Shapiro Arato Files Supplemental Complaint In Lawsuit To Open Presidential Debates To Independent and Third-Party Candidates

On May 26, 2017, Shapiro Arato filed a supplemental complaint against the FEC on behalf of Level the Playing Field (“LPF”), Peter Ackerman, the Green Party of the United States, and the Libertarian National Committee, Inc.  Plaintiffs’ lawsuit challenges the FEC’s dismissal of two administrative complaints against the Commission on Presidential Debates (“CPD”), alleging that the CPD has violated federal election laws that require it to be non-partisan and to apply “objective criteria” in determining who may participate in the presidential debates.  Plaintiffs also challenge the FEC’s denial of a petition to initiate a rulemaking to revise its regulations to prevent debate-staging organizations like the CPD from requiring candidates to meet a polling threshold to access the general election presidential and vice-presidential debates.  Plaintiffs assert that the CPD’s debate-selection criteria are being used subjectively to exclude independent and third-party candidates from the debates.  Earlier this year, United States District Court Judge Tanya S. Chutkan granted Plaintiffs’ motion for summary judgment against the FEC, holding that there was “substantial” evidence supporting Plaintiffs’ claims and that the FEC’s administrative decisions “arbitrarily and capriciously” ignored the “vast majority” of this evidence.  The Court ordered the FEC to issue new decisions explaining why it dismissed Plaintiffs’ administrative complaints and refused to initiate a rulemaking.

On March 29, 2017, the FEC issued decisions purporting to comply with the Court’s order.  Plaintiffs’ supplemental complaint challenges these decisions, asserting that the FEC continues to disregard much of the evidence against the CPD and that the FEC’s treatment of the remainder is arbitrary and capricious.  Plaintiffs allege that the post-remand decisions “do not and cannot explain the overwhelming evidence demonstrating the partisanship of the CPD’s members, including the[ir] endorsements [of partisan candidates], campaign contributions, and concessions that the CPD is ‘not likely to look with favor on including third-party candidates in the debates.’”  Plaintiffs also critique the reasoning employed by these decisions.  For example, in response to Plaintiffs’ argument that independent candidates have difficulty attracting media attention, the FEC presents a purported analysis of a Westlaw news database in which it claims that Libertarian Party candidate Gary Johnson received substantial press in 2016.  Yet, as the supplemental complaint alleges, “the FEC apparently did not review the results of its news searches, or consider that ‘Gary Johnson’ is a common name, because its ‘analysis’ cites articles about dozens of Gary Johnsons who are not the presidential candidate, including athletes, chefs, museum presidents, criminals, doctors, lawyers, musicians and law enforcement officials all named Gary Johnson.”

Based on these and other flaws in the FEC’s decisions, the supplemental complaint seeks an order directing the FEC to declare the CPD’s debate criteria unlawful or permit Plaintiffs to directly sue the CPD, its executive director, and other CPD directors that participated in violations of federal election law.  Plaintiffs also seek an order directing the FEC to revise its rules to ensure that the CPD and other debate sponsors do not unfairly exclude independent and third-party candidates from the presidential debates.

The supplemental complaint can be found here.  The district court’s summary judgment opinion can be read here.  More information about the case can be read here and here.