Commission disposition of debate rulemaking (2017)

On March 29, 2017, the Commission published a Supplemental Notice of Disposition in the Federal Register, ending its consideration of a petition for rulemaking concerning candidate debates (REG 2014-06). The Commission has decided not to initiate a rulemaking at this time.

Background

On February 1, 2017, the U.S. District Court for the District of Columbia ordered the Commission to reconsider a Petition for Rulemaking on candidate debates filed by Level the Playing Field. The petition asks the Commission to amend 11 CFR 110.13(c) to preclude general election presidential and vice presidential debate sponsors from requiring that a candidate meet a polling threshold in order to be included, and to require those sponsors to have a set of objective, unbiased criteria for debate participation that do not require candidates to satisfy a polling threshold.

Commission disposition

The rule as it exists requires that debate staging organizations use pre-established objective criteria to avoid the real or apparent potential for a quid pro quo. The petitioner asserts that the use of a polling threshold is subjective and intended to exclude third party candidates. Following the Court’s instructions, the Commission has reconsidered the full rulemaking record, including evidence concerning the 15% polling threshold used by the Commission on Presidential Debates as a debate inclusion criterion.

The Commission concluded that the petition does not present credible evidence that a 15% polling threshold is so unobtainable by independent or third-party candidates that it is per se subjective or intended to exclude them. Furthermore, the fact that polling data can be erroneous does not mean that its use by debate staging organizations is subjective, and the petition does not demonstrate that polling error is subjective or biased against independent or third party candidates. Finally, in response to the policy arguments in the petition and commenters that the criteria should be written to include more voices on the debate stage, the Commission noted that it has no statutory basis for regulating the number of candidates who participate in debates, and the merits or drawbacks for such increased participation are policy questions outside the Commission’s jurisdiction.

Resources:

• Federal Register Supplemental Notice of Disposition, 82 Fed. Reg. 15468 (March 29, 2017) [PDF]
  
• Level the Playing Field v. FEC litigation page
  
• Press release: FEC Will Not Appeal District Court Decision in Level the Playing Field v. FEC (March 8, 2017)