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  • FEC Record: Litigation

Level the Playing Field v. FEC (District court)

February 13, 2017

On February 1, 2017, the U.S. District Court for the District of Columbia found that the Commission’s dismissals of two administrative complaints filed by Level the Playing Field, the Green Party of the United States, the Libertarian National Committee, and Dr. Peter Ackerman (collectively, plaintiffs) against the Commission on Presidential Debates (CPD) were arbitrary, capricious and contrary to law. The court ordered the Commission to reconsider the evidence and allegations and issue a new decision consistent with the court’s opinion within 30 days.

Additionally, the court ordered the Commission to reconsider the petition for rulemaking filed by Level the Playing Field and issue a new decision consistent with the court’s opinion within 60 days. The rulemaking petition asked the Commission to amend its regulations concerning the use of polling as a criterion for eligibility to participate in general election presidential and vice-presidential debates.

Background and court challenge

The FEC’s regulations on candidate debates provide that tax-exempt 501(c)(3) and (c)(4) organizations may serve as “staging organizations” for federal candidate debates 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.” 11 CFR 110.13(c). While the Federal Election Campaign Act (the Act) and FEC regulations prohibit corporations from making certain contributions or expenditures in connection with federal elections, 501(c)(3) or (c)(4) staging organizations are permitted to accept corporate or labor union funds to defray costs incurred in staging candidate debates. 11 CFR 114.4(f)(1). See also 52 U.S.C. § 30118(a). The CPD’s candidate selection criteria in 2012 required that candidates who participate in its debates must be constitutionally eligible to hold the office of President, must appear on enough state ballots to secure an Electoral College majority, and must have a level of support of at least 15 percent of the national electorate as determined by five selected national public opinion polling organizations.

In 2014 and 2015, plaintiffs filed two administrative complaints with the Commission alleging that the CPD had violated the Act and the Commission’s regulations on debate staging organizations. The complaints alleged that the CPD was not nonpartisan because it only supported the Democratic and Republican party nominees, and that the CPD-sponsored debates had amounted to illegal corporate contributions to the campaigns of the 2012 general election presidential candidates who participated. The FEC found no reason to believe that CPD had violated the Act and dismissed both complaints in 2015.

In September 2014, Level the Playing Field also filed a Petition for Rulemaking with the FEC that asked the FEC revise its debate regulations to prohibit staging organizations from using a polling threshold as the sole criterion for accessing general election presidential and vice-presidential debates. The FEC declined to initiate a rulemaking in response to Level the Playing Field’s petition.

Plaintiffs filed suit against the FEC in the district court challenging both the dismissal of their administrative complaints and the agency’s decision not to engage in a rulemaking.

District court decision

Dismissal of administrative complaints. The district court held that in dismissing the administrative complaints, the FEC did not articulate what standard it used to determine whether CPD had endorsed, supported, or opposed political parties. As a result, the court stated that it could not defer to the Commission’s analysis and concluded that the FEC acted arbitrarily and capriciously when it determined that CPD did not endorse, support, or oppose political parties in the 2012 election.

The plaintiffs further alleged that the FEC failed to adequately consider evidence that plaintiffs presented with their two administrative complaints. The district court held that the FEC’s Factual & Legal Analyses only addressed two items from the submitted evidence and that the FEC failed to address “…the vast majority of the substantive evidence submitted regarding partisanship, party support, and the non-objectivity of the CPD’s fifteen percent threshold.” Accordingly, the district court ordered the FEC to demonstrate how it considered all of the evidence submitted by the plaintiffs, especially the plaintiffs’ newly-submitted evidence regarding political donations made by CPD’s chairmen and directors and plaintiffs’ expert analyses regarding fundraising and polling.

The court also held that the FEC had failed to adequately explain its finding that the CPD’s 15 percent polling criterion was “objective.” The court noted that the weight of plaintiffs’ submitted evidence was “substantial” and that the FEC “must demonstrate that it actually considered the full scope of this evidence, including the CPD chairmen’s and directors’ partisan political activity…as well as explain how and why it rejected this evidence in deciding that CPD’s polling requirement is an objective criterion.”

Rulemaking petition. The court noted that under the Administrative Procedure Act, judicial review of an agency’s decision not to engage in rulemaking is “very limited” and such a decision is entitled to a high level of deference. However, the court held that it could not defer to the FEC’s determination that the rulemaking was unnecessary, since the agency may have “…ignored the evidence that its lack of rulemaking and lack of enforcement may be undermining the stated purpose of its regulations and the Act.” The court then concluded that the FEC’s notice of disposition on the rulemaking petition did not reflect a thorough consideration of the presented evidence or an adequate explanation for the FEC’s decision and was thus arbitrary and capricious. The court recognized that an order to require promulgation of a rule is reserved for only the most compelling of circumstances, and it thus declined to issue such an order, instead “permit[ting] the FEC a second opportunity to give the Petition [for Rulemaking filed by plaintiffs] the consideration it requires.”

Court order

The district court granted the plaintiffs’ motion for summary judgment and remanded the matters to the FEC with instructions that the FEC must reconsider all of the evidence and allegations against CPD as detailed in the administrative complaints and issue a new decision within 30 days, and reconsider the Petition for Rulemaking filed by the plaintiffs and issue a new decision within 60 days. In particular, the court ordered the FEC to articulate its analysis in determining whether CPD endorsed, supported, or opposed political parties and candidates, and demonstrate how it considered the evidence with respect to its evaluation of plaintiffs’ administrative complaints. The court also ordered the FEC to notify all of the respondents identified in the administrative complaints (as opposed to only the CPD itself and its two chairmen).

Subsequent order

On February 6, 2017, the Commission moved for clarification and/or partial reconsideration of the district court’s order. Three days later, the plaintiffs also filed a motion for clarification and partial opposition to the Commission’s motion. The district court issued a new order on February 10, 2017, which granted the plaintiffs’ motion and granted in part and denied in part the FEC's motion. In its February 10 order, the court clarified that, with respect to its remand of the FEC’s dismissal of the administrative complaints, its February 1 order requires the Commission to notify the respondents, consider their written responses, consider the full evidence submitted by plaintiffs, determine whether there is reason to believe any of the respondents violated the Act, and issue a new statement of reasons in support of that determination. The court also extended the time for the FEC to complete those steps from the 30 days set in its original order to 60 days.