Level the Playing Field, et al. v. FEC (New)

On June 22, 2015, Level the Playing Field, Dr. Peter Ackerman, the Green Party of the United States and the Libertarian National Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia. The plaintiffs claim that the Commission has unlawfully failed to act on both an alleged administrative complaint and a rulemaking petition involving the FEC’s candidate debate regulations. In their court complaint, the plaintiffs allege that the Commission on Presidential Debates (CPD) has, in conducting its candidate debates, made prohibited contributions to candidates, impermissibly accepted corporate contributions, and failed to register and report as a political committee with the FEC.

Background
Level the Playing Field describes itself as a “nonpartisan, nonprofit corporation not affiliated with any candidate or candidate committee…[whose] purpose is to promote reforms that allow for greater competition and choice in elections for federal office, particularly for the Presidency and Vice Presidency.”

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).

Legal challenge
In their court complaint, the plaintiffs allege that the CPD supports only the Democratic and Republican Parties and opposes third party and independent candidate participation in the presidential debates that it hosts. The plaintiffs assert that the CPD defers to the major parties and their candidates to determine who to invite to the general election debates and that the CPD has no rules that would prevent members of the board of the CPD from engaging in partisan activities. 

The plaintiffs further allege that the CPD does not use “objective criteria” when considering which candidates will be included in debates. For instance, the plaintiffs allege that the CPD’s published criteria for participation in the general election presidential debates in 2012 required, among other things, that each candidate have a level of support of at least 15 percent of the national electorate as determined by five selected national public opinion polling organizations. The plaintiffs maintain that the 15 percent polling threshold is biased against independent and third party candidates since no third party or independent candidate has satisfied this criterion since it was implemented.

As a result of this alleged failure to establish fully objective criteria for participation in the presidential debates, the plaintiffs contend in their court complaint that the CPD has violated the Act by accepting corporate contributions to defray its expenses and has made impermissible contributions to candidates by offering them free television time. The plaintiffs also allege that the CPD does not qualify as a “staging organization” under FEC rules, and is instead a political committee that has failed to register and file reports with the FEC, as required by the Act. See 52 U.S.C. §§ 30103-30104.

The plaintiffs’ suit follows a rulemaking petition Level the Playing Field filed with the FEC late last year. The petition, which was published for comment in November 2014, asked that the Commission amend its rules on candidate debates to require debate sponsors to use objective, unbiased criteria that do not require candidates to satisfy a polling threshold as the exclusive means of access to participating in presidential and vice presidential general election debates.

The plaintiffs ask the district court to find that the FEC’s claimed failures to act on the alleged administrative complaint and the rulemaking petition are both contrary to law. The plaintiffs also request that the court direct the FEC to find that CPD has violated the Act and also direct the FEC to initiate a rulemaking to revise its regulations governing presidential debates.

Resources:

• Level the Playing Field v. FEC et. al litigation page
• Record article (11/18/2014): Petition for rulemaking on candidate debates