Level the Playing Field v. FEC (LPF II)(New)

On August 27, 2015, Level the Playing Field (LPF), Dr. Peter Ackerman, the Green Party of the United States and the Libertarian National Committee (collectively plaintiffs) filed a new, second lawsuit in the U.S. District Court for the District of Columbia challenging FEC regulations and actions as they relate to sponsorship and conduct of federal candidate debates. Level the Playing Field v. FEC, No. 1:15-cv-1397-TSC (D.D.C. filed Aug. 27, 2015) (LPF II).

In the court complaint, the plaintiffs allege that the Corporation on Presidential Debates (CPD) made prohibited contributions to presidential candidates and impermissibly accepted corporate contributions, and failed to register and report as a political committee with the FEC. Plaintiffs therefore claim that the FEC acted contrary to law when it dismissed an administrative complaint filed in 2014. Plaintiffs also claim that the FEC unlawfully denied a rulemaking petition to alter the rules governing access to presidential debates.

The new lawsuit is similar to one the plaintiffs filed in June 2015 alleging that the Commission had unlawfully failed to act upon the same rulemaking petition and administrative complaint. After the Commission denied the petition and dismissed the administrative complaint, thus rendering plaintiffs’ initial judicial claims moot, plaintiffs filed a notice of voluntary dismissal without prejudice. The court ordered that suit dismissed on August 31, 2015. Level the Playing Field v. FEC, No. 1:15-cv-0967-TSC (dismissed Aug. 31, 2015) (LPF I).

Background
The FEC’s regulations on candidate debates provide that tax-exempt 501(c)(3) and (c)(4) organizations may serve as “staging organizations” for federal candidate debates provided that they “do not endorse, support, or oppose political candidates or political parties” and that they use “pre-established objective criteria to determine which candidates may participate in a debate.” Further, a staging organization “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 CFR 110.13(c). While the Federal Election Campaign Act (the Act) and FEC regulations prohibit corporations from making certain contributions or expenditures in connection with federal elections, 501(c)(3) or (c)(4) staging organizations are permitted to accept corporate or labor union funds to defray costs incurred in staging candidate debates. 11 CFR 114.4(f)(1). See also 52 U.S.C. § 30118(a).

Legal challenge
In their new court complaint, the plaintiffs allege that the CPD supports only the Democratic and Republican Parties and opposes third party and independent candidate participation in the presidential debates that it hosts. The plaintiffs assert that the CPD defers to the major parties and their candidates to determine who to invite to the general election debates and that the CPD has no rules that would prevent members of the board of the CPD from engaging in partisan activities.

The plaintiffs further allege that the CPD does not use “objective criteria” when considering which candidates will be included in debates. For instance, the plaintiffs allege that the CPD’s published criteria for participation in the general election presidential debates in 2012 required, among other things, that each candidate have a level of support of at least 15 percent of the national electorate as determined by five selected national public opinion polling organizations. The plaintiffs maintain that the 15 percent polling threshold is biased against independent and third party candidates since no third party or independent candidate has satisfied this criterion since it was implemented.

As a result of this alleged failure to establish fully objective criteria for participation in the presidential debates, the plaintiffs contend in their court complaint that the CPD has violated the Act by accepting corporate contributions to defray its expenses and has made impermissible contributions to candidates by offering them free television time. The plaintiffs also allege that the CPD does not qualify as a “staging organization” under FEC rules, and is instead a political committee that has failed to register and file reports with the FEC, as required by the Act. See 52 U.S.C. §§ 30103-30104.

In September 2014, plaintiffs LPF and Dr. Ackerman filed an administrative complaint with the FEC against the CPD alleging that it had violated the Act by acting as a partisan organization, by making prohibited corporate contributions to candidates, and by its use of the 15 percent polling criterion, which the plaintiffs argue is not objective. On July 14, 2015, the FEC dismissed the administrative complaint, finding that there was no reason to believe that CPD had violated the FEC’s debate regulations.

Plaintiff LPF also filed a rulemaking petition with the FEC late last year. The petition, which was published for comment in November 2014, asked that the Commission amend its rules on candidate debates to require debate sponsors to use objective, unbiased criteria that do not require candidates to satisfy a polling threshold as the exclusive means of access to participating in presidential and vice presidential general election debates. On July 16, 2015, the FEC denied LPF’s petition for rulemaking.

The plaintiffs ask the district court to find that the FEC’s dismissal of the administrative complaint and the FEC’s denial of the petition for rulemaking are both contrary to law. The plaintiffs also request that the court direct the FEC to find that CPD has violated the Act and also direct the FEC to initiate a rulemaking to revise its regulations governing presidential debates.

Resources:

• Level the Playing Field v. FEC litigation page
• Record article (11/18/2014): Petition for rulemaking on candidate debates
• Commission discussion on draft disposition of regulation 2014-06 (candidate debates) (July 16, 2015) [mp3]