Level the Playing Field v. Federal Election Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LEVEL THE PLAYING FIELD, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15-cv-1397 (TSC)
)
FEDERAL ELECTION COMMISSION, )
)
Defendant. )
)
MEMORANDUM OPINION
This case concerns a highly visible element of our democratic elections: the presidential
and vice-presidential debates held every four years by the Commission on Presidential Debates
(“CPD”). Plaintiffs allege that the Federal Election Commission (“FEC”) has violated the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, in dismissing two administrative
complaints regarding the CPD and in denying a petition to engage in rulemaking to change the
FEC’s regulations regarding debate staging organizations.
Before the court are Plaintiffs’ motion for summary judgment (ECF No. 37) and
Defendant’s cross-motion for summary judgment (ECF No. 42). Upon consideration of the
motions, the Administrative Record (ECF No. 58), and the arguments at the hearing held on
January 5, 2017, Plaintiffs’ motion is GRANTED, and Defendant’s cross-motion is DENIED.
I. BACKGROUND
A. The Parties
The four Plaintiffs in this case are Level the Playing Field (“LPF”), Green Party of the
United States, Libertarian National Committee, Inc., and Dr. Peter Ackerman. LPF is a
nonpartisan, nonprofit corporation whose purpose is to promote reforms that allow for greater
1
competition and choice in federal elections. (Administrative Record (“AR”) 2019 (ECF No.
58)). The Green Party is a political party that has nominated candidates in every presidential
election since 2000. (AR 4003–04). The Libertarian Party is the third largest political party in
the U.S. and has nominated presidential candidates in every election since 1972. (AR 4781–82).
Dr. Peter Ackerman is a citizen and voter who is an active participant in efforts to reform
elections and encourage third-party or independent candidates to seek office. (AR 2020; Tr. of
Mot. Hr’g (Jan. 5, 2017) at 7:18–8:7 (ECF No. 59)).
Defendant FEC is charged with the administration and civil enforcement of the Federal
Election Campaign Act (“FECA” or “Act”), 52 U.S.C. § 30101 et seq. Of the FEC’s six
commissioners, no more than three “may be affiliated with the same political party.” 52 U.S.C.
§ 30106(a)(1). The FEC is authorized to “formulate policy with respect to” the FECA, including
through promulgating regulations. 52 U.S.C. § 30106(b)(1). The agency is also authorized to
investigate potential violations of the FECA. 52 U.S.C. § 30109(a)(1)–(2).
B. The Commission on Presidential Debates
The CPD, though not a party to this case, is centrally involved in this litigation and has
submitted an amicus brief. (See ECF No. 45). 1 The CPD is a nonprofit corporation that has
staged every general election presidential debate since 1988, including the four debates in the
2012 election. (AR 2144, 2882–83 ¶¶ 3–4). It accepts corporate donations to help with the costs
associated with staging the debates. (AR 2883 ¶ 5).
Since its creation in 1987, the CPD has been led by two co-chairmen: one Republican
(former Republican National Committee Chair Frank Fahrenkopf, Jr.) and one Democrat
1
Two additional parties filed amicus briefs in support of Plaintiffs’ motion: Independent Voter
Project (ECF No. 38) and FairVote (ECF No. 39).
2
(originally former Democratic National Committee Chair Paul G. Kirk, Jr., and then in 2009
Michael D. McCurry, former press secretary to President Bill Clinton). (AR 2360, 2885–86
¶ 11, 2363). The CPD is “bipartisan” by its own description: the press release announcing its
formation stated that it was a “bipartisan . . . organization formed to implement joint sponsorship
of general election presidential and vice-presidential debates . . . by the national Republican and
Democratic committees between their respective nominees.” (AR 2249). Moreover, Fahrenkopf
has stated that the CPD was not likely to look with favor on including third-party candidates in
the debates, and Kirk has stated that he personally believed the CPD should exclude third-party
candidates from the debates. (AR 2252).
Since 1988, the CPD’s debates have included a third-party candidate—i.e., a candidate
not affiliated with the Democratic or Republican parties—just once, in 1992, when the
campaigns of Bill Clinton and George H. W. Bush requested that the CPD include Ross Perot in
the presidential debates. (AR 2288–89, 2303–04). Beginning with the 2000 election, the CPD
has relied on the following criteria to determine whether a candidate may participate in its
debates: (1) he/she must be constitutionally eligible to hold office; (2) he/she must appear on
enough state ballots to secure an Electoral College majority; and (3) he/she must have “a level of
support of at least 15% . . . of the national electorate as determined by five selected national
public opinion polling organizations, using the average of those organizations’ most recent
publicly-reported results at the time of the determination.” (AR 2917–18).
C. Statutory and Regulatory Framework
The FECA prohibits “any corporation whatever, or any labor organization, [from]
mak[ing] a contribution or expenditure in connection with any election at which presidential and
vice presidential electors . . . are to be voted for.” 52 U.S.C. § 30118(a). Contributions include
3
“any gift, subscription, loan, advance, or deposit of money or anything of value,” 52 U.S.C.
§ 30101(8)(A), and expenditures include “any purchase, payment, distribution, loan, advance,
deposit, or gift of money or anything of value,” but exempt is “nonpartisan activity designed to
encourage individuals to vote or to register to vote,” 52 U.S.C. § 30101(9)(A)(i), (B)(ii).
“Contributions” are defined as any “expenditures made by any person in cooperation,
consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized
political committees, or their agents.” 52 U.S.C. § 30116(7)(B)(i).
Pursuant to the FECA, the FEC has promulgated various regulations, including those
concerning political candidate debates. Under the law, corporations may not give contributions
to or make expenditures on behalf of political candidates or campaigns, but they may donate to
organizations that stage debates featuring those candidates because the FEC’s regulations
provide that any “[f]unds provided to defray costs incurred in staging candidate debates in
accordance with the provisions of 11 CFR 110.13 and 114.4(f) are not contributions” and are
also “not expenditures.” 11 C.F.R. §§ 100.92, 100.154. Organizations that stage debates must
be nonprofit entities and cannot “endorse, support, or oppose political candidates or political
parties.” 11 C.F.R. § 110.13(a)(1). 2 Staging organizations “must use pre-established objective
criteria to determine which candidates may participate in a debate. For general election debates,
staging organizations(s) [sic] shall not use nomination by a particular political party as the sole
objective criterion to determine whether to include a candidate in a debate.” 11 C.F.R.
§ 110.13(c). The regulation does not define “objective,” but the FEC stated when it promulgated
the rule that the use of objective criteria is intended “to avoid the real or apparent potential for a
2
If the debate is staged by a broadcaster, newspaper, or magazine, the organization may stage
debates “provided that they are not owned or controlled by a political party, political committee
or candidate.” 11 C.F.R. § 110.13(a)(2).
4
quid pro quo, and to ensure the integrity and fairness of the process,” and therefore criteria
cannot be “designed to result in the selection of certain pre-chosen participants,” and “the rule
contains an implied reasonableness requirement.” 60 Fed. Reg. 64,260, 64,262 (Dec. 14, 1995).
The debate staging regulation thus acts as an exemption to the general ban on corporate
contributions to or expenditures on behalf of political campaigns or candidates. To prevent
debate staging organizations such as the CPD from operating as conduits for corporate
contributions made to benefit only one or two candidates from the Democratic and Republican
parties—via the much-watched prime-time debates—the regulations require these organizations
to (1) be nonpartisan, (2) not endorse, support, or oppose candidates or campaigns, and (3) use
pre-established, objective criteria. If a debate staging organization fails to comply with the
regulations, such as failing to use objective criteria in determining which candidates participate
in its debates, then the value of the debate is actually a contribution or expenditure made to the
participating political campaigns in violation of the Act.
The Act provides that any person who believes a violation of the Act has occurred may
file an administrative complaint with the FEC. 52 U.S.C. § 30109(a)(1). The FEC is required to
review the complaint and any responses filed by respondents and determine whether there is
“reason to believe” the Act has been violated. 52 U.S.C. § 30109(a)(2). If at least four of the six
FEC commissioners vote that they find there is reason to believe a violation has occurred, then
the FEC may investigate the allegations; otherwise, the complaint is ordinarily dismissed. Id. If
the commissioners find there is reason to believe a violation has occurred, the next step is
determining whether there is probable cause to believe that the Act has been violated; if so, the
FEC is required to attempt to remedy the violation first through conciliation and then, if
unsuccessful, through litigation. 52 U.S.C. § 30109(a)(4)(A)(i), (a)(6).
5
The Act further provides that parties “aggrieved by an order of the Commission
dismissing a complaint filed by such a party . . . may file a petition with the United States
District Court for the District of Columbia,” which “may declare that the dismissal of the
complaint or failure to act is contrary to law, and may direct the Commission to conform with
such declaration within 30 days, failing which the complainant may bring, in the name of such
complainant, a civil action to remedy the violation involved in the original complaint.” 52
U.S.C. § 30109(a)(8)(A), (C).
D. Procedural History and the Present Litigation
1. Administrative Complaints
Plaintiffs filed two administrative complaints with the FEC alleging that the CPD and
twelve of its directors violated the FEC’s debate staging regulations and the FECA in connection
with the 2012 general election debates. 3 (AR 2001–75, 4001–05, 4778–83). These complaints
were labeled Matters Under Review (“MUR”) 6869 (filed by LPF and Peter Ackerman in
September 2014) and 6942 (filed by the Green Party and Libertarian Party in June 2015). 4 Both
complaints alleged that in the 2012 presidential election the CPD was not a nonpartisan debate
staging organization under 11 C.F.R. § 110.13(a)(1) because it endorsed, supported, or opposed
certain political parties, and that therefore the debates held in 2012 were prohibited corporate
contributions and expenditures to the campaigns of the 2012 candidates in violation of 52 U.S.C.
§ 30118(a). Further, the complainants—now Plaintiffs—alleged that because the CPD made
these contributions and expenditures, it was functioning as a political committee under the FECA
3
These directors included executive director Janet Brown, chairmen Frank Fahrenkopf, Jr. and
Michael McCurry, and Howard G. Buffett, John C. Danforth, John Griffen, Antonia Hernandez,
John I. Jenkins, Newton N. Minow, Richard D. Parsons, Dorothy Ridings, and Alan K. Simpson.
4
The Green Party and Libertarian Party each filed individual requests to join MUR 6869, but
these requests were denied and instead combined as a new administrative complaint, MUR 6942.
6
and violated 52 U.S.C. §§ 30103 and 30104 by failing to register and report its contributors and
contributions with the FEC. (AR 2027–73).
The complainants submitted over one hundred supporting exhibits, including
information, statements, and press releases relating to the founding of the CPD, information on
the recent political contributions and political activity of the CPD’s directors, the expert report of
Dr. Clifford Young regarding the ability of third-party or independent candidates to meet the
CPD’s fifteen percent polling criterion, and the expert report of Douglas Schoen regarding the
financial cost to achieve the name recognition necessary to meet the CPD’s polling requirement,
and the financial difficulty in doing so. (AR 2076–771).
In July 2015, the FEC voted 5-0 (with one recusal) to find no reason to believe that the
CPD or its co-chairs violated these regulations or statutes, thus dismissing MUR 6869. (AR
3172–73). In December 2015, the FEC again voted 5-0 to make the same determination
regarding MUR 6942. (AR 5000–01). In the Factual & Legal Analyses provided by the FEC to
the Plaintiffs in its dismissals of their complaints, the FEC noted that past administrative
complaints—MURs 4987, 5004, 5021, 5207, 5414, and 5530—had “made similar allegations,”
and that in those cases the FEC had found no reason to believe that the CPD and its co-chairs had
violated regulations or the FECA. The FEC also pointed out that its past decisions analyzing the
objectivity of the CPD’s fifteen percent requirement had been reviewed and upheld in Buchanan
v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) (reviewing MURs 4987, 5004, 5021). (AR 3175–81;
AR 5003–10).
2. Petition for Rulemaking
In September 2014, on the same day it filed its administrative complaint, LPF also filed a
Petition for Rulemaking with the FEC under 5 U.S.C. § 553(e) of the APA. (AR 0002–32). The
7
Petition asked the FEC to revise 11 C.F.R. § 110.13(c) to specifically bar debate staging
organizations from using a polling threshold as the sole criterion for accessing general election
presidential and vice-presidential debates. LPF submitted many of the same exhibits, including
the Young and Schoen expert reports, in support of its arguments.
In November 2015, the FEC published in the Federal Register its Notice of Disposition
that it was not initiating rulemaking in response to the Petition. (AR 1903–05; 80 Fed. Reg.
72,616 (Nov. 20, 2015)). The agency noted that “[b]ecause the regulation at issue is designed to
provide debate sponsors with discretion within a framework of objective and neutral debate
criteria, and because the Commission can evaluate the objectivity and neutrality of a debate
sponsor’s selection criteria through the enforcement process, the Commission finds that the
rulemaking proposed by the petition is not necessary at this time.” (AR 1904; 80 Fed. Reg.
72,617). The FEC also wrote: “In these enforcement matters, the Commission has carefully
examined the use of polling thresholds and found that they can be objective and otherwise lawful
selection criteria for candidate debates.” (Id.).
3. Present Litigation
Plaintiffs filed this lawsuit in August 2015, challenging the dismissal of their
administrative complaint, MUR 6869, and the agency’s decision not to engage in rulemaking.
(See Compl. (ECF No. 1)). In October 2015, Plaintiffs filed an Amended Complaint adding a
claim that the FEC’s failure to act on MUR 6942 within 120 days was arbitrary and capricious.
(See Am. Compl. (ECF. 17)). In January 2016, after the FEC dismissed MUR 6942, Plaintiffs
filed their Second Amended Complaint adding a challenge to the dismissal. (See Second Am.
Compl. (ECF No. 25)). The parties filed cross-motions for summary judgment (ECF Nos. 37,
42), on which a hearing was held on January 5, 2017.
8
II. SUMMARY JUDGMENT STANDARD
On a motion for summary judgment in a suit seeking APA review, the court must set
aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2). The court’s review is “highly deferential” and begins
with a presumption that the agency’s actions are valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d
275, 283 (D.C. Cir. 1981). The court is “not empowered to substitute its judgment for that of the
agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), but instead
must consider only “whether the agency acted within the scope of its legal authority, whether the
agency has explained its decision, whether the facts on which the agency purports to have relied
have some basis in the record, and whether the agency considered the relevant factors.”
Fulbright v. McHugh, 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund for Animals v. Babbitt,
903 F. Supp. 96, 105 (D.D.C. 1995)). The plaintiff bears the burden of establishing the
invalidity of the agency’s action. Id.
III. DISCUSSION
A. FEC’s Dismissals of Plaintiffs’ Administrative Complaints
Plaintiffs argue that Defendant’s dismissals of their two administrative complaints—
MURs 6869 and 6942—violated the APA because they were contrary to law and were arbitrary
and capricious. They assert that the FEC: (1) applied a legal standard contrary to the text of the
regulations; (2) failed to properly consider the submitted evidence; (3) failed to consider the
allegations raised against most of the respondents; and (4) ultimately reached the wrong
conclusion regarding the objectivity of the CPD’s debate requirement.
9
1. Legal Standard Adopted by the FEC
Plaintiffs first argue that the FEC adopted and applied a legal standard that is contrary to
the text of the regulation. In their administrative complaints, Plaintiffs alleged that the CPD
“endorse[d], support[ed], or oppose[d] political candidates or political parties” in violation of 11
C.F.R. § 110.13(a) because it acted with partisan bias, its chairmen and directors were active
partisans and political donors to the Democratic and Republican parties and their candidates, and
its fifteen percent polling threshold for participation in the presidential debates was designed to
bar any third party or independent candidate from participation. (See AR 2002–75). In its
Factual & Legal Analyses, the FEC did not articulate what standard it used to determine whether
the CPD had endorsed, supported, or opposed political parties—indeed, it did not mention these
terms at all except in quoting the regulation and the respondents’ denials that they had endorsed,
supported, or opposed political parties. When asked at oral argument how the FEC actually
engaged in an analysis to determine whether the CPD endorsed, supported, or opposed political
campaigns or parties, FEC’s counsel responded simply, though unhelpfully, that “[t]he FEC
applied the endorsed support opposed standard that’s in the regulation.” (Tr. at 28:2–3).
In support of its decisions, the FEC cited its past dismissals of administrative complaints
involving the CPD—including MURs 4987, 5004, and 5021—as well as the single prior district
court decision that considered the denials, Buchanan v. FEC. 5 In those dismissals, the FEC
5
The FEC also repeatedly claims that its decisions regarding the CPD were reviewed and
upheld in Natural Law Party v. FEC, Case No. 00-cv-2138. That case was a companion to
Buchanan, and the final order, issued fifteen days after the complaint was filed, includes no
separate analysis. See Order (Sept. 21, 2000) (granting summary judgment “[f]or the reasons set
forth in Part II of the September 14, 2000 Memorandum Opinion in” Buchanan). The FEC also
repeatedly cites to another opinion in Natural Law Party, 111 F. Supp. 2d 33 (D.D.C. 2000).
That decision was explicitly limited to whether plaintiffs had standing to challenge the FEC’s
actions, an issue not before the court here.
10
described the legal standard it applied:
[Complainants] have not provided evidence that the CPD is controlled by the
DNC or the RNC. There is no evidence that any officer or member of the DNC or
the RNC is involved in the operation of the CPD. Moreover, there does not
appear to be any evidence that the DNC and the RNC had input into the
development of the CPD’s candidate selection criteria for the 2000 presidential
election cycle. Thus, it appears that the CPD satisfied the requirement of a
staging organization that it not endorse, support or oppose political candidates or
political parties. 11 C.F.R. § 110.13(a).
(FEC Mem. at 21 (quoting First General Counsel’s Report in MURs 4897, 5004, and
5021 (July 13, 2000)) (emphasis added)). The FEC asserted in Buchanan that this
“control” standard was in response to a “specific contention” involved in those
administrative complaints, and the court agreed that the control standard was “geared
toward refuting [that] specific contention.” 112 F. Supp. 2d at 71 n.8. However,
Plaintiffs argue that by citing to these past MURs and the Buchanan case in its most
recent dismissals, the FEC is effectively adopting this “control” standard sub silentio, as
it has not articulated any other standard. The FEC responds that there is “no instance in
which the agency actually said it was adopting a ‘control over’ test.” (FEC Mem. at 28
(emphasis in original)), and adds that the control test “in any event . . . indisputably is
also a helpful aid in determining whether a group’s activities are nonpartisan.” (Id. at
28–29).
The court agrees with Plaintiffs that, in the absence of any articulated standard or
analysis, the FEC’s reliance on its past dismissals and the Buchanan case strongly implies
that it has effectively adopted or relied on the control test it articulated in those past
dismissals. However, such a test appears to be contrary to the text of the agency’s own
regulations. The FEC’s regulations do not define “support, endorse, or oppose” as used
in 11 C.F.R. § 110.13(a)(1), and the FEC did not define them in its Factual & Legal
11
Analyses. 6 However, the regulations suggest that, whatever these terms do mean, they do
not mean “control,” for that is the standard given in the regulation’s subsequent
subsection, 11 C.F.R. § 110.13(a)(2), applying to broadcasters, as opposed to nonprofit
organizations. That subsection permits only broadcasters that “are not owned or
controlled by a political party, political committee or candidate” from staging debates.
11 C.F.R. § 110.13(a)(2). Therefore, the FEC’s own regulations create a distinction
between the control test, which applies to broadcasters, and an endorse-support-oppose
test, which applies to nonprofit organizations.
The FEC heavily relies on the district’s court 2000 decision in Buchanan, which
permitted the agency’s control test as applied to the CPD. As described above, that test
assessed whether the CPD was “controlled by” the two major parties, whether either
party was “involved in” the CPD’s operations, or whether those parties “had input in”
CPD’s debate decisions. However, the court in Buchanan simply noted that the control
standard was used to refute the specific control-specific facts alleged in that case. 112 F.
Supp. 2d at 71 n.8. Here, Plaintiffs’ do not allege that the Democratic or Republican
parties exercised control over the CPD, but instead that the CPD and its directors acted on
a partisan basis to support those parties. Therefore, unlike in Buchanan, there are no
control-specific factual allegations here to warrant applying a control standard.
Moreover, as noted above, a plain reading of the regulation in the context of the
following subsection does not support applying a control standard, and to do so may be
6
According to the Oxford Dictionary, “endorse” means to “declare one’s approval of”;
“support” means “contributing to the success of or maintaining the value of”; and “oppose”
means to “set oneself against” or “stand in the way of.” See Oxford, The New Shorter Oxford
English Dictionary 818, 3153, 2009 (4th ed. 1993).
12
an incorrect construction of the regulation.
Courts are to be “exceedingly deferential” when reviewing an agency’s
construction of its own regulations, and the court “is not to decide which among several
competing interpretations best serves the regulatory purpose.” Thomas Jefferson Uni. v.
Shalala, 512 U.S. 504, 512 (1994); Trinity Broadcasting of Fla., Inv. v. FCC, 211 F.3d
618, 625 (D.C. Cir. 2000). The court 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.’” Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d
1182, 1185 (D.C. Cir. 1985) (quoting MCI Telecommunications Corp. v. FCC, 675 F.2d
408, 413 (D.C. Cir. 1982)); see also FEC v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 37 (1981) (FEC “is precisely the type of agency to which deference should
presumptively be afforded”). However, deference is not appropriate “when the agency
interpretation is plainly erroneous or inconsistent with the regulation” or “when there is
reason to suspect that the agency’s interpretation does not reflect the agency’s fair and
considered judgment.” Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166
(2012) (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).
The Buchanan court was satisfied that while the FEC’s “terse explanation could
have been more clear and thorough,” the court could still determine what legal analysis
was “apparent from the report.” 112 F. Supp. 2d at 72. This court is not as willing to
read thoughtful consideration into the FEC’s threadbare Factual & Legal Analyses. Here,
the FEC either applied a “control” standard that is contrary to the plain text of the
regulation, or it possibly applied no analytical standard at all, given that it articulated
none. Therefore, the court cannot defer to the FEC’s analysis and further concludes that
13
the FEC acted arbitrarily and capriciously and contrary to law when it determined that the
CPD did not endorse, support, or oppose political parties in the 2012 election.
The court therefore GRANTS Plaintiffs’ motion and DENIES Defendant’s cross-
motion with respect to the appropriateness of the legal standard applied. On remand, the
FEC is ORDERED to articulate its analysis in determining whether the CPD endorsed,
supported, or opposed political parties or candidates.
2. FEC’s Alleged Failure to Give Evidence a Hard Look
Plaintiffs next argue that the FEC failed to adequately consider the evidence it presented
with its two administrative complaints. Courts must assess whether agencies have considered the
“relevant factors” and must “engage in a ‘substantial inquiry’ into the facts, one that is ‘searching
and careful.’” Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (quoting Overton Park, 401
U.S. at 415). While the court’s review is deferential, it is not required to “rubber-stamp the
agency decision.” Id. Here, the court finds that the FEC’s Legal & Factual Analyses do not
provide any evidence that the FEC considered the relevant factors or took a hard look at the
evidence. Indeed, the FEC fails to cite or discuss virtually any of the evidence submitted with
Plaintiffs’ complaints.
a. Evidence Submitted With Past Complaints
The parties agree that some of evidence submitted with the complaints in this case was
identical to evidence submitted with prior CPD-related complaints, including MURs 4987, 5004,
and 5021, which were reviewed by the court in Buchanan. In those complaints, Plaintiffs
presented evidence that the CPD was created by the then-chairmen of the Republican and
Democratic parties, who entered into a Memorandum of Agreement that the debates “should be
principally and jointly sponsored and conducted by the Republican and Democratic National
14
Committees,” and that the press release announcing the CPD’s formation stated it was a
“bipartisan . . . organization.” (AR 2244, 2249).
Plaintiffs also submitted numerous statements by the CPD chairmen and directors,
including: the CPD was not likely to look with favor on including third-party candidates in the
debates (CPD Co-Chairman Fahrenkopf, AR 2252); the CPD should exclude third-party
candidates from the debates (CPD Co-Chairman Kirk, AR 2252); “Democrats and Republicans
on the commission [] are interested in the American people finding out more about the two major
candidates—not about independent candidates who mess things up” (CPD Director Alan
Simpson, AR 3095); “[t]here’s no question” that “the two major parties [have] absolute control
of the presidential debate process” (CPD Director John Lewis, AR 3095); “responsibility for [the
debates] should rest with the political system—with the Democratic and Republican Parties . . .
[and] if the Democratic and Republican nominees agreed, other candidates could be included”
(CPD Director Minow, AR 3095); the CPD “is not really nonpartisan[;] [i]t’s bipartisan” (CPD
Director Norcross, AR 3095); and the CPD is “extremely careful to be bi-partisan” (CPD
Director Vucanovich, AR 3095).
Finally, Plaintiffs submitted evidence from the 1993 Congressional testimony of Bobby
Burchfield, who served as General Counsel of President Bush’s re-election campaign in 1992,
that the CPD did not want to invite Ross Perot to participate in the 1992 election debates, but
“the Bush campaign insisted, and the Clinton campaign agreed, that Mr. Perot and Admiral
Stockdale be invited to the debates,” after which Perot was included. (AR 2299–304).
The court in Buchanan noted that this evidence of the CPD’s alleged partisanship was
“not insubstantial” and “[a]n ordinary citizen might easily view the circumstances surrounding
the creation of the CPD along with the evidence of major-party influence over the past three
15
debates as giving some ‘reason to believe’ that the CPD always has supported, and still does
support, the two major parties to the detriment of all others.” 112 F. Supp. 2d at 72. However,
the court found that Plaintiffs lacked “contemporaneous evidence” specifically relating to the
CPD’s decisions regarding the 2000 election debates at issue in that case. Id.
b. Plaintiffs’ New Evidence
In this case, Plaintiffs submitted new evidence in addition to the evidence described
above. Much of this evidence pointed to the recent partisanship of the CPD’s chairs and
directors. According to the submitted materials, CPD Chairman Fahrenkopf donated more than
$23,000 between 2008 and 2012 and $35,000 between 2012 and 2014 to the Republican Party.
(AR 2370, 2373–80). Similarly, CPD Chairman McCurry donated almost $85,000 to Democrats
between 2008 and 2012. (AR 2370). Additionally, several of the CPD directors contributed tens
of thousands of dollars to the two major political parties and candidates. (AR 2370, 2403–05,
2407–08). CPD directors also have engaged in active partisanship. For example, in 2011,
Fahrenkopf referred to the Republican Party as “our great party,” and in April 2015, he stated
that the CPD “primarily go[es] with the two leading candidates” in its debates. (AR 2382–83,
3099).
Plaintiffs also submitted the reports of two experts: Dr. Clifford Young, who discussed
the ability of third-party or independent candidates to meet the CPD’s fifteen percent polling
criterion (AR 2487–526); and Douglas Schoen, who discussed the financial obstacles to
achieving the name recognition necessary for a third-party or independent candidate to meet the
CPD’s polling requirement (AR 2552–82). Finally, in support of their argument that using
polling as the single criterion for admission into the debates is not objective or fair, Plaintiffs in
MUR 6942 submitted evidence that Gallup was no longer polling during the 2016 presidential
16
election, because polling “has become inherently unreliable.” (AR 4946–76).
c. FEC’s Consideration of the Evidence
In its two Factual & Legal Analyses, the FEC addressed just two items from this
mountain of submitted evidence: the April 2015 quote from Fahrenkopf that the CPD goes with
the two leading candidates in its debates (AR 3180; AR 5008–09), and Gallup’s decision to not
conduct polling during the 2016 election (AR 5003 n.1). 7 The FEC accepted on its face
Fahrenkopf’s declaration that he was merely stating a historical fact (AR 3180; AR 5008–09),
and similarly accepted the statement in a declaration submitted by Gallup’s Editor-in-Chief that
the polling decision was “based on allocation of resources[,] not any lack of confidence in
Gallup’s ability to conduct accurate polls” (AR 5003 n.1).
At oral argument, when asked why the FEC had only mentioned these two items of
evidence, counsel for the FEC stated that this was the only other evidence that “required [a]
separate response.” (Tr. at 31:2–14). A casual reader of the Factual & Legal Analyses would
get the distinct impression that these two pieces of evidence were all that Plaintiffs had even
submitted. Certainly, the court does not expect the FEC to discuss every single page of evidence
in order to demonstrate that it had carefully considered the facts, but here the FEC did not even
mention the vast majority of the substantive evidence submitted regarding partisanship, party
support, and the non-objectivity of the CPD’s fifteen percent threshold. While the court hopes
that the FEC carefully reviewed the evidence submitted by Plaintiffs before thoughtfully
7
The court notes with concern that the Fahrenkopf interview quote was presented to the FEC in
April 2015 as an amendment to the original September 2014 complaint (see AR 3093–96), and
the Gallup information was similarly submitted in an amendment in October 2015 (see AR
4852–54), rather than with the initial submission of evidence. The FEC’s decision to address
only these stray, supplemental pieces of submitted evidence suggests that the FEC may not have
considered or even reviewed the originally submitted evidence at all.
17
reaching its conclusions, the two Factual & Legal Analyses provide no basis whatsoever for the
court to reach that conclusion. Therefore, the court GRANTS Plaintiffs’ motion and DENIES
Defendant’s cross-motion with respect to whether the FEC acted arbitrarily and capriciously and
contrary to law by not reasonably considering the evidence before it. On remand, the FEC must
demonstrate how it considered the evidence, particularly, but not necessarily limited to, the
newly-submitted evidence of partisanship and political donations and the expert analyses
regarding fundraising and polling.
3. FEC’s Failure to Include CPD Directors as Respondents
Plaintiffs’ two administrative complaints were filed against the CPD, its two co-
chairmen, and ten other directors. The FECA requires that “[w]ithin 5 days after receipt of a
complaint, the Commission shall notify, in writing, any person alleged in the complaint to have
committed such a violation.” 52 U.S.C. § 30109(a)(1). Despite the Act’s dictate, the FEC only
notified the CPD and the two chairmen, only solicited responses from them, and mentioned only
them in its Factual & Legal Analyses. Plaintiffs argue that the FEC’s failure to notify the ten
other respondents and to consider the evidence and allegations made against them is further
indication that the agency’s dismissals were arbitrary and capricious. Despite its clear violation
of the Act’s procedural requirements, the FEC maintains that this failure amounted to no more
than harmless error because this failure “is almost always harmless error.” (Def. Mem. at 30).
In support, the FEC cites Nader v. FEC, 823 F. Supp. 2d 53, 67–68 (D.D.C. 2011), which
found that under the facts of that case the agency’s failure to notify respondents was indeed
harmless error because the plaintiff did not “identify the harm to him.” Here, while Plaintiffs’
allegations against the ten un-notified respondents were the same as those against the CPD,
Fahrenkopf, and McCurry, Plaintiffs did submit new evidence specific to those ten directors
18
regarding their partisan financial contributions and partisan political activity. Whether the FEC
considered this evidence is essential in assessing the FEC’s final determination as to whether the
CPD has supported, endorsed, or opposed political parties or candidates.
The FEC may ultimately decide that its conclusions would be the same regarding these
ten directors as with the CPD and two chairmen, but from the record before the court, it appears
that the FEC did not even consider this evidence or these allegations. The court cannot brush
aside this procedural violation of the Act and determine that it was harmless error, because there
is no way for the court to determine that Plaintiffs experienced no harm from having their
evidence ignored. Therefore, the court GRANTS Plaintiffs’ motion and DENIES Defendant’s
cross-motion with respect to whether it was arbitrary and capricious and contrary to law to
ignore the allegations made against ten of the CPD’s directors in violation of the Act’s
notification requirements. On remand, the FEC must notify these ten remaining directors,
address these allegations, and consider the evidence presented against these respondents.
4. FEC’s Conclusion that the CPD’s Polling Criterion Was Objective
Finally, Plaintiffs argue that the FEC’s dismissals were arbitrary and capricious because
the agency unreasonably found that the CPD’s fifteen percent polling criterion was “objective”
under the regulation. The regulation requires that staging organizations such as the CPD “use
pre-established objective criteria to determine which candidates may participate in a debate,” but
does not define what it means for criteria to be “objective.” 11 C.F.R. § 100.13(c); see also Perot
v. FEC, 97 F.3d 553, 559–60 (D.C. Cir. 1996) (regulation “does not spell out precisely what the
phrase ‘objective criteria’ means,” giving “the individual organizations leeway to decide what
specific criteria to use”). In Buchanan, however, the court noted that “the objectivity
requirement precludes debate sponsors from selecting a level of support so high that only the
19
Democratic and Republican nominees could reasonably achieve it.” 112 F. Supp. 2d at 74.
In support of their assertion that the fifteen percent requirement was not objective, but
instead designed to keep third-party or independent candidates out of the CPD’s debates,
Plaintiffs submitted evidence that no non-major party nominee had or would have qualified
under this requirement since the CPD began staging debates in 1988, as well as the reports of
two experts, one of whom found that polling is not inherently reliable, particularly in races with
more than two candidates, and the other who concluded that achieving fifteen percent support in
polls requires spending about $266 million before the debates even take place. The FEC gave
this evidence only glancing attention, writing in a footnote in both its Factual & Legal Analyses,
without reference to any specific evidence or how it came to this conclusion, that “[e]ven if
CPD’s 15% polling criterion may tend to exclude third-party and independent candidates, the
available information does not indicate—as the available information in previous complaints did
not indicate—that the CPD failed to use pre-established, objective criteria.” (AR 3181 n.4; AR
5010 n.5).
As discussed above, the court is faced with the difficult task of determining the
reasonableness of the FEC’s analysis when the FEC did not provide any indication that it
actually considered the submitted evidence and engaged in any reasoned decision-making. This
task is made all the more difficult by the fact that the evidence unaddressed—or outright
ignored—by the FEC is quite substantial. Dr. Clifford Young’s expert report concluded that for
a third-party or independent candidate to achieve fifteen-percent approval in polls, she “must
achieve a minimum of 60% [national] name recognition, and likely 80%,” (AR 2493), while
participation in the Republican or Democratic party primary process affords greater name
recognition and even greater reported support in polls due to the “party halo effect” (AR 2500–
20
01). Dr. Young’s report also concluded that election polling, particularly involving third-party
candidates, suffers from “sampling and non-sampling error,” including “coverage bias and
measurement error,” which make polling of “three-way races [] more error prone than two-way
races.” (AR 2518–19). He also calculated that, due to these polling errors, a hypothetical
independent candidate with a seventeen percent level of support had a thirty-seven to forty-one
percent likelihood of reporting as under fifteen percent support and thus being excluded from the
debates. (AR 2519).
Douglas Schoen’s report discussed the realities of modern media markets and campaign
spending, and concluded that to achieve name recognition of sixty percent and support of fifteen
percent, an independent candidate “should reasonably expect to spend” approximately 266
million dollars on her campaign—before the debates—including “broadcast, cable, and digital
media placement costs.” (AR 2555). To reach the eighty percent name recognition Dr. Young
found was “likely” necessary to achieve fifteen percent support, Schoen determined that an
independent candidate would have to spend nearly forty million additional dollars, bringing the
total to over $300 million—just to hope to gain access to the CPD’s debates, a de facto
prerequisite for competing in the presidential election. (See AR 2564). In Schoen’s opinion,
such a spending threshold “is, for all practical purposes, impossible for all but the major-party
candidates” in part because of competition with the nominating processes of the major parties,
the potential lack of ties with media networks and broadcast companies, and a lack of media
interest in third-party candidates prior to the debates. (AR 2556).
Given these expert analyses, the evidence that since 1988 only one non-major party
candidate, Ross Perot, has participated in the debates, and only then at the request of the two
major parties, and the evidence that the CPD’s chairmen and directors are actively invested in the
21
partisan political process through large donations, the court is perplexed that the full extent of the
FEC’s analysis consisted of no more than a footnote stating that even if the fifteen percent
threshold excluded third-party candidates, this still did not indicate that it was not an objective
criterion. (See AR 3181 n.4; AR 5010 n.5). This begs the question: if under these facts the
FEC does not consider the fifteen percent polling criterion to be subjective, what would be?
Unfortunately, the FEC articulated no analysis, and the court cannot discern the FEC’s
reasoning.
In its briefs on this issue, the FEC again relies heavily on the district court’s decision in
Buchanan sixteen years ago. In that case, the court found that the FEC’s conclusion that the
CPD’s polling threshold was objective was not arbitrary and capricious. 111 F. Supp. 2d at 76.
As the court in Buchanan noted, the record before it regarding the objectivity of the polling
threshold was limited to the plaintiffs’ arguments that federal funding eligibility for presidential
candidates is tied to a much lower five percent threshold, that polling is inexact because “even
the best polls have significant margins of error,” and that pre-debate polls fail to reflect the level
of support that could result from participation in the debates themselves. See id. at 73–76. Here,
however, the record is far more developed and involves different and considerably stronger
evidence. The FEC’s reliance on the holding in Buchanan is thus misplaced.
With regard to Plaintiffs’ arguments on the objective criteria, the FEC’s Factual & Legal
Analyses suffer from two notable flaws. First, there is no discussion, or even mention, of
Plaintiffs’ substantial and lengthy evidence and arguments. Second, there appears to be little to
no legal analysis applying the agency’s regulation. Missing from the single footnote that the
FEC devoted to this issue is any explanation as to how it reached its conclusion, what it
considered, what analysis it engaged in, and any other information that would allow the court to
22
find the FEC’s conclusions were the result of reasoned decision-making. The court therefore
GRANTS Plaintiffs’ motion and DENIES Defendant’s cross-motion as to whether the FEC’s
analysis of the criterion’s objectivity was arbitrary and capricious and contrary to law. While the
court cannot and does not mandate that the FEC reach a different conclusion on remand, the
court notes that the weight of Plaintiffs’ evidence is substantial, and the FEC must demonstrate
that it actually considered the full scope of this evidence, including the CPD chairmen’s and
directors’ partisan political activity and the expert reports, as well as explain how and why it
rejected this evidence in deciding that the CPD’s polling requirement is an objective criterion.
In sum, with respect to Plaintiffs’ allegation that the FEC acted arbitrarily and
capriciously and contrary to law when it dismissed their two administrative complaints, this court
agrees and grants their motion for summary judgment and denies Defendant’s cross-motion.
Pursuant to the Act, 52 U.S.C. § 30109(a)(8)(C), the FEC is ORDERED to reconsider the
evidence and allegations and issue a new decision consistent with this Opinion “within 30 days,
failing which the complainant[s] may bring, in the name of such complainant[s], a civil action to
remedy the violation involved in the original complaint.”
B. FEC’s Decision to Not Engage in Rulemaking
LPF also moves for summary judgment on its claim that the FEC’s decision not to initiate
rulemaking was arbitrary and capricious in violation of the APA. 8 The court’s review of an
agency’s decision not to engage in rulemaking is very limited, and that decision “is at the high
8
The FEC contends that the Green Party is barred from challenging the FEC’s refusal to engage
in rulemaking following the denial of the Petition because “it previously litigated the question”
of whether 11 C.F.R. § 110.13 is contrary to the FECA. (FEC Mem. at 35). The court disagrees.
The claim here is about the refusal to engage in rulemaking, not whether a regulation is unlawful
under the Act, and more importantly, this claim is brought by LPF alone, not by the Green Party.
(See Second Am. Compl. ¶¶ 142–44; Pls. Rep. at 17 n.6).
23
end of the range of levels of deference we give to agency action under our ‘arbitrary and
capricious’ review.” Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C. Cir. 2008)
(internal quotation omitted). The proper inquiry is “whether the agency employed reasoned
decision-making in rejecting the petition.” Id. In making this assessment, the court “must
examine ‘the petition for rulemaking, comments pro and con . . . and the agency’s explanation of
its decision to reject the petition.” Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 5 (D.C. Cir.
1987) (quoting WWHT, Inc. v. FCC, 656 F.2d 807, 817–18 (D.C. Cir. 1981)). An order to
overturn the agency’s decision and require promulgation of a rule is reserved for only “the rarest
and most compelling of circumstances.” WWHT, 656 F.2d at 818. However, if the agency fails
to provide a reasonable explanation for its decision, an appropriate remedy may be a remand to
the agency for reconsideration and publication of a new decision or the commencement of
rulemaking if the agency so decides. See, e.g., Shays v. FEC, 424 F. Supp. 2d 100, 116–17
(D.D.C. 2006).
In its Petition requesting rulemaking, LPF requested the following:
The FEC should conduct a rulemaking to revise and amend 11 C.F.R. § 110.13(c),
the regulation governing the criteria for candidate selection that corporations and
broadcasters must use in order to sponsor candidate debates. The amendment
should (A) preclude sponsors of general election presidential and vice-presidential
debates from requiring that a candidate meet a polling threshold in order to be
admitted to the debates; and (B) require that any sponsor of general election
presidential and vice-presidential debates have a set of objective, unbiased criteria
for debate admission that do not require candidates to satisfy a polling threshold
to participate in debates.
(AR 0009–10). In support of this request, LPF presented much of the same evidence,
including the Young and Schoen reports, as it presented in support of its administrative
complaint. LPF’s basic argument is that the use of a single polling criterion to determine
admission to candidate debates is particularly susceptible to excluding candidates and
24
lending support to the two major party candidates, creating an appearance of corruption
or unlawful conduct. LPF therefore argues that in the unique context of presidential and
vice-presidential debates, which are run solely by the CPD, the FEC should continue
permitting the CPD or future debate staging organizations to craft their own objective
criteria but disallow the use of polling thresholds. The FEC received 1,264 comments,
and only one—from the CPD—opposed the Petition. (AR 1903). FEC published its
Notice of Disposition in the Federal Register, notifying the public that it had declined to
engage in rulemaking and stating its reasoning.
In its Notice, the FEC first noted that “the purpose of section 110.13 . . . is to
provide a specific exception so that certain nonprofit organizations . . . and the news
media may stage debates, without being deemed to have made prohibited corporate
contributions to the candidates taking part in debates.” (AR 1904). It stated that “debate
staging organizations may use [objective selection criteria] to control the number of
candidates participating in . . . a meaningful debate but must not use criteria designed to
result in the selection of certain pre-chosen participants,” and “[t]he choice of which
objective criteria to use is largely left to the discretion of the staging organization.” (Id.
(internal quotations omitted)). Moreover, the agency stated that the regulation “is not
intended to maximize the number of debate participants” but instead “is intended to
ensure that staging organizations do not select participants in such a way that the costs of
a debate constitute corporate contributions to the candidates taking part.” (Id.). The FEC
therefore found “that section 110.13(c) in its current form provides adequate regulatory
implementation of the corporate contribution ban and is preferable to a rigid rule that
would prohibit or mandate use of particular debate selection criteria in all debates.” (Id.).
25
In response to the specific evidence that CPD’s use of the fifteen percent polling
threshold has the result of excluding third-party and independent candidates, the FEC
stated only that “[t]he use of polling data by a single debate staging organization for
candidate debates for a single office . . . does not suggest the need for a rule change.”
(AR 1905). It further acknowledged that a “polling threshold could be used to promote
or advance one candidate (or group of candidates) over another,” but noted that “this
would already be unlawful under the Commission’s existing regulation,” and “the
Commission can evaluate the objectivity and neutrality of a debate sponsor’s selection
criteria through the enforcement process.” (AR 1904–05). The FEC did not explain why
the enforcement process was preferable.
The FEC also did not explain why it was rejecting the Petition’s request for a
specific debate rule for presidential and vice-presidential debates. Instead, it responded
to the Petition as if it requested a general rule change (which the Petition did not), only
stating, again without any additional explanation or analysis, that “[i]n the absence of any
indication that polling thresholds are inherently unobjective or otherwise unlawful as
applied to all federal elections . . . the Commission declines to initiate a rulemaking that
would impose a nationwide prohibition on the use of such thresholds.” (AR 1905).
As with the above review of the FEC’s dismissals, the court must accord substantial
deference to the agency’s decisions. However, the court is again concerned at the agency’s
cursory treatment of Plaintiff LPF’s Petition, its arguments, and its evidence. LPF clearly
argued, and attempts to establish with significant evidence, that in presidential elections CPD’s
polling threshold is being used subjectively to exclude independent and third-party candidates,
which has the effect of allowing corporations to channel money to the CPD’s expenditures to the
26
campaigns they would be prohibited from giving the campaigns directly. It further argued and
presented evidence that polling thresholds are particularly unreliable and susceptible to this type
of subjective use at the presidential level, undermining the FEC’s stated goal of using “objective
criteria to avoid the real or apparent potential for a quid pro quo, and to ensure the integrity and
fairness of the process.” In its Notice, the FEC brushed these arguments aside, describing the
practice as “[t]he use of polling data by a single debate staging organization for candidate
debates for a single office.” (AR 1905). This characterization makes little sense. Referring to
the CPD as just “a single debate staging organization” ignores the fact that for thirty years it has
been the only debate staging organization for presidential debates; similarly, referring to the
presidential debates as simply “debates for a single office” ignores that the entire Petition is
aimed at the unique characteristics of presidential elections and debates.
In light of the court’s conclusions above that the FEC acted arbitrarily and capriciously in
its enforcement decisions by failing to address evidence or articulate its analysis, the court views
with some skepticism the FEC’s assertion that rulemaking is unnecessary because the agency has
chosen to root out subjective debate criteria through the enforcement process. By citing past
practice—and the Buchanan decision—as its only response to LPF’s Petition, the FEC appears to
have stuck its head in the sand and ignored the evidence that its lack of rulemaking and lack of
enforcement may be undermining the stated purpose of its regulations and the Act. This is not
the reasoned decision-making that is required of all agencies. Therefore, despite the deferential
standard of review, this court concludes from reviewing the Petition and Notice of Disposition
that the FEC acted arbitrarily and capriciously by refusing to engage in rulemaking without a
thorough consideration of the presented evidence and without explaining its decision.
The decision in Shays v. FEC is instructive, and the court reaches a similar conclusion
27
here. The FEC’s failure to provide a reasoned and coherent explanation for its decision requires
remand for reconsideration. However, the court will not order the FEC to promulgate the rule
requested in the Petition based on the record here. Such a remedy is appropriate in “only the
rarest and most compelling of circumstances.” WWHT, 656 F.2d at 818. The D.C. Circuit has
found such circumstances when an agency refused rulemaking despite new evidence and
behavior that “strongly suggest[ed] that it ha[d] been blind to the nature of [its] mandate from
Congress.” Am. Horse Prot. Ass’n, 812 F.2d at 7. While the FEC’s refusal to engage in
thoughtful, reasoned decision-making in either enforcement or rulemaking in this case may strike
some, including Plaintiffs, as being “blind to the nature of [its] mandate from Congress,” this
court will not take the extraordinary step of ordering promulgation of a new rule, but instead will
permit the FEC a second opportunity to give the Petition the consideration it requires.
LPF’s motion is therefore GRANTED as to its rulemaking petition, and Defendant’s
cross-motion is DENIED. The FEC is ORDERED to reconsider the Petition for Rulemaking and
issue a new decision consistent with this Opinion within sixty days.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED in
full, and Defendant’s cross-motion is also DENIED.
Date: February 1, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
28