United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2005 Decided June 10, 2005
Reissued August 9, 2005
No. 04-5312
JOHN HAGELIN, ET AL.,
APPELLEES
v.
FEDERAL ELECTION COMMISSION,
APPELLANT
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
2
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.
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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
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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 (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
5
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
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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
international television broadcast of the debate. . . . Indeed,
the very testimony cited in the complaint makes plain that
the CPD, having determined the participants in its debates
by lawful process . . . wished to take reasonable measures
to ensure that the debate was not disrupted by . . . audience
member[s] who had not properly qualified for inclusion in
the debate as participants.
Id. at 5.
Considering these arguments, the FEC General Counsel
7
began by reiterating the FEC’s view that the previously rejected
evidence from the Buchanan proceedings failed to establish a
“reason to believe” that the CPD was controlled by the two
major parties and therefore declined to reconsider that evidence.
First Gen. Counsel’s Report MUR 5378 at 4 (hereinafter
“Hagelin Gen. Counsel’s Report”). Turning to the new
allegations, the General Counsel stated:
The issue presented by the complaint is not whether CPD’s
exclusion decision was a good one, or even whether its
fears of disruption were well-founded. The issue is whether
there is a sufficient basis to conclude the decision may have
been animated by partisanship. There is not.
Id. at 7. As to the allegation that the CPD aimed to prohibit
third-party “campaigning,” the General Counsel explained that
Hagelin had taken Loss’s use of the word “campaigning” out of
context, particularly given the “substantial information
indicating that [CPD’s] decision was based on concerns of
potential disruption during live television broadcasts, not
partisanship.” Id. The FEC adopted the General Counsel’s
recommendation and dismissed the complaint.
Hagelin brought suit in the U.S. District Court for the
District of Columbia, and the parties filed cross-motions for
summary judgment. In a memorandum opinion, the court
observed that the Buchanan court’s affirmance of the FEC
rested “in part” on the plaintiffs’ concession that “they had no
‘contemporaneous evidence’” of two-party influence over the
CPD. Hagelin v. FEC, 332 F. Supp. 2d 71, 76-77 (D.D.C. 2004)
(quoting Buchanan, 112 F. Supp. 2d at 72). Given the new
evidence that the CPD excluded third-party candidates from the
2000 debates, the district court found the “FEC’s dismissal . . .
contrary to law because the FEC ignored record evidence that
CPD’s exclusion of third party candidates from the debates was
unrelated to a subjective or objective concern of disruption, and
was therefore partisan.” Id. at 77. Although the district court
8
read the record as “support[ing] the idea that CPD excluded
some candidates for fear that they would disrupt the debates,” it
found that the record did “not support the assertion that CPD
feared disruption by all candidates excluded.” Id. at 78.
Evidence that the CPD never considered the threat of disruption
by third-party supporters reinforced the court’s conclusion that
“the exclusion policy appears partisan on its face.” Id. at 80.
The district court accordingly granted summary judgment in part
for Hagelin, reversing and remanding to the FEC on the issue of
partisanship and denying Hagelin’s motion on another matter
not relevant to the issue before us. Id. at 82-83.
The FEC now appeals, arguing that the district court
inappropriately substituted its view of the evidence for that of
the Commission. Because the district court granted summary
judgment, our review is de novo. See AFL-CIO v. FEC, 333
F.3d 168, 172 (D.C. Cir. 2003).
II.
We may set aside the FEC’s dismissal of a complaint only
if its action was “contrary to law,” see 2 U.S.C. § 437g(a)(8),
e.g., “arbitrary or capricious, or an abuse of discretion,” Orloski
v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “Highly
deferential, [the arbitrary and capricious] standard presumes the
validity of agency action” and permits reversal “‘only if the
agency’s decision is not supported by substantial evidence, or
the agency has made a clear error in judgment.’” AT&T Corp.
v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000) (quoting Kisser v.
Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994)).
Hagelin urges us to apply a less deferential standard of
review because the FEC held no evidentiary hearing. But we
know of no case, nor has Hagelin cited one, suggesting that
deferential review is appropriate only where the agency holds a
hearing that includes live testimony and an opportunity for
cross-examination, as Hagelin maintains. Indeed, with respect
9
to the FEC we have held just the opposite. See Orloski, 795
F.2d at 167 (applying an “extremely deferential standard” to the
FEC’s determination that a complaint failed to establish “reason
to believe” (internal quotation marks omitted)).
In a footnote, Hagelin argues that the FEC’s bipartisan
character—it has always had three Democratic and three
Republican commissioners—represents still another reason that
“militates against treating the FEC with the same deference
owed to a review of agency adjudicative decisions.” Appellee’s
Br. at 8 n.2; see also 2 U.S.C. § 437c(a)(1) (mandating that
“[n]o more than 3 [out of 6] members of the Commission . . .
may be affiliated with the same political party”). Yet the
Supreme Court has explained that the FEC is “precisely the type
of agency to which deference should presumptively be afforded”
because the FEC’s bipartisan composition makes it especially fit
to “decide issues charged with the dynamics of party politics.”
See DSCC, 454 U.S. at 37; see also Common Cause v. FEC, 842
F.2d 436, 448 (D.C. Cir. 1988) (holding that “[d]eference is
particularly appropriate in the context of the FECA, which
explicitly relies on the bipartisan Commission as its primary
enforcer”).
At oral argument, counsel for Hagelin explained that what
he meant was that because the FEC is dominated by the two
major parties, courts cannot trust it to deal fairly with third-party
complaints. Assuming Hagelin properly raised this
issue—which we doubt given the footnote’s opacity—we see no
basis for thinking that third-party complaints warrant more
demanding review. To begin with, the FEC’s bipartisan
structure is but one of several reasons the Supreme Court cited
in support of deferential review. As the Court explained, the
FEC also merits deference because (1) “Congress has vested the
Commission with ‘primary and substantial responsibility for
administering and enforcing the Act,’” including “‘extensive
rulemaking and adjudicative powers,’” (2) the FEC “is
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authorized to ‘formulate general policy with respect to the
administration of this Act,’” and (3) the FEC has “‘sole
discretionary power’ to determine in the first instance whether
or not a civil violation of the Act has occurred.” DSCC, 454
U.S. at 37 (citations omitted). Moreover, the arbitrary and
capricious and substantial evidence standards seem to us fully
adequate to capture partisan or discriminatory FEC behavior. If
the FEC engages in “unjustifiably disparate treatment” of third
parties as compared to major parties, those actions would
“work[] a violation of the arbitrary-and-capricious standard.”
See FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986).
III.
On the merits, the FEC argues that the district court
undertook the wrong analysis. “[T]he issue for the court . . . is
not whether CPD’s action was reasonably justified, but only
whether the Commission’s decision to credit CPD’s claim that
its subjective motivation was a fear of disruption, which even if
unreasonable was not based upon partisan electoral concerns,
was arbitrary and capricious.” Appellant’s Br. at 16. The FEC’s
point is well taken. The district court, stating that “the record
does not sustain FEC’s finding that CPD excluded each and
every third party candidate[] from the 2000 debates for non-
partisan reasons,” Hagelin, 332 F. Supp. 2d at 78, concluded that
“the exclusion policy appears partisan on its face,” id. at 80. But
given the deferential standard of review, the question before the
district court—and now before us—is not whether the CPD
provided sufficient reasons for its exclusion of each and every
candidate, but rather whether substantial evidence in the record
supports the FEC’s finding that the CPD’s exclusion of the
third-party candidates was not partisan.
In his deposition, CPD co-chair Fahrenkopf testified that “it
was a question of whether or not . . . based upon the statements
[Nader] made, [he] would attempt to disrupt the debates. . . . I
11
was convinced that we just couldn’t take the risk of that
disruption. And that’s why I supported the decision not to allow
him in the room.” Fahrenkopf Dep. at 42. Fahrenkopf also
stated, “It was a question of what happens if Ralph Nader and/or
Pat Buchanan show up with a ticket into the hall, what will we
do?” Id. at 43. CPD General Counsel Loss testified that “the
CPD had decided that Mr. Nader and third-party candidates
more generally . . . would not be admitted into the debate hall .
. . I want to be clear, we made a decision that was of general
application to third-party candidates, but it really is the case that
our focus was very much on the very concrete threat that we
perceived Mr. Nader posed.” Loss Dep. at 50. With this record
before it, the FEC concluded that the CPD acted out of fear that
Nader, and possibly Buchanan, would disrupt the debate. Given
our highly deferential standard of review, we see no basis for
questioning this conclusion.
Hagelin argues that because the Fahrenkopf and Loss
statements reveal a concern only about Nader and Buchanan,
partisanship, not fear of disruption, must have been the true
motivation for excluding all third-party candidates. Yet like the
district court, Hagelin fails to accord any weight to Loss’s
testimony that based on the fears about Nader, the CPD “made
a decision that was of general application to third-party
candidates.” Loss Dep. at 50. To be sure, the FEC General
Counsel never quoted Loss’s statement, but his report cites
relevant portions of the deposition and he obviously took the
statement into account, for in his report he referred to the CPD’s
policy toward all third-party candidates. See ACS of Anchorage,
Inc. v. FCC, 290 F.3d 403, 408 (D.C. Cir. 2002) (upholding
agency order that failed to “explicitly invoke” an exception
because the court could “reasonably discern the path from [the
order’s] reasoning and citations”). While the CPD may well
have over-reacted by excluding all third-party candidates, that
possibility hardly required the FEC to find that the CPD’s
actions amounted to “endors[ing], support[ing], or oppos[ing]
12
political candidates or political parties,” 11 C.F.R. §
110.13(a)(1).
Hagelin insists that the CPD’s failure to consider the
potential for disruption by Nader supporters or supporters of
other third-party candidates demonstrates that its true motivation
was partisan. But just as the CPD’s possible over-
reaction—excluding all third-party candidates—does not compel
a finding of partisanship, neither does the CPD’s possible under-
reaction, i.e., failing to exclude third-party supporters as well.
In any event, “[t]he question we must answer . . . is not whether
record evidence supports [Hagelin’s] version of events, but
whether it supports” the FEC’s, see Florida Mun. Power Agency
v. FERC, 315 F.3d 362, 368 (D.C. Cir. 2003), and here it does.
Hagelin relies heavily on Loss’s statement 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 attend 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. According to Hagelin,
this statement demonstrates the CPD’s interest in preventing
third-party candidates from campaigning. As the FEC General
Counsel pointed out in his report, however, such a reading not
only ignores record evidence revealing the CPD’s concern about
debate disruption during live television coverage, but also over-
emphasizes the word “campaigning” and disregards the
remainder of the statement, which focuses on “the potential for
disruption.” Hagelin Gen. Counsel’s Report at 7.
Lastly, Hagelin argues that the FEC improperly declined to
revisit the evidence from the Buchanan proceedings. As
Hagelin points out, in Buchanan the district court emphasized
that the absence of “contemporaneous evidence of influence by
the major parties over the 2000 debate criteria” led it to uphold
the FEC’s determination that the “evidence of possible past
influence [was] simply insufficient.” See Buchanan, 112 F.
13
Supp. 2d at 72. Hagelin reads this as having imposed upon the
FEC an obligation to revisit Buchanan now that he has
introduced “contemporaneous evidence” of the CPD’s exclusion
of all third-party candidates from the debate audience. But
according to the FEC, Hagelin has still failed to produce what
the court found wanting in Buchanan, i.e., “hard
contemporaneous evidence that the CPD is being influenced by
the two major parties now,” see id. Given our conclusion that
substantial evidence supports the FEC’s finding that the CPD
did not act in a partisan manner, we find no fault in the FEC’s
refusal to revisit the “evidence of possible past influence.”
IV.
Applying an appropriately deferential standard of review,
we find the FEC’s decision supported by substantial evidence
and therefore not contrary to law. We reverse the district court’s
judgment and remand with instructions to enter judgment for the
FEC.
So ordered.