Hagelin v. Federal Election Com'n

• Citation: 411 F.3d 237
• Decision Date: 10 June 2005
• Docket Number: No. 04-5312.,04-5312.
• Parties: John HAGELIN, et al., Appellees v. FEDERAL ELECTION COMMISSION, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

411 F.3d 237

John HAGELIN, et al., Appellees v. FEDERAL ELECTION COMMISSION, Appellant

No. 04-5312.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2005.

Decided June 10, 2005.

Appeal from the United States District Court for the District of Columbia (No. 04cv00731).

Richard B. Bader, Associate General Counsel, Federal Election Commission, argued the cause for appellant. With him on the briefs were David B. Kolker, Assistant General Counsel, and Erin K. Monaghan, Attorney.

Jason B. Adkins argued the cause for appellees. With him on the brief were Lynne Bernabei, Alan R. Kabat, and John C. Bonifaz.

Before: EDWARDS, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

During the run-up to the 2000 presidential election, the Commission on Presidential Debates ("CPD") excluded all third-party candidates from the live audience of the first debate. The excluded candidates complained to the Federal Election Commission, accusing the CPD of violating FEC regulations prohibiting debate-staging organizations from "endors[ing], support[ing], or oppos[ing] political candidates or political parties." Rejecting the complaint, the FEC found that the CPD acted not out of any preference for major-party candidates or animus toward third-party candidates, but rather because it feared one or more third-party candidates would disrupt the debate. Because we conclude that substantial evidence supports the FEC's decision, we reverse the district court's decision to the contrary and remand with instructions to enter judgment for the FEC.

I.

Under the Federal Election Campaign Act ("FECA"), organizations that stage presidential and vice-presidential debates may accept corporate contributions, see 2 U.S.C. § 431(9)(B)(ii); 11 C.F.R. § 114.4(f), so long as they do not, in the words of the Federal Election Commission's ("FEC") implementing regulation, "endorse, support, or oppose political candidates or political parties," 11 C.F.R. § 110.13(a)(1). Since 1987, presidential and vice-presidential debates have been staged by the Commission on Presidential Debates. Formed by the Democratic and Republican parties, the CPD's co-chairs are Frank J. Fahrenkopf, Jr., former head of the Republican National Committee, and Paul G. Kirk, former head of the Democratic National Committee.

Under FECA, "[a]ny person who believes a violation of [the] Act ... has occurred, may file a complaint" with the FEC. 2 U.S.C. § 437g(a)(1). After reviewing the complaint and providing an opportunity for a response, id., the commissioners vote on whether they have "reason to believe" a violation has occurred, id. § 437g(a)(2). If four of the six commissioners find "reason to believe," the FEC begins an investigation. Id. But if no majority finds "reason to believe," the FEC dismisses the complaint, and the complainant may seek district court review of whether the dismissal is "contrary to law." Id. § 437g(a)(8).

Setting the stage for the issue before us, we begin with an earlier challenge to the CPD's handling of the 2000 debates. Only the two major party candidates — Vice President Al Gore and Governor George W. Bush — met the CPD's eligibility criteria for debate participation. Several third-party candidates complained to the FEC, arguing (among other things) that the CPD allowed the two major parties to control the debate, depriving third-party candidates of "extensive television exposure and media ... coverage" and "send[ing] a signal that [the excluded candidates are] somehow less credible than the other two candidates invited to the debate." See Admin. Compl. MUR 4987 at 11 (hereinafter "Buchanan Admin. Compl.") (internal quotation marks omitted). In one of their complaints, the third-party candidates pointed out that the "CPD is currently, and has always been" chaired by the former chairmen of the RNC and the DNC, that "the CPD's Board of Directors is divided among representatives of the Democratic and Republican parties and includes elected officials from those parties," and that at its inception the Republican and Democratic Parties billed the CPD as a " `bipartisan' organization created `to implement joint sponsorship of general election ... debates... by the national Republican and Democratic Committees between their respective nominees.'" Id. at 14-15 (alterations and omissions in original) (quoting Joint Press Release, DNC and RNC (Feb. 18, 1987)). According to the complaint, this major-party dominance of the CPD combined with the allegedly partisan nature of the eligibility criteria demonstrated that the CPD "endorse[d], support[ed], or oppose[d] political candidates or political parties," 11 C.F.R. § 110.13(a)(1), rendering it ineligible to stage debates and making illegal its receipt of corporate donations. See Buchanan Admin. Compl. at 11-13 (citing 2 U.S.C. §§ 431(4), 431(9), 441a, 441b, 434; 11 C.F.R. §§ 110.13, 114.4(f)); see also First Gen. Counsel's Report MURs 4987, 5004, 5021 at 5-6 (hereinafter "Buchanan Gen. Counsel's Report").

The FEC's General Counsel, whose report to the FEC customarily "provides the basis for [its] action," see FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 38-39 n. 19, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981) ("DSCC"), and the "record on which [a court may] base a deferential" decision, id. (quoting Democratic Senatorial Campaign Comm. v. FEC, 660 F.2d 773, 777 n. 23 (D.C.Cir.1980) (per curiam)), found that the third-party challengers had failed to provide "evidence that the CPD is controlled by the DNC or the RNC," "that any officer or member of the DNC or the RNC is involved in the operation of the CPD," or "that the DNC and the RNC had input into the development of the CPD's candidate selection criteria for the 2000 presidential election cycle." Buchanan Gen. Counsel's Report at 15. The General Counsel therefore recommended that the FEC find "no reason to believe" that the CPD had violated FEC regulations. See id. at 18-19. The FEC adopted this finding, ending prospects for any further administrative action. See 2 U.S.C. § 437g(a)(8)(A).

The complainants sought review in the U.S. District Court for the District of Columbia. See id. Although the district court thought that "the evidence [plaintiffs] have marshaled in support ... is not insubstantial" and that "the General Counsel's terse explanation could have been more clear and thorough," it nevertheless upheld the FEC, explaining that "in the absence of any contemporaneous evidence of influence by the major parties over the 2000 debate criteria, the FEC found evidence of possible past influence simply insufficient to justify disbelieving the CPD's sworn statement" and, "under the extremely deferential standard of review ..., the FEC is entitled to the benefit of the doubt." Buchanan v. FEC, 112 F.Supp.2d 58, 72 (D.D.C.2000). The FEC, the district court concluded, "did not abuse its discretion in finding ... `no reason to believe' that the CPD currently" is in violation of section 110.13(a)(1) of the FEC's regulations. Id. at 73.

This brings us, then, to the challenge now before us. Saying it feared that Green Party presidential candidate Ralph Nader and possibly other third-party candidates might disrupt the first debate, the CPD instructed its ticket takers to deny admission to all such candidates. To ensure that ticket takers would know whom to exclude, the CPD gave them a "face-book" that included photographs of third-party candidates.

Citing their exclusion from the debate audience and claiming they now had the "contemporaneous evidence" found missing in Buchanan, Nader and other third-party candidates again complained to the FEC. In their complaint, they reiterated the allegations, rejected in the Buchanan proceedings by the FEC in a ruling upheld by the district court, that the major parties control the CPD. They also argued that while the CPD facilitated campaigning by the major parties during the debates, it explicitly prohibited "`campaigning' by third-party candidates," including "the modicum of campaigning purportedly entailed in attending the debates." Admin. Compl. MUR 5378 at ¶ 10. In support of this allegation, they cited a deposition statement by CPD General Counsel Lewis Loss that the CPD's "concern was that if a third party candidate who had not qualified for participation in the debate went to the trouble to get a ticket and attended the debate that it would be for the purpose of campaigning in some way, which seemed to imply the potential for disruption." Loss Dep. at 100-01 (emphasis added). Though neither FECA nor FEC regulations address the composition of debate audiences, the complainants argued that their evidence demonstrated the CPD's support of major-party candidates and its opposition to third-party candidates, making it ineligible to stage debates. See 11 C.F.R. § 110.13(a)(1). In addition to Nader, the complainants included his running mate, Winona LaDuke; John Hagelin, Natural Law Party presidential candidate; Patrick Buchanan, Reform Party presidential candidate; Howard Phillips, Constitution Party presidential candidate; and the Green Party of the United States, the Constitution Party, and the Natural Law Party. (Throughout this opinion, we shall refer to the complainants collectively as "Hagelin").

In its response to the Hagelin complaint, the CPD asserted that "Mr. Nader and his supporters engaged in conduct that reasonably led CPD to be concerned about the risk of disruption of the live debate." CPD Resp. at 4. Such conduct included large rallies "at which the rallying cry was `Let Ralph Debate,'" public statements by Nader "strongly suggesting[ ] that he sought to disrupt the Boston debate," and protests and a break-in at the CPD's offices by Nader supporters. Id. In conclusion the CPD argued:

[I]t is evident that the decision alleged in the complaint was made for the purpose of preventing disruption of the live...