Perot and Natural Law Party v. FEC and The Commission on Presidential Debates

On October 4, 1996, the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court ruling that dismissed lawsuits against the FEC and the Commission on Presidential Debates (CPD). The suits had been filed by two Presidential hopefuls who, among other things, sought to participate in the Presidential debates.

The complaints

One suit was filed by Ross Perot and Pat Choate, the Presidential and Vice Presidential candidates for the Reform Party, and Perot '96. A similar suit was filed by the Natural Law Party (NLP) and its Presidential and Vice Presidential candidates, John Hagelin and Mike Tompkins.

The two campaigns filed the suits in U.S. District Court for the District of Columbia after the CPD excluded the candidates from a list of participants for three nationally televised debates. Previously, in September, Perot '96 and the NLP had filed administrative complaints with the FEC, but, because of procedures set forth in the Federal Election Campaign Act (the Act), resolution of those complaints was not expected before the debates started in October.

Both suits contended that the CPD had violated FEC rules governing nonpartisan candidate debates at 11 CFR 113.10 and the Perot suit alleged that the CPD's acceptance of corporate donations to pay for the debates violated the Act's ban on corporate contributions at 2 U.S.C. §441b.

The Perot suit asked the court:

• To instruct the FEC to order the CPD to invite the Reform Party nominees to the scheduled debates or to cancel all the debates being staged by the CPD;
• To find that the CPD does not qualify for the exemption permitting certain corporations to use corporate money to conduct candidate debates, and that the CPD failed to file as a political committee and accepted excessive contributions;
• To prevent any additional corporate contributions to or expenditures by the CPD for the purpose of intervening in the 1996 Presidential campaign by sponsoring Presidential debates;
• To find that the CPD violated 11 CFR 110.13(c) by making party affiliation the sole criterion for selecting participants and for failing to use "objective criteria" as required by the FEC rules in selecting participants;
• To find that the CPD violated 11 CFR 110.13(a) by selecting only the two major parties' political candidates;
• To find that the FEC unlawfully delegated authority to the CPD to establish the criteria for selecting participants in the debates;
• To find that the FEC's regulations governing candidate debates at 11 CFR 110.13 are outside the scope of the agency's authority; and
• To find that the FEC and CPD violated Mr. Perot's and Mr. Choate's Constitutional rights under the First, Fifth and Fourteenth Amendments.

The NLP suit asked the court:

• To enter a temporary restraining order and issue preliminary and permanent injunctions, preventing the CPD from staging the debates unless it selects debate participants using pre-existing, objective criteria and to provide the court with a list of those criteria; or, in the alternative,
• To order the FEC, prior to the debates, to take action on the administrative complaint that contended that the CPD had violated FEC regulations.

District court decision

The court combined the suits for oral argument and dismissed both cases on October 1, 1996.

The court concluded that it had no jurisdiction in the matter. First, as mandated by Congress, the FEC has exclusive jurisdiction to hear complaints alleging violation of the Act, and the plaintiffs have no private right of action against the CPD. Second, the FEC has 120 days to act on an administrative complaint before the court may become involved. 2 U.S.C. §437g.[1]

In addition, the court weighed the potential damage to Mr. Perot, Dr. Hagelin and their running mates from not participating in the debates and found that such damage could be partially remedied in later court proceedings-for example, before the next Presidential election four years from now-and that the damage they incurred did not "outweigh the public interest in allowing the debates to go forward without interference."

Specifically as to Mr. Perot's arguments, the court also found no likelihood of success on the merits of the claim that the CPD had violated the candidate's Constitutional rights because he had not shown that the CPD is a state actor [2] or that the FEC had delegated any of its authority to the CPD. Also, the court upheld the FEC regulations at 11 CFR 110.13(a) that allow nonprofit, nonpartisan corporations to stage debates in certain circumstances and, under 11 CFR 114.4(f), to accept contributions from corporations to put on such events without the funds being considered illegal campaign contributions or expenditures.

Appeals court decision

Because of expedited procedures, the appeals court heard the case two days after the district court handed down its ruling. The appeals court affirmed the lower court's decision that it lacked jurisdiction to take action on the alleged violation of the Act or to order the FEC to resolve the complaints prior to the CPD-sponsored debate on October 6. In explaining this decision, the court said, "Congress could not have spoken more plainly in limiting the jurisdiction of federal courts to adjudicate claims under the FECA." The court said, "We assume that in formulating these procedures Congress...knew full well that complaints filed shortly before elections, or debates, might not be investigated and prosecuted until after the event."

The NLP's arguments that the delay would cause "irreparable harm" to its candidates and that the impending debates constituted extraordinary circumstances, requiring a waiver of the Act's procedures, were rejected by the court. Further, the court said that if it were to enjoin the CPD from carrying off the debates or selecting participants, it might risk violating the CPD's First Amendment rights.

The court also rejected Mr. Perot's allegation that the FEC had delegated its authority to the CPD by prescribing regulations that allow organizations that are staging debates to create their own "objective criteria" to determine who may participate. See 11 CFR 110.13(c). The court said, "A regulation's use of a term that may be susceptible to differing interpretations does not automatically result in a delegation of authority to entities that it governs." The court also observed that even if the FEC were to immediately revise its debate regulations (in response to the complaint), the agency could not complete the task in time for the debates. Under the Act, new regulations do not become effective until 30 legislative days after the FEC transmits them to Congress.

With regard to Mr. Perot's challenge to the debate regulations themselves, the appeals court observed that the district court had not had the benefit of the administrative record and that the issue had not been fully briefed. Consequently, the appeals court vacated the district court's decision upholding the regulation and remanded the claim to the district court with instructions to dismiss without prejudice. (Mr. Perot would then be free to file a new suit on the same issue.) In all other respects, the appeals court affirmed the district court's order.

FOOTNOTES:

[1] Section 437g(a)(8) allows a complainant to file suit against the FEC only for dismissing his complaint or for failing to act on it within 120 days after the complaint was filed.
[2] Only government entities (or state actors), not private groups, are subject to the Constitutional violations alleged by Mr. Perot.

Source: FEC Record —November 1996. Perot v. Federal Election Commission, 97 F.3d 553 (D.C. Cir. 1996).