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NATURAL LAW PARTY OF U.S. v. FEDERAL ELEC. COM'N

August 28, 2000

NATURAL LAW PARTY OF THE UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
V.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Plaintiffs, the Natural Law Party of the United States (Natural Law Party), along with Dr. John Hagelin and Dr. Mike Tompkins, the Natural Law Party's 1996 candidates for President and Vice President, bring this action seeking judicial review of the Federal Election Commission's (FEC) dismissal of their 1996 administrative complaint. In their complaint to the FEC, plaintiffs, who were excluded from participation in the 1996 presidential debates, challenged the candidate selection criteria used by the debates' staging organization — the Committee on Presidential Debates (CPD). Plaintiffs contended that the criteria used by the CPD were not "objective" as required by FEC regulations. In 1998, the FEC, finding the criteria did not violate FEC regulations, dismissed the plaintiffs' complaint. Plaintiffs now seek judicial review of the dismissal on the grounds that the agency's decision was arbitrary, capricious, or otherwise contrary to law.

Defendant has moved for summary judgment solely on the grounds that plaintiffs do not have standing to bring suit in this case. Upon review of the pleadings and the entire record herein, the Court finds that plaintiffs have standing to bring suit and defendant's motion for summary judgment is therefore denied.

BACKGROUND

The Federal Election Campaign Act of 1971 (FECA) prohibits any corporation from making "a contribution or expenditure in connection with" any federal election. 2 U.S.C. § 441b(a). "Contributions" include "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431 (9)(A)(i). By regulation the term "anything of value" is defined to include "all in-kind contributions." 11 C.F.R. § 100.7 (a)(1)(iii)(A).

Beginning with the debates leading up to the 1988 general election, the staging of candidate debates has been the responsibility of the Committee on Presidential Debates (CPD). CPD was formed in 1987 as a private non-profit corporation for the express purpose of sponsoring presidential debates. During the 1996 election season, CPD sponsored two presidential debates and one vice presidential debate. The only candidates invited to participate in the 1996 debates were President Clinton, the Democratic nominee for President, former Senator Robert Dole, the Republican nominee, and their vice presidential running mates.

In choosing the participants for the 1996 debates, CPD selected the Democratic and Republican nominees based on "the historical prominence and sustained voter interest" in the two parties. With respect to the other, "non-major party" candidates for president, CPD's criteria for selecting candidates that had a "realistic chance of being elected" included: evidence of national organization (such as placement on the ballot in enough states to have a mathematical chance of obtaining an electoral college majority), signs of national newsworthiness (based on the professional opinions of the Washington bureau chiefs of major newspapers and news organizations), and indicators of public enthusiasm (as reflected by public opinion polls). When applying these criteria to the field of eligible candidates, CPD found that no candidate, other than the nominees of the two major parties, stood a realistic chance of being elected. Thus, the only candidates who merited inclusion by the CPD in the 1996 debates were the two major party nominees.

I. Case History

On September 5, 1996, one month prior to the first presidential debate, scheduled for October 6, plaintiffs filed an administrative complaint with the FEC (designated MUR 4451), alleging that the CPD's criteria for selecting candidates were not objective as required by 11 C.F.R. § 110.13 (c). Additionally, the complaint alleged that the CPD had violated 11 C.F.R. § 110.13 (c) by selecting President Clinton and Senator Dole based only on their nominations by the Democratic and Republican parties.

The complaint was filed pursuant to 2 U.S.C. § 437g(a)(1), which allows "[a]ny person who believes a violation of [FECA] has occurred" to file a complaint with the FEC. Upon receipt of a complaint, if the FEC determines by an affirmative vote of four of its members that there is "reason to believe" a violation has taken place, it must conduct an investigation of the allegations. 2 U.S.C. § 437g(a)(2). After the completion of the investigation, if the FEC determines by an affirmative vote of four members that there is "probable cause" to believe that a violation has taken place, it must attempt to reach a conciliation agreement. 2 U.S.C. § 437g(a)(4)(A)(i). If the FEC's conciliation efforts fail, it may, upon affirmative vote of four of its members, institute a civil action for relief. In the absence of an affirmative vote at any of these stages, it is the practice of the FEC to dismiss the matter under review and close the file. Pursuant to 2 U.S.C. § 437g(a)(8)(A), any person aggrieved by an order of the FEC dismissing the administrative complaint may file a petition in the United States District Court for the District of Columbia.

In addition to filing a complaint with the FEC, on September 13, 1996, plaintiffs filed a petition in the United States District Court for the District of Columbia to enjoin the CPD from using the allegedly unlawful selection criteria in determining the participants for the 1996 debates, or in the alternative, to compel the FEC to take immediate action on their administrative complaint. Four days later, the CPD issued a press release announcing that only Republican and Democratic candidates would be invited to the debates. In response to the press release, candidate Ross Perot and Perot '96, Inc. also filed an administrative complaint with the FEC, designated MUR 4473, and a complaint with this Court. The Perot and Natural Law Party's actions against the FEC were consolidated.

The FEC moved to dismiss both cases for lack of jurisdiction due to plaintiffs' failure to exhaust their administrative remedies. On October 1, 1996, following oral argument, the Honorable Thomas P. Hogan denied preliminary injunctive relief on the grounds that the FECA granted the FEC exclusive primary jurisdiction over civil claims filed under the Act.*fn1 The Court held that judicial action on plaintiffs' claims was precluded until the FEC ruled on the complaint or until 120 days had elapsed from the date the administrative complaint was filed without the FEC taking action.

During oral argument counsel for the FEC assured the Court that if the debates went forward without judicial relief and, indeed, even if the election occurred before the FEC completed its investigation, plaintiffs' claims would not become moot. Rather, FEC's counsel asserted, "If the Commission does hot bring an action then under g(a)(8), it can be challenged. And they can bring up, you know, all challenges they want to the Commission's interpretation as applied to this situation after the Commission does its fact finding." Opp. at 10. Judge Hogan clearly considered the FEC's representations in denying plaintiffs' preliminary injunction:

Weighing [the Court's interference in the agency's administrative process] against the plaintiffs not being able to partake in the debate or the remedy they may still pursue in their complaints to the FEC and may have a right to come back to this Court later on in the process that is provided by the Federal Election Commission Act, under 437g(a)(8), the Federal Election Commission lawyer asserted they would not be mooted out if they came back to court. What they would have lost if the FEC doesn't agree with them and they have to come to court is the opportunity to debate, but they still may be able to cure any defects in the criteria they allege the Debate Commission has used so that the next cycle would not have these defects and, thereby have some relief, although not total relief. Transcript of Hearing, 10/1/96 (Morning Session), Opp. at Exh. F.

Plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit, which affirmed the district court's dismissal on jurisdictional grounds but remanded with instructions to dismiss those counts challenging the legality of the regulations without prejudice to plaintiffs' ability to file a new lawsuit. Perot v. FEC, 97 F.3d 553 (D.C.Cir. 1996). Affirming dismissal, the D.C. Circuit noted, when balancing the equities, that "the damage [plaintiffs] would suffer if the debates were to be held without their participation could at least be partially remedied in subsequent proceedings . . . ." Id. at 557.

On February 24, 1998, almost a year and a half after plaintiffs filed their administrative complaint, the FEC decided, by a 5-0 vote, to dismiss the complaint because the agency found no reason to believe that any violation of law had occurred.*fn2 In denying the complaint, the FEC concluded that the challenged selection criteria contained "exactly the sort of structure and objectivity the commission had in mind when it approved the debate regulations in 1995." As such, the CPD's candidate selection criteria were determined to comply with 11 C.F.R. § 110.13.

Upon denial of their administrative complaint, plaintiffs filed this action in April 1998, pursuant to 2 U.S.C. ยง 437g(a)(8)(A), seeking judicial review of the FEC's dismissal on the grounds that the agency's action was arbitrary, capricious and otherwise contrary to law. Defendant responded with the present motion for summary judgment, challenging plaintiffs' standing to ...


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