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August 12, 2004.

JOHN HAGELIN, et al., Plaintiffs,

The opinion of the court was delivered by: HENRY KENNEDY, District Judge


John Hagelin, Ralph Nader, Patrick Buchanan, Howard Phillips, Winona LaDuke, the Natural Law Party, the Green Party of the United States, and the Constitution Party (collectively "plaintiffs") bring this action against the Federal Election Commission ("FEC") charging that the FEC erroneously dismissed their administrative complaint. Their complaint alleged that the Commission for Presidential Debates ("CPD") is a partisan organization and thus could not, and can not, lawfully sponsor presidential debates, events that can only be staged lawfully by a nonprofit, non-partisan organization. Before the court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the respective oppositions thereto, and the record of this case, the court concludes that plaintiffs' motion for summary judgment [Dkt. # 7] must be granted in part and denied in part, and that defendant's summary judgment motion [Dkt. #11] must also be granted in part and denied in part.


  A. Statutory Background

  The FEC is an independent agency with jurisdiction to administer and enforce the Federal Election Campaign Act ("FECA"). 2 U.S.C. § 431 et seq. FECA generally bars corporations from making "contributions" or "expenditures" in connection with any federal election. Id. § 441b(a). Political committees, id. § 431(4), may accept contributions or make expenditures in connection with a federal election, but they must first register with the FEC and report on all contributions and disbursements in accord with FECA and FEC regulations. See id. § 433-34; 11 C.F.R. § 102.1(d).

  FECA provides safe harbors from these prohibitions and requirements. In particular, one safe harbor provision indicates that "expenditures" do not include "nonpartisan activity designed to encourage individuals to vote or to register to vote." 2 U.S.C. § 431(9)(B)(ii). An FEC regulation further interprets the safe harbor in § 431(9)(B)(ii) by excluding from the definitions of "contribution" and "expenditure" funds raised or spent to stage debates between candidates for elected office. 11 C.F.R. § 114.4(f)(1). Therefore, a non-profit organization that does not "endorse, support or oppose political candidates or political parties," id. § 110.13(a)(1), may accept and use corporate donations in order to stage candidate debates. Id. § 114.4(f)(1). That is, the organization staging a debate is eligible under the safe harbor only if, inter alia, it does not advance "one candidate over another." Id. § 110.13(b)(2).

  A party who believes that he has been injured by violations of FECA or FEC regulations must first bring an administrative complaint before the FEC. 2 U.S.C. § 437g(a)(1). The FEC, in turn, will consider the complaint in a three-step process. See Buchanan v. FEC, 112 F. Supp.2d 58, 62 (D.D.C. 2000). First, the FEC reviews the complaint and decides if there is "reason to believe" a FECA violation has occurred; if the FEC votes in the affirmative, it must conduct an investigation. 2 U.S.C. § 437g(a)(2). Second, after the investigation, the FEC takes another vote to determine if it has "probable cause" to believe a FECA violation has occurred; if the FEC votes in the affirmative, it must try to reach a conciliation agreement with the alleged FECA violator. Id. § 437g(a)(4)(A)(i). Third, if conciliation fails, the FEC votes on whether to initiate a civil action in federal court to enforce FECA. Id. § 437g(a)(6)(A). At each of the three stages, four or more FEC Commissioners must vote to proceed. If not, the FEC dismisses the complaint. The complainant may seek review of any dismissal in this court. Id. § 437g(a)(8)(A).

  B. Factual Background

  In 1987, members of the Democratic and Republican parties formed CPD, a private, nonprofit corporation that sponsors and stages the debates for the United States presidential elections. It has staged debates for the 1988, 1992, 1996, and 2000 presidential elections. For the 2004 election, CPD will sponsor two presidential debates and one vice-presidential debate. CPD allegedly receives millions of dollars from corporations and wealthy donors to stage the presidential debates. How much CPD receives, exactly, and how it spends its money is unclear because the FEC has qualified CPD for the safe harbor provision under FECA and FEC regulations. As such, corporations may contribute money to CPD, and CPD need not report what it receives from corporations or how it spends that money.

  Plaintiffs are political parties, other than the Republican and Democratic parties, and individuals who have sought presidential and vice-presidential election. Of the individual plaintiffs, only Nader is a candidate for the 2004 election. The others — Hagelin, Buchanan, Phillips, and LaDuke — were third-party presidential or vice-presidential candidates in 2000 who will not run in 2004. Both the Green and Constitution Parties, however, will have presidential candidates for the 2004 election. Neither Mr. Nader nor any person nominated by the Green or Constitutional Party is likely to be included in the 2004 debates under the eligibility rules established by CPD.*fn1 These rules allegedly discouraged Buchanan, Hagelin, Phillips and LaDuke from running in the 2004 election.

  In June 2003, plaintiffs submitted a complaint against CPD to the FEC. Plaintiffs alleged that by structure, leadership and conduct, CPD was from its inception and continues to be a partisan organization, controlled by Democratic and Republican officials for the benefit of their respective parties. According to plaintiffs, the following facts show that CPD is, by structure and leadership, partisan: (1) CPD was founded by the two major parties; (2) since its founding in 1987, CPD has been co-chaired by Frank Fahrenkopf, Jr. and Paul Kirk, the former heads of the Republican and Democratic National Committees; (3) nine of eleven CPD directors are prominent Republicans or Democrats; and (4) no third-party member is a CPD director. Admin. Compl. ¶¶ 9, 11. Further, plaintiffs argued that CPD's current conduct shows it to be a partisan organization. Specifically, they pointed to evidence that CPD excluded all third-party candidates from entering the 2000 presidential debates as audience members, even if they had tickets. Id. ¶¶ 9-10. To its security staff at the 2000 debates, CPD distributed facebooks with pictures of most or all of the third party presidential and vice-presidential candidates, with orders not to let them into the debate halls. See A.R. at 20-22 (CPD, Untitled facebook of third party candidates). Plaintiffs allege that CPD did this to deny third party candidates the chance to campaign and to deny them access to the 1700 members of the media present at the debates. Admin. Compl. ¶ 10. Plaintiffs indicated that, acting as a partisan organization, CPD violated the FEC safe harbor regulations for organizations staging debates. See 11 C.F.R. § 110.13; id. § 114.4. As relief, plaintiffs asked the FEC to find that CPD was not qualified to stage debates in 2000, stop CPD from staging debates in 2004, bar CPD from raising contributions or making expenditures, and order CPD to file reports on its receipts and disbursements in 2000. Admin. Compl. at 11-12.

  In March 2004, the FEC found no "reason to believe" that CPD violated FEC regulations and dismissed plaintiffs' complaint.*fn2 First, the FEC found that in 2000, it had previously dismissed the same allegations by plaintiffs that CPD's history, structure and leadership showed it to be partisan. See A.R. 385 (FEC General Counsel's Report at 4, Mar. 12, 2004) (citing the FEC's decisions in MUR 4987 and MUR 5004). The FEC notes that its 2000 decisions were upheld on review by the federal courts in the District of Columbia. A.R. 385 (Id. at 4 n. 4) (citing MUR 4987, MUR 5004, Buchanan, 112 F. Supp.2d 58, aff'd on different grounds, No. 00-5337 (D.C. Cir. Sept. 29, 2000)). Second, the FEC accepted CPD's justification for excluding third party candidates from the 2000 debates — that it did so, not out of partisanship, but out of concern that a third party candidate would disrupt the live broadcast of the debates. A.R. 388. The FEC found that CPD was concerned that Ralph Nader might try to stand up on stage, or that his supporters, who had protested at the debates and had broken into CPD's office in Washington, D.C., might also disrupt the debates. A.R. 388 (citing Loss Dep. at 48, Fahrenkopf Dep. at 45). The FEC decided that the key issue was not whether CPD's concern was well-founded, but whether its actions were animated by partisanship. It found that CPD's actions in 2000 were not, and, thus, that there was no "reason to believe" CPD had violated FECA. The FEC dismissed plaintiffs' complaint. In the present action, plaintiffs seek review of the FEC's dismissal.


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