LA BOTZ v. FEDERAL ELECTION COMMISSION
Filing
22
MEMORANDUM OPINION. Signed by Judge Rudolph Contreras on 9/5/2012. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAN LA BOTZ,
Plaintiff,
v.
FEDERAL ELECTION COMMISSION,
Defendant.
:
:
:
:
:
:
:
:
:
Civil Action No.:
11-1247 (RC)
Re Document No.:
10
MEMORANDUM OPINION
DENYING THE FEC’S MOTION TO DISMISS
I. INTRODUCTION
Dan La Botz is a member of Ohio’s Socialist Party who ran an unsuccessful candidacy
for the U.S. Senate in 2010. La Botz claims that he was unfairly excluded from three televised
debates that took place in October 2010, the month preceding the election. He filed an
administrative complaint with the Federal Election Commission (“FEC”), alleging that his
exclusion from the debates violated the Federal Election Campaign Act (“FECA”). The FEC
dismissed his complaint, and La Botz brought suit, claiming that the FEC’s action was contrary
to law. Now before the court is FEC’s motion to dismiss under Rule 12(b)(1) for lack of
jurisdiction and under Rule 12(b)(6) for failure to state a claim. Because the plaintiff has alleged
that his injury is capable of repetition, yet evading review, the court has jurisdiction to adjudicate
the merits. And because the court concludes that the FEC’s decision was not supported by
substantial evidence, the court will deny the FEC’s motion and remand this matter back to the
agency.
II. BACKGROUND
A. Legal Framework
The FECA prohibits corporations from making financial contributions in connection with
any federal election. 2 U.S.C. § 441b(a). Yet in recognition of the importance that debates play
in informing the electorate, the FECA allows corporations to defray the costs of nonpartisan
televised debates. Id. § 431(9)(B)(ii) (allowing corporations to sponsor “nonpartisan activity
designed to encourage individuals to vote or to register to vote”); Hagelin v. FEC, 411 F.3d 237,
238 (D.C. Cir. 2005); see Hagelin v. FEC, 1996 WL 566762, at *3 (D.D.C. Oct. 1, 1996)
(concluding that “the debate medium through the TV . . . is not only important but probably vital
and essential in today’s world of electronic communication”). Accordingly, corporations may
provide financial backing to organizations that stage debates, but only if certain conditions are
met to ensure that the debates remain nonpartisan. 11 C.F.R. § 114.4(f). In particular, FEC
regulations require that the debate staging organization may not “endorse, support or oppose
political candidates,” id. § 110.13(a)(1), and the debate cannot be structured “to promote or
advance one candidate over another,” id. § 110.13(b)(2). When determining which candidates
may participate in the debate, the debate staging organization must employ “pre-established,
objective criteria.” Id. § 110.13(c).
Any person who believes a violation of the FECA has occurred may file an
administrative complaint with the FEC. 2 U.S.C. § 437g(a)(1). After receiving the complaint,
the FEC may investigate the matter and determine the appropriate course of action. See
generally id. § 437g(a)(2)–(6). If the FEC determines that no violation has occurred, it may
dismiss the complaint. See id. § 437(g)(a)(8)(A); Hagelin, 411 F.3d at 239. A party whose
complaint has been dismissed may then file a civil action in this court to challenge the legality of
the FEC’s decision. 2 U.S.C. § 437g(a)(8)(A).
2
B. Factual Allegations and Procedural History
On September 1, 2010, a consortium of eight newspapers known as the Ohio News
Organization (“ONO”) announced that it was sponsoring a series of televised debates between
the Democratic and Republican nominees in Ohio’s U.S. Senate race. Pl.’s Opp’n at 7. The
debates were scheduled to take place in October 2010, the month before the election. Id. La
Botz claims that he was not included in any pre-debate negotiations with ONO, and he alleges
that he never received any prior notice of the fact that the debates were to take place. Id. On
September 21, 2010, La Botz filed an administrative complaint with the FEC, alleging that ONO
violated federal regulations by failing to use “pre-established” and “objective” criteria when
selecting the debate participants. Administrative Record (“AR”) 116–17.
The FEC investigated the complaint’s allegations and solicited responses from ONO, as
well as the Republican and Democratic campaigns’ respective committees and treasurers. AR
117. The FEC’s general counsel then issued a report which concluded that ONO’s debate
selection criteria did not violate FEC regulations. See generally AR 116–20. The report noted
that ONO’s criteria were consistent with a number of different factors the FEC had characterized
as objective in prior cases, including the “percentage of votes by a candidate received in a
previous election; the level of campaign activity by the candidate; his or her fundraising ability
and/or standing in the polls; and eligibility for ballot access.” AR 119. The report thus
concluded that there was “no reason to believe” that ONO violated the FECA. AR 120. Soon
thereafter, the commissioners of the FEC unanimously voted to dismiss the complaint. AR 123.
La Botz subsequently brought suit in this court, alleging that the FEC’s decision was contrary to
law. Now before the court is the FEC’s motion to dismiss.
3
III. ANALYSIS
A. The Court Has Jurisdiction to Decide La Botz’s Claim
Article III of the Constitution limits the power of federal courts to actual “Cases” and
“Controversies.” U.S. CONST. art. III, § 2. From this requirement courts have derived several
doctrines—including standing and mootness—to ensure that courts do not stray beyond the
limits of their constitutionally allotted authority. Warth v. Seldin, 422 U.S. 490, 498 (1975)
(noting that the several doctrines that elaborate upon Article III’s case and controversy
requirement are “founded in concern about the proper—and properly limited—role of the courts
in a democratic society.”).
To meet the constitutional requirement of standing, a plaintiff must show that: (1) he has
suffered an injury which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) there is a causal connection between the alleged injury and
conduct that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). Courts assess standing by measuring the facts as they
existed at the time the suit commenced. Del Monte Fresh Produce Co. v. United States, 570
F.3d 316, 324 (D.C. Cir. 2009). Thus, standing must be ascertained from the facts as they
existed when La Botz first filed his administrative complaint with the FEC in September 2010,
two months before the election. See Natural Law Party of the U.S. v. FEC, 111 F. Supp. 2d 33,
50 (D.D.C. 2000).
La Botz alleges that he was injured when he was excluded from the debates. Pl.’s Opp’n
at 20. If his exclusion violated the FECA, this injury suffices for the purposes of Article III.
Buchanan v. FEC, 112 F. Supp. 2d 58, 68 (2000) (concluding that the unfair exclusion from a
presidential debate, in violation of FEC regulations, constituted an Article III injury); Natural
4
Law Party, 111 F. Supp. 2d at 49 (same). Of course, there are limits to who may assert this type
of injury. For example, voters cannot assert standing based on their generalized interest in fair
elections. Gottlieb v. FEC, 143 F.3d 618, 622 (D.C. Cir. 1998); see Becker v. FEC, 230 F.3d
381, 389 (1st Cir. 2000) (“[T]he harm done to the general public by corruption of the political
process is not a sufficiently concrete, personalized injury to establish standing.”). But La Botz
was no mere bystander—he was a candidate for office. And candidates who allege that they
were forced to compete in an illegally structured campaign environment have stated a sufficient
injury for the purposes of Article III. Shays v. FEC, 414 F.3d 76, 85 (D.C. Cir. 2005); Natural
Law Party, 111 F. Supp. 2d at 44 (concluding that the “inability to compete on an equal footing”
in an election “due to the application of allegedly biased criteria” constitutes an injury for the
purposes of Article III); Buchanan, 112 F. Supp. 2d at 65 (“When a debate sponsor uses
subjective criteria for choosing the participants, the candidates are the ones who suffer a
‘concrete and particularized’ injury that would imminently deprive them of a fair opportunity to
compete on equal footing with their rivals.” (citing Lujan, 504 U.S. at 560)).
The second element of standing is easily satisfied here: causation may be established
simply by alleging that the FEC failed to enforce the laws it was designed to implement.
Buchanan, 112 F. Supp. 2d at 68; Natural Law Party, 111 F. Supp. 2d at 49.
Finally, La Botz must satisfy the third element by demonstrating that “it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan,
504 U.S. at 560–61. In the electoral context, a plaintiff may satisfy the “redressability” prong by
showing that the FEC could fairly reassess his complaint on remand. Of course, the court need
not determine that La Botz will ultimately succeed. Buchanan, 112 F. Supp. 2d at 69
(concluding that “the fact that an agency might not ultimately find in the plaintiffs’ favor on
5
remand does not destroy the plaintiff’s [sic] standing to challenge the agency’s decision”). It is
enough that upon remand, the FEC could determine that ONO violated FEC regulations by using
criteria that systematically disfavored third-party candidates. Id.
To be clear, La Botz does not need to show that any eventual success on remand would
translate to success in the electoral arena. LaRoque v. Holder, 650 F.3d 777, 787 (D.C. Cir.
2011) (“[C]andidates may have standing to challenge illegally structured campaign environments
even if the multiplicity of factors bearing on elections prevents them from establishing with any
certainty that the challenged rules will disadvantage their campaigns.”). Nor is La Botz required
to demonstrate that he would have been invited to the debates if ONO had used a different set of
criteria. Buchanan, 112 F. Supp. 2d at 68 (“[T]he mere fact that [the plaintiff] may ultimately be
thwarted in his attempts to get into the debates is insufficient to deprive him of standing to
challenge the [debate sponsor’s] debate criteria.”).1 Instead, he can prevail by alleging that a
decision on the merits and a subsequent victory on remand may curtail ONO’s alleged bias and
decrease the probability that he will be unfairly excluded from any future debates. Natural Law
Party, 111 F. Supp. 2d at 50.
1
The court has serious doubts as to whether La Botz would have qualified for the debate under any
objective set of criteria. See AR 77–104 (indicating that pre-election polls registered La Botz
with less than one percent support); Def.’s Mot. at 4 (indicating that La Botz received less than
one percent of the total votes in the election). But these doubts do not deprive La Botz of
standing. Given the unpredictable nature of an electoral campaign, it seems doubtful that any
plaintiff could conclusively demonstrate that he or she would have been a contender but for the
imposition of a procedurally unfair campaign environment. Shays, 414 F.3d at 86 (concluding
that congressmen were not required to establish with any certainty that their reelection campaigns
would be disadvantaged by the FEC’s alleged deviation from the Bipartisan Campaign Reform
Act). Here, La Botz alleges that ONO’s biased criteria increased the probability that he would be
unfairly excluded from this and future debates. And such an allegation may establish candidates’
standing, “no matter what their level of popular support.” Natural Law Party, 111 F. Supp. 2d at
50. In sum, the fact that La Botz could have been excluded from the debate for fair reasons does
not foreclose his ability to argue that he was excluded for unfair reasons.
6
The FEC nonetheless maintains that a favorable ruling on the merits would be too little,
too late. Since La Botz filed suit, the debates were held, the ballots were cast, and a victor
declared. Because the court is powerless to alter these events, the FEC insists that La Botz’s
injury can no longer be redressed. A fair point, but the FEC is incorrect to argue that these
events rob La Botz of standing. Rather, the FEC’s redressability argument must be decided
under the rubric of mootness.
Standing is assessed by measuring the facts as they existed at the time a suit commences.
Del Monte, 570 F.3d at 324. But even if standing once existed, courts must take additional pains
to ensure that jurisdiction continues to exist throughout all stages of the litigation. Davis v. FEC,
554 U.S. 724, 732–33 (2008) (“To qualify as a case fit for federal-court adjudication, an actual
controversy must be extant at all stages of review, not merely at the time the complaint is
filed.”). Thus, later events may render a once-viable claim moot. Becker v. FEC, 230 F.3d at
387 n.3 (“[W]hile it is true that a plaintiff must have a personal interest at stake throughout the
litigation of a case, such interest is to be assessed under the rubric of standing at the
commencement of the case, and under the rubric of mootness thereafter.”); see Advanced Mgmt.
Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir. 2000) (noting that “[s]tanding is assessed at the
time the action commences,” whereas mootness concerns whether “a judiciable controversy
existed but no longer remains”). At least, this is the approach most often taken in similar cases.
Davis v. FEC, 554 U.S. at 736 (dispute was not mooted by passing of election cycle); FEC v.
Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (same), Shays, 424 F. Supp. 2d at 110 (same);
Natural Law Party, 111 F. Supp. 2d at 40–41 (same).2
2
The FEC’s position may be understandable given the overlap between the doctrines of standing
and mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189
(2000) (noting that “confusion” between the two doctrines “is understandable”). In particular,
both doctrines reflect a concern with redressability. Compare Lujan, 504 U.S. at 561 (to establish
7
The doctrine of mootness is a logical corollary to Article III’s case-or-controversy
requirement: if subsequent events make it impossible for the court to grant any effectual relief to
the prevailing party, “any opinion as to the legality of the challenged action would be advisory.”
City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); see Powell v. McCormack, 395 U.S. 486,
496 (1969) (“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.”). Yet an exception to this rule exists if
a practice no longer affects the parties but is “capable of repetition, yet evading review.” FEC v.
Wis. Right to Life, 551 U.S. at 462; see Davis, 554 U.S. at 735 (noting that challenges to FEC
decisions “fit comfortably within the established exception to mootness for disputes capable of
repetition, yet evading review”). La Botz argues that his case falls within this exception, and the
court agrees.
To invoke this rule, a plaintiff must show that “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration, and (2) there is a
standing, a plaintiff must show that it is likely that his injury will be “redressed by a favorable
decision”) with Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“The mootness doctrine ensures that
judicial relief can still redress the asserted injury.”). Understandably so: if Article III’s case-orcontroversy requirement is to have any meaning, the court’s opinion must consist of something
more than helpful advice. It must be capable of remedying the plaintiff’s injury. See Alliance to
End Repression v. City of Chicago, 820 F.2d 873, 876 (7th Cir. 1987) (Easterbrook, J.)
(underscoring the importance of the “redressability rule—the principle that a case is justiciable
only when a constitutional adjudication is capable of solving the plaintiff’s problems”). Yet
despite their similarities, the two doctrines remain distinct. Entergy Servs., Inc. v. FERC, 391
F.3d 1240, 1255 (D.C. Cir. 2004) (“True, standing and mootness are closely related, but they are
cousins, not twins.”). And here, precedent makes clear that events occurring after the plaintiff
filed suit fall under the doctrine of mootness. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d
1234, 1267 (11th Cir. 2001) (“[A] party’s standing to sue is generally measured at the time of the
complaint, with the effect of subsequent events generally analyzed under mootness principles.”);
Becker v. FEC, 230 F.3d at 387 n.3 (same); Shays, 424 F. Supp. 2d at 110 (same). The FEC’s
insistence to the contrary is of no moment. Shays, 424 F. Supp. 2d at 110 (“Just because
defendants have uttered the word ‘redressibility’ [sic] instead of ‘mootness,’ however, does not
change the fact that defendants are raising, at heart, a mootness challenge.”).
8
reasonable expectation that the same complaining party will be subject to the same action again.”
FEC v. Wis. Right to Life, 551 U.S. at 462. Regarding the first prong, the time frame presented
by electoral disputes rarely allows for resolution through litigation. Johnson v. FCC, 829 F.2d
157, 159 n.7 (D.C. Cir. 1987); Shays, 42 F. Supp. 2d at 111. Electoral disputes are thus
“paradigmatic” examples of cases that cannot be fully litigated before the particular controversy
expires. Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009).
The FEC suggests that La Botz has not shown that “the same complaining party would be
subjected to the same action again.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 633
(D.C. Cir. 2002). In the electoral context, many courts have concluded that a plaintiff need only
show that others similarly situated might suffer a comparable harm in the future. E.g., Storer v.
Brown, 415 U.S. 724, 737 n.8 (1974) (holding that although the 1972 election had long since
passed, the case was not moot because the statute under review would apply to other candidates
in the future); N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524
F.3d 427, 435–36 (4th Cir. 2008) (rejecting the argument that an ex-candidate’s claims were
“capable of repetition, yet evading review” only if the ex-candidate alleged an intent to run
again); Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000) (same); Johnson v. FCC, 829
F.2d at 159 n.7 (concluding there was jurisdiction even when the plaintiff had not shown he was
likely to run for office again).
In any event, this court need not reconcile any putative discrepancy in the case law to
resolve this case; La Botz has run for office in the past and he declares that “it is likely that [he]
will run for federal office in Ohio again in the future.” Pl.’s Opp’n, Ex. A (Decl. of Dan La
Botz) ¶¶ 7–9. The defendants do not present any evidence to rebut the plaintiff’s assertion or to
diminish that likelihood. Here, La Botz bears the burden of proving that jurisdictional facts exist
9
by a preponderance of the evidence, and the court concludes that he has done so. See Merle v.
United States, 351 F.3d 92, 95 (3d Cir. 2003) (concluding that even oblique statements implying
future candidacy are sufficient to establish jurisdiction). In the simplest of terms, preponderance
of the evidence means more likely than not—and La Botz’s statement implies exactly that.
Accordingly, La Botz’s case is not moot and the court has jurisdiction to adjudicate the merits of
his case.
B. La Botz Has Stated a Claim on Which Relief Can Be Granted
1. Legal Standard for the Court’s Review of FEC Action3
A court may not disturb an FEC decision to dismiss a complaint unless the dismissal was
“contrary to law.” 2 U.S.C. § 437g(a)(8). This phrase has been construed to mirror the familiar
standard that normally governs the judicial review of administrative decisions; namely, the
FEC’s dismissal may be overturned only if it was “arbitrary or capricious, or an abuse of
discretion.” Hagelin, 411 F.3d at 266; see 5 U.S.C. § 706(2)(A). This standard is “highly
deferential” and presumes the validity of the agency’s acts. See Larouche’s Comm. for a New
Bretton Woods v. FEC, 439 F.3d 733, 747 (D.C. Cir. 2006). However, courts must not abdicate
the judicial duty to carefully “review the record to ascertain that the agency has made a reasoned
decision based on reasonable extrapolations from some reliable evidence.” Natural Res. Def.
Council v. EPA, 902 F.2d 962, 968 (D.C. Cir. 1990) (internal quotation marks omitted). Thus,
the agency must articulate a “satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assoc. of the
3
Ordinarily, a 12(b)(6) motion turns on the complaint’s factual allegations and whether they state a
plausible legal claim. When reviewing agency action, however, the district judge essentially sits
as an appellate tribunal, and the entire case on review is a pure question of law. See Am.
Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).
10
U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Of course, the “agency’s
explanation need not be a model of analytic precision”; rather, “[a] reviewing court will uphold a
decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Frizelle v.
Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation and citation omitted). Finally, an
agency decision must be supported by substantial evidence. See Larouche’s Comm. for a New
Bretton Woods, 439 F.3d at 747; FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160
(D.C. Cir. 2002) (“The ‘substantial evidence’ standard requires more than a scintilla, but can be
satisfied by something less than a preponderance of the evidence.”).
2. The FEC’s Dismissal of La Botz’s Administrative Complaint Was Not Based on
Substantial Evidence
The FEC argues that it dismissed La Botz’s administrative complaint only after
determining that ONO employed pre-established, objective criteria to select the candidates who
would be invited to the debate. Def.’s Mot. at 18. La Botz counters that ONO did not present
any written evidence of pre-established debate criteria, thereby suggesting that the only evidence
in favor of ONO should be discounted as a post hoc rationalization. Pl.’s Opp’n at 27. La Botz
also argues that ONO’s debate criteria were not suitably objective because they were designed to
confine the debate to the two major parties’ candidates. Id.4 He therefore argues that the FEC’s
decision was contrary to law.
The governing regulation states that:
For all debates, staging organization(s) must use pre-established objective criteria
to determine which candidates may participate in a debate. For general election
debates, staging organizations(s) shall not use nomination by a particular political
4
The plaintiff also alleges that he was not notified of the pending debate or made aware of the
selection criteria, but no FEC rules or regulations require that the debate sponsors publicly
disclose the criteria or send notifications to potential candidates. The court therefore concludes
that the FEC’s rejection of these allegations was not arbitrary or capricious.
11
party as the sole objective criterion to determine whether to include a candidate in
a debate.
11 C.F.R. § 110.13(c). The regulation does not describe the phrase “pre-established objective
criteria” with any precision. See Perot v. FEC, 97 F.3d 553, 560 (D.C. Cir. 1996). As a result,
the authority to define “pre-established objective criteria” rests with the FEC. Id. The phrase,
however, suggests two distinct components: 1) the criteria must be pre-established, and 2) they
must be objective.
The FEC’s general counsel typically provides a report that serves as explanation for its
actions and the basis for judicial review. See FEC v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 38–39 & n.19 (1981). Here, the FEC’s analysis of whether ONO’s criteria were
pre-established is decidedly succinct. Its only mention of the matter consists of the following
sentence: “it appears that [ONO’s] debate selection criteria were pre-existing and objective . . .
and consistent with a number of different criteria the Commission has previously found to have
been acceptably ‘objective.’” AR 119. The court is mindful that the agency is not required to
provide an elaborate explanation of its reasoning. See Bush-Quayle ‘92 Primary Comm., Inc. v.
FEC, 104 F.3d 448, 454 (D.C. Cir. 1997) (“We may permit agency action to stand without
elaborate explanation where distinctions between the case under review and the asserted
precedent are so plain that no inconsistency appears.”); Common Cause v. FEC, 906 F.2d 705,
706 (D.C. Cir. 1990) (noting that “a decision of less than ideal clarity must still be upheld so
long as the agency’s path may reasonably be discerned”) (citations and quotation marks omitted).
But here, the FEC’s one-sentence analysis threatens to “cross the line from the tolerably terse to
the intolerably mute.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.
1970).
12
More important than the brevity of the agency’s reasoning, however, is the evidence upon
which it is based. And here, an independent review of the record does not yield much evidence
to bolster the FEC’s conclusion. The FEC appears to have based its decision on an affidavit
submitted by Benjamin Marrison, an editor of the Columbus Dispatch (and a member of the
ONO consortium), which states:
[ONO] pre-established a number of criteria for selecting the candidates to
participate in the debates . . . . [ONO’s] pre-selected criteria first ensured the
eligibility of the candidates and then pared down the field of candidates to the two
frontrunners based upon indicators of electoral support, including independent
current (and historical) polling including Quinnipiac polling, conversation with
political reporters and sources regarding the races in question, and financial
disclosures which provide insights into a candidates [sic] viability.
AR 83–84. But this affidavit suffers from two serious flaws. First, it is unclear from the face of
the affidavit why the declarant has first-hand knowledge of the assertions or is otherwise
competent to testify to such. Ordinarily, a witness’ testimony must meet a basic threshold: it
must be based on personal knowledge. See FED. R. CIV. P. 56(c) (requiring that affidavits or
declarations used to support a motion for summary judgment be made on personal knowledge);
see also FED. R. EVID. 701(a). And while an agency may consider evidence that is not formally
admissible in a judicial proceeding, to constitute “substantial evidence” the affidavit must at least
contain indicia that it is “reliable and trustworthy.” See EchoStar Commc’ns Corp. v. FCC, 292
F.3d 749, 753 (D.C. Cir. 2002); see also Consol. Edison Co. v. NLRB, 305 U.S. 197, 230 (1938)
(noting that administrative agencies are free “from the compulsion of technical rules so that the
mere admission of matter which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order,” but that agency decisions must have a “basis in evidence
having rational probative force”). The court has little assurance that Marrison’s affidavit can
meet this relatively low bar. See McKinley v. FDIC, 756 F. Supp. 2d 105, 112–13 (D.D.C. 2010)
13
(concluding that agency action could not be sustained on the basis of a single declaration which
was not based on personal knowledge). The affidavit is written in summary fashion. But Mr.
Marrison is the editor of one of the eight newspapers that organized the debate. It is unclear
whether Mr. Marrison was directly involved in establishing the criteria or, if not, how he came to
directly understand their genesis.
Second, this affidavit was only submitted after the FEC inquiry had commenced. And
such affidavits raise the risk that they will merely provide a vehicle for a party’s post hoc
rationalizations. This sole affidavit highlights the absence of any contemporaneous evidence
suggesting that ONO employed pre-established selection criteria. Cf. Ponte v. Real, 471 U.S.
491, 509 (1985) (“The best evidence of why a decision was made as it was is usually an
explanation, however brief, rendered at the time of the decision.”). In particular, ONO has not
produced any contemporaneously written formulation of the criteria it purportedly utilized.5 And
while FEC regulations do not specifically require debate staging organizations to reduce their
criteria to writing, it is strongly encouraged:
Although the new rules do not require staging organizations to do so, those
staging debates would be well advised to reduce their objective criteria to writing
and to make the criteria available to all candidates before the debate. This will
enable staging organizations to show how they decided which candidates to invite
to the debate. Staging organizations must be able to show that their objective
criteria were used to pick the participants, and that the criteria were not designed
to result in the selection of certain pre-chosen participants.
Corporate and Labor Organization Activity; Express Advocacy and Coordination with
Candidates, 60 Fed. Reg. 64260-01 (Dec. 14, 1995) (to be codified at C.F.R. pts. 100, 102, 109,
110 & 114), available at 1995 WL 735941.
5
Given that eight newspapers were involved in organizing the debates and the inherent difficulty in
coordinating this many entities, it would be highly unusual if no contemporaneous evidence
existed in the form of meeting notes or e-mail exchanges.
14
Moreover, a contemporaneous document in the record contradicts the FEC’s conclusion.
On September 8, 2010, a member of the ONO consortium wrote: “The Ohio News Organization
generally follows the structure used by the Commission on Presidential Debates, which allows
for only the major-party candidates to debate.” AR 37 (emphasis added). As set forth above,
FEC regulations forbid major party nomination to be the sole criterion employed to select debate
participants. From the Report’s analysis, it is unclear whether this email (which suggests that
major-party nomination was the sole criterion) was considered and discounted, or whether it was
ignored altogether. See Antosh v. FEC, 599 F. Supp. 850, 853 (D.D.C. 1984) (concluding that
the FEC’s decision was arbitrary or capricious because it “ignored persuasive evidence in the
record”). And conclusions made without explanation or reference to the record suggest that an
agency has not “genuinely engaged in reasoned decision making.” Greater Boston Television,
444 F.2d at 851.
In sum, the court cannot conclude that the FEC’s decision was backed by substantial
evidence. Here, the FEC’s burden is admittedly slight; it need only show that it relied on “such
relevant evidence as a reasonable mind might accept as adequate to support [its] conclusion.”
Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 704 (D.C. Cir. 2009). Yet the FEC has not
done so. Although the FEC’s decision is grounded in a single post-litigation affidavit, this alone
is not a sufficient reason for remand. Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 636
(D.C. Cir. 2010) (“The substantial evidence inquiry turns not on how many discrete pieces of
evidence the [agency] relies on, but on whether that evidence adequately supports its ultimate
decision.”). However, because the affidavit is not clearly supported by personal knowledge and
is, in fact, contradicted by contemporaneous written evidence, the court concludes that the FEC’s
conclusion is not supported by “substantial evidence.” And while the court is mindful of the
15
deference that ordinarily insulates the FEC from judicial second-guessing, the “deference owed
to an expert tribunal cannot be allowed to slip into a judicial inertia.” Volkswagenwerk
Aktiengesellschaft v. FMC, 390 U.S. 261, 272 (1968); see AT&T Wireless Servs., Inc. v. FCC,
270 F.3d 959, 968 (D.C. Cir. 2001) (“Conclusory explanations for matters involving a central
factual dispute where there is considerable evidence in conflict do not suffice to meet the
deferential standards of our review.”); Antosh, 599 F. Supp. at 853 (noting that courts need not
“accept meekly administrative pronouncements clearly at variance with established facts”).6 In
sum, the court cannot conclude that the FEC’s determination that ONO employed pre-existing
criteria was supported by substantial evidence. Its conclusion is therefore “contrary to law.” 2
U.S.C. § 437g(a)(8).
The court wishes to make clear that its holding only applies to the FEC’s determination
that ONO used pre-existing criteria to select its debate participants. The FEC also listed a
number of criteria that could be considered “objective” under FEC regulations. AR 119
6
None of this is to say that the FEC is required to reach a different conclusion on remand. In
particular, it seems possible that the FEC’s decision to dismiss La Botz’s administrative
complaint could have been justified entirely by the FEC’s prosecutorial discretion, which is
“considerable.” Nader v. FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2011); Akins v. FEC, 736 F.
Supp. 2d 9, 21 (D.D.C. 2010) (“The FEC has broad discretionary power in determining whether
to investigate a claim, and whether to pursue civil enforcement under the [FECA].”); see also
Heckler v. Chaney, 470 U.S. 821, 831 (1985) (noting that the decision to not investigate a claim
involves a complicated balancing of various factors that are “peculiarly within [the agency’s]
expertise,” including whether a violation has occurred, whether the agency’s resources are better
used elsewhere, whether its action would result in success, and whether there are sufficient
resources available to take any action at all). And, as set forth previously, it is unlikely that La
Botz would have benefited from the application of any objective criteria; therefore, a denial of La
Botz’s complaint based on prosecutorial discretion might be a wise use of the FEC’s limited
resources. But while this might have served as a basis for the FEC’s original decision, the court
cannot now conjure any retroactive justification. LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55, 61
(D.C. Cir. 2004) (“The [agency] may have an adequate explanation for the result it reached in this
case. We cannot, however, assume that such an explanation exists until we see it.”).
16
(concluding that objective criteria included the “percentage of votes by a candidate received in a
previous election; the level of campaign activity by the candidate; his or her fundraising ability
and/or standing in the polls; and eligibility for ballot access”). The court has no quarrel with
FEC’s reasoning on this score. Precedent makes clear that polling data may provide an objective
measure of a candidate’s viability. See Buchanan, 112 F. Supp. 2d at 74 (noting that the
language in federal regulations “manifests a clear intent on their part not to preclude debate
sponsors from using polls” and concluding that the use of a 15% polling threshold requirement
was an objective criterion). The same goes for fundraising reports, which measure a candidate’s
level of financial support. See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 682
(1998) (characterizing a presidential candidate’s failure to file fundraising reports and lack of
financial support as an “objective” indicator of his low level of support). In addition, party
support is an acceptable consideration, provided that party affiliation is not the only
consideration. See Corporate and Labor Organization Activity; Express Advocacy and
Coordination With Candidates, 60 Fed. Reg. 64260-01 (Dec. 14, 1995) (to be codified at C.F.R.
pts. 100, 102, 109, 110 & 114) (“[N]omination by a particular political party, such as a major
party, may not be the sole criterion used to bar a candidate from participating in a general
election debate. But, in situations where, for example, candidates must satisfy three of five
objective criteria, nomination by a major party may be one of the criteria.”). Thus, the court has
every reason to believe that these criteria are “objective” under FEC regulations. But the current
record does not provide reasoned support for the position that ONO actually used these objective
benchmarks to choose its debate participants. Accordingly, the court will remand this matter
back to the FEC.
17
IV. CONCLUSION
For the foregoing reasons, the court will deny the FEC’s motion to dismiss and will
remand this matter back to the agency for proceedings consistent with the court’s opinion. An
order consistent with this memorandum opinion is separately issued this 5th day of September,
2012.
RUDOLPH CONTRERAS
United States District Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?