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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 closed the file with respect to all of the respondents.   The reasons for the Commission’s findings are set forth in this statement.

 

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 Commission’s 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 Commission’s 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 [CPD’s] 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 Counsel’s 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.

 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 endorsement by federal and state officeholders.

Id.

            CPD’s 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, CPD’s 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 candidate’s prospects for electoral success.  The listed factors include: 

a.  The findings of significant public opinion polls conducted by national polling and news organizations.

 b.  Reported attendance at meetings and rallies across the country (locations as well as numbers) in comparison with the two major party candidates.

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 sponsor’s use of its own personal opinions in selecting candidates.  It was essential, in the Commission’s 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 Commission’s promulgation of 110.13, the Commission considered the staff’s 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 candidate’s 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 CPD’s “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 Counsel’s 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 Commission’s 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 Counsel’s Report contains several other points which must be addressed.  First, the Report’s suggestion that CPD misapplied Mr. Perot’s qualification for public funding reflects a misunderstanding of CPD’s reasoning.  See G.C. Report at 19-20.  While qualification for public funding is significant, the CPB observed that as a practical matter Mr. Perot’s 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. Perot’s 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 Counsel’s 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 CPD’s 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 Committee’s recommendation that only President Clinton and Senator Dole be invited to participate in CPD’s 1996 Presidential debate and only Vice President Gore and Congressman Kemp be invited to participate in CPD’s 1996 vice presidential debate.”)(emphasis added).

            Additionally, we do not fully agree with the staff’s 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 regulation’s 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 Counsel’s 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. Perot’s 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, CPD’s 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 Commission’s 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 Counsel’s 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 /

________________________                          ___________________________________

Date                                                                   Joan D. Aikens

                                                                          Chairman                                                         

 

                                                                                    / s /

________________________                          ___________________________________

Date                                                                   Scott E. Thomas

                                                                          Vice Chairman                                                 

                                                                                    / s /

________________________                          ___________________________________

Date                                                                   Lee Ann Elliott

                                                                          Commissioner

 

                                                                                    / s /

________________________                          ___________________________________

Date                                                                   Danny L. McDonald

                                                                          Commissioner

 

                                                                                    / s /

________________________                          ___________________________________

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 Commission’s 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 CPD’s 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 staff’s 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 candidate’s popularity.  This made little sense to us.