Becker v. Federal Election Commission , 112 F. Supp. 2d 172 ( 2000 )

112 F. Supp. 2d 172 (2000)

Heidi BECKER, Medea Benjamin, Phil Donahue, Mark Dunlea, Anne Goeke, Elizabeth Horton Scheff, Ralph Nader, James O'Keefe, Susan Sarandon, Nader 2000 Primary Committee, Inc., Association of State Green Parties and Green Party USA, Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.

No. Civ.A. 00-11192-PBS.

United States District Court, D. Massachusetts.

September 1, 2000.

Scott P. Lewis, Palmer & Dodge, Boston, MA, John C. Bonifaz, National Voting Rights Institute, Boston, MA, for Heidi Becker, plaintiff.

Erin K. Monaghan, Federal Election Commission, Washington, DC, for Federal Election Commission, defendant.

John S. Stadler, Nixon Peabody, Boston, MA, Lewis K. Loss, Ross, Dixon & Bell, L.L.P., Washington, DC, Stacey L. McGraw, Ross, Dixon & Bell, L.L.P., Washington, DC, for Commission on Presidential Debates "CPD", interested party.

MEMORANDUM AND ORDER

SARIS, District Judge.

Plaintiff Ralph Nader is the nominee of a third party, called the Green Party, for President of the United States. Nader together with several individuals and organizations supporting his campaign,^[1] brings this action challenging twenty-year-old regulations adopted by the Federal Election Commission ("FEC"), found at 11 C.F.R. §§ 110.13(a)(1) and 114.4(f)(1) and (3) ("the Debate Regulations"). Arguing that these Debate Regulations permit corporations to make contributions and expenditures to sponsor federal candidate debates in violation of the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq., they seek a preliminary injunction to enjoin the FEC from implementing the Debate Regulations. The complaint also asks the Court to order the FEC to enforce the prohibition against the use of corporate money in the staging of federal candidate debates. The first scheduled presidential debate is October 3, 2000.

The FEC has moved to dismiss the complaint for lack of jurisdiction on the following grounds: 1) that its administrative procedures, 2 U.S.C. § 437g, are the exclusive remedy for complaints about violations of the FECA, and that the judicial review section of the Administrative Procedure Act, 5 U.S.C. § 706, is inapplicable; 2) that plaintiffs failed to exhaust their administrative remedies by petitioning the Commission for a rule making on the Debate Regulations; and 3) that none of the twelve plaintiffs can demonstrate Article III standing.

The Commission on Presidential Debates ("CPD"), a nonprofit corporation which sponsored presidential and vice-presidential debates in 1988, 1992, and 1996, has filed a brief as amicus curiae. The CPD is the sponsor of the October 3 debate. According to the complaint, the CPD has solicited millions of dollars from for-profit corporations to help stage the presidential debates. On January 6, 2000, it announced that Anheuser-Busch will serve as one of the national financial sponsors for its 2000 presidential debates, as well as the sole sponsor for the debate scheduled for October 17, 2000 in St. Louis, Missouri. The CPD argues that the Debate Regulations are necessary to protect the First Amendment rights of private debate sponsors; that plaintiffs have failed to demonstrate wide-spread "influence and corruption" by corporations in CPD decision-making that would amount to irreparable harm; and that the public has a strong interest in having the debates go forward.

After hearing, and review of the submissions, the Court DENIES both motions. Although Mr. Nader and the Green Party have standing, the Court concludes that the Debate Regulations are not contrary to law.

DISCUSSION

1. Statutory Scheme

The FECA makes it unlawful for any corporation^[2] "to make a contribution or expenditure in connection with any election" for federal office. 2 U.S.C. § 441b(a). For purposes of § 441b, the statute defines the term "contribution or expenditure" to include "any direct or indirect payment, distribution, loan, advance, deposit, or gift of money or any services, or anything of value ... to any candidate, campaign committee or political party or organization, in connection with any election" to federal office. Id. § 441b(2). However, it excludes from the definition: (1) communications "on any subject" by a corporation to its stockholders and executive or administrative personnel and their families; (2) "nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families"; and (3) "the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes." Id. §§ 441b(b)(2)(A)-(C).

The general definition section of the FECA contains definitions of "contribution" and "expenditure." Both terms include any gift, loan, deposit, or advance of money or "anything of value ... for the purpose of influencing any election for Federal office." Id. §§ 431(8)(A)(i), 431(9)(A)(i). These definitions exclude "any payment made or obligation incurred by a corporation or labor union which, under § 441 b(b) of this title, would not constitute an expenditure by such corporation or labor organization." Id. §§ 431(8)(B)(vi), 431(9)(B)(v).

Of great significance to this dispute, the general definition of "expenditure" also excludes "nonpartisan activity designed to encourage individuals to vote or to register to vote." Id. § 431(9)(B)(ii).

The FEC provided a helpful legislative history. Amendments to the Act in 1974 exempted "nonpartisan activity designed to encourage individuals to vote or to register to vote" from the Act's general definition of "expenditure." Id. § 431(9)(B)(ii). In 1976, Congress incorporated into the Act the long-standing prohibition of corporate contributions and expenditures that had been in 18 U.S.C. § 610. Congress included a provision exempting from the definition of "contribution or expenditure" "nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families, or by a labor organization aimed at its members and their families." Id. § 441b(b)(2)(B).

Recognizing that these amendments, "which were added to the law at different times, overlap in that both make exceptions to the term ``expenditure' for internal communications and for nonpartisan registration and get-out-the-vote activity," the Conferees explained how they intended this provision to work with the exemption from the general definition of "expenditure" for "nonpartisan activity designed to encourage individuals to vote or to register to vote," id. § 431(9)(B)(ii):

The conferees' intent with regard to the interrelationship between sections [2 U.S.C 431(9)(B)(ii) ] and [2 U.S.c. 441b(b)(2)(B) ] which permit such activities as assisting eligible voters to register and get to the polls, so long as these services are made available without regard to the voter's political preference, is the following: these provisions should be read together to permit corporations both to take part in nonpartisan registration and get-out-the-vote activities that are not restricted to stockholders and executive or administrative personnel, if such activities are jointly sponsored by the corporation and an organization that does not endorse candidates and are conducted by that organization; and to permit corporations, on their own, to engage in such activities restricted to executive or administrative personnel and stockholders and their families. The same rule, of course, applies to labor organizations.

H.R.Rep. No. 94-1057, at 63-64 (1976), quoted in FEC, Explanation and Justification, Funding and Sponsorship of Federal Candidate Debates, 44 Fed.Reg. 76,734, 76,735 (1979) ("1979 Explanation").

In 1979, Congress also added exceptions to the general statutory definitions of "contribution" and "expenditure" that exempt "any payment made or obligation incurred by a corporation in a labor organization which, under section 441b(b), would not constitute an expenditure by such corporation or labor organization." 2 U.S.C. § 431(8)(B)(vi) and 431(9)(B)(v).

2. Regulatory Scheme

In 1979, the FEC addressed the funding and sponsorship of candidate debates in a rule making. Pursuant to its statutory authority to "formulate policy with respect to" the Act, id. § 437c(b)(1), the FEC determined that "[c]andidate debates stimulate voter interest and hence encourage individuals to register to vote or to vote," and concluded that "permitting corporations and labor organizations to donate funds to nonprofit nonpartisan organizations for [debate] staging is consistent with congressional intent and policy under sections 431(f)(4)(B) and 441b(b)(2)(B)." 1979 Explanation, 44 Fed.Reg. at 76,736.

The FEC explained:

The educational purposes of nonpartisan public candidate debates is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns. Unlike single candidate appearances, nonpartisan debates are designed to educate and inform voters rather than to influence the nomination or election of a particular candidate. Hence, funds received and expended [by certain nonprofit organizations] to defray costs incurred in sponsoring nonpartisan public debates are not considered contributions or expenditures under the Act.

Id. at 39,348.

Pursuant to a 1980 rule making,^[3] the FEC issued the so-called "Safe Harbor" Debate Regulations interpreting § 441b to permit certain organizations to stage and finance political debates among candidates for federal office. These Debate Regulations, which were revised in early 1996, set eligibility requirements for entities that may stage debates among candidates for any federal office, and requirements for the structure and selection of participants in candidate debates by such organizations. See 11 C.F.R. § 110.13.

A debate-staging organization must be a nonprofit organization that "do[es] not endorse, support or oppose political candidates or political parties[,]" id. § 110.13(a)(1), or a media entity "not owned or controlled by a political party, political committee or candidate." Id. at (a)(2). A debate must "include at least two candidates[,]" and the staging organization may not "structure the debates to promote or advance one candidate over another." Id. § 110.13(b). Staging organizations "must use pre-established objective criteria to determine which candidates may participate in a debate[,]" and for general election debates, they "shall not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate." Id. § 110.13(c).

The Debate Regulations permit corporations and labor organizations to donate funds to staging organizations that meet these various requirements for safeguarding against promoting or opposing the election of particular candidates. See id. § 114.4(f)(3). A complementary provision permits the staging organizations that are qualified under 26 U.S.C. §§ 501(c)(3) & (c)(4) to use corporate or labor union funds, as well as their own funds, to defray the costs of staging debates. 11 C.F.R. § 114.4(f)(1). Donations authorized by § 114.4(f) are also expressly excluded from the Commission's general regulatory definitions of "contribution" and "expenditure." See id. §§ 100.7(b)(21) (excluding from "contribution") & 110.8(b)(23) (excluding from "expenditure").

The regulations were revised in 1995 to define the term "express advocacy" as required by FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986) ("MCFL"), and to describe certain non-profit organizations that are exempt from the prohibition on independent expenditures. See 60 Fed. Reg. 35,292, 35,305 (1995). Certain changes were made in the Debate Regulations. For example, while the previous rules "had expressly allowed staging organizations to restrict general election debates to major party candidates," the "new rules do not allow a staging organization to ban minor party candidates or independent candidates from participating simply because they have not been nominated by a major party." 60 Fed.Reg. 64262, 64,201 (1995). As required by 2 U.S.C. § 438(d), in December 1995 the Commission submitted these revised regulations to Congress before promulgating them, and Congress took no action to disapprove them during the subsequent 30-day period the statute provides.

3. Jurisdiction

a. The Administrative Procedure Act

Courts may review challenges to FEC regulations under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A) and (C), to determine whether those regulations exceed the FEC's authority. See, e.g., Maine Right to Life Comm., Inc. v. FEC, 98 F.3d 1, 1 (1st Cir.1996) (affirming a district court's invalidation of an FEC regulation defining "express advocacy" under the APA); Perot v. FEC, 97 F.3d 553, 560-61 (D.C.Cir.1996) (instructing that an action seeking judicial review of an FEC regulation should be brought under the APA); Faucher v. FEC, 743 F. Supp. 64, 68-69 (D.Me.1990) (discussing the court's basis for exercising jurisdiction in an APA case challenging an FEC regulation), aff'd 928 F.2d 468 (1st Cir.1991). Parties who are "adversely affected or aggrieved by agency action" may seek that review. 5 U.S.C. § 702.

b. Exhaustion of Administrative Remedies

The FEC argues that plaintiffs must first exhaust their administrative remedies. FECA specifically provides for judicial review when a complaint is dissatisfied with an FEC decision that no illegality has occurred. 2 U.S.C. § 437g(a)(8)(A). Because the FECA does not address a facial attack on the validity of a rule, the APA applies. See Perot, 97 F.3d at 560. Where a plaintiff is challenging the validity of a regulation, the exhaustion rule normally requires that the plaintiff petition the agency for a rule making. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997). The doctrines of administrative exhaustion and primary jurisdiction are judge-made rules to be applied on a case-by-case basis, taking into account the purposes of the doctrines. See Brown v. Secretary of HHS, 46 F.3d 102, 113-14 (1st Cir.1995). Courts are "equipped to settle" issues of law in cases involving challenges to an agency's power. Id.; see Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981) finding that exhaustion is not required when "the issue [is] a pure matter of law as to which specialized administrative understanding plays little role"). As this challenge involves a question of law involving the agency's power, exhaustion is not required.

Plaintiffs also convincingly invoke cases applying the futility exception to exhaustion, since here the FEC was highly unlikely to revoke its 20-year old regulation and has, in fact, maintained that the regulation is valid. See Skubel, 113 F.3d at 334 (finding that the district court properly applied the futility exception on where an agency expressed an unwillingness to reconsider its position).

c. Standing

The most difficult jurisdictional question involves standing. Under the 3-pronged analysis for constitutional standing, laid out in Allen v. Wright and its progeny, a plaintiff must allege: (1) personal injury that is; (2) fairly traceable to the defendant's allegedly unlawful conduct; and (3) likely to be redressed by the requested relief. 468 U.S. 737, 751-52, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (holding that plaintiffs must show an "``injury in fact' — an invasion of a legally protected interest which is (a concrete and particularized and (b) actual or imminent, not ``conjectural' or ``hypothetical,' which is fairly traceable to the challenged action, and is likely to be ``redressed by a favorable decision'")) (internal quotations and citations omitted). The Allen Court instructed judges to analyze whether a claimed injury is too abstract; whether the line of causation between the illegal conduct and injury is too attenuated; and whether the prospect of obtaining relief from the injury as a result of a favorable ruling is too speculative. See Allen, 468 U.S. at 751-52, 104 S. Ct. 3315.

In addition to the Article III standing requirements,

Several prudential considerations also infuse standing determinations. These considerations, which militate against standing, principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches.

Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 104 (1st Cir.1995) (citations omitted).

Plaintiffs Nader, the Nader 2000 Primary Committee, the various Green Party branches and associations, and the individual voters all assert that they will suffer an injury unless the FEC regulations permitting corporate underwriting of debates are declared invalid. I'll address the plaintiffs' positions vis-a-vis standing by category.

i. Nader

Plaintiffs assert that, whether or not Nader is invited to participate in the CPD debates, he suffers harm as a result of the unlawful regulations. If he does not participate, his opponents will "directly benefit from illegal corporate-sponsored advertising," and if he is invited to participate, he will be forced to choose between compromising his corporate watchdog platform, or forgoing the best opportunity to communicate his views to the public.

It is important to point out what Nader is not asserting as an injury. He has not argued that the use of corporate funds in the debates will have any impact on the substance of the debates. And if he is excluded, he likewise has not argued that the corporate sponsorship was the basis for that exclusion. He does not challenge the underlying criteria for debate eligibility, only the corporate underwriting that pays, one presumes, for the microphones and debate hall stages.

The best support for Nader's position is a First Circuit case, Vote Choice, Inc. v. DiStefano, in which the court held that a gubernatorial candidate had standing to challenge a Rhode Island campaign finance law because the law forced the candidate into a "coerced choice" between public and private financing, which impacted "the strategy and conduct" of her campaign. 4 F.3d 26, 36-47 (1st Cir.1993). The First Circuit was persuaded that having to campaign under a law which "colored [the plaintiff's] campaign strategy from the outset" was sufficient injury. Id. Here, plaintiffs argue that standing arises from the coerced choice Nader must make in deciding whether to seek to participate in debates which are, in his view, unlawfully funded by corporations and contrary to his anti-corporate platform. If having to adjust campaign strategy around an illegal financing law constituted sufficient injury in Vote Choice, Nader has alleged sufficient injury under the first prong of Allen.

Defendants emphasize case law which erects high hurdles in prevailing on "political competitor standing" where the candidate complains of unlawful regulation, or lack of regulation, of another entity — here, the CPD. See Lujan, 504 U.S. at 562, 112 S. Ct. 2130. The recent cases on competitor do standing cut against Nader somewhat. In Gottlieb v. FEC, 143 F.3d 618, 620 (D.C.Cir.1998), the court took a narrow view of "competitor standing," requiring that when challenging a government benefit granted to another group or entity, the "competitor" must himself be eligible to receive the same benefits as the person or group it is challenging. Gottlieb extended the stingy approach to competitor standing developed in cases involving challenges to the tax-exempt status of various organizations, and applied it to a challenge involving a campaign finance law. See, e.g., In re United States Catholic Conference, 885 F.2d 1020, 1028-29 (2d Cir.1989) (denying competitor-advocate standing to pro-choice, non-profit, tax-exempt organizations challenging the tax-exempt status of Catholic Church because they did not compete with the church's alleged electioneering); Fulani v. Brady, 935 F.2d 1324, 1331 (D.C.Cir.1991) (denying standing to a minor party candidate seeking to challenge the tax-exempt status of debate sponsors); but see Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 625 (2d Cir. 1989) (finding standing to challenge the tax-exempt status of debate sponsor because plaintiff had been denied right to participate, thus losing substantial media exposure, and her injury was traceable to the League's unlawful use of a partisan participation criteria).^[4]

Hence, under a narrow, Gottlieb — type view, the FEC argues that Nader himself is not a debate staging organization eligible to benefit from the corporate financing regulation, and thus lacks standing to challenge corporate funding of the CPD. However, Nader contends that the Democratic and Republican candidates themselves (as opposed to the CPD) receive a benefit from the regulation, in the form of corporate-sponsored publicity that frees those candidates and their parties from needing to use their own funds to get out their message. Participation in the debates also confers an aura of legitimacy upon his opponents. Using the analysis in Gottlieb and United States Catholic Conference, plaintiff must show that "he personally competes in the same arena with the same party to whom the government has bestowed the candidates illegal benefit." Gottlieb, 143 F.3d at 621. Nader maintains that, as a candidate from a minor party, he will be personally disadvantaged by the benefit his opponents from the major parties will receive from "illegal, corporate-sponsored advertising." I find that this is a sufficient personal injury under prong one of Allen.

As to prongs two and three of the Allen test, Nader's injury is traceable to the Debate Regulations. However, it's not clear that enjoining reliance on these regulations will redress all of Nader's injuries. The benefit flowing through the CPD to his competitors, in terms of free media exposure, is traceable to the regulation; however, it's worth noting that the major party candidates could get that same economic benefit (i.e. being relieved from using their own funds to get out their message) even if CPD was out of the picture entirely. If a media organization, for example, stepped in, ran the debates, and excluded Nader, his competitors would still be granted an advantage. It would not be, however, an allegedly unlawful, corporate-sponsored advantage.

While standing is a close question, I conclude that, at the very least, Nader is harmed under the coerced choice analysis in Vote Choice. I also find that Nader has made a persuasive argument that he should qualify for "political competitor standing," given the economic benefit flowing to his opponents in the election. Furthermore, the "prudential standing" considerations weigh in Nader's favor. Although he does advance what one could call an abstract social interest, it is an interest around which he personally has devoted much of his campaign resources and which has been a key focus of his message to the public. As a candidate who may not, and wishes not to, benefit from corporate debate underwriting, his interest is personal. Finally, I note that the purpose of these FECA provisions was to prevent the potentially corrupting influence of corporate money in the electoral arena. See FEC v. National Right to Work Comm., 459 U.S. 197, 209, 103 S. Ct. 552, 74 L. Ed. 2d 364 (1982) (reasoning that § 441(b) of FECA reflects an "assessment of the dangers posed by [corporations] to the electoral process"). As a candidate who is trying to shed light on, as well as campaign within, a system in which corporations are permitted to do that which he insists violates the law, Nader falls well within the FECA's "zone of interest." Cf. FEC v. Akins, 524 U.S. 11, 18, 118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998) (holding that voter plaintiffs satisfied "prudential standing" requirements because they fell within one of the "zones of interests" FECA was designed to address).

ii. The Organizational Plaintiffs.

As to the Nader 2000 Primary Committee, Association of State Green Parties, and Green Party USA, plaintiffs assert that the FEC's unlawful regulations impair these organizations' ability to achieve their basic political mission. To the extent that this is an abstract, ideological type of harm, it is insufficient. Courts insist that an organization must assert more than damage to its social goals and interests. See, e.g., Common Cause v. FEC, 108 F.3d 413, 417 (D.C.Cir.1997) (holding that an organization suing on its own behalf must show a "``concrete and demonstrable injury to the organization's activities — with a consequent drain on the organization's resources'") (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982)). However, as with Nader, the organizational plaintiffs are on stronger footing to the extent they cast their arguments in terms of the disadvantage they suffer in having to spend their own funds to get out Nader's message. The two major parties are relieved of that burden by virtue of the corporate money filtered through CPD. If Nader can raise "competitor standing," then his organization and party should be able to do the same.

iii. Individual Voters.

Under any theory, however, the injury asserted by the individual voters is too abstract, conjectural, or attenuated to meet the Allen test. First, to the extent that the voters seek to connect their injury to Nader and his candidacy, courts recognizing that harm to a candidate produces a derivative harm to voters also require that the voters themselves suffer a "concrete and personalized injury." Gottlieb, 143 F.3d at 622. Such an injury has been recognized where a candidate is prevented from appearing on a ballot altogether, see Bullock v. Carter, 405 U.S. 134, 143, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972)(addressing high candidate filing fees) or when, for example, eligibility requirements or term limits impinge on the voters' ability to support their candidate, see Thorsted v. Gregoire, 841 F. Supp. 1068, 1073 (W.D.Wash.1994).

The argument plaintiffs make here, that Nader's relative disadvantage works a correlative injury to voters, is similar to one rejected in Buckley v. Valeo, where the voters tried to argue that the denial of public financing to some presidential candidates was restrictive of voters' rights. 424 U.S. 1, 94, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); see also Gottlieb, 143 F.3d at 618 ("The extra infusion of funds into the Clinton campaign did not impede the voters from supporting the candidate of their choice."). Even if Nader and his party have standing under a "political competitor" theory, it's too much of a stretch to sweep his voters in under that approach.

Plaintiffs also argue that the voters here suffer a direct injury. These arguments are weak. First, the idea that the voters' ability to influence the political process has been diminished, or that their votes have somehow been "diluted," was rejected by the Gottlieb court. See 143 F.3d at 621. Here, the plaintiffs' alleged injury is even more abstract: they claim they are harmed by the grubby influence of corrupt, corporate debate-staging money that they say distorts the political process or "tilts the electoral playing field." This is not particularized, personal, or concrete.

Second, invoking the Supreme Court's decision in Akins, the voters argue that they fall within the "zone of interests" that the FECA was designed to protect. See 524 U.S. at 19-20, 118 S. Ct. 1777. While this may be true, it puts the cart ahead of the horse. The APA did open the door to those "adversely affected or aggrieved by agency action," but it does not excuse a potential plaintiff from fulfilling the Article III standing requirements at the outset. Plaintiffs must still allege injury to a legally protected interest. See, e.g., Sierra Club v. Hickel, 433 F.2d 24, 32-33 (9th Cir.1970) (holding that the APA, in and of itself, does not confer standing on a litigant; rather, it allows judicial review of administrative action where none existed before).

It is also worth noting that the complaint hints at a "right to receive information" type of injury, such as the one recognized in Akins. But, the injury-in-fact the Court found in Akins hinged on the denial of information which the statute required be made public. 524 U.S. at 20, 118 S. Ct. 1777. The D.C. Circuit has subsequently limited "informational standing" to cases in which plaintiffs are denied information that is "both useful in voting and required by Congress to be disclosed." Common Cause, 108 F.3d at 418.

4. Preliminary Injunction Standard

Plaintiffs, as the moving party seeking a preliminary information, must meet four criteria before an injunction can issue. The Court must find: (1) that plaintiffs have exhibited a likelihood of success on the merits; (2) that plaintiffs will suffer irreparable injury if the injunction is not granted; (3) that such injury outweighs any harm which granting injunctive relief would inflict on the defendants; and (4) that the public interest will not be adversely affected by the granting of the injunction. See Suarez-Cestero v. Pagan-Rosa 172 F.3d 102, 104 (1st Cir.1999); TEC Eng'g Corp. v. Budget Molders Supply, Inc., 82 F.3d 542, 544 (1st Cir.1996). Plaintiffs bear the burden of making each of these showings. See International Ass'n of Machinists and Aerospace Workers v. Eastern Air Lines, Inc., 826 F.2d 1141, 1144-45 (1st Cir.1987) (citing Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981)).

5. Likelihood of Success

a. Plain Language

Plaintiffs raise three arguments that the Debate Regulations are contrary to law. First, they assert that the Debate Regulations are inconsistent with the plain terms of the FECA, which proscribes the use of corporate money "in connection with" federal elections and which does not provide any exception for the use of corporate funds to stage federal candidate debates under § 441b(a). The FEC argues that the donation of corporate Funds to underwrite candidate debates is permitted by the FECA because, in the general definition section, Congress exempted funds used for "nonpartisan activity designed to encourage individuals to vote or to register to vote" from the definition of expenditure. Relying heavily on the basic principle of statutory construction that a specific statute controls over a general provision, see HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S. Ct. 836, 67 L. Ed. 2d 1 (1981), plaintiffs respond that the specific prohibitions in § 441b(b)(2) trump the general exemptions in § 431(a)(B)(ii). The FEC retorts that the sections should be read in tandem.

An analysis of FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986) ("MCFL") persuades me that the FEC has the better argument. There, an anti-abortion organization had issued a "special edition" newsletter which encouraged readers to vote for certain candidates. MCFL had argued that it did not violate the FECA because it did not provide anything to any candidate or organization, and § 441b(b)(2) narrowly defined "contribution or expenditure" to include the provision of various things of value to a candidate, campaign committee or political party in connection with any election. The Supreme Court rejected that analysis by looking to the general definition section of the Act which contained a "broader definition" of expenditure in § 431(9)(A)(i), which covers anything of value made "for the purpose of influencing any election for Federal office." The Supreme Court included: "Since the language of the statute does not alone resolve the issue, we must look to the legislative history of Section 441b to determine the scope of the term ``expenditure.'" Id. at 246, 107 S. Ct. 616. In order to discern legislative intent, the Court parsed the remarks of the provision's sponsor as well as other congressional remarks, and found no merit in the argument that "only payments to a candidate or organization fall within the scope of § 441b." Id. at 248, 107 S. Ct. 616.

Here, too, the interplay between the specific prohibitions in § 441b(b) and the general definitions in § 431 creates an ambiguity which the plain language of the statute does not resolve. Again, following the MCFL lead, I look to the legislative history to resolve the dispute. The Conference Report clarifies that the two provisions are to be read together to permit corporations to take part in nonpartisan get-out-the-vote activities if such activities are jointly sponsored by the corporation and an organization that does not endorse candidates, and are conducted by that organization.

b. Gap-filling

This statutory construction is only one step forward in resolving this dispute because, as each party acknowledges, neither the statute nor the legislative history specifically mentions the issue of federal candidate debates. Plaintiffs stress that even if § 431 amplifies the permissible range of corporate expenditures, the FECA does not allow corporate funds to be used for candidate debates, which may be educational, but are not a get-out-the-vote activity. In its rule making, the FEC asserted that candidate debates might "stimulate voter interest and hence ``encourage individuals to register to vote or to vote,'" 44 Fed.Reg. at 76,736, and that "[t]he educational purpose of nonpartisan public candidate debates is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns." 44 Fed. Reg. at 39,348. Plaintiffs disagree, pointing out that even the much-heralded Conference Report's example of get-out-the vote activities is "assisting eligible voters to register and to get to the polls." H.R.Rep. No. 1057, at 63 (1976).

Judicial review of the validity of an agency's construction of a statute entails a bifurcated analysis. See Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Under Chevron, if a court determines that "Congress has directly spoken to the precise question at issue," then "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43, 104 S. Ct. 2778. If however, the agency's statutory interpretation "fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, we give [that] judgment ``controlling weight.'" Id. at 844, 104 S. Ct. 2778. "[I]f it is a reasonable interpretation and implementation of an ambiguous statutory provision, it must be given judicial deference." United States v. Haggar Apparel Co., 526 U.S. 380, 383, 119 S. Ct. 1392, 143 L. Ed. 2d 480 (1999) (involving a customs regulation). Because "Congress need not, and likely cannot, anticipate all circumstances in which a general policy must be given specific effect", Congress may authorize agencies "to issue rules so that its statutes may be applied to unforeseen situations and changing circumstances in a manner consistent with Congress' general intent." Id. at 392-93, 119 S. Ct. 1392.

The Supreme Court has held that the FEC is "precisely the type of agency to which deference should presumptively be afforded." FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 102 S. Ct. 38, 70 L. Ed. 2d 23 (1981) (upholding the FEC's view that agency agreements between the National Republican Senatorial Committee and the state committees were logically consistent with legislative intent, although Congress failed to explicitly provide for such arrangements). Hence, in determining whether the FEC's action is "contrary to law," the task for the reviewing court is not to interpret the statute as it thinks best but rather to undertake the narrower inquiry into whether the FEC's construction was "sufficiently reasonable" to be accepted by the reviewing court. Id. at 39, 102 S. Ct. 38 (citing Train v. Natural Resources Defense Council, 421 U.S. 60, 75, 95 S. Ct. 1470, 43 L. Ed. 2d 731 (1975)).

Of course, judicial deference is not tantamount to judicial abdication. While the interpretation of the statute by the agency charged with administering it is entitled to deference, the courts 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." Id. at 32, 102 S. Ct. 38. In analyzing whether the agency's interpretation is consistent with legislative intent, the Supreme Court has looked at various factors: when the FEC submitted the regulation to Congress, whether either house expressed disapproval;^[5] whether the statute "expressly or by implication" forbids the disputed practice; whether the legislative history of the FECA "purports to disapprove" the disputed practice; whether the agency's interpretation was "logically consistent" with the FECA; whether the interpretation is inconsistent with "any discernible purpose of the Act." Id. at 34-36, 102 S. Ct. 38.

Looking at these factors, I conclude that the FEC's longstanding and consistent interpretation of the FECA is sufficiently reasonable to pass muster. First, when the Debate Regulations were submitted to Congress, neither House expressed disapproval. Second, nothing in the legislative history of the Act since the regulations were initially implemented twenty years ago suggests a legislative disapproval of — or even queasiness with— corporate funding of nonprofit, nonpartisan corporations which sponsor debates. The presidential debates in 1988, 1992, and 1996, which were sponsored by the CPD, were hardly a secret. Third, the FECA neither explicitly nor by implication addresses the funding of debates involving candidates for federal office. Fourth, permitting a nonpartisan corporation funded by corporations and labor unions to sponsor debates which will educate voters and spark enough interest to motivate them to vote or to register to vote is fully consistent with the express legislative intent to permit nonpartisan organizations to get-out-the-vote and encourage voter registration. See H.R.Rep. No. 94-1057, at 63-64. Nader himself has recognized the power of debates to stimulate citizens to vote:

Televised presidential debates shouldn't be a cure for insomniacs. They should stimulate study, reflection, talk and voting among Americans. These citizens might begin to believe that they can take charge of their country, just as Thomas Jefferson and our other distinguished forebears envisioned would occur some day when they signed on to "We the People."

Ralph Nader, A Real Debate Requires All the Candidates, Wall St. J., Aug. 25, 2000, at A14.

Fifth, the FEC's interpretation is not inconsistent with "the primary purpose served by the Act," which the Supreme Court has stated is "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." Democratic Senatorial Campaign Comm., 454 U.S. at 27, 102 S. Ct. 38. Plaintiffs sincerely point to the "compelling governmental interest in preventing corruption [which] support[s] the restriction of the influence of political war chests funneled through the corporate form." Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990). However, Congress took this precise interest into account by requiring that any such corporate expenditure must be in connection with a "nonpartisan activity designed to encourage individuals to vote or to register to vote." 2 U.S.C. § 431(9)(B)(ii). Accordingly, I find that the Debate Regulations are reasonable gap-fillers.

c. Nonpartisan vs. Bipartisan

Finally, plaintiffs argue that the Debate Regulations are contrary to law because they do not provide that the debates will be "nonpartisan" within the meaning of the FECA, and they disparage the FEC's assertion that by restricting staging organizations to certain nonprofit corporations, it has provided "sufficient safeguards to insure nonpartisanship." 44 Fed.Reg. at 76736. 11 C.F.R. § 110.13 provides that staging organizations to be nonprofit organizations describe in 26 U.S.C. §§ 501(c)(3) or (c)(4) which do not "endorse, support or oppose political candidates or political parties." The FEC also points out that it requires "[s]taging organizations ... to 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."

Still, plaintiffs insist that the proof is in the pudding because recent presidential and vice-presidential debates have been controlled by the CPD, which they claim is a bipartisan, not a nonpartisan, organization created to promote the interests of two major political parties. Their concern is not without some foundation because the CPD is chaired by the respective former chairmen of the Democratic and Republican National Committees, Paul G. Kirk, Jr. and Frank J. Fahrenkopf, Jr., and the CPD was created by a joint initiative of the two parties, and incorporated by them. Nonetheless, the CPD points out that Kirk and Fahrenkopf no longer serve as the chairs of the major national party committees, that the current major party chairs do not sit on the Board of Directors, and that no CPD Board member is an officer of the Democratic or Republican National Committee.

Janet H. Brown, the Executive Director of the CPD, states that, prior to the first debate, the CPD formed an advisory panel which included individuals not affiliated with any party to provide guidance to the CPD with respect to several areas including non-major party candidate participation in CPD-sponsored debates. As proof of nonpartisanship, she points out that Ross Perot was permitted to debate in 1992. She states:

In 1988, 1992 and 1996, the CPD's decisions regarding which candidates to invite to its debates were made by the CPD Board's unanimous adoption of the recommendations of independent Advisory Committees charged with the task of applying the CPD's pre-established, objective criteria. At no time did any campaign or representative of any campaign have a role in the Advisory Committee's or the CPD Board's decision-making process.

(Brown Aff. ¶ 39.) This year, the CPD has adopted "objective criteria" which mandate, among other things, that candidates must have a level of support of at least fifteen per cent as determined by five national polling organizations.

Any complaint that a debate staging organization is in fact acting in a bipartisan, rather than a nonpartisan, way, in violation of the FECA, must be submitted to the FEC pursuant to 2 U.S.C. § 437g(a)(8). However, plaintiffs have not established that the regulations are invalid as a matter of law.

6. Harm Balancing

Because I find no likelihood of success on the merits, there is no need to spend much time balancing the harm to the plaintiffs against the harm to the public. Plaintiffs argue that Ralph Nader, his supporters, and the Green Party will suffer irreparable harm if corporations are allowed to make illegal corporate contributions to pay for the debates. They say: "By allowing corporate money to distort the electoral process, the FEC assists corporations and the major parties in stifling the voice of alternative parties and stunting the opportunities of alternative candidates such as Mr. Nader." If the corporate contributions to the CPD turn out to be illegal, plaintiffs are correct that any harm to the electoral process is irreparable in the sense that there is no remedy after the election.

On the other side of the equation, however, is the harm to the public interest posed by this late challenge to these regulations which were enacted a score of years ago.^[6] Plaintiffs concede that if I invalidate the regulations, they will be at some courthouse door seeking an order to stop the CPD's scheduled debates.^[7] While plaintiffs argue that inevitably there will be debates in some forum held by some group (like the media), the down-to-the-wire jockeying over funding, sponsorship and format is likely to imperil the viability of any presidential and vice-presidential debates. As the Supreme Court stated, "in our tradition, candidate debates are of exceptional significance in the electoral process." Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 675-76, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998). The balance of harms militates against a preliminary injunction.

ORDER

The Court DENIES the Motion to Dismiss (Docket No. 14) and the Motion for Preliminary Injunction (Docket No. 2). The parties shall inform the court in fifteen (15) days whether the Court should enter final judgment based on the current record.

NOTES

[1] The plaintiff group also includes individual voters who have thrown their support behind Nader's candidacy. The lead plaintiff is a registered independent voter who has not yet decided for whom she will vote, but who does not plan to vote for either Vice President Al Gore or Texas Governor George W. Bush.

[2] These statutory provisions and the implementing regulations apply to labor unions as well.

[3] As the FEC explained, the agency's first draft of the Debate Regulations was sent to Congress as required by 2 U.S.C. § 438d(d), and Congress disapproved of them on September 18, 1997 for reasons which did not include the proposed regulatory provisions allowing corporations and unions to donate funds for the cost of candidate debates sponsored by nonprofit, nonpartisan organizations. See 25 Cong.Rec. 24,957 (1979).

[4] Defendants cite a follow-up Second Circuit case, Fulani v. Bentsen, in which the court denied the same candidate competitor standing to challenge the tax-exempt status of the League of Women Voters. 35 F.3d 49, 53 (2d Cir.1994). However, in that case, Fulani had been excluded by both co-sponsors of the debate, the League and CNN. CNN, of course, could have excluded her in any event. Fulani nonetheless argued that the incremental advantage of having the League as a co-sponsor conferred a benefit on her adversaries. The court rejected her contention that voters watching a debate sponsored by both CNN and the League would come to a more negative view of Fulani than voters watching a debate sponsored solely by CNN. See id.

[5] It is unclear whether this factor can still be given much weight, after the 1996 passage of the Small Business Regulatory Enforcement Fairness Act. See 5 U.S.C. § 801(g) (precluding a court from inferring any intent of Congress from any inaction by Congress after an agency's submission of a proposed rule). This act did not go into effect until March 29, 1996.

[6] As amicus, the CPD argues that the First Amendment protects its ability to stage debates and also to choose debate participants. See Perot v. FEC, 97 F.3d 553, 559 (D.C.Cir. 1996). ("[I]f this court were to enjoin the CPD from staging the debates or from choosing debate participants, there would be a substantial argument that the court would itself violate the CPD's First Amendment rights."). The Court need not resolve that question, which was inadequately briefed by the parties.

[7] The FEC argues that a court would have no authority to issue a preliminary injunction to top the debates even if the debates were illegally funded because of agency exhaustion requirements. However, "extraordinary circumstances" may enable a party to circumvent the explicit time restraints of the FECA. See Perot, 97 F.3d at 558; cf. Sampson v. Murray, 415 U.S. 61, 83, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974) (permitting injunctions against government from dismissing a civil service employee who had not exhausted her remedies where there was a very strong showing of irreparable injury); Skubel, 113 F.3d at 334 (holding that exhaustion is excused where it would result in irreparable harm).