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On September 5, 2012, the U.S. District Court for the District of Columbia issued an Order and Memorandum Opinion denying the FEC’s Motion to Dismiss. The court concluded that the FEC’s decision in dismissing an administrative complaint filed by Dan La Botz, a member of Ohio’s Socialist Party and a candidate for U.S. Senate in 2010, was contrary to law and was not supported by substantial evidence. The court remanded the matter back to the FEC.
The Federal Election Campaign Act (the Act) and Commission regulations regulate the staging of public debates. Candidate debates may be sponsored by a broadcaster, bona fide newspapers, magazines and other periodical publications, or a tax-exempt (501(c)(3) or (c)(4)) nonprofit organization. 11 CFR 110.13(a). The debate will not be considered an in-kind contribution to the participating candidates as long as certain conditions are met: the staging organization must use pre-established objective criteria to determine which candidates may participate; the debate must not promote or advance one candidate over another; and the debate must include at least two candidates. 11 CFR 110.13(b)-(c). The structure of the debate is otherwise left to the discretion of the staging organization. 11 CFR 110.13(b).
On September 21, 2010, Mr. La Botz filed a complaint with the FEC’s Office of General Counsel alleging that the Ohio News Organization and its member newspapers (collectively, “ONO”) failed to use pre-established and objective standards when inviting participants to a series of televised debates. Mr. La Botz alleged that he was not informed of the debate schedule and was told that he had not met the debate-participation criteria. (Only two candidates were invited to participate in the debate—Democratic Party nominee Lee Fisher and Republican Party nominee Rob Portman.) Mr. La Botz alleged that ONO’s failure to apply any pre-established and objective standards under the Act resulted in an illegal, in-kind corporate contribution. The Commission found no reason to believe that ONO violated the Act or Commission regulations and dismissed the complaint on May 19, 2011. It concluded that ONO’s criteria for participation in the debate were pre-established and objective, and were consistent with criteria the Commission previously found to have been acceptable, such as percentage of votes a candidate received in a previous election and a candidate’s fundraising ability and/or standing in polls.
On July 8, 2011, Mr. La Botz filed a complaint in the U.S. District Court for the District of Columbia alleging that the FEC wrongfully dismissed his administrative complaint. The complaint alleged that the FEC’s dismissal was contrary to law in that ONO violated the Act and Commission regulations by using criteria designed to allow only the two Democratic and Republican Party candidates to participate in the debate while excluding all other qualified candidates. The FEC filed a Motion to Dismiss arguing that the court lacked jurisdiction and that Mr. La Botz failed to state a claim.
The District Court for the District of Columbia disagreed. The court found that it not only had jurisdiction to decide the merits of the case, but that the FEC’s dismissal of the administrative complaint was not based on substantial evidence. Although the court noted the judicial deference usually granted to agency decisions, it found that the FEC’s dismissal was based on an affidavit which suffered from “serious flaws.” The court concluded that the affidavit, which was submitted by an editor for one member of the ONO consortium and described the group’s selection criteria, was written in summary fashion and did not establish that it was based on personal knowledge. The court also noted a lack of contemporaneous evidence that ONO had employed “pre-established” selection criteria and noted that the affidavit was only submitted after the FEC inquiry had begun. (The court pointed out that, although the Commission regulations do not require staging organizations to reduce their selection criteria to writing, the FEC “strongly encourage[s]” the practice and recommends that the criteria be made available to all candidates before a debate. See Corporate and Labor Organization Activity; Express Advocacy and Coordination with Candidates, 60 Fed. Reg. 64260-01 (Dec. 14, 1995).) Finally, the court pointed to a contemporaneous ONO document in the record which stated that its candidate selection criteria “follows the structure used by the Commission on Presidential Debates, which allows for only the major-party candidates to debate.” [Emphasis in court opinion.] The court found that this document contradicted ONO’s affidavit, and found no indication in the record that the document was considered in the FEC’s decision making. For these reasons, the court concluded that the FEC’s decision in dismissing the administrative complaint was not supported by substantial evidence and was contrary to law. The court remanded the matter back to the FEC for proceedings consistent with the court’s order.
Source: FEC Record -- October 2012