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Level the Playing Field v. Federal Election Commission

United States District Court, District of Columbia

February 1, 2017

LEVEL THE PLAYING FIELD, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, United States District Judge

         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 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 (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 “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 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).

         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 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 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 ...


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