statement appears to be more an assertion of historical fact,” which 

Fahrenkopf confirmed. (Id.) This also is reasonable. When someone is speaking about what an 

organization “primarily does,” it is reasonable to believe that he or she is colloquially referring to 

what the organization primarily has done, as repeated past experiences are a necessary predicate 

to generalizations about what an organization does most of the time. That is especially 

reasonable, where, as here, the phrase was immediately followed by a historical accounting:

“[I]t’s been the two political party candidates . . . except for 1992 when Ross Perot participated 

 4 The Court should reject plaintiffs’ attempt to reclassify an FEC Commissioner’s selfdefined political affiliation. (Pls.’ Reply at 3 n.1.) Chairman Walther is an independent. See

https://www.fec.gov/about/leadership-and-structure/steven-t-walther/.

5 Contrary to plaintiffs’ assertion (Pls.’ Reply at 10), CPD averred that Perot was invited to 

the 1992 debates because he satisfied the then-applicable candidate criteria (AR 7133-34 ¶¶ 22-

24; AR 7062 ¶ 6; AR 2318-9 ¶¶ 21-23).

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12

in the debates.” (Id. (emphases added).) Answering a question about the present or future with a 

statement about what has happened in the past is hardly unusual. Third, the Commission 

recognized that the statement’s context supported CPD’s broader point that the organization 

limits the number of speakers at least in part to ensure that the debate is meaningful. (Id.) This 

likewise was reasonable. See Ark. Educ. Television Comm. v. Forbes, 523 U.S. 666, 681 (1998) 

(“On logistical grounds alone, a public television editor might, with reason, decide that the 

inclusion of all ballot-qualified candidates would actually undermine the educational value and 

quality of debates.” (internal quotation marks omitted)). 

Plaintiffs’ focus on the Commission’s mention of a CPD policy remains immaterial. 

(FEC Mem. at 34-35; Pls.’ Reply at 10-11.) There was nothing improper about the Commission 

relying upon CPD’s explanation of that policy sworn under penalty of perjury. (AR 7103-04.) 

Moreover, plaintiffs exaggerate the importance of these policies upon the Commission’s 

analysis. As the Commission pointed out before, plaintiffs have overstated matters in claiming 

that the policy has been violated. (FEC Mem. at 35.) And most importantly, while CPD may 

seek to discourage its directors’ personal participation in presidential elections, the 

Commission’s focus was undisputedly on the directors’ official actions. Supra p.6-7, 8 & n.2..

Plaintiffs also err in claiming that the FEC failed to consider the evidence against the 

CPD directors because it gave weight to their sworn declarations. (Pls.’ Reply at 18-19.) As the 

FEC demonstrated in its opening brief, though, the agency could as a matter of law consider 

these affidavits (FEC Mem. at 35-36), which plaintiffs appear to concede by withdrawing their

faulty assertion that they were “sham affidavits” (compare Pls.’ Mem. at 33, with Pls.’ Reply at 

18). The agency’s detailed analysis plainly demonstrates that it did not blindly accept the 

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declarations because it spent nearly ten pages discussing the plaintiffs’ evidence’s age, history, 

context, and legal significance. (AR 7214-22.) Moreover, with perhaps the exception of the 

2015 Fahrenkopf interview, plaintiffs’ evidence was too old and/or only pertained to CPD 

directors’ non-official capacity and thus likely would not establish CPD liability regardless.

Whether the plaintiffs would have given the declarations less weight is irrelevant. As the 

D.C. Circuit has held, “it is not a valid objection that conflicts in the evidence might conceivably 

have been resolved differently, or other inferences drawn from the same record.” D.C. Transit 

Sys. Inc. v. Wash. Metro. Area Transit Comm’n, 466 F.2d 394, 414 (D.C. Cir. 1972) (internal 

quotation marks omitted). Rather, the FEC’s decision “requires affirmance if a rational basis . . . 

is shown.” Orloski, 795 F.2d at 167 (internal quotation marks omitted). Here, there can be no 

question that the FEC acted rationally by weighing all the evidence before it and crediting

declarations sworn under penalty of perjury over old, cherry-picked quotes that were from 

mostly second-hand sources and almost exclusively made in personal, rather than official, 

capacities. See 18 U.S.C. § 1621(2) (declarants guilty of perjury shall be fined and/or 

imprisoned for up to five years). In sum, the FEC carefully and thoughtfully considered 

plaintiffs’ evidence and reasonably concluded that the evidence did not demonstrate that CPD 

itself endorsed, supported, or opposed any political party or candidate, as plaintiffs alleged. 

Plaintiffs have not satisfied their burden to demonstrate otherwise.

3. The Commission Reasonably Dismissed Plaintiffs’ Allegations that 

CPD’s Polling Threshold Is Not an Objective Criterion

On remand, the Commission considered plaintiffs’ expert evidence and explained why it 

was ultimately unpersuasive in a well-reasoned, detailed opinion. Weighing this evidence 

against the evidence in the record demonstrating that independent candidates could reach and 

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had reached 15% favorability in the polls, the Commission reasonably concluded that there was 

insufficient information to find that CPD’s 15% polling threshold was not an objective criterion, 

as that term has been construed by the Commission. (AR 7222-32; FEC Mem. at 36-41.) 

a. Clifford Young’s Report

As the Commission explained in its opening brief, Young’s failure to account for 

numerous important variables is itself an appropriate and rational reason to accord little-to-no 

weight to his analysis. (FEC Mem. at 37; AR 7224-25 (explaining that Young’s report draws 

conclusions “based on [the] one factor” of name recognition).) Tellingly, plaintiffs fail to cite 

even a single case where a single-variable regression analysis like Young’s was so probative that 

it was contrary to law or arbitrary to disregard it. Nor could they.

Plaintiffs do not dispute that it is well-established that “the omission of variables from a 

regression analysis may render the analysis less probative than it otherwise might be.” Bazemore 

v. Friday, 478 U.S. 385, 400 (1986) (per curiam); see also FEC Mem. at 37 (citing D.C. Circuit 

cases). Where an expert disregards numerous significant variables such as those identified by 

the FEC (AR 7224-25 & n.104) — as Young himself acknowledges he did (AR 2492-93 ¶ 9) —

the regression analysis can be “so incomplete as to be inadmissible as irrelevant.” Bazemore, 

478 U.S. at 400 n.10. Young’s failure to include any variable other than name recognition thus 

is itself a sufficient reason to uphold the FEC’s determination that his analysis was not probative. 

Coward v. ADT Sec. Sys., Inc., 140 F.3d 271, 275 (D.C. Cir. 1998) (finding regression analysis 

to be “flawed as a matter of law” where it failed to account for an important variable).

6

 6 See also Munoz v. Orr, 200 F.3d 291 (5th Cir. 2000) (statistical analysis excluded for, 

inter alia, failure to conduct a multiple variable regression analysis); Sheehan v. Purolator, Inc., 

839 F.2d 99, 103 (2d Cir. 1988) (holding that it was not clearly erroneous for the district court to 

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And even if Young’s single-variable analysis could be given weight, plaintiffs fatally 

overstate its significance in maintaining that “there must be [a] causal relationship” between 

name recognition and vote share. (Pls.’ Reply at 22.) Young himself never opined about 

causation, offering instead only an opinion about the “correlation” between the two — and not 

even a very strong correlation at that. (AR 2493 ¶ 10; AR 2502-03 ¶¶ 25, 27; AR 2504 ¶ 30.)

Plaintiffs nevertheless maintain their “obviously flawed” argument “equati[ng] . . . correlation 

with causation.” Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1, 10 (D.C. Cir. 2015); see 

also FEC Mem. at 43. Consistent with this elementary principle, the FEC reasonably found that 

Young’s analysis “correlat[ing] polling results to name recognition alone” was unpersuasive 

because “polling results are not merely a function of name recognition.” (AR 7224-25.) Not 

only was this analysis plainly “rational,” Orloski, 795 F.2d at 167, plaintiffs’ contrary argument 

is irrationally based on a well-recognized basic error identified by many courts of appeals.7

Plaintiffs further err by critiquing the Commission’s reliance on a YouGov poll from 

August 25-26, 2016 (Pls.’ Reply at 12-13), which “found that 63 percent of registered voters had 

 

find regression analysis to be flawed for failure to take into account various other factors); Penk 

v. Or. State Bd. of Higher Educ., 816 F.2d 458, 465 (9th Cir. 1987) (holding that the district 

court did not clearly err by discounting the weight of a regression analysis that omitted important 

variables); In re Wireless Tel. Servs. Antitrust Litig., 385 F. Supp. 2d 403, 427 (S.D.N.Y. 2005) 

(“Where an expert conducts a regression analysis and fails to incorporate major independent 

variables, such analysis may be excluded as irrelevant.”)

7 In re Navy Chaplaincy, 738 F.3d 425, 429 (D.C. Cir. 2013) (“Correlation is not 

causation.” (internal quotation marks omitted)); United States v. Valencia, 600 F.3d 389, 425 

(5th Cir. 2010) (“Evidence of mere correlation, even a strong correlation, is often spurious and 

misleading when masqueraded as causal evidence, because it does not adequately account for 

other contributory variables.”); Norris v. Baxter Healthcare Corp., 397 F.3d 878, 885 (10th Cir. 

2005) (“A correlation does not equal causation.”); Wessmann v. Gittens, 160 F.3d 790, 804 (1st 

Cir. 1998) (“Even strong statistical correlation between variables does not automatically 

establish causation.”).

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

(AR 7225; see also FEC Mem. at 37-38.) Even if the Court could consider the two polls 

plaintiffs cite (Pls.’ Reply at 12; Pls.’ Mem. at 27) — which it cannot (FEC Mem. at 23-24) —

those polls are from June 25-26 and July 13-17, 2016. There is no evidence that these polls 

accurately reflected Johnson’s name recognition over six and eight weeks later, respectively, 

much less that they rendered it arbitrary for the FEC to rely on an August 25-26 poll. (Cf. AR 

2511 ¶ 43(g) (recognizing that, “at the early stages of the electoral cycle, people are not paying 

attention to the candidates and issues”).)

Nor did the Commission act contrary to law in finding Young’s opinion regarding polling 

error less persuasive than that of CPD’s expert, Gallup Organization’s Editor-in-Chief Frank 

Newport.

8

 Plaintiffs do not dispute the settled law deferring to an agency’s resolution of 

competing expert evidence. (FEC Mem. at 38.) Instead, they continue to criticize the FEC’s 

conclusion that Young’s polling error opinion incorrectly focused on the difference between 

polling results and election results. (AR 7231.) Plaintiffs claim that the FEC allegedly 

contradicted CPD’s statement that “[t]he purpose of the [polling] criteria is to identify those 

candidates . . . who have a realistic chance of being elected President,” by stating that “CPD does 

not purport to use the polls as predictors of what will occur on Election Day.” (Pls.’ Reply at 13-

14 (quoting AR 7114 & AR 7231).) But these statements are not contradictory. Indeed, on the 

very same page cited by plaintiffs, CPD states its polling criterion “requires that the candidate 

have a level of support of at least 15% . . . using the average of [the selected polling] 

organizations’ most recent publicly-reported results at the time of the determination.” (AR 7114

 8 Contrary to plaintiffs’ suggestion (Pls.’ Reply at 14 n.6), Newport’s 2014 declaration was 

provided to plaintiffs. (AR 3043-50.)

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(emphases added).) The FEC reasonably credited Newport’s explanation that, although 

imperfect, “‘there is no doubt that properly conducted polls remain the best measure of public 

support for a candidate . . . at the time the polls are conducted.’” (AR 7231 (quoting AR 3047-

48 ¶ 21).) Just because a particular candidate has, at a particular point in time, a realistic chance 

of being elected President in the future does not mean that at that point in the future he or she 

will have an identical chance or in fact be elected President — and CPD nowhere says that it 

does. But, as the FEC pointed out (FEC Mem. at 38), it is hardly unreasonable for CPD to select 

candidates having a 15+% level of support at the time of its debates on the basis that these 

candidates likely are the most relevant to what happens on election day.

Because the FEC found Young’s analysis to be fundamentally misconceived, it did not 

need to separately address his attempt to adjust that analysis. (Contra Pls.’ Reply at 15.) As this 

Court recognized, the FEC need not “discuss every single page of evidence in order to 

demonstrate that it had carefully considered the facts.” LPF I, 232 F. Supp. 3d at 142. Further, 

the Commission relied on Newport’s opinion, who reviewed all of plaintiffs’ “submissions and 

data relating to the accuracy of public opinion polls” and credibly concluded that “[n]one of the 

information presented by [plaintiffs] casts doubt on the reliability of the public opinion polls 

CPD” has used. (AR 3047 ¶ 18.) He opined that “nothing about support for a significant third 

party-candidate [sic] [] makes it more difficult to measure.” (AR 7232 (quoting AR 3047 ¶ 21).) 

Under D.C. Circuit law, the Court should defer to the FEC’s weighing of these experts’ opinions. 

Wisc. Valley Improvement v. F.E.R.C., 236 F.3d 738, 746-47 (D.C. Cir. 2001). 

Plaintiffs lastly argue that Young demonstrated that polling error “disfavors independent 

candidates.” (Pls.’ Reply at 15.) But even if it were true that such error disfavors “independent 

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gubernatorial candidates,” the FEC explained that “it is not clear that independent presidential 

candidates are similarly impacted.” (AR 7232.) In any event, the regulation itself recognizes 

that being a major party nominee can be one of the “objective” criteria, just not “the sole

objective criterion.” 11 C.F.R. § 110.13(c). Plaintiffs fail to show that that the Commission’s 

evaluation of Young’s polling error opinion was arbitrary. 

b. Douglas Schoen’s Report

The Commission also reasonably found Schoen’s analysis unpersuasive for numerous 

reasons. (FEC Mem. at 39-40.) The Court may sustain this finding simply because (a) Schoen’s 

report incorporates Young’s errors and/or (b) Schoen’s conclusion that independent candidates

must spend at least $266 million to reach at least 60% name recognition was considerably off the 

mark, given Gary Johnson’s actual experience achieving substantial name recognition at a 

fraction of Schoen’s estimated cost. (Id. (citing AR 7228 (Johnson achieved 63% name 

recognition at “a mere 2-3 percent of the $266 million that Schoen estimates an independent 

candidate would need to achieve 60-80% name recognition”)).) In addition to these 

independently sufficient reasons, the FEC further identified additional flaws, including Schoen’s

incorrect assumptions that independent candidates do not receive earned (i.e., free) media, that 

super PACs only contribute to major-party candidates, that digital platforms could not increase 

name recognition at a fraction of the cost of traditional media, and that an independent candidate 

would begin with zero name recognition. (FEC Mem. at 39-40; AR 7226-29.)

Plaintiffs’ dispute about the size of Schoen’s error (Pls.’ Reply at 16-17) fails to 

rehabilitate his opinion. Whether or not 60+ free media appearances constitutes substantial 

coverage, the fact that the free coverage happened at all demonstrates Schoen’s premise to be

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inaccurate. Similarly, that there are super PACs spending millions advocating on behalf of 

independent candidates at all undercuts the persuasiveness of Schoen’s premise that independent 

candidates must alone bear the costs of increasing name recognition. (FEC Mem. at 39-40.)

Moreover, given now-President Trump’s success from employing digital media at less 

than half the cost of the traditional media Hillary Clinton used, the Commission’s finding that 

Schoen likely over-estimated media costs is reasonable. (AR 7227.) Rather than contesting that

traditional media is significantly more expensive than digital media, plaintiffs instead argue that 

major-party campaigns and their supporters spent a lot of money on paid digital advertising. 

(Pls.’ Reply at 16-17.) But the question is not how much would an independent candidate need 

to spend in order to become President. It is whether it was arbitrary for the FEC to be 

unpersuaded by Schoen’s opinion that a candidate must spend approximately $106 million on 

paid media, of which 95% is traditional media, in order to reach 60+% name recognition. The 

Trump/Clinton example relied upon by the FEC reasonably calls into question Schoen’s opinion 

on this point by illustrating how cheaper digital media can contribute to a candidate’s success. 

The Commission was also correct in noting that Schoen’s analysis did not account for the 

fact that “independent candidates frequently do not start from zero in terms of either name 

recognition or fundraising.” (AR 7228.) The Commission observed that “Gary Johnson and 

George Wallace . . . were both governors before running for president and presumably enjoyed at 

least regional recognition.” (Id.) This is a matter of common sense. Van Hollen, 811 F.3d at 

497-98 (finding hard evidence unnecessary to sustain reasonability of agency decision based on 

common sense). Additionally, plaintiffs themselves noted “an early 2011 poll in which Johnson 

had ‘over 10%’ name recognition among Republican voters.’” (Pls.’ Mem. at 31 n.47.) That 

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poll shows that Johnson entered the election cycle with more-than-zero name recognition, which 

supports the Commission’s critique of Schoen’s assumption that independent candidates always 

begin their campaigns with no name recognition. 

The FEC’s analysis of Schoen’s report — including his reliance on Young’s flawed 

report and the fact that a real candidate demonstrated Schoen’s conclusion to be radically off —

demonstrates that the Commission had a rational basis for finding Schoen’s report not credible. 

c. The 15 Percent Threshold

The Commission’s conclusion that CPD’s 15 percent threshold is objective under section 

110.13 is reasonable. (FEC Mem. at 40-41.) Plaintiffs cannot dispute that it is objective on its 

face, and “independent candidates have demonstrated that they are able to achieve 15+% support 

in the polls at or near the time of the debates.” (AR 7223 (identifying George Wallace, John 

Anderson, and Ross Perot as examples)).9

 While plaintiffs argue that several of those 

independent candidates should not count because they were not “truly independent” (Pls.’ Reply 

at 20), the distinction they seek to draw has no basis in the regulations. To paraphrase the 

Supreme Court, “it [would be] a dangerous business for [the Commission] to use the election 

 9 The Commission did not admit otherwise in its answer. (Compare Pls.’ Reply at 20 n.9, 

with Docket No. 82 ¶ 52.) According to CPD, the polls it used to assess whether Perot’s 1992 

candidacy satisfied its then-applicable criteria ranged from 9% to 20%. (AR 7133-34 ¶¶ 22-24; 

AR 2319 ¶ 23.) Thus, while some polls may have shown his favorability at 10% or below, the 

Commission’s answer does not refer to all polls or admit that Perot did not satisfy CPD’s current 

15% polling threshold. (Docket No. 82 ¶ 52.) In any event, the Court’s review is limited to the 

administrative record. Cf. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981)

(“It is well settled that judicial review of agency action is normally confined to the full 

administrative record before the agency at the time the decision was made . . . , not some new 

record completed initially in the reviewing court.”). 

Further, according to plaintiffs, third-party candidates Theodore Roosevelt, Robert 

LaFolette, Henry Wallace, and Strom Thurmond also likely achieved 15+% favorability. 

(AR 2060.)

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laws to influence the voters’ choices.” Davis v. FEC, 554 U.S. 724, 742 (2008). And while not 

unsympathetic to the challenges that independent candidates face (see AR 7233), the 

Commission is not permitted to interpret its debate staging regulations for the purpose of 

“‘level[ing] electoral opportunities for candidates of different personal wealth,’” which the 

Supreme Court has found is not “a legitimate government objective.” Davis, 554 U.S. at 741. 

History proves, however, that if and when the American people find an independent candidate 

compelling, that candidate can reach the 15% polling threshold for inclusion in the presidential 

debates. Accordingly, and because the Commission’s detailed explanation easily satisfies its 

minimal burden of showing a rational basis for its decision, Orloski, 795 F.2d at 167, plaintiffs 

cannot satisfy their heavy burden to demonstrate the Commission abused its discretion.

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

ARBITRARY OR CAPRICIOUS

Plaintiffs have similarly failed to show that the FEC’s decision not to initiate a 

rulemaking was arbitrary and capricious. Their immaterial criticisms remain meritless. 

A. The Court’s Review of the FEC’s Rulemaking Decision is Highly Deferential

Plaintiffs do not dispute that review of an agency’s decision not to engage in rulemaking 

“‘is very limited,’” and that such a decision “‘is at the high end of the range of levels of 

deference.’” (FEC Mem. at 41-42 (quoting LPF I, 232 F. Supp. 3d at 145-46 (internal citations 

omitted)).) Nor do they dispute that where, as here, “the proposed rule pertains to a matter of 

policy within the agency expertise and discretion,” review is limited to ensuring the agency has 

explained the facts and policy concerns it relied upon and those facts have some basis in the 

record. Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C. Cir. 2008) (citation and internal 

quotation marks omitted); see also FEC Mem at 42. 

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Rather, plaintiffs’ request for reduced deference is directly contrary to controlling 

precedent. See supra p. 2-5. And their suggestion that the Court should look to a favorable oped to reduce the standard of review is squarely contradicted by a court in this District’s 

observation that the court in the Shays litigation “rightly” deferred to the FEC’s decision to 

evaluate political committee status through adjudication rather than rulemaking, “reasoning that 

this implementation choice was ‘exactly the type of question generally left to the expertise of an 

agency.’” Citizens for Responsibility & Ethics in Wash. v. FEC, 209 F. Supp. 3d 77, 88 (D.D.C. 

2016) (quoting Shays v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007)).10

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

Remand Decision and Is Not Otherwise Arbitrary or Capricious

The Commission’s opening brief showed that plaintiffs’ claims regarding the 

Commission’s decision not to initiate a rulemaking continue to overlap with their claims 

regarding the administrative complaints and should be rejected for the same reasons. (FEC 

Mem. at 42.)11 Plaintiffs’ insubstantial objections concerning the polling stage used by Young 

and obsessive focus on a footnote in the Commission’s Supplemental NOD, the substance of 

which is not disputed, and other incorrect miscellany, are unavailing. (Id. at 42-45.) Plaintiffs

renew these criticisms in their latest brief (Pls.’ Reply at 21-24), but they remain without merit.

 10 Plaintiffs do not respond to the Commission’s similar demonstration that there is a high 

threshold for obtaining an order compelling an agency to initiate a rulemaking, as opposed to an 

order remanding to the agency for reconsideration. (FEC Mem. at 45.) Tellingly, however, 

plaintiffs now ask the Court to “require the FEC to open a rulemaking” (Pls.’ Reply at 25), 

having previously urged more sweeping relief. (Compare Pls.’ Mem. at 44 (requesting that the 

Court “order the FEC to open a rulemaking, and require that it be completed sufficiently in 

advance of the 2020 presidential election”).) 

11 Commissioner Goodman also included a concurring statement regarding the analysis in 

the Supplemental NOD. (AR 1886-1902.)

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Plaintiffs’ objection to the Supplemental NOD’s criticism of Young’s reliance upon early 

primary polling (AR 1933), based on their assertion that Young “explicitly relies upon polling 

data from all stages of the election” (Pls.’ Reply at 21-22), fails to change Young’s finding that 

an early primary polling model is superior and thus the basis for his conclusions (see Pls.’ Reply 

at 11 (reproducing chart from Young’s report from his “Early Primary Model” (AR 2504))). As 

the Commission explained, Young’s models “extrapolate from data about name recognition of 

major party candidates at the early stages of the party primary process . . . because, the report 

explains, ‘party halo effects’ may be lower during early primary polling.’” (AR 1933 (quoting 

AR 2500 ¶ 22).) Plaintiffs still fail to show that it was arbitrary for the Commission to observe 

that Young does not “address or account for differences in the size of the candidate fields” 

during the distinct primary and general election campaign periods, and reduce reliance on 

Young’s report accordingly. (AR 1933; see also FEC Mem. at 43.))12 

Furthermore, as discussed above, supra p. 15 & n.7, plaintiffs’ argument conflating 

correlation and causation between name recognition and vote share fails to account for the 

possibility that increasing name recognition will not always result in increasing vote share. As 

the FEC explained (FEC Mem. at 43), Johnson’s “political misstep[]” (AR 1933) regarding 

Aleppo may have made his name more recognizable but also have convinced some voters that he 

was undeserving of their vote. To use plaintiffs’ marathon analogy (Pls.’ Reply at 22), while 

 12 Young’s appendix setting forth “Alternative Models of Name Recognition” (AR 2520 

(emphasis added)) is suggested in his report to be distinct from the model Young used 

“present[ing] a clear picture of the relationship between name recognition and vote share” (AR 

2504). And even in that alternative, Young describes the models as early primary (“before the 

primary elections begin”), late primary (“after the elections begin but before the general 

election”), and total (“all observations”). (AR 2520.) 

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training may be one factor that helps a runner compete, training in a way that leads to injury 

might scuttle the whole enterprise before the first step is taken.

As for Schoen, plaintiffs continue their criticism of footnote six of the FEC’s 

Supplemental NOD responding to Schoen’s assertion that “‘the media will not cover an 

independent candidate until they are certainly in the debates.’” (AR1933 & n.6.) The 

Commission already explained that Schoen’s point was incorrect because the agency was aware 

“of at least three non-major-party candidates who did not participate in the general election 

debates but received significant media attention in 2016” and described searches of Westlaw’s 

Major Newspaper database for articles containing the names Gary Johnson, Jill Stein, and Evan 

McMullin. (FEC Mem. at 43-44 (discussing AR1933 n.6).)

Plaintiffs still do not dispute that Schoen’s authority for his assertion that independent 

candidates get no earned media was unpersuasive. Rather, they gloss over Schoen’s error,

disputing instead whether the media attention Johnson, Stein, and McMullin received was 

significant. (Pls.’ Reply at 23.) Plaintiffs’ accusations of intentional misrepresentation, 

gerryrigging, falsification, and the like (id. at 22-23) are unfounded and do not substitute for the 

acknowledged error in the expert report that the FEC identified. (AR 1933.) What matters is 

that Schoen was wrong in claiming that the media “will not” cover independent candidates not in 

the debates, and it was not arbitrary for the Commission to say so. Especially in light of the 

extensive portions of the Commission’s review of Schoen’s report that plaintiffs do not challenge

(AR 1933-35 (identifying numerous errors making Schoen’s report unreliable)), their focus on 

whether Schoen’s mistake was small, medium, or large is insufficient to show that the FEC’s 

conclusions lacked a basis in the record. Defs. of Wildlife, 532 F.3d at 919.

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Plaintiffs’ remaining claims about Schoen are simply incorrect. The FEC has not 

“concede[d]” overlooking recent articles Schoen relied upon. (Contra Pls.’ Reply at 24; FEC 

Mem. at 44.) The Commission’s observation that, according to prominent polls analyst Nate 

Silver, President Obama was well known to voters in advance of the 2008 primaries (AR 1934) 

belies plaintiffs’ claim that the FEC ignored the exposure Obama received during those primaries 

(Pls.’ Reply at 24). And no amount of recharacterization of Schoen’s claim that Rick Santorum 

spent “only $21,980 in” Iowa (AR 0169) will transform that amount into the $112,000 he 

actually reported spending in the state. (FEC Mem. at 44.) 

Lastly, it was not arbitrary for the Commission not to request the data that plaintiffs chose 

not to provide. (Pls.’ Reply at 24.) Despite the Commission’s observation (FEC Mem. at 44-45) 

that plaintiffs could have provided this underlying data with LPF’s voluminous rulemaking 

petition, plaintiffs still have provided no explanation for their decision not to provide this extrarecord material, either initially or following remand, so the agency could have reviewed and 

responded to it in its Supplemental NOD.

CONCLUSION

For the foregoing reasons, as well as those set forth in the Commission’s opening brief, 

the Court should award summary judgment to the Commission. 

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Robert W. Bonham III (D.C. Bar No. 397859)

Acting General Counsel Senior Attorney 

lstevenson@fec.gov rbonham@fec.gov

Kevin Deeley /s/ Haven G. Ward 

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

kdeeley@fec.gov Attorney 

hward@fec.gov 

Case 1:15-cv-01397-TSC Document 104 Filed 12/08/17 Page 30 of 31
26

Charles Kitcher (D.C. Bar No. 986226) COUNSEL FOR DEFENDANT

Acting Assistant General Counsel FEDERAL ELECTION COMMISSION

ckitchner@fec.gov 999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

December 8, 2017

Case 1:15-cv-01397-TSC Document 104 Filed 12/08/17 Page 31 of 31