On June 12, 2020, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s grant of summary judgment to the FEC in Level the Playing Field, et al. v. FEC, a case concerning the candidate selection criteria used for presidential debates.
The FEC's regulations on candidate debates allow tax-exempt 501(c)(3) and (c)(4) organizations to serve as debate "staging organizations" 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."
In 2014 and 2015, Level the Playing Field, the Green Party of the United States, the Libertarian National Committee, and Dr. Peter Ackerman (collectively, plaintiffs) filed two administrative complaints with the FEC alleging that the Commission on Presidential Debates (CPD) violated the debate staging provisions. Level the Playing Field also filed a Petition for Rulemaking asking the FEC to revise its debate regulations to prohibit the use of a polling threshold as a criterion for accessing general election debates. The FEC dismissed both complaints finding no reason to believe that CPD violated the debate regulations. It also declined to initiate a rulemaking.
On August 27, 2015, plaintiffs filed suit in the U.S. District Court for the District of Columbia challenging the FEC’s dismissals and the decision not to engage in a rulemaking.
District court decisions
On February 1, 2017, the U.S. District Court for the District of Columbia remanded the enforcement matters and petition for rulemaking back to the FEC for further consideration. Following the court’s remand, the FEC reconsidered the complaints and again found the allegations unpersuasive. The FEC also denied the petition for rulemaking a second time. After the district court granted leave, on August 11, 2017, the plaintiffs filed an amended supplemental complaint with the court challenging the FEC’s decisions on remand.
On March 31, 2019, the district court granted the FEC’s cross-motion for summary judgment. The court found that the FEC applied the appropriate legal standard in reviewing the administrative complaints and that the FEC’s treatment of the evidence was not arbitrary or contrary to law. The court also found that the FEC reasonably concluded that CPD’s polling threshold was objective in that it was not so high that only major party nominees could satisfy it. The court also upheld the FEC’s second denial of the plaintiffs’ petition for rulemaking.
Appeals Court Decision
The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s grant of summary judgment. The appeals court found that the plaintiffs failed to show that the FEC’s decision making was arbitrary or unreasonable, concluding that the polling threshold was objective even if it was difficult for independent candidates to surmount it since there is no “legal requirement that the Commission make it easier for independent candidates to run for President of the United States.”
Finally, for the same reasons that the dismissal of the plaintiffs’ complaints was reasonable, the appeals court concluded that the FEC did not err by not initiating a rulemaking.
- Level the Playing Field, et al. v. FEC litigation page