BEFORE THE FEDERAL ELECTION COMMISSION
In the matter of
Commission on Presidential Debates
Clinton/Gore 96 General Committee, Inc., and Joan C. Pollitt, as Treasurer
Dole/Kemp 96, Inc., and Robert E. Lighthizer, as Treasurer
DNC Services Corporation/Democratic National Committee and Carol Pensky, as Treasurer Republican National Committee and Alec Poitevint, as Treasurer |
MURs 4451 and 4473 |
STATEMENT OF
REASONS
Chairman Joan Aikens
Vice Chairman Scott E. Thomas
Commissioner Lee Ann Elliott
Commissioner Danny Lee McDonald
Commissioner John Warren McGarry
I.
INTRODUCTION
On February 24, 1998, the Commission found no reason to believe that the Commission
on Presidential Debates (CPD) violated the law by sponsoring the 1996
presidential debates or by failing to register and report as a political committee. The Commission also found no reason to believe
that Clinton/Gore 96 General Committee, Inc., Dole/Kemp 96, and their
treasurers (collectively, the Committees), violated the law by accepting and
failing to report any contributions from CPD. The
Commission
II.
SELECTION OF PARTICIPANTS FOR CANDIDATE DEBATES
A.
Legal Framework
Under the Federal Election Campaign Act of 1971, as amended (FECA),
corporations are prohibited from making contributions[1] or expenditures[2] in connection with
federal elections. 2 U.S.C. § 441b(a); see also 11 C.F.R. § 114.2(b).[3] The Commission has promulgated a regulation that
defines the term contribution to include:
A gift, subscription, loan . . ., advance or deposit of money or anything of
value made... for the purpose of influencing any election for Federal office. 11 C.F.R. § 100.7(a)(1). See also 11
C.F.R. § 114.1(a). Anything of
value is defined to include all in-kind contributions. 11 C.F.R. § 100.7(a)(1)(iii)(A). The regulatory definition of contribution also
provides: [u]nless specifically
exempted under 11 C.F.R. § 100.7(b), the provision of any goods or services without
charge . . . is a contribution. Id.
Section 100.7(b) of the Commissions regulations specifically exempts
expenditures made for the purpose of staging debates from the definition of contribution. 11 C.F.R. § 100.7(b)(21). This exemption requires that such debates meet the
requirements of 11 C.F.R. § 110.13,[4] which establishes
parameters within which staging organizations must conduct such debates. The parameters address: (1) the types of organizations that may stage such
debates, (2) the structure of debates, and (3) the criteria that debate staging
organizations may use to select debate participants.
With respect to participant selection criteria, 11 C.F.R. § 110.13(c)
provides, in relevant part:
Criteria
for candidate selection. For all debates, staging organization(s) must use
pre-established objective criteria to determine which candidates may participate in a
debate. For general election debates, staging
organization(s) 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. When promulgating this regulation, the Commission
explained its purpose and operation as follows:
Given that the rules permit corporate
funding of candidate debates, it is appropriate that staging organizations use
pre-established objective criteria to avoid the real or apparent potential for a quid pro quo, and to ensure the integrity and
fairness of the process. The choice of which
objective criteria to use is largely left to the discretion of the staging organization. .
. .
. . . Staging organizations must be able
to show that their objective criteria were used to pick the participants, and that the
criteria were not designed to result in the selection of certain pre-chosen participants. The objective criteria may be set to control the
number of candidates participating in a debate if the staging organization believes there
are too many candidates to conduct a meaningful debate.
Under the new rules, nomination by a
particular political party, such as a major party, may not be the sole criterion used to
bar a candidate from participating in a general election debate. But, in situations where, for example, candidates
must satisfy three of five objective criteria, nomination by a major party may be one of
the criteria. This is a change from the
Explanation and Justification for the previous rules, which had expressly allowed staging
organizations to restrict general election debates to major party candidates. See
Explanation and Justification, 44 FR 76735 (December 27, 1979). In contrast, the new rules do not allow a staging
organization to bar minor party candidates or independent candidates from participating
simply because they have not been nominated by a major party.
60 Fed. Reg. 64,260, 64,262 (Dec. 14, 1995).
Thus, if an appropriate corporation staged a debate among candidates for federal
office and that debate was staged in accordance with all of the requirements of 11 C.F.R.
§ 110.13, then the costs incurred by the sponsoring corporation would be exempt from the definition of contribution pursuant to the
operation of 11 C.F.R. § 100.7(b)(21). See also 11 C.F.R. §§ 114.1(a)(2)(x) and
114.4(f)(1). Similarly, other corporations
legally could provide funds to the sponsoring corporation to defray expenses incurred in
staging the debate pursuant to the operation of 11 C.F.R. §§ 114.1(a)(2)(x) and
114.4(f)(3). On the other hand, if a
corporation staged a debate that was not in accordance with 11 C.F.R.
§ 110.13, then staging the debate would not be an activity specifically
permitted by 11 C.F.R. § 100.7(b), but instead would constitute a
contribution to any participating candidate under the Commissions regulations. See 11
C.F.R. § 100.7(a)(1)(iii)(A) (noting unless specifically exempted
anything of value provided to the candidate constitutes a contribution). The participating candidates would be required to
report receipt of the in-kind contribution as both a contribution and an expenditure
pursuant to 11 C.F.R. § 104.13(a)(1) and (2). See 2 U.S.C. § 434(b)(2)(C) and (4).
B.
Commission on Presidential Debates Selection Criteria
CPD was incorporated in the District of Columbia on February 19, 1987, as a
private, not-for-profit corporation designed to organize, manage, produce, publicize and
support debates for the candidates for President of the United States. Prior to the 1992 campaign, CPD sponsored six
debates, five between candidates for President, and one between candidates for Vice
President. In the 1996 campaign, CPD
sponsored two Presidential debates and one Vice Presidential debate. Only the candidates of the Democratic and
Republican parties were invited to participate in the 1996 debates. CPD produced written candidate selection criteria
for the 1996 general election debate participation. Relying
on these criteria and the recommendation of an advisory committee consisting of a broad
array of independent professionals and experts, the CPD determined that only the
Democratic and Republican candidates had a realistic chance of winning the
1996 election.
The introduction to the candidate selection criteria explains, in pertinent part:
In light of the large number of declared
candidates in any given presidential election, [CPD] has determined that its voter
education goal is best achieved by limiting debate participation to the next President and
his or her principal rival(s).
A Democratic or Republican nominee has
been elected to the Presidency for more than a century.
Such historical prominence and sustained voter interest warrants the extension of
an invitation
to the respective nominees of the two
major parties to participate in [CPDs] 1996 debates.
In order to further the educational
purposes of its debates, [CPD] has developed nonpartisan criteria upon which it will base
its decisions regarding selection of nonmajor party candidates to participate in its 1996
debates. The purpose of the criteria is to
identify nonmajor party candidates, if any, who have a realistic (i.e., more than
theoretical) chance of being elected the next President of the United States and who
properly are considered to be among the principal rivals for the Presidency.
The criteria contemplate no quantitative
threshold that triggers automatic inclusion in a [CPD]-sponsored debate. Rather, [CPD] will employ a multifaceted analysis
of potential electoral success, including a review of (1) evidence of national
organization, (2) signs of national newsworthiness and competitiveness, and (3) indicators
of national enthusiasm or concern, to determine whether a candidate has a sufficient
chance of election to warrant inclusion in one or more of its debates.
February 6, 1998 General Counsels
Report (G.C. Report) at Attachment 4, at 57.
Thus, CPD identified its objective of determining which candidates have a realistic
chance of being elected the next President, and it specified three primary criteria for
determining which nonmajor party candidates to invite to participate in its
debates. CPD further enumerated specific
factors under each of the three primary criteria that it would consider in reaching its
conclusion.
For its first criterion, evidence of national organization, CPD
explained that this criterion encompasses objective considerations pertaining to
[Constitutional] eligibility requirements . . . [and] also encompasses more subjective
indicators of a national campaign with a more than theoretical prospect of electoral
success. Id. The
factors to be considered include:
a. Satisfaction
of the eligibility requirements for Article II, Section I of the Constitution of the
United States. |
b. Placement
on the ballot in enough states to have a mathematical chance of obtaining an electoral
college majority. |
|
d. Eligibility
for matching funds from the Federal Election Commission or other demonstration of the
ability to fund a national campaign, and endorsement by federal and state officeholders. |
Id.
CPDs second criterion, signs of national newsworthiness and
competitiveness, focuses both on the news coverage afforded the candidacy over
time and the opinions of electoral experts, media and non-media, regarding the
newsworthiness and competitiveness of the candidacy at the time [CPD] makes its invitation
decisions. Id. Five
factors are listed as examples of signs of national newsworthiness and
competitiveness:
a. The
professional opinions of the Washington bureau chiefs of major newspapers, news magazines,
and broadcast networks. |
b. The
opinions of a comparable group of professional campaign managers and pollsters not then
employed by the candidates under consideration. |
c. The
opinions of representative political scientists specializing in electoral politics at
major universities and research centers. |
d. Column
inches on newspaper front pages and exposure on network telecasts in comparison with the
major party candidates. |
e. Published
views of prominent political commentators. |
Id.
at 58.
Finally, CPDs third selection criterion states that the factors to be
considered as indicators of national public enthusiasm are intended to assess
public support for a candidate, which bears directly on the candidates prospects for
electoral success. The listed factors
include:
a. The
findings of significant public opinion polls conducted by national polling and news
organizations. |
|
Id.
C.
Discussion
After a thorough and careful examination of the factual record, the undersigned
commissioners unanimously concluded the Commission on Presidential Debates used
pre-established objective criteria to determine who may participate in the
1996 Presidential and Vice-Presidential debates. 11 C.F.R.
§110.13.[5]
As a result, CPD did not make, and the candidate committees did not receive, a corporate
contribution.
The CPD was set up and structured so that the individuals who made the ultimate
decision on eligibility for the 1996 debates relied upon the independent, professional judgment of a broad array of experts. The CPD used
multifaceted selection criteria that included: (1) evidence of a national
organization; (2) signs of national newsworthiness and competitiveness; and (3) indicators
of national enthusiasm or concern. We studied
these criteria carefully and concluded that they are objective. Moreover, we could find no indication or evidence
in the factual record to conclude that the criteria were designed to result in the
selection of certain pre-chosen participants. Explanation
and Justification of 11 C.F.R. §110.13(c), 60 Fed.
Reg. at 64262.
The CPD debate criteria contain exactly the sort of structure and objectivity the
Commission had in mind when it approved the debate regulations in 1995. Through those regulations, the Commission sought
to reduce a debate sponsors use of its own personal opinions in selecting
candidates. It was essential, in the
Commissions view, that this selection process be neutral. It is consistent with the 1995 regulations for a
debate sponsor to consider whether a candidate might have a reasonable chance of winning
through the use of outside professional judgment. Indeed,
if anything, the use of a broad array of independent professionals and experts is a way of
ensuring the decision makers are objective in
assessing the realistic chances of a candidate.
The pool of experts used by CPD consisted of top level academics and other
professionals experienced in evaluating and assessing political candidates. By basing its
evaluation of candidates upon the judgment of these experts, CPD took an objective
approach in determining candidate viability.[6]
Significantly, the debate regulations sought to give debate sponsors wide leeway in
deciding what specific criteria to use. During
the Commissions promulgation of §110.13, the Commission considered the staffs
recommendation to specify certain ostensibly objective selection criteria in the
regulations and to expressly preclude the use of [p]olls or other assessments of a candidates chances of winning the
nomination or election. See Agenda Document #94-11 at 74 (February 8, 1994)
and Explanation and Justification of 11 C.F.R. §110.13, 60 Fed. Reg. at 64262. The Commission unanimously
rejected this approach.[7] Id. Instead, the Commission decided the selection
criteria choice is at the discretion of the staging organization and indicated that the
use of outside professional judgment in considering candidate potential is permissible. Accordingly, the Commission cannot now tell the
CPD that its employment of such an approach is unacceptable and a violation of law.
The Office of General Counsel, in effect, seemed to want to apply its own debate
regulation proposal from several years ago in the instant matters. It argued the use of candidate assessments, such as CPDs
signs of newsworthiness and competitiveness, are problematic for
many of the same reasons it argued in 1994. G.C.
Report at 17. Specifically, the Office of
General Counsel contended the CPD criteria contain two levels of subjectivity:
first, identifying the pool of sources involves numerous subjective judgments, and second,
once the pool is identified, the subjective judgments of its members is considered. Id. at 18. The
staff further insisted that there also is reason to believe that the other selection
criteria appear to be similarly insufficiently defined to comply with §110.13(c)s
objectivity requirement. Id.
The questions raised in the General Counsels Report are questions which can
be raised regarding any candidate assessment
criterion. To ask these questions each and
every time a candidate assessment criterion is used, however, would render the use of that
criterion unworkable, contrary to the direction given by the Commission at the regulatory
stage. Absent specific evidence that a
candidate assessment criterion was fixed or arranged in some manner so as to
guarantee a preordained result, we are not prepared to look behind and investigate every
application of a candidate assessment criterion. This
approach is consistent with the Commissions Explanation and Justification which
states reasonableness is implied when using objective criteria. Explanation and Justification of 11 C.F.R.
§110.13(c), 60 Fed. Reg. at 64262. We are satisfied with the affidavits presented by
the CPD that its criteria were not designed to result in the selection of certain
pre-chosen participants. Id. See G.C. Report at Attachment 4, at 121-126
(affidavit of professor Richard E. Neustadt); Attachment 4 at 43-56 (affidavit of Janet H.
Brown). Significantly, we have been
presented with no evidence in the factual record which threatens the veracity of these
sworn affidavits.
The General Counsels Report contains several other points which must be
addressed. First, the Reports
suggestion that CPD misapplied Mr. Perots qualification for public funding reflects
a misunderstanding of CPDs reasoning. See G.C. Report at 19-20. While qualification for public funding is
significant, the CPB observed that as a practical matter Mr. Perots hands would be
tied since he could not contribute his own money. Thus,
compared to 1992, his realistic chances of winning in 1996 were greatly
reduced:
[In 1992], we concluded that his prospect
of election was unlikely but not unrealistic. With
the 1992 results and the circumstances of the current campaign before us, including
Mr. Perots funding limited by his acceptance of a federal subsidy, we see no similar circumstances
at the present time. Nor do any of the
academic or journalistic individuals we have consulted.
G.C. Report at Attachment 4, at 128
(Letter of Professor Richard E. Neustadt) (emphasis added).
A limit on the amount of funds which can be spent by a candidate is certainly an
objective factor which can be legitimately used by a sponsoring organization.
The General Counsels Report also asserts the Democratic and Republican party
nominees were issued automatic invitations to the debates as a result of their
party nominations in violation of §110.13. See February 6, 1998 G.C. Report at 21-22. We find persuasive the specific denials by the CPD
on this point. The CPD flatly denies it based
its decision on this factor alone:
[I]n 1996, the CPD Board asked me to act
as chairman of the advisory committee that applied the 1996 candidate selection criteria. The advisory committee convened on September 16,
1996 for the purpose of applying CPDs nonpartisan candidate selection criteria to
more than 130 candidates running for the Presidency and Vice-Presidency in the 1996
general election campaign. Although the candidate selection criteria do not
require it to do so, the advisory committee independently applied the criteria to the Democratic
and Republican party candidates. After
reviewing and discussing the facts and circumstances of the 1996 general election
campaign, it was the unanimous conclusion of the advisory committee that, as of September
16, 1996, only President Clinton and Senator Dole have a realistic chance in 1996 of being
elected President, and only Vice President Gore and Congressman Kemp have a realistic
chance of being elected Vice President.
G.C. Report at Attachment 4, at 124-125
(Affidavit of Professor Richard E. Neustadt)(emphasis added). See also
id. at 53-54 (Affidavit of Janet H. Brown)(After receipt of the data provided to
the 1996 Advisory Committee and its own deliberation and discussion, the CPD Board unanimously accepted the 1996 Advisory
Committees recommendation that only President Clinton and Senator Dole be
invited to participate in CPDs 1996 Presidential debate and only Vice President Gore
and Congressman Kemp be invited to participate in CPDs 1996 vice presidential
debate.)(emphasis added).
Additionally, we do not fully agree with the staffs conclusion that
automatic invitations are in direct violation of 11 C.F.R.
§110.13(c). G.C. Report at 21. Section 110.13(c) provides, in pertinent part,
that [f]or general election debates,
staging organization(s) shall not use nomination by a particular political party as the
sole objective criterion to determine whether to include a candidate in a debate. The phrase whether to include was
intended to prevent a debate sponsor from excluding
a candidate from a debate solely because the candidate was not a major party nominee. For example, a debate sponsor could not use the
following as its objective criterion: Only major party candidates are
eligible to participate in the debate. The
regulations purpose was not to prevent a debate sponsor from issuing debate
invitations to major party nominees.
The Explanation and Justification of §110.13(c) confirms this understanding of the
regulation: Under the new rules,
nomination by a particular party, such as a major party, may not be the sole criterion
used to bar a candidate from participating in a
general election debate. Explanation
and Justification of 11 C.F.R. §110.13(c), 60
Fed. Reg. at 64262 (emphasis added). Indeed,
the entire paragraph explaining this new regulatory language focuses on the fact that
the new rules do not allow a staging organization to bar minor party candidates or
independent candidates from participating
simply because they have not been nominated by a major party. Id. Conversely,
no mention is made in the Explanation and Justification that the new rules were somehow
intended to prevent the issuance of invitations to major party nominees. We believe it is consistent with the purpose of
the regulation for the CPD to issue an invitation to the major party candidates in view of
the historical prominence of, and sustained voter interest in, the
Republican and Democratic parties. G.C.
Report at Attachment 4, at 57.
Finally, the General Counsels Report suggests the Clinton/Gore Committee and
the Dole/Kemp Committee expressed an interest to either include or exclude Mr. Perot and
that, as a result, the two candidate committees somehow tainted the debate selection
process. G.C. Report at 20-21. Absent specific evidence of a controlling role in
excluding Mr. Perot, the fact the Committees may have discussed the effect of Mr.
Perots participation on their campaigns is without legal consequence. There certainly is no credible evidence to suggest
the CPD acted upon the instructions of the two campaigns
to exclude Mr. Perot. To the contrary, it
appears one of the campaigns wanted to include
Mr. Perot in the debate. See G.C.
Report at Attachment 6, at 7 (since the start of the general election, the
[Clinton/Gore] Committee fully supported the wishes of Ross Perot to be included in the
CPD-sponsored presidential debates and had hoped that the CPD would make a determination
to include him.) (response of Clinton/Gore 96).
In fact, CPDs ultimate decision to exclude Mr. Perot (and others) only
corroborates the absence of any plot to equally benefit the Republican and Democratic
nominees to the exclusion of all others.
III.
STATUS AS A POLITICAL COMMITTEE
The FECA defines political committee as, in part: any committee,
club, association, or other group of persons which receives contributions aggregating in
excess of $1,000 during a calendar year or which makes expenditures aggregating in excess
of $1,000 during a calendar year. 2 U.S.C.
§ 431(4); see also 11 C.F.R. § 100.5. Political committees are required to register with
the Commission, and to report contributions received and expenditures made in accordance
with the FECA and the Commissions regulations.
See 2 U.S.C. § 433 and 11 C.F.R.
§ 102.1(d) (requiring political committees to register with the Commission); see also 2 U.S.C. § 434 and 11 C.F.R.
§ 104.1(a) (requiring political committees to file specified reports with the
Commission). Since CPD did not make a contribution to or an expenditure on behalf of the
Committees, it was not a political committee within the meaning of 2 U.S.C. § 431(4). Accordingly, CPD was not required to register and
report with the Commission.
IV. CONCLUSION
For all the reasons set forth above, the Commission did not approve the General
Counsels recommendations with regard to alleged violations of the FECA by the
Commission on Presidential Debates, Clinton/Gore 96 General Committee and the
Dole/Kemp 96 Committee and their treasurers.
4/6/98
/ s /
________________________
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Date
Joan D. Aikens
Chairman
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Date
Scott E. Thomas
Vice Chairman
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________________________
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Date
Lee Ann Elliott
Commissioner
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________________________
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Date
Danny L. McDonald
Commissioner
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________________________
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Date
John Warren McGarry
Commissioner
[1] FECA defines contribution to 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(8)(A)(i); see also 2 U.S.C. § 441b(b)(2).
[2] FECA defines expenditure to include any purchase, payment, distribution, loan, advance, deposit, or gift 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); see also 2 U.S.C. § 441b(b)(2).
[3] The presidential candidates of the major parties who accept public funds cannot accept contributions from any source, except in limited circumstances that are not raised herein. 26 U.S.C.
§ 9003(b)(2); see also 11 C.F.R. § 9012.2(a).
[4] The exemption also requires that such debates meet the requirements of 11 C.F.R. § 114.4, which permits certain nonprofit corporations to stage candidate debates and other corporations and labor organizations to donate funds to organizations that are staging such debates. 11 C.F.R. §§ 114.4(f)(1) and (3). This section also requires the debates to be staged in accordance with the standards in 11 C.F.R. § 110.13. Id.
[5] Although not required to do so under the Commissions regulation, CPD reduced its candidate selection criteria to writing. See Explanation and Justification of 11 C.F.R. §110.13, 60 Fed. Reg. at 64262.
[6] That one reference in CPDs materials states that the criterion for evidence of national organization encompasses more subjective indicators of a national campaign with a more than theoretical prospect of electoral success, see G.C. Report at 11(emphasis added), is not dispositive. Indeed, the factors referred to appear to be objective on their face and not subjective:
a. Satisfaction of the eligibility requirements of Article II, Section I of the Constitution of the United States.
b. Placement on the ballot in enough states to have a mathematical chance of obtaining an electoral
college majority.
c. Organization in a majority of congressional districts in those states.
d. Eligibility for matching funds from the Federal Election Commission or other demonstration of
the ability to fund a national campaign, and endorsements by federal and state officeholders.
Id. at Attachment 4, at 57.
[7] Under the staffs proposed regulation, a debate sponsor could not look at the latest poll results even though the rest of the nation could look at this as an indicator of a candidates popularity. This made little sense to us.