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.
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).
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