LEVEL THE PLAYING FIELD et al v. FEDERAL ELECTION COMMISSION

Filing 110

MEMORANDUM OPINION regarding Plaintiffs' motion 83 for summary judgment, Defendant's cross-motion 90 for summary judgment, Defendant's motion 92 to strike, and Plaintiffs' motion 99 to supplement the record. Signed by Judge Tanya S. Chutkan on 3/31/2019. (lctsc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEVEL THE PLAYING FIELD, et al.,
Plaintiffs,
v.
FEDERAL ELECTION COMMISSION,
Defendant.

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Case No. 15-cv-1397 (TSC)

MEMORANDUM OPINION
This case concerns a highly visible element of our democratic electoral process: the
presidential and vice-presidential debates held every four years by the Commission on
Presidential Debates (“CPD”).
Plaintiffs Level the Playing Field, Peter Ackerman, Green Party of the United States, and
Libertarian National Committee, Inc. allege that, following this court’s remand, Defendant
Federal Election Commission (“FEC”) again violated the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706, in dismissing two administrative complaints regarding the CPD, and
denying a petition to engage in rulemaking to change the FEC’s regulations regarding debate
staging organizations. (See ECF No. 76 (“Am. Compl.”) ¶¶ 76–82.)
Before the court are Plaintiffs’ motion for summary judgment (ECF No. 83), Defendant’s
cross-motion for summary judgment (ECF No. 90), Defendant’s motion to strike (ECF No. 92),
and Plaintiffs’ motion to supplement the record (ECF No. 99). Upon consideration of the
pleadings and the Administrative Record (ECF No. 105), Defendant’s motion to strike is
GRANTED in part and DENIED in part, Plaintiffs’ motion to supplement the record is DENIED,
Plaintiffs’ motion for summary judgment is DENIED, and Defendant’s cross-motion for
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summary judgment is GRANTED.
I. BACKGROUND
This is the second round of summary judgment briefing in this case. Because this court
has already issued a detailed memorandum and opinion (ECF No. 60), for purposes of this
ruling, the court will assume the parties’ familiarity with the underlying record and recite only
what is necessary to resolve the pending motions.
A. The Court’s February 1, 2017 Memorandum and Opinion
On February 1, 2017, this court issued a memorandum and opinion finding that the FEC
“acted arbitrarily and capriciously and contrary to law when it dismissed [Plaintiffs’] two
administrative complaints” and “fail[ed] to provide a reasoned and coherent explanation” for its
denial of Plaintiffs’ rulemaking petition. (Id. at 28.)
In granting Plaintiffs’ motion for summary judgment and denying the FEC’s crossmotion for summary judgment, the court issued five main directives to the FEC in reconsidering
Plaintiffs’ submissions. The court ordered the FEC to: (1) “articulate its analysis in determining
whether the CPD endorsed, supported, or opposed political parties or candidates” (id. at 14); (2)
“demonstrate how it considered the evidence, particularly, but not necessarily limited to, the
newly-submitted evidence of partisanship and political donations and the expert analyses
regarding fundraising and polling” (id. at 18); (3) notify the ten remaining directors, address the
allegations made against them, and consider the evidence presented against them (id. at 19); (4)
demonstrate that it had considered the full scope of Plaintiffs’ evidence as well as to explain how
and why it rejected the evidence in deciding that CPD’s polling requirement is an objective
criterion (id. at 23); and (5) engage in thorough consideration of the presented evidence and
explain its decision regarding Plaintiffs’ rulemaking petition (id. at 27–28).

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B. Plaintiffs’ August 11, 2017 Amended Complaint
On August 11, 2017, Plaintiffs filed an amended complaint alleging that the FEC’s postremand decisions indicate that it failed to comply with any of the court’s directives, and asking
the court to take the following actions:
Declare that the FEC’s dismissals of Plaintiffs’ administrative complaints were
arbitrary, capricious, an abuse of discretion, and otherwise contrary to law, and
direct the FEC, within 30 days, to find that the CPD has violated 11 C.F.R.
§ 110.13 by staging candidate debates in a partisan manner and without preestablished, objective criteria; violated 52 U.S.C. § 30118(a) by making
prohibited contributions and expenditures; and violated 52 U.S.C. §§ 30103 and
30104 by failing to register as a political committee and by failing to make
required reports and disclosures; and
If the FEC fails to so act, authorize Plaintiffs to bring a civil action against the
CPD, its executive director, and the directors who have participated in these
violations of federal election law to remedy those violations; and
Declare the FEC’s denial of the petition for rulemaking was arbitrary, capricious,
an abuse of discretion, and otherwise contrary to law, and order the FEC to open
rulemaking to revise its rules governing presidential debates to ensure that debate
sponsors do not unfairly exclude independent and third-party candidates from
participating.
(See Am. Compl. ¶¶ 3, 9, 21.)
II. STANDARD
On a motion for summary judgment in a suit seeking APA review, the court must set
aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2). The court’s review is “highly deferential” and begins
with a presumption that the agency’s actions are valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d
275, 283 (D.C. Cir. 1981). The plaintiff bears the burden of establishing the invalidity of the
agency’s action. Id.
The court is “not empowered to substitute its judgment for that of the agency,” Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (abrogated on other grounds), but
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instead must consider only “whether the agency acted within the scope of its legal authority,
whether the agency has explained its decision, whether the facts on which the agency purports to
have relied have some basis in the record, and whether the agency considered the relevant
factors,” Fulbright v. McHugh, 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund for Animals
v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). “A reviewing court, however, will accord a
somewhat greater degree of scrutiny to an order that arrives at substantially the same conclusion
as an order previously remanded by the same court.” Greyhound Corp. v. I.C.C., 668 F.2d 1354,
1358 (D.C. Cir. 1981). “The agency’s action on remand must be more than a barren exercise of
supplying reasons to support a pre-ordained result.” Food Mktg. Inst. v. I.C.C., 587 F.2d 1285,
1290 (D.C. Cir. 1978).
III. ANALYSIS
A. Defendant’s Motion to Strike and Plaintiffs’ Motion to Supplement
The FEC moves to strike portions of Plaintiffs’ memorandum of law, portions of
Plaintiffs’ counsel’s declaration, and one of Plaintiffs’ expert affidavits because the materials
were not before the agency when it made its determinations and are not part of the administrative
record. (See ECF 92 (“Def.’s Mot. to Strike”) at 1.) The FEC also argues that Plaintiffs’ use of a
FEC Commissioner’s pre-decisional statement is improper. (See id.) Plaintiffs oppose the
motion to strike and move to supplement the administrative record with the objected to material.
(See ECF No. 99 (“Pls.’ Mot to Supplement”) at 1–2.) Because the arguments in the motion to
strike and the motion to supplement overlap, the court will assess them simultaneously with
respect to each category of objected to material.
1. Extra-record Evidence
When reviewing agency actions such as FEC’s decision here, courts review “the whole

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record or those parts of it cited by a party.” 5 U.S.C. § 706; Volpe, 401 U.S. at 420 (“[R]eview is
to be based on the full administrative record that was before the Secretary at the time he made his
decision.”). This includes “all documents and materials that the agency directly or indirectly
considered” before deciding what action to take. Pac. Shores Subdiv. Cal. Water Dist. v. U.S.
Army Corps of Engr’s, 448 F.Supp.2d 1, 4 (D.D.C. 2006) (internal quotation omitted). Judicial
review is limited to the record because a court “should have before it neither more nor less
information than did the agency when it made its decision.” IMS, P.C. v. Alvarez, 129 F.3d 618,
623 (D.C. Cir. 1997) (quoting Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792
(D.C. Cir. 1984)). Agencies bear the burden of compiling the materials and documents they
considered, either directly or indirectly, and the compiled record “is entitled to a strong
presumption of regularity.” Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010).
When, as here, a party seeks to add materials to the record that it does not contend the
agency actually reviewed, courts have permitted such extra-record evidence in at least three
“unusual circumstances.” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008).
These are: (1) when “the agency ‘deliberately or negligently excluded documents that may have
been adverse to its decision,’” (2) when “background information [is] needed ‘to determine
whether the agency considered all the relevant factors,’” and (3) when “the ‘agency failed to
explain administrative action so as to frustrate judicial review.’” City of Dania Beach v. F.A.A.,
628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Am. Wildlands, 530 F.3d at 1002).
Plaintiffs contend that the extra-record materials identified in their motion for summary
judgment can be divided into six categories that are permissible under one of the first two
exceptions or for a separate reason. (See Pls.’ Mot. to Supplement at 2–6.) However, three of
the extra-record materials identified in the FEC’s appendix—an article regarding a 2018 Senate

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bid, a comment made after the 2016 election about the difficulty of selecting moderators, and an
article concerning Ross Perot’s independent candidacy in 1992—are not encompassed by any of
the six categories delineated by Plaintiffs. For those materials, because Plaintiffs failed to
address them, in accord with Local Rule 7(b), the court deems the FEC’s motion as conceded,
see Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 238 F. Supp. 2d 174, 178 (D.D.C.
2002) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C.Cir.1997)) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”), and strikes those portions from the record. (See ECF No. 83 (“Pls.’ Mot. Summ.
J.”) at 14, n.22; 16, n.30; 44, n.58.)
i. News Articles Regarding CPD Directors’ Participation and Statements
Plaintiffs seek to supplement the record with two news articles that they allege
demonstrate noncompliance with CPD’s internal policies. The first article relays CPD Director
Olympia Stowe’s opinion that President Donald Trump was hurting the Republican brand. (See
Pls.’ Mot. Summ. J. at 14, n.18.) The second article states that CPD Director Frank Fahrenkopf
co-chaired a fundraiser for Adam Laxalt, who was reportedly considering entering Nevada’s
gubernatorial race at the time. (See id. at 25, n.35.) Plaintiffs argue that the articles fall under
the first and second Dania Beach exceptions, under which extra-record evidence may be
considered because an agency has deliberately or negligently excluded adverse documents, and
extra-record evidence may be considered as needed background information. (See Pls.’ Mot. to
Supplement at 2–3.)
Having considered all arguments, the court finds that neither of the first and second
Dania Beach exceptions apply to these articles. To prove that the articles fall within the first

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Dania Beach exception, Plaintiffs needed to make a “strong showing of [agency] bad faith.”
Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015) (quoting James Madison
Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996) (alteration in original). Here,
Plaintiffs proffered only “conclusory statements,” which “‘fall short’ of that high threshold.” Id.
With respect to the second Dania Beach exception, Plaintiffs argue that the news articles should
be made part of the record because they show “that the FEC failed to consider all relevant factors
when relying upon the alleged [internal] policies.” (See Pls.’ Mot. to Supplement at 3.) But
under Dania Beach, it is not enough that Plaintiffs cursorily allege the evidence shows a failure
to consider all relevant factors; Plaintiffs must demonstrate that the evidence is “needed” by the
court to make that determination. Dania Beach, 628 F.3d at 590. And in light of the FEC’s
explanation of the manner in which it relied on CPD’s representation that it had two internal
polices, as well as the voluminous record, the court is confident that the two news articles are not
needed. See e.g., Lee Mem’l Hosp. v. Burwell, 109 F. Supp. 3d 40, 54 (D.D.C. 2015) (finding
supplementation not needed where agency provided cogent explanation). Therefore,
Defendant’s motion to strike the two news articles is GRANTED, and Plaintiffs’ motion to
supplement the record with them is DENIED.
ii. News Articles Regarding Media Sources Consulted by Voters
Plaintiffs next seek to admit four news articles under the first and second Dania Beach
exceptions, arguing that the articles rebut the FEC’s assertion that an independent candidate can
significantly defray the cost of her campaign by reaching voters through social media. (See Pls.’
Mot. Summ. J. at 30, nn.38–40; 31, n.46; Pls.’ Mot to Supplement at 4.)
Here again, the court finds that neither the first nor second Dania Beach exceptions
apply. Plaintiffs proffer no evidence of bad faith, and therefore cannot meet the first exception.

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See Dist. Hosp. Partners, L.P., 786 F.3d at 55 (noting that to meet the first exception, plaintiffs
must make a strong showing of bad faith on the part of the agency). And the second exception
has not been met because the FEC’s decision explains how it arrived at its finding that the
Douglas Schoen expert report is undermined, in part, because the report did not consider the
effect of digital and social media on media exposure avenues available to independent
candidates. The proffered news articles are not needed to determine whether the FEC adequately
considered all the relevant factors, including the extent to which voters rely on social media to
learn about presidential candidates. See e.g., Lee Mem’l Hosp., 109 F. Supp. 3d at 54 (finding
supplementation not needed where agency provided cogent explanation). Accordingly,
Defendant’s motion to strike the four news articles is GRANTED, and Plaintiffs’ motion to
supplement the record with them is DENIED.
iii. Articles, Books, Videos, and Websites regarding the 2016 Election
Of the FEC’s two decisions—the initial decision was issued in 2015 and the second
decision was issued in 2017—only the 2017 decision references the 2016 election in its analysis.
In response to this reference in the 2017 decision, Plaintiffs seek to supplement the
administrative record with extra-record evidence concerning the 2016 election. (See Pls.’ Mot.
Summ. J. at 1, n.2; 4, n.6; 13, nn.12–13 & 15–16; 14, nn.17, 19–21, & 23; 15, nn.24–26; 16,
n.29; 33, n.49.) Plaintiffs argue that the court should either find that the evidence falls under the
second Dania Beach exception or, at a minimum, take judicial notice of the evidence for
purposes of background. (See Pls.’ Mot. to Supplement at 5–6.) The court disagrees.
Plaintiffs’ characterization of FEC as “conducting [its] own sua sponte analysis of the
2016 race,” (see id. at 6), is a bit of an overstatement. The FEC’s references to the 2016 election
are cabined largely to three categories: (1) third party candidates’ name recognition, media

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attention, and financial support; (2) the Democratic and Republican nominees’ spending on
digital marketing; and (3) a potential candidate’s reported interest in running because of his
personal wealth and name recognition. For each category, the FEC provides a cogent
explanation of its reliance on the cited materials; thus, supplementation is not needed. See e.g.,
Lee Mem’l Hosp., 109 F. Supp. 3d at 54 (finding supplementation not needed where agency
provided cogent explanation). With respect to Plaintiffs’ alternative argument, because the
content of some of the documents are subject to reasonable dispute and the court’s focus at this
stage is on the documents that can serve as the foundation for Plaintiffs’ claims, the court
declines to take judicial notice of the documents for background purposes. Defendant’s motion
to strike the articles, books, videos, and websites is GRANTED, and Plaintiffs’ motion to
supplement the record with them is DENIED.
iv. Name Recognition Polls Not Mentioned in FEC’s Decisions
Plaintiffs also seek to supplement the record with a Gallup and a YouGov poll showing
that Libertarian Party candidate Gary Johnson’s name recognition was 36 percent and 37 percent
respectively. (See Pls.’ Mot. Summ. J. at 27, n.37.) According to Plaintiffs, the polls show that
the FEC erred in relying solely on a subsequent YouGov poll, which indicated that Gary Johnson
achieved 63 percent name recognition. (Id.) Plaintiffs argue that the court may take judicial
notice of the polls or, in the alternative, find that the two polls fall under the first and second
Dania Beach exceptions. (See Pls.’ Mot. to Supplement at 3–4.) However, none of these three
proposed avenues are appropriate here.
“[J]udicial notice is typically an inadequate mechanism for a court to consider extrarecord evidence when reviewing an agency action.” Dist. Hosp. Partners, L.P. v. Sebelius, 971
F. Supp. 2d 15, 32, n.14 (D.D.C. 2013), aff’d sub nom. Dist. Hosp. Partners, L.P. v. Burwell, 786

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F.3d 46 (D.C. Cir. 2015). This general rule rests on the premise that plaintiffs should not be
permitted to exploit the standard for judicial notice to circumvent the strict standard for
supplementing the administrative record. See Banner Health v. Burwell, 126 F. Supp. 3d 28, 62
(D.D.C. 2015), aff’d in part, rev’d in part sub nom. Banner Health v. Price, 867 F.3d 1323 (D.C.
Cir. 2017) (“Plaintiffs cannot evade that strict standard by appealing to the standard for judicial
notice.”). And none of the cases relied upon by Plaintiffs involved an APA case. See e.g., Atkins
v. Virginia, 536 U.S. 304, 316 n.21 (2002) (reviewing public opinion polling data in death
penalty appeal); Owens v. Duncan, 781 F.3d 360, 362 (7th Cir. 2015) (using website to
determine when sunset and nautical twilight occurred on certain day in a habeas case).
Therefore, in accord with other courts in this district, the court declines to take judicial notice of
the two polls because, as discussed below, Plaintiffs have failed to prove that any of the Dania
Beach exceptions apply. See Riffin v. Surface Transp. Bd., No. 16-1147, 2016 WL 6915552, at
*1 (D.C. Cir. Oct. 6, 2016) (unpublished) (rejecting plaintiff’s effort to supplement the
administrative record through judicial notice and explaining that none of the three exceptions to
the rule against supplementation were met); Silver State Land, LLC v. Beaudreau, 59 F. Supp. 3d
158, 172 (D.D.C. 2014) (declining to take judicial notice in APA case where proposed document
did not “qualify for supplementation of the administrative record or extra-record review”); see
also Dist. Hosp. Partners, 971 F. Supp. 2d at 32 n.14 (“[J]udicial notice of an adjudicative fact
not part of the administrative record generally is irrelevant to the court’s analysis of the merits.
Instead, a court may only consider an adjudicative fact subject to judicial notice that is not part of
the administrative record if it qualifies for supplementation as extra-record evidence.”).
With respect to the first Dania Beach exception, in addition to their conclusory statement
that the two polls undermine the FEC’s argument and were deliberately or negligently excluded

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by the FEC, Plaintiffs cite to a D.C. Circuit decision permitting supplementation of the
administrative record where the agency relied on a single memorandum from another program.
See Kent Cty., Delaware Levy Court v. U.S. E.P.A., 963 F.2d 391, 396 (D.C. Cir. 1992).
However, in that case, the agency looked outside of its own files to support its decision, but
neglected to examine its own files, which contained several documents “relat[ing] to the position
of the agency’s own experts on the question central to th[e] case.” Id. Thus, the Court found the
agency negligent for failing to review any of its internal documents and permitted plaintiff to
supplement the administrative record. Id. Here, however, the poll relied upon by the FEC and
the two polls proffered by Plaintiffs are all external documents. Thus, there is insufficient
evidence to find that the FEC was either deliberate or negligent in not including them.
Moreover, Plaintiffs seek to introduce a poll that was taken June 2–5, 2016 and another poll
taken July 13–17, 2016. And because the YouGov poll in the record was taken over a month
later, on August 25–26, 2016, it is not directly contradicted by the polls proffered by Plaintiffs,
and it is not clear that the polls are adverse to the FEC’s decision.
Lastly, the second Dania Beach exception does not apply to the name recognition polls,
neither of which provide insight into the FEC’s findings nor assist the court in determining
whether the FEC adequately considered the relevant factors. C.f. Rhea Lana, Inc. v. U.S. Dep’t
of Labor, No. 14-CV-00017 (CRC), 2016 WL 10932817, at *1 (D.D.C. Dec. 6, 2016) (finding
proposed supplement provided needed background information where it included letters
“shed[ding] light on the basis for [the agency’s] decision”). The two proffered polls do not
provide insight into the FEC’s decision making because they do not reflect the thoughts or
efforts of anyone who participated in the FEC’s decision. And the court can consider any
arguments about to what extent, if any, the FEC erred in relying only on the August YouGov poll

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without considering the two earlier polls that were not before the FEC. Thus, Defendant’s
motion to strike the name recognition polls is GRANTED, and Plaintiffs’ motion to supplement
the record with them is DENIED.
v. 2008 Polling Data for President Barack Obama
Plaintiffs also seek to supplement the record with a Real Clear Politics poll, which they
allege plainly shows that President Barack Obama’s polling received a boost after the 2008 Iowa
caucuses. (See Pls.’ Mot. Summ. J. at 42, n.55.) Plaintiffs assert that the court should take
judicial notice of the poll, or consider it under the first Dania Beach exception, which permits
consideration of extra-record adverse evidence when an agency has deliberately or negligently
excluded it. (See Pls.’ Mot. to Supplement at 5.)
Plaintiffs have again failed to establish that supplementation is warranted. They
submitted this poll because “[f]or the first time in its decisions, the FEC disputed whether
President Obama’s polling received a boost from the 2008 Iowa caucuses.” (Id.) But the FEC’s
decision contains no such dispute; it simply notes that a polling expert found that President
Obama did not “suddenly burst onto the political scene, polling shows that he was already
reasonably well-known to voters in advance of the 2008 primaries.” (A.R. 1934.) 1
Nevertheless, even if the decision did contain the dispute, Plaintiffs have not shown that the FEC
deliberately or negligently excluded the poll, and judicial notice is inappropriate where none of
the Dania Beach exceptions have been met. Accordingly, the court will not take judicial notice
of the Real Clear Politics poll and will not consider it as part of the record in evaluating the
cross-motions for summary judgment. Defendant’s motion to strike the Real Clear Politics poll

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In this opinion, the “A.R.” refers to the administrative record. The entire administrative record
is contained in the “Second Joint Appendix,” ECF No. 105.
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is GRANTED, and Plaintiffs’ motion to supplement the record with it is DENIED.
vi. Douglas Schoen Affidavit
The administrative record in this case includes Douglas Schoen’s expert report and a
cover letter advising Defendant that Schoen’s complete data set could be provided upon request.
Plaintiffs now seek to supplement the record with an affidavit from Schoen attaching the data set
upon which he relied. (ECF No. 83-3.) Plaintiffs argue that the court should consider the
affidavit and attachment under the second Dania Beach exception, which allows a court to
supplement the record with evidence that provides needed background information. (See Pls.’
Mot. to Supplement at 5.)
The court does not need the affidavit and the data set to determine whether the FEC
considered the relevant factors. Generally, an administrative record need not be supplemented
with underlying source documents where a document in the record provides detailed findings.
See Dist. Hosp. Partners, 786 F.3d at 55 (finding supplementation unnecessary because source
data did not constitute critical background information); Todd v. Campbell, 446 F. Supp. 149,
152 (D.D.C. 1978), aff’d, 593 F.2d 1372 (D.C. Cir. 1979) (“[T]he Court does not need to
examine the raw data in order to determine whether or not the Commission decision was
arbitrary and capricious or otherwise not in accordance with law.”); see also James Madison, 82
F.3d at 1095–96 (“[T]he administrative record included detailed memoranda describing the
examiners’ findings and recommendations, and [the plaintiff] has given no reason why the
district court should have looked beyond those memos.”). This case does not present any reason
to depart from this general understanding because the proposed supplement is, as Plaintiffs
concede, “in many respects [] identical to what Schoen said in his report.” (Pls.’ Mot. to
Supplement at 5.) The duplicative nature of the supplement renders this case inapposite to the

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first case—Oceana, Inc. v. Evans, 384 F. Supp. 2d 203 (D.D.C. 2005)—upon which Plaintiffs
rely. Id. at 217 n.17 (supplementing record with additional information from the creator of a
scientific model because the proposed supplement explained how the agency misapplied the
model). And Plaintiffs’ second case is inapplicable because, contrary to Plaintiffs’
representations to the court, the scientist’s declaration in that case was stricken from the record.
See Sw. Ctr. For Biological Diversity v. Norton, No. 98-CV-934 (RMU/JMF), 2002 WL
1733618, at *8 (D.D.C. July 29, 2002) (“In the end, the addition of Lande’s declaration is a
nonstarter, for it cannot be said to taint FWS’ final decision.”).
Moreover, to the extent Plaintiffs suggest that had the FEC requested the data set, it
would have changed its finding that there is “no evidentiary basis” to credit the figures extracted
from the data set, Plaintiffs are mistaken. The proposed data set—a one-page chart, entitled
“National 18 Week Political Strategy Outline”—does not address any of the three issues
identified in the FEC’s rulemaking decision. It does not provide information on the underlying
data or explain the circumstances under which a media firm offered these estimates. And lastly,
it does not address or acknowledge the biases arising from a media firm’s financial interest in
estimating or promoting high media buy costs.
Accordingly, Defendant’s motion to strike the Schoen Affidavit is GRANTED, and
Plaintiffs’ motion to supplement the record with it is DENIED.
2. Eric Olney Declaration
In support of their motion for summary judgment, Plaintiffs submitted a declaration from
Eric Olney, an attorney in this matter. (ECF No. 83-2.) Attached to the declaration are several
exhibits. The FEC does not object to the exhibits, but, in a footnote, it moves to strike the
portions of the Olney declaration that contain “arguments by counsel” because arguments should

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be confined to the briefs. (See Def.’s Mot. to Strike at 5, n.2.) In response, Plaintiffs maintain
that the declaration is “limited to a description of conversations and other acts performed by [the]
law firm that could only be attested to in an attorney declaration.” (See Pls.’ Mot. to Supplement
at 7.)
In moving to strike the portions of the Olney declaration, the FEC erred in three respects.
It made its motion in a perfunctory manner in a footnote, and instead of identifying all instances
of argument or providing an example of the objectionable argument, the FEC referred to the
objected to material as “Portions of Declaration of Eric S. Olney.” Then, in its reply brief, the
FEC again confined its argument about the declaration to a footnote. While it is understandable
that the five-page limit on the FEC’s reply brief may justify relegating the argument to a
footnote, the FEC’s opening motion had no such page limitation and should have, at the very
least, provided the court with an example of the objectionable argument. Accordingly, the court
declines to guess which portions of the declaration contain argument. See Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (stating that the court “need not consider
cursory arguments made only in a footnote”); Huntington v. U.S. Dep’t of Commerce, 234 F.
Supp. 3d 94, 101 (D.D.C. 2017) (deeming arguments made in footnote as forfeited and
addressing only arguments made in briefs). Defendant’s motion to strike unidentified portions of
the Olney Declaration is DENIED.
3. Commissioner Ellen Weintraub’s Remarks
In July 2015, the FEC held an open meeting during which it discussed Plaintiffs’
rulemaking petition. Plaintiffs’ motion for summary judgment includes remarks made by
Commissioner Ellen Weintraub during the discussion. (See Pls.’ Mot. Summ. J. at 8, n.8.) The
FEC moves to strike Plaintiffs’ use of the remarks because they constitute pre-decisional

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deliberations and are thus not properly considered part of the administrative record. (See Def.’s
Mot. to Strike at 8–10.) Plaintiffs contend that the remarks are properly before the court to show
institutional bias. (See Pls.’ Mot. to Supplement at 7.) The court agrees with the FEC.
When reviewing an agency action, the agency’s opinion and its pre-decisional
deliberations are and should be handled differently. “Agency opinions, like judicial opinions,
speak for themselves.” Checkosky v. SEC, 23 F.3d 452, 489 (D.C.Cir.1994). “Rendered at the
conclusion of all the agency’s processes and deliberations, they represent the agency’s final
considered judgment upon matters of policy the Congress has entrusted to it.” PLMRS
Narrowband Corp. v. F.C.C., 182 F.3d 995, 1001 (D.C. Cir. 1999). Accordingly, courts should
review the agency’s opinion with a view to determining whether the agency acted within the
scope of its legal authority, explained its decision, relied on facts with some basis in the record,
and considered the relevant factors. Fulbright, 67 F. Supp. 3d at 89. In contrast, predecisional
deliberations are not final. Until the agency issues its opinion, commissioners are free to change
their positions and the bases of their positions. See Checkosky, 23 F.3d at 489 (“Up to the point
of announcement, agency decisions are freely changeable, as are the bases of those decisions.”).
Pre-decisional deliberations will not be effective if commissioners are concerned that “any slip
of the tongue during an agency’s decisionmaking process could be fatal.” PLMRS Narrowband
Corp., 182 F.3d at 1001. Indeed, if commissioners’ remarks were regularly deemed fair game
for the administrative record, there could be a chilling effect on “candid and creative exchanges
regarding proposed decisions and alternatives,” “lead[ing] to an overall decrease in the quality of
decisions.” Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 143 (D.D.C. 2002). Thus,
“[w]here an agency has issued a formal opinion or a written statement of its reasons for acting,
transcripts of agency deliberations at Sunshine Act meetings should not routinely be used to

16

impeach that written opinion.” Kan. State Network v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983).
In this case, Commissioner Weintraub’s remarks were made during pre-decisional
deliberations; thus, the presumption is against inclusion in the administrative record. In an
attempt to rebut the presumption, Plaintiffs rely on a Third Circuit decision involving the
termination of an employee’s Employee Retirement Income Security Act benefits. See Kosiba v.
Merck & Co., 384 F.3d 58, 67 (3d Cir. 2004). Contrary to Plaintiffs’ representations, Kosiba is
not in any material way comparable to this case. In Kosiba, the district court found that the
denial of benefits was not arbitrary and capricious. Id. at 61. The Third Circuit, when
remanding the case, noted that the district court could supplement the record with “evidence of
potential biases and conflicts of interest that is not found in the administrator’s record” in order
to determine whether a standard above the arbitrary and capricious standard should be applied.
Id. at 67 n.5. The procedural posture and questions presented by the FEC’s motion to strike are
patently different from those presented in Kosiba, and therefore that case provides no basis for
the court to supplement the record with Commissioner Weintraub’s pre-decisional remarks.
Defendant’s motion to strike Commissioner Weintraub’s remarks is GRANTED, and Plaintiffs’
motion to supplement the record with it is DENIED.
B. Plaintiffs’ and Defendant’s Cross-Motions for Summary Judgment
Following this court’s remand, the FEC reconsidered the allegations in both of Plaintiffs’
complaints as well as those in Plaintiffs’ petition for rulemaking. The FEC subsequently issued
two decisions again finding Plaintiffs’ allegations unpersuasive. Plaintiffs now challenge the
underpinnings of each decision.
1. FEC’s Dismissals of Plaintiffs’ Administrative Complaints
The FEC’s Factual and Legal Analysis opened by explaining that the FEC uses the “plain

17

meaning” of “endorse, support, and oppose” when determining whether the CPD qualifies as a
staging organization that does not endorse, support, or oppose political candidates or political
parties. (A.R. 7213.)
The FEC then analyzed evidence that it had previously reviewed in prior actions. In so
doing, the FEC first relied on sworn declarations, from the individuals or organizations quoted in
Plaintiffs’ complaint, in which the individuals affirmed that the “statements attributed to them do
not fairly or fully reflect their respective views on the participation of independent candidates in
CPD debates.” (A.R. 7216.) The FEC further found that even if the quotes in Plaintiffs’
complaint were not cherry picked and indeed once represented the organization’s perspective, “it
would be inappropriate to rely on documents and statements that are more than 30 years old to
ascertain CPD’s present support or opposition to candidates and parties,” because organizations
change over time. (A.R. 7217.) And the CPD, in particular, conducts an internal review after
every presidential election and has adjusted the process to be inclusive of independent
candidates. (Id.) The FEC also found that the earlier documents and statements were of limited
persuasive value because each current CPD director swore that he or she had never observed a
CPD board member conduct CPD business in a partisan fashion. (A.R. 7218.) Finally, the FEC
reasoned that even if the earlier declarations reflected more current sentiments, they did not
demonstrate that CPD endorsed, supported, or opposed any party or candidate. (Id.)
The FEC then addressed the evidence that had not been presented in prior complaints. It
found that statements made in an interview by CPD Co-Chair Frank Fahrenkopf in his official
capacity did not indicate any categorical support for or opposition to any candidates; they merely
asserted the historical fact that, aside from Ross Perot, the debates have consisted of only
Democratic and Republican candidates. (A.R. 7219.) The FEC also reviewed all other

18

statements, financial contributions, and employment-related evidence to determine whether any
were attributable to any CPD co-chair or director in his or her official capacity. (A.R. 7221.)
The FEC then noted the CPD’s recently adopted “Political Activities Policy” and an informal
policy limited the risk that financial conflicts of interest could arise as a result of outside
employment. (A.R. 7221–22.) Accordingly, the FEC found that the additional evidence failed
to demonstrate that the CPD endorsed, supported, or opposed any political party or political
candidate.
The FEC’s Factual and Legal Analysis then addressed Plaintiffs’ claim that the fifteen
percent polling threshold is not objective and results in prohibited corporate contributions from
CPD to debate participants. First, the FEC noted that, in another case, the court concluded that
“third party candidates have proven that they can achieve the level of support required by the
CPD.” (A.R. 7223–24.) Second, the FEC acknowledged that this case is different because
Plaintiffs have presented new information in the form of expert reports.
The FEC took issue with Dr. Clifford Young’s report, which found that to meet the 15
percent threshold, a candidate must achieve 60 and perhaps as much as 80 percent name
recognition. (A.R. 7224.) The FEC claimed that by focusing solely on name recognition, Young
oversimplified the study to the detriment of its usefulness. (AR. 7224–25.) Moreover, the
Young report did not and cannot establish that it is impossible for independent candidates to
reach the requisite name recognition because 63 percent of registered voters had heard of
Libertarian Gary Johnson and 59 percent had heard of Green Party candidate Jill Stein. (AR.
7225–26.)
The FEC then turned to political analyst Douglas Schoen’s report, which stated that the
cost to an independent candidate of achieving 60 percent name recognition would be over $266

19

million, including $120 million for paid media content production and dissemination. (A.R.
7224.) The FEC found that the report was flawed in large part because it was built on the Young
report’s premise that 60 to 80 percent name recognition is necessary to meet the 15 percent
threshold. (A.R. 7226.) The FEC criticized the Schoen report for failing to consider that
independent candidates can attract earned media (free coverage), that social media provides more
economical avenues for messaging, and that independent expenditure-only political committees
pay for messaging in support of independent candidates. (A.R. 7226–28.)
Having identified significant limitations undermining the reports’ persuasiveness, found
that recent elections undermined the reports’ findings, noted that independent candidates do not
begin at zero percent name recognition, and acknowledged the judicial finding that independent
candidates in the past have reached 15 percent in the polls, the FEC concluded that the expert
reports did not provide reason to believe that the 15 percent threshold violated the requirement to
use objective candidate-selection criteria for staging debates. (A.R. 7228–29.)
The FEC then addressed Plaintiffs’ allegations that the CPD manipulates the selection of
polls to favor Democratic and Republican candidates, and relies on inaccurate polls. The FEC
found no evidence in the record that the CPD has manipulated the dates of the polls to favor any
party. (A.R. 7230.) It relied on a sworn declaration from its independent polling expert stating,
in part, that he has recommended which polls to use since 2000 based solely upon his
professional judgment and without any partisan purpose or pre-determined result in mind. (Id.)
With regard to Plaintiffs’ allegations that polling in three-way races is subject to increased
inaccuracy, the FEC gave greater weight to its own expert, finding that Young’s conclusions
about gubernatorial races were not equally applicable to presidential races and therefore could
not support a reasonable inference that the CPD’s criteria for selecting debate participants was

20

not objective. (A.R. 7231–32.)
Finally, the FEC dismissed Plaintiffs’ remaining allegations as being grounded solely in
policy and untethered from evidence. (A.R. 7233.)
In their motion for summary judgment, Plaintiffs assert that the FEC’s conclusions were
arbitrary, capricious, and contrary to law because the FEC: (1) applied the incorrect legal
standard, (2) failed to properly consider the submitted evidence, and (3) ultimately reached the
wrong conclusion regarding the objectivity of the CPD’s debate requirement.
i. Legal Standard Adopted by the FEC
Plaintiffs argue that the FEC failed to articulate the standard it used in determining
whether the CPD complied with the regulation prohibiting it from endorsing, supporting, or
opposing political candidates or parties. (See Pls.’ Mot. Summ. J. at 20.) They contend that the
FEC’s conclusory statement that it applied the plain meaning of each term is insufficient and
offers no insight into its decision-making. (Id.) Further, Plaintiffs argue that the FEC applied
the “control test” that this court instructed it not to use in Level the Playing Field v. Fed. Election
Comm’n, 232 F. Supp. 3d 130 (D.D.C. 2017) (“LPF I”). (Id. at 20–21.)
In response, the FEC argues that not only does its articulation of the standard applied
satisfy the court’s instruction in LPF I, but it is also plainly reasonable and not contrary to law.
(See ECF No. 90 (“Def.’s Resp. and Mot. Summ. J.”) at 25.) The FEC notes, as it did in its
decision, that the Supreme Court determined in another context that two out of three of the
terms—“support” and “oppose”—“provide explicit standards for those who apply them and give
the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” (Id.
(quoting McConnell v. Fed. Election Comm’n, 540 U.S. 93, 170 n.64 (2003), overruled on other
grounds by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)).) In addition, the

21

FEC contends that Plaintiffs’ assertion that it applied an improper “control test” is belied by the
record. (Id. at 26.)
The FEC has the better of this argument. Plaintiffs might prevail if the FEC had merely
stated that it applied the plain meaning of “endorse,” “support,” and “oppose” without
incorporating the application into its written analysis. But the FEC’s discussion regarding its
application demonstrates that it reviewed the evidence to determine whether it fell into one of
three categories: (1) evidence that the CPD directly engaged in prohibited conduct, (2) evidence
that CPD personnel engaged in prohibited conduct in an official capacity, and (3) evidence that
CPD personnel engaged in prohibited conduct in a personal capacity. (A.R. 7213–22.) The FEC
examined the evidence in the first two categories to determine whether it was persuasive enough
to warrant a finding that the CPD violated the Federal Election Campaign Act (“FECA” or the
“Act”). (A.R. 7214–20.) In so doing, the FEC used the plain meaning of the terms “endorse,”
“support,” and “oppose.” (A.R. 7213–22.) With respect to evidence in the third category, the
FEC determined that it did not violate the Act because an individual is permitted to wear
“multiple hats” and “an individual’s leadership role in a given organization does not restrict his
or her ability to speak freely on political issues or make contributions to political committees
when he or she does so in his or her personal capacity.” (A.R. 7220–21.)
Moreover, to the extent that the FEC’s decision contains a “control test,” it is patently
different from that in Buchanan v. Fed. Election Comm’n, 112 F. Supp. 2d 58, 63 (D.D.C. 2000).
In Buchanan, the FEC looked for evidence demonstrating that the two major parties controlled
the CPD, was involved in the CPD’s operations, or had input in the CPD’s debate decision. Id.
at 70–71. The FEC’s use of the control standard was deemed permissible to address the
“specific contention . . . that the CPD was created to give the two major parties ‘control over’ the

22

presidential debates.” Id. at 70–71 n.8. Heeding Buchanan’s narrow holding, in LPF I this court
advised the FEC that the Buchanan control standard was inapplicable to Plaintiffs’ allegations
because Plaintiffs “do not allege that the Democratic or Republican parties exercised control
over the CPD, but instead that the CPD and its directors acted on a partisan basis to support those
parties.” LPF I, 232 F. Supp. 3d at 139. And on remand, the FEC made plain that it was not
applying the Buchanan control standard, but a standard designed address whether the CPD was
liable for its directors’ actions. That is, in order for the FEC to address Plaintiffs’ allegations that
CPD directors were engaging in partisan activity that permeated the CPD and rendered it a
partisan organization, the FEC needed to look to the law of agency to assess the merits of
Plaintiffs’ claims.
The court therefore DENIES Plaintiffs’ motion and GRANTS Defendant’s crossmotion with respect to the appropriateness of the legal standard applied.
ii. FEC’s Treatment of the Evidence
Plaintiffs argue that, for the second time, the FEC failed to adequately consider the
evidence it presented in its two administrative complaints. (See Pls.’ Mot. Summ. J. at 21–32.)
In response, the FEC contends that Plaintiffs cannot meet their burden to show that the
Commission acted contrary to law or in an arbitrary manner. (See Def.’s Resp. and Mot. Summ.
J. at 28–41.) The FEC also notes that on remand, it heeded this court’s directives and addressed
each deficiency identified in LPF I. (See id. at 24–28.)
In reviewing the FEC’s Factual and Legal Analysis, this court must assess whether the
FEC considered the “relevant factors” and must “engage in a ‘substantial inquiry’ into the facts,
one that is ‘searching and careful.’” Ethyl Corp. v. EPA, 541 F.2d 1, 34–35 (D.C. Cir. 1976)
(quoting Volpe, 401 U.S. at 415–16). However, in educating itself about “the intricacies of the

23

problem before the agency,” this court must be mindful that it is not a “superagency that can
supplant the agency’s expert decision-maker.” Id. at 36. As such, this court must examine the
administrative record only for a “rational connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983).
Although Plaintiffs mount several challenges to the FEC’s treatment of the evidence, for
the reasons set forth below, none are availing.
a. Plaintiffs’ disagreement with the FEC’s findings regarding
partisan evidence
In support of their allegations that the CPD is a partisan organization that has supported,
endorsed, or opposed political parties or candidates, Plaintiffs submitted several categories of
evidence for the FEC’s review, none of which the FEC found persuasive.
1. Statements analyzed by FEC in prior matters
As discussed in LPF I, there is some overlap between the evidence submitted with
Plaintiffs’ complaints and evidence submitted with prior CPD-related complaints, including
MURs 4987, 5004, and 5021, which were reviewed by the court in Buchanan. The court there
noted that this evidence of the CPD’s alleged partisanship was “not insubstantial” and “[a]n
ordinary citizen might easily view the circumstances surrounding the creation of the CPD along
with the evidence of major-party influence over the past three debates as giving some ‘reason to
believe’ that the CPD always has supported, and still does support, the two major parties to the
detriment of all others.” Buchanan, 112 F. Supp. 2d at 72. However, it found that plaintiffs
lacked “contemporaneous evidence” specifically relating to the CPD’s decisions regarding the
2000 election debates at issue in that case. Id.
Here, after acknowledging its earlier conclusions that the age of the documents and
24

statements undermined their persuasiveness as evidence of current bias, the FEC reevaluated the
evidence. (A.R. 7215–18.) In so doing, it first compared Plaintiffs’ characterization of several
statements with declarations submitted by the quoted individuals. (A.R. 7215.) For example,
Plaintiffs submitted statements made by the then-chairmen of the Republican and Democratic
parties, who entered into a 1985 Memorandum of Agreement that the debates “should be
principally and jointly sponsored and conducted by the Republican and Democratic National
Committees,” and issued a 1987 press release stating that “while the two party committees will
be sponsors for all future presidential general election debates between our party nominees, we
would expect and encourage” the League of Women’s participation as a sponsor. (A.R. 2244,
2249.) Plaintiffs view these statements as “incontestably partisan.” (See Pls.’ Mot. Summ. J. at
22.) However, the FEC credited a declaration from CPD Co-Chair Fahrenkopf that Plaintiffs’
“cherry-picked quotes” must be understood from the perspective of two individuals working to
procure “buy in” from the two major parties because “securing commitment of both major party
nominees” was a “major impediment” to institutionalized debates. (A.R. 7058, 7216.) In
another instance, Plaintiffs submitted a statement made by a then-former CPD board member,
who in a 2001 interview stated that the then-CPD Executive Director was “extremely careful to
be bi-partisan.” (A.R. 7216.) Plaintiffs assert that “bi-partisan” refers to an agreement between
two major political parties. (See Pls.’ Mot. Summ. J. at 22.) The FEC, however, credited a
declaration from the quoted individual that the word “bi-partisan” was used “to mean not
favoring any one party over another.” (A.R. 7095, 7216.) These two instances are not
anomalous. The FEC deferred to each declarant’s attestation that the meaning Plaintiffs ascribed
to their statements was inaccurate. (A.R. 7035–7161, 7216.)
The FEC next determined that even if the past statements did “suggest support for

25

debates exclusively between Republicans and Democrats or opposition to the inclusion of
independent candidates,” they did not “necessarily reflect the organization’s perspective at the
time it sponsored the 2012 presidential debates at issue.” (A.R. 7217.) The FEC noted that the
CPD conducts an internal review after every presidential election, indicating that the CPD may
change over time. (Id.) And it cited the fact that, following allegations that the 1996 debates
arbitrarily excluded Ross Perot, the CPD studied the 1996 debates, adopted new candidate
selection criteria, and retained a polling expert to ensure the new criteria were carefully and
thoughtfully applied. (Id.) The FEC also relied on sworn declarations from every director,
attesting that he or she has “never observed any [CPD] Board member ever approach any issue
concerning the CPD or its mission from a partisan perspective and the CPD has conducted its
business in a strictly nonpartisan fashion.” (A.R. 7218.) (alteration in original)
Finally, the FEC reasoned that even if the past statements “did reflect more current
sentiments, they are not indicative of CPD’s organizational endorsement of or support for the
Democratic and Republican Parties and their candidates, or CPD’s opposition to third party
candidates” for two reasons. (Id. (emphasis in original).) It noted that two of the documents
were not released by the CPD, but the Democratic and Republican National Conventions “as
expressions of [their] commitment to a new custom for presidential debates.” (Id.) There was
also no evidence that the statements from the CPD officers and directors were made in their
capacity as CPD representatives. (Id.)
The court finds the FEC’s three-layer assessment sufficient. It “examine[s] the relevant
data and articulate[s] a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Tex. Neighborhood Servs. v. U.S. Dep’t of Health
& Human Servs., 875 F.3d 1, 6 (D.C. Cir. 2017). The FEC rationally decided, based on evidence

26

presented to it, that the statements were non-partisan, not representative of the current CPD, or
not indicative of CPD’s organizational endorsement, support, or opposition. That Plaintiffs or
other like-minded individuals may disagree with the FEC’s interpretation of these statements is
not enough for the court to find that the FEC’s decision is arbitrary, capricious, or contrary to
law. See, e.g., New Life Evangelistic Ctr., Inc. v. Sebelius, 753 F. Supp. 2d 103, 133 (D.D.C.
2010) (“[W]hile New Life may understandably disagree with HHS’ determination, mere
disagreement cannot discharge its burden of establishing that the determination was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”). Therefore, in light
of the FEC’s reasoned explanations, this court finds that the FEC’s treatment of previously
considered evidence was neither arbitrary nor contrary to law.
2. Statements analyzed by FEC for the first time
Plaintiffs next challenge the FEC’s treatment of a 2015 interview that CPD Co-Chair
Fahrenkopf gave to SkyNews. In the interview, Fahrenkopf was asked the following question:
And, this time around, of course, together, the television companies wanting to do
the two lead candidates, the three lead candidates, and then a four candidate
debate, the conservative leader said he wouldn’t do that, and we’ve ended up with
a seven person, a seven party, debate. What do you think the prospects for that
are?
(A.R. 3099.) Fahrenkopf responded:
Well, you know the primary debates here in the United States, we often—and of
course the Republicans three years ago, had seven or eight people on the stage
and people jokingly say it’s less of a debate than a cattle show, because there’s
such little time for each candidate to get across in the short period what their
views are on issues. That’s why in the general election debate, we have a system,
and we, you know, as you know, primarily go with the two leading candidates,
it’s been the two political party candidates, save in except for 1992 when Ross
Perot participated in the debates. So, seven people on the stage at one time is very
difficult, it’s going to take a very clever moderator to make sure that each
candidate gets an opportunity to put forth their views.
(Id.)
27

Plaintiffs read this exchange to indicate that Fahrenkopf “admit[ted] that the CPD uses its
‘system’ to ensure that only the ‘two leading candidates’ can participate in the debates.” (A.R.
3094.) Plaintiffs therefore argued that the FEC should view the admission as confirmation of the
CPD’s bias and respondents’ violation of federal law. (A.R. 3093.) Plaintiffs also asked the
FEC to not afford significant weight to a portion of CPD Director Janet Brown’s declaration that
CPD’s selection system is designed to be inclusive enough to draw the leading candidates
without being so inclusive that leading candidates would refuse to participate, because Plaintiffs
viewed it as contradicting Fahrenkopf’s admission. (A.R. 3094.)
Upon review, the FEC found “no categorical support for Democrats or Republicans or
opposition to independent candidates” because it viewed Fahrenkopf as referring to a trend.
(A.R. 7219.) Then, as it had done with the statements discussed above, the FEC looked to
Fahrenkopf’s declaration, in which he averred that his remarks were not fairly construed by
Plaintiffs. (A.R. 3120.) Specifically, the FEC agreed with Fahrenkopf’s explanation that in
responding to a question about a seven-candidate debate, he simply stated “the historical fact that
in the United States, the general election debates usually have been between two candidates, who
have been the major party nominees.” (A.R. 3119–20.) Lastly, the FEC noted that Fahrenkopf’s
remarks about the effect a seven-candidate debate would have on the “educational value of
debates” is consistent with the CPD’s statement that it “operates for the purpose of providing
meaningful debates for the public benefit.” (A.R. 7219–20.)
In moving for summary judgment on the FEC’s treatment of the SkyNews interview,
Plaintiffs contend that the FEC improperly accepted Fahrenkopf’s “bogus explanation” that he
was merely stating a historical fact, because the interviewer’s “question on its face was
prospective.” (See Pls.’ Mot. Summ. J. at 22.) Plaintiffs note that the statement “we . . .

28

primarily go with” is present tense. (See ECF No. 97 (“Pls. Reply and Opp. Mot. Summ. J.”) at
10 (emphasis and ellipsis in original).) Plaintiffs also accuse the FEC of sharing the CPD’s
partisan bias because the FEC espouses the “paternalistic view” that multiple candidates have a
negative effect on the debates’ educational value. (Pls.’ Mot. Summ. J. at 23.)
Plaintiffs contend that because the interviewer posed a prospective question, the FEC
should have read Fahrenkopf’s entire answer as relating to the future. This argument goes too
far. In answering a question about the future, it is not unusual to use the past as a frame of
reference. Given Fahrenkopf’s answer and declaration, it was reasonable for the FEC to find that
a portion of his statement asserted a historical fact—“we . . . primarily go with the two leading
candidates, it’s been the two political party candidates”—and the other portion of his answer
addressed the question about a seven candidate debate in the future—“[s]o, seven people on the
stage at one time is very difficult, it’s going to take a very clever moderator to make sure that
each candidate gets an opportunity to put forth their views.” (A.R. 3099.) Accordingly, the
court finds that the FEC’s treatment of Fahrenkopf’s 2015 interview was neither arbitrary nor
contrary to law.
3. Policies implemented by CPD leadership
As an exhibit to their complaints, Plaintiffs included a document entitled “Commission
on Presidential Debates: Conflict of Interest Policy,” created to protect the CPD’s interests
“when it is contemplating entering into a transaction or arrangement that might benefit the
private interests of an officer, director or senior manager of the Organization or might result in a
possible excess benefit transaction.” (A.R. 2768–71, 4017.)
On remand, the CPD submitted a declaration from its Executive Director explaining that
there are two additional policies. The first is an “informal policy,” which provides that “Board

29

members are to refrain from serving in any official capacity with a political campaign or party
while serving on the Board.” (A.R. 7103.) The second is a “formal Political Activities Policy”
that expands upon the informal policy and “is intended to deter CPD-affiliated persons from
participating, even in a personal capacity, in the political process at the presidential level
(including the making of campaign contributions) while serving on the Board, despite the fact no
such policy is required by FEC regulations.” (A.R. 7103–04.)
The parties’ arguments with respect to this evidence are akin to two ships passing in the
night. Plaintiffs argue that the FEC erred in relying only on the CPD’s description of the two
previously undisclosed policies instead of actually reviewing the policies. (See Pls.’ Mot.
Summ. J. at 24–26.) According to Plaintiffs, the CPD’s cursory description of the policies
demonstrate that they are ineffective at prohibiting partisan activity. (Id.) In response, the FEC
highlights that Plaintiffs submitted the “Conflict of Interest Policy” for the FEC’s review, and the
FEC subsequently reasonably determined that the policy “appear[s] to limit financial conflicts of
interest that could arise as a result of outside employment.” (Def.’s Resp. and Mot. Summ. J. at
34.) This response, focusing solely on the previously disclosed policy, indicates that the FEC
may have misunderstood Plaintiffs’ contention regarding the two undisclosed policies.
Putting this apparent misunderstanding aside, the FEC’s treatment of both undisclosed
policies was appropriate given its earlier findings that political statements, contributions, and
positions held by CPD leadership solely in their personal capacity were acceptable. Plaintiffs’
argument that the FEC erred in considering the two undisclosed policies might have had more
traction had the FEC solely or primarily relied on policies it had neither viewed nor questioned.
However, the FEC’s Factual & Legal Analysis makes clear that its determination did not rise or
fall with the policies. Before mentioning the policies, the FEC stated that (1) the statements of

30

consequence were those that “express the position of the CPD,” (2) the contributions of
consequence were those that “originated from CPD resources,” and (3) the only positions of
consequence were those where the CPD officer and directors “acted as agents of CPD” in the
course of the outside employment. (A.R. 7221.) The FEC then found that Plaintiffs failed to
adduce any evidence suggesting that specific statements, contributions, or positions fell into any
one of those three categories. (Id.) Next, the FEC found that most of the challenged work
preceded the individual’s CPD service and thus was not fairly attributable to the CPD. (Id.) The
FEC then addressed its reliance on all three policies, and added appropriate caveats to show that
it had accounted for the CPD’s failure to provide the Political Activities Policy and the informal
policy. (See id. (“Although not part of Respondents’ submissions, the policy reportedly . . .”).)
Accordingly, the court finds that the FEC’s treatment of the policies was neither arbitrary nor
contrary to law.
b. Plaintiffs’ contention that the FEC failed to consider key partisan
evidence
Plaintiffs argue that the FEC’s Factual and Legal Analysis failed to “specifically address”
the following “evidence demonstrating the CPD’s partisan bias.” (See Pls.’ Mot. Summ. J. at
23.)
•

Fahrenkopf’s 1987 statement that the CPD was “not likely to look with favor on
including third-party candidates in the debates” (A.R. 2252);

•

Former Senator Alan Simpson’s 2002 comment that “Democrats and Republicans on the
commission [] are interested in the American people finding out more about the two
major candidates—not about independent candidates who mess things up” (A.R. 3136);

•

Representative John Lewis’ comment that “the two major parties [have] absolute control
of the presidential debate process” (A.R. 3095);

•

Congressional testimony that the Democratic and Republican parties determine who
participates in the debates, Buchanan, 112 F. Supp. 2d at 71;
31

•

Fahrenkopf’s reference to the Republican Party as “our great party” (A.R. 2382–83);

•

Cash contributions from CPD directors to Democratic and Republican campaigns (see,
e.g., A.R. 2370, 2373–80, 2403–05, 2407–08); and

•

CPD directors’ lobbying efforts on behalf of industries that gave money to Democratic
and Republican candidates (see, e.g., A.R. 2370, 2385).

(Id. at 23–24.)
The first four pieces of evidence are encompassed in the FEC’s discussion of evidence
that it has previously reviewed in connection with other administrative complaints. (A.R. 7214–
18.) As detailed above, the FEC found that all the previously considered evidence was nonpartisan, not representative of the current CPD, or not representative of the organization. In LPF
I, this court stated that it “does not expect the FEC to discuss every single page of evidence in
order to demonstrate that it had carefully considered the facts.” 232 F. Supp. 3d at 142.
The last three pieces of evidence are encompassed in the FEC’s discussion of more recent
partisan evidence that it had not previously considered. (A.R. 7219–22.) As noted above, the
FEC reviewed that evidence to determine whether it amounted to evidence that (1) the CPD
directly engaged in prohibited conduct, (2) CPD personnel engaged in prohibited conduct in an
official capacity, and (3) CPD personnel engaged in prohibited conduct in a personal capacity.
(A.R. 7213–22.) Categorizing the evidence in this manner was a critical step in the FEC’s
analysis because prohibited conduct done solely in a personal capacity was deemed benign. The
FEC found that each of the last three pieces of evidence fell within the benign category.
Beginning with Fahrenkopf’s article in which he referred to the Republican Party as “our great
party,” the FEC found that “there is no indication that Fahrenkopf wrote his op-ed in his official
capacity as CPD co-chair, nor does the opinion piece express positions on behalf of CPD.” (A.R.
7221.) With respect to the cash contributions made by CPD personnel to Democratic and

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Republican campaigns, the FEC found “no suggestion that any of the contributions . . .
originated from CPD resources or any source other than their respective personal assets.” (Id.)
Lastly, with respect to the lobbying efforts, the FEC found no information that the CPD directors
acted “as agents of CPD in the course of outside employment,” “on behalf of the CPD” in the
course of lobbying efforts, or “on behalf of their employer while volunteering for CPD.” (Id.)
Because the FEC did in fact address each piece of evidence identified by Plaintiffs,
Plaintiffs’ contention is reduced to a simple disagreement with the FEC’s decision (as opposed to
their representation that the FEC ignored a mountain of evidence), and such a disagreement does
not discharge Plaintiffs of their burden to establish that the decision was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. Therefore, this court finds in favor
of the FEC.
c. Plaintiffs’ contention that the FEC and CPD Directors failed to
give sufficient consideration to evidence that CPD Directors were
participants in a “partisan scheme”
In LPF I, this court ordered that on remand, the FEC must notify the named directors that
Plaintiffs’ complaint alleged that the directors had committed a violation of the FECA, give the
directors the opportunity to address the allegations, and consider the evidence against the
directors. 232 F. Supp. 3d at 143. In accordance with this court’s order, the FEC notified the
directors and provided them with an opportunity to respond. Nine of the directors submitted
sworn declarations containing nearly identical paragraphs. (A.R. 7143–61.)
Plaintiffs contend that the directors’ responses demonstrate that neither they nor the FEC
gave “any sufficient thought to the substantial evidence.” Specifically, they contend that the
declarations are meaningless because they are virtually identical and summarily deny the
allegations. (See Pls.’ Mot. Summ. J. at 32.) Plaintiffs also assert, using Alan Simpson’s

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declaration as an example, that the declarations are flawed because they do not confirm that the
directors reviewed the complaint or supporting evidence. (Id. at 32–33.) Plaintiffs therefore
conclude that the FEC should have questioned their validity. (Id. at 33.)
The FEC responds that it was reasonable for it to give greater weight to the declarations
because Plaintiffs’ “cherry-picked quotes from CPD’s directors were not made under oath and
the quoted statements do not necessarily contradict respondents’ declarations.” (Def.’s Resp.
and Mot. Summ. J. at 35.) The FEC uses Simpson’s declaration to demonstrate that he did in
fact directly address the statement that Plaintiffs accused him of ignoring. (Id.) As to Plaintiffs’
argument that the FEC should have questioned the validity of the declarations, the FEC states
that the Factual and Legal Analysis’ robust discussion regarding the evidence’s age, history,
context, and legal significance demonstrates that it did not blindly accept the declarations. (ECF
No. 104 (“Def.’s Reply”) at 12–13.) In addition, the FEC argues that in the absence of the
declarations, it would have reached the same conclusion because all the evidence—except for the
remarks made in Fahrenkopf’s 2015 interview—was “too old and/or only pertained to CPD
directors’ non-official capacity and thus likely would not establish CPD liability.” (Id. at 13.)
Lastly, the FEC cites Circuit case law stating that it is not a valid objection that conflicts in the
evidence might have been resolved differently or other inferences may have been drawn from the
same record. (Id.)
The FEC determined that out of all of Plaintiffs’ evidence, only one statement—
Fahrenkopf’s 2015 interview—was both recent and given in an official capacity. The FEC
engaged in an in-depth analysis of that statement before finding that it did not evince partisan
bias. For the remaining statements, the FEC deemed them benign because they were outdated or
made in the individual’s personal capacity, and therefore it was not unreasonable for the FEC to

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award greater weight to the more recent declarations. In addition, to the extent the FEC may
have erred in relying on the declarations, such error was not prejudicial given that the FEC also
separately identified critical imperfections in the statements. Jicarilla Apache Nation v. U.S.
Dep’t of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (“The harmless error rule applies to
agency action because ‘[i]f the agency’s mistake did not affect the outcome, if it did not
prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.’”). The
court therefore finds that Plaintiffs have not met their burden in establishing that the FEC’s
treatment of the nine declarations was arbitrary, capricious, or otherwise contrary to law.
d. Plaintiffs’ disagreement with the weight afforded to their experts
Plaintiffs submitted two supporting expert reports, one of which was prepared by Clifford
Young, and in which report he opined that “on average, an independent candidate must achieve a
minimum of 60% name recognition, and likely 80%, in order to obtain 15% vote share.” (A.R.
2493.) Young arrived at this conclusion after noting, among other things, that there is a positive
correlation between name recognition and vote share. (Id.) He also stated that three-way races
are more error prone than two-way races, which could lead to an independent candidate’s
improper exclusion from the debate. (A.R. 2519.) The other expert report was authored by
Douglas Schoen. Building on Young’s finding that 60 percent name recognition is required to
meet the 15 percent polling threshold, Schoen opined that an independent candidate should
expect to spend $266,059,803 to run a campaign capable of meeting the 15 percent polling
threshold, and that this level of financing is impossible for all but the major-party candidates.
(A.R. 2555–56.) Schoen also declared that with respect to polling error, elections with more
than two candidates are prone to distinct volatility that limits the predictive power of pre-election
polling data. (A.R. 2556.) According to Plaintiffs, the two expert reports work in tandem to

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support their argument that the 15 percent threshold is not an objective criterion.
Because the FEC addressed the two expert reports at length in its Factual & Legal
Analysis, Plaintiffs do not and cannot contend that the FEC did not take the expert reports into
account. Instead, they argue that the FEC erred in determining how much evidentiary weight to
give the expert reports. But the fact that Plaintiffs disagree with how the FEC treated the
evidence is not actionable because the FEC provided a sound and reasoned basis for discounting
both expert opinions.
With respect to Young’s expert report, the FEC found that (1) the analysis was limited in
its scope because it considers one factor—name recognition—to the exclusion of other key
factors, such as fundraising, candidate positioning, election results, idiosyncratic events, policy
preferences, and political missteps; (2) the report did not establish that independent candidates do
not and cannot acquire 60 percent name recognition; (3) Young’s metric for polling error—the
difference between the poll and the actual result on election—was not useful because the CPD is
concerned only with a candidate’s support at a given moment; and (4) Young’s reliance on threeway gubernatorial election polling was not useful in the presidential election polling context
because presidential election polling is inherently more reliable than polling in low turn-out
elections, such as gubernatorial races. (A.R. 7224–25, 7231–32.)
The FEC found that Schoen’s report (1) was flawed because it built upon the Young
report’s flawed findings; (2) presumed that all independent candidates must pay for all of their
media; a presumption which was unfounded because candidates are able to attract earned media;
(3) failed to address the fact that digital and social media has enabled the sharing of campaign
messaging at a much lower cost than more traditional news outlets; (4) did not account for the
fact that independent expenditure-only political committees are on the rise and are able pay for

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messaging, which reduces the amount the candidate must spend in order to reach 60 percent
name recognition; and (5) incorrectly presumed that independent candidates begin with 0 percent
name recognition and funding. (A.R. 7226–29.)
Each of the FEC’s evidentiary findings was informed and reasonable given the facts
presented to it and the flaws identified by the FEC. That Plaintiffs would have come to a
different conclusion regarding the weight afforded to the reports does not render the FEC’s
findings arbitrary, capricious, or contrary to law. Moreover, the FEC was permitted to afford
more weight to its expert, Gallup’s Editor-in-Chief Frank Newport. See Wis. Valley
Improvement v. F.E.R.C., 236 F.3d 738, 746–47 (D.C. Cir. 2001) (“Given the presence of
disputing expert witnesses,” the court “‘must defer to ‘the informed discretion of the responsible
federal agencies.’”).
iii. FEC’s Determination Regarding CPD’s Polling Criterion
Finally, Plaintiffs argue that the FEC’s dismissals were arbitrary and capricious because
the agency “ignored or misconstrued the evidence that the CPD’s polling criteria is not
‘objective’ and instead favors the major party nominees.” (See Pls.’ Mot. Summ. J. at 33.) The
FEC regulations require that staging organizations such as the CPD “use pre-established
objective criteria to determine which candidates may participate in a debate,” but does not define
“objective criteria.” 11 C.F.R. § 100.13(c); see also Perot v. FEC, 97 F.3d 553, 559–60 (D.C.
Cir. 1996) (stating that regulation “does not spell out precisely what the phrase ‘objective
criteria’ means,” giving “the individual organizations leeway to decide what specific criteria to
use”). In Buchanan, however, the court noted that “the objectivity requirement precludes debate
sponsors from selecting a level of support so high that only the Democratic and Republican
nominees could reasonably achieve it.” 112 F. Supp. 2d at 74.

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Here, Plaintiffs bring two challenges. First, they take issue with the FEC’s failure to
dispute that if an independent candidate did reach 15 percent support, there is nothing to prevent
the CPD from manipulating the selection of polls to exclude the independent candidate. (See
Pls.’ Mot. Summ. J. at 34.) Second, Plaintiffs contend that the FEC failed to address the fact that
no independent candidate has satisfied the 15 percent criterion since it was instituted by the CPD.
(See id.)
Plaintiffs’ first challenge is based in conjecture, requiring the occurrence of two separate
events: first, that an independent candidate reaches the 15 percent threshold, and second, that the
CPD manipulates the selection of polls to exclude the independent candidate. Faced with such
hypothetical scenarios, the FEC relied on its independent polling expert’s sworn declaration that
he recommends polls based on the quality of the methodology employed, the reputation of the
polling organizations, and how often the polling is conducted. (A.R. 3045.) The expert further
averred that he makes recommendations based solely upon his professional judgment and
without any partisan purpose or pre-determined result in mind, and that the CPD has always
adopted his recommendations. (Id.) In light of this declaration, the FEC’s decision to discount
Plaintiffs’ hypothetical misconduct cannot be construed as arbitrary.
With regard to Plaintiffs’ second challenge, once the FEC determined that the Schoen and
Young reports contained flaws that undermined their persuasive value, the FEC relied on a
judicially-upheld finding that independent candidates have reached the 15 percent threshold in
the past. Indeed, the Buchanan court stated:
In view of the substantial deference I must accord to the FEC’s interpretation of its
own regulations, I cannot conclude that it was plainly erroneous or inconsistent
with the regulation for the FEC to find that the 15% support level set by the CPD
is “objective” for the purposes of 11 C.F.R. § 110.13(c). As Brown indicated in
her declaration, several third party candidates have in the past achieved over 15%
support in the polls taken at or around the time that the debates are traditionally
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held. For instance, by September of 1968, George Wallace had achieved a level of
support of approximately 20% in the polls. John Anderson was invited by the
League of Women Voters to participate in the 1980 presidential debates after his
support level reached approximately 15%. Finally, in 1992, Ross Perot’s standing
in the polls was near 40% at some points and he ultimately received 18.7% of the
popular vote that year. (Brown Decl. at ¶ 35.) Thus, third party candidates have
proven that they can achieve the level of support required by the CPD. While a
lower threshold of support might be preferable to many, such a reading is neither
compelled by the regulation's text nor by the drafters’ intent at the time the
regulation was promulgated. Accordingly, deference to the FEC’s interpretation is
warranted.
112 F. Supp. 2d at 74. And because the FEC first discounted all newly submitted evidence
purporting to show that the criterion was not objective, all that remained was the evidence
that was considered in Buchannan, and thus the FEC’s reliance on Buchanan’s findings
that it was possible for a third party candidate to reach the polling threshold was reasonable.
Accordingly, the court concludes that the FEC’s determination regarding the polling
criterion was neither arbitrary nor capricious. The court therefore DENIES Plaintiffs’ motion
and GRANTS Defendant’s cross-motion with respect to the FEC’s determination regarding the
polling criterion.
2. FEC’s Decision to Not Engage in Rulemaking
Plaintiffs also move for summary judgment on its claim that the FEC’s decision not to
initiate rulemaking was arbitrary and capricious in violation of the APA. The court’s review of
an agency’s decision not to engage in rulemaking is very limited, and that decision “is at the high
end of the range of levels of deference we give to agency action under our ‘arbitrary and
capricious’ review.” Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C. Cir. 2008) (internal
quotation omitted). The proper inquiry is “whether the agency employed reasoned decisionmaking in rejecting the petition.” Id. In making this assessment, the court “must examine ‘the
petition for rulemaking, comments pro and con . . . and the agency’s explanation of its decision

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to reject the petition.” Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 5 (D.C. Cir. 1987)
(quoting WWHT, Inc. v. FCC, 656 F.2d 807, 817–18 (D.C. Cir. 1981)). An order overturning the
agency’s decision and requiring promulgation of a rule is reserved for only “the rarest and most
compelling of circumstances.” WWHT, 656 F.2d at 818. However, if the agency fails to provide
a reasonable explanation for its decision, an appropriate remedy may be a remand to the agency
for reconsideration and publication of a new decision or the commencement of rulemaking if the
agency so decides. See, e.g., Shays v. FEC, 424 F. Supp. 2d 100, 116–17 (D.D.C. 2006).
In its Petition for rulemaking, Plaintiffs requested the following:
The FEC should conduct a rulemaking to revise and amend 11 C.F.R. § 110.13(c),
the regulation governing the criteria for candidate selection that corporations and
broadcasters must use in order to sponsor candidate debates. The amendment
should (A) preclude sponsors of general election presidential and vice-presidential
debates from requiring that a candidate meet a polling threshold in order to be
admitted to the debates; and (B) require that any sponsor of general election
presidential and vice-presidential debates have a set of objective, unbiased criteria
for debate admission that do not require candidates to satisfy a polling threshold
to participate in debates.
(A.R. 0009–10.) In support of this request, Plaintiffs presented much of the same evidence,
including the Young and Schoen reports, as they presented in support of their administrative
complaint. Plaintiffs’ basic argument is that the use of a single polling criterion to determine
admission to candidate debates is particularly susceptible to excluding candidates and confining
support to the two major party candidates, creating an appearance of corruption or unlawful
conduct. Plaintiffs therefore argue that in the unique context of presidential and vice-presidential
debates, which are run solely by the CPD, the FEC should continue permitting the CPD or future
debate staging organizations to craft their own objective criteria but disallow the use of polling
thresholds. (A.R. 0032.) The FEC received 1,264 comments, and only one—from the CPD—
opposed the Petition. (A.R. 1903.)

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When it remanded this case, this court identified several problems with the FEC’s
reasoning. For example, the FEC acknowledged that polling thresholds could be used to advance
one candidate over another, and summarily stated that other mechanisms would detect the issue
without explaining why alternative processes would be preferable. (A.R. 1905.) And the FEC
assessed a nationwide prohibition on polling thresholds for every debate as opposed to Plaintiffs’
requested prohibition on polling thresholds for only presidential and vice president debates. (Id.)
The court therefore directed the FEC to reconsider the rulemaking petition and issue an opinion
addressing the court’s concerns. LPF I, 232 F. Supp. 3d at 148.
Following the remand, the FEC again denied Plaintiffs’ petition for rulemaking.
Plaintiffs now move for summary judgment based on the FEC’s treatment of its two expert
reports. (See Pls.’ Mot. Summ. J. at 36–43.) As Plaintiffs aptly note, the reasoning in the
Supplemental Notice of Disposition “largely mirrors the arguments in the Factual and Legal
Analysis” and adds a “handful of additional arguments.” (Id. at 36.) And given this court’s
finding that the FEC’s treatment of the Young and Schoen report were neither arbitrary nor
contrary to law, there is no need to assess whether the FEC’s additional reasons for discounting
the expert reports are sufficient. However, the court notes that the flaws identified by the FEC
included: (1) Young’s decision to measure name recognition at an early stage in each model
may have amplified polling errors, which are higher earlier in the election cycle; (2) Young’s
analysis does not account for the fact that the September candidate field is smaller than the
earlier stage that his analysis uses; (3) Young’s report does not establish any causative effect
between name recognition and vote share; (4) Young’s report fails to provide any evidence that
polling error is biased in a manner specific to party affiliation; (5) Schoen’s report builds its
conclusion through an extensive series of unsupported suppositions and assertions; (6) Schoen’s

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report failed to explain the circumstances under which the leading corporate and political media
buying firm offered its estimate that an independent candidate would need $100 million for a
media buy; and (7) Schoen’s report does not account for any inherent biases held by the buying
firm. (A.R. 1932–37.) These flaws vary in magnitude, but as discussed above, the other flaws
were sufficient for the FEC to discount Plaintiffs’ two proffered experts and rely on its own
independent expert. Thus, Plaintiffs have presented no basis upon which this court may find that
the FEC’s decision not to engage in rulemaking was arbitrary, capricious, or otherwise contrary
to law. The court therefore DENIES Plaintiffs’ motion and GRANTS Defendant’s cross-motion
with respect to the FEC’s decision not to engage in rulemaking.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion to strike is GRANTED, in part and
DENIED, in part, Plaintiffs’ motion to supplement is DENIED, Plaintiffs’ motion for summary
judgment is DENIED, and Defendant’s cross-motion is GRANTED.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 31, 2019

Tanya S. Chutkan

TANYA S. CHUTKAN
United States District Judge

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