[Federal Register Volume 82, Number 59 (Wednesday, March 29, 2017)]
[Proposed Rules]
[Pages 15468-15474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06150]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 82, No. 59 / Wednesday, March 29, 2017 /
Proposed Rules
[[Page 15468]]
FEDERAL ELECTION COMMISSION
11 CFR Part 110
[Notice 2017-09]
Candidate Debates
AGENCY: Federal Election Commission.
ACTION: Supplemental Notice of Disposition of Petition for Rulemaking.
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SUMMARY: On February 1, 2017, the U.S. District Court for the District
of Columbia ordered the Commission to reconsider its disposition of the
Petition for Rulemaking filed by Level the Playing Field and to issue a
new decision consistent with the Court's opinion. The Petition for
Rulemaking asks the Commission to amend its regulation on candidate
debates to revise the criteria governing the inclusion of candidates in
presidential and vice presidential general election debates. In this
supplement to the Notice of Disposition, as directed by the Court, the
Commission provides further explanation of its decision to not initiate
a rulemaking at this time.
DATES: March 29, 2017.
ADDRESSES: The petition and other documents relating to this matter are
available on the Commission's Web site, www.fec.gov/fosers (reference
REG 2014-06), and in the Commission's Public Records Office, 999 E
Street NW., Washington, DC 20463.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General
Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street NW.,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: On September 11, 2014, the Commission
received a Petition for Rulemaking from Level the Playing Field
(``Petitioner'') regarding the Commission's regulation at 11 CFR
110.13(c). That regulation governs the criteria that debate staging
organizations use for inclusion in candidate debates. The regulation,
to prevent corporate spending on debates from constituting
contributions to the participating candidates, requires staging
organizations to ``use pre-established objective criteria to determine
which candidates may participate in a debate'' and further specifies
that, for general election debates, staging organizations ``shall not
use nomination by a particular political party as the sole objective
criterion to determine whether to include a candidate in a debate.'' 11
CFR 110.13(c). The petition asks the Commission to amend 11 CFR
110.13(c) in two respects: (1) To preclude sponsors of general election
presidential and vice presidential debates from requiring that a
candidate meet a polling threshold in order to be included in the
debate; and (2) to require sponsors of general election presidential
and vice presidential debates to have a set of objective, unbiased
criteria for debate participation that do not require candidates to
satisfy a polling threshold. The petition included, in addition to
legal arguments, reports and other evidence in support of its position.
Procedural History
The Commission published a Notice of Availability seeking comment
on the petition on November 14, 2014. Candidate Debates, 79 FR 68137.
The Commission received 1264 comments in response to that notice,
including one from the Petitioner that included updated and additional
factual submissions. On November 20, 2015, the Commission published in
the Federal Register a Notice of Disposition in which it explained why
it would not initiate a rulemaking. Candidate Debates, 80 FR 72616.
The Petitioner and others sued on the basis that the Commission's
failure to initiate a rulemaking was arbitrary and capricious in
violation of the Administrative Procedure Act. See Level the Playing
Field v. FEC, No. 15-cv-1397, 2017 WL 437400 at *1 (D.D.C. Feb. 1,
2017) (citing 5 U.S.C. 706). On February 1, 2017, the U.S. District
Court for the District of Columbia concluded that the Commission acted
arbitrarily and capriciously by failing to thoroughly consider the
presented evidence and explain its decision; the Court ordered the
Commission to reconsider its disposition of the petition and issue a
new decision consistent with the Court's opinion. See id. at *13. In
particular, the Court concluded that the Commission had not adequately
addressed evidence concerning the 15% vote share polling threshold used
by the Commission on Presidential Debates (``CPD'') as a criterion for
inclusion in presidential general election debates. See id. at *12
(noting that ``for thirty years [CPD] has been the only debate staging
organization for presidential debates'' and concluding that Commission
had arbitrarily ignored evidence particular to CPD's polling
criterion). The Court declined to ``take the extraordinary step of
ordering promulgation of a new rule,'' but instead remanded for the
Commission to ``give the Petition the consideration it requires'' and
publish a new reasoned disposition or the commencement of rulemaking
``if the Commission so decides.'' Id. at *11, *13 (citing Shays v. FEC,
424 F. Supp. 2d 100, 116-17 (D.D.C. 2006)).
In accordance with the Court's instructions, the Commission has
reconsidered the full rulemaking record. On the basis of this review,
the Commission again declines to initiate a rulemaking to amend 11 CFR
110.13(c) at this time. The analysis below is intended to supplement,
rather than replace, the analysis that the Commission provided in its
original Notice of Disposition. 80 FR 72616.
Purpose and Requirements of Existing Candidate Debate Regulation
As the Commission stated in adopting the current candidate debate
regulation in 1995, ``the purpose of section 110.13 . . . is to provide
a specific exception so that certain nonprofit organizations . . . and
the news media may stage debates, without being deemed to have made
prohibited corporate contributions to the candidates taking part in
debates.'' Corporate and Labor Organization Activity; Express Advocacy
and Coordination with Candidates, 60 FR 64260, 64261 (Dec. 14,
1995).\1\ Accordingly, the Commission has required that debate
``staging organizations use pre-
[[Page 15469]]
established objective criteria to avoid the real or apparent potential
for a quid pro quo, and to ensure the integrity and fairness of the
process.'' Id. at 64262. In discussing objective selection criteria,
the Commission has noted that debate staging organizations may use them
to ``control the number of candidates participating in . . . a
meaningful debate'' but must not use criteria ``designed to result in
the selection of certain pre-chosen participants.'' Id. The Commission
has further explained that while ``[t]he choice of which objective
criteria to use is largely left to the discretion of the staging
organization,'' the rule contains an implied reasonableness
requirement. Id. Within the realm of reasonable criteria, the
Commission has stated that it ``gives great latitude in establishing
the criteria for participant selection'' to debate staging
organizations under 11 CFR 110.13.\2\ First General Counsel's Report at
n.5, MUR 5530 (Commission on Presidential Debates) (May 4, 2005),
http://eqs.fec.gov/eqsdocsMUR/000043F0.pdf.
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\1\ See also Funding and Sponsorship of Federal Candidate
Debates, 44 FR 76734 (Dec. 27, 1979) (explaining that, through
candidate debate rule, costs of staging multi-candidate nonpartisan
debates are not contributions or expenditures); 11 CFR 100.92
(excluding funds provided for costs of candidate debates staged
under 11 CFR 110.13 from definition of ``contribution''); 11 CFR
100.154 (excluding funds used for costs of candidate debates staged
under 11 CFR 110.13 from definition of ``expenditure'').
\2\ See Candidate Debates and News Stories, 61 FR 18049 (Apr.
24, 1996) (quoting H.R. Rep. No. 93-1239 at 4 (1974)).
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In the first major enforcement action under this regulation almost
two decades ago, the Commission found that CPD's use of polling data
(among other criteria) did not result in an unlawful corporate
contribution, with five Commissioners observing that it would make
``little sense'' if ``a debate sponsor could not look at the latest
poll results even though the rest of the nation could look at this as
an indicator of a candidate's popularity.'' MUR 4451/4473 Commission
Statement of Reasons at 8 n.7 (Commission on Presidential Debates)
(Apr. 6, 1998), http://www.fec.gov/disclosure_data/mur/4451.pdf#page=459. Citing this statement, one court noted with respect
to the use of polling thresholds as debate selection criteria that
``[i]t is difficult to understand why it would be unreasonable or
subjective to consider the extent of a candidate's electoral support
prior to the debate to determine whether the candidate is viable enough
to be included.'' Buchanan v. FEC, 112 F. Supp. 2d 58, 75 (D.D.C.
2000). Nonetheless, the Commission has noted that while it cannot
reasonably ``question[ ] each and every . . . candidate assessment
criterion,'' it can evaluate ``evidence that [such a] criterion was
`fixed' or arranged in some manner so as to guarantee a preordained
result.'' MUR 4451/4473 Commission Statement of Reasons at 8-9
(Commission on Presidential Debates).
The Arguments for Changing the Regulation
The petition and many of the comments supporting it essentially
argue that CPD's 15% threshold is a non-objective criterion because it
is unreliable and/or intended to unfairly benefit major party
candidates at the expense of independent and third-party candidates.
The Court summarized the petition's arguments as attempting to
establish, first, that ``CPD's polling threshold is being used
subjectively to exclude independent and third-party candidates'' and,
second, that ``polling thresholds are particularly unreliable and
susceptible to . . . subjective use at the presidential level,
undermining the FEC's stated goal of using `objective criteria to avoid
the real or apparent potential for a quid pro quo, and to ensure the
integrity and fairness of the process.' '' Level the Playing Field,
2017 WL 437400 at *12.
In essence, the petition argues that there are biases against
third-party and independent candidates in accurate polling, and
therefore that a polling threshold requirement like CPD's presents
these candidates with a Catch-22 scenario:
[A polling threshold] effectively institutionalizes the
Democratic and Republican candidates as the only options with which
the voters are presented. A third-party or independent candidate who
is excluded from the debates loses the opportunity to take the stage
against the major party nominees and demonstrate that he or she is a
better alternative; the media does not cover the candidate; and the
candidate does not get the public exposure necessary to compete. The
``determination'' that a [third-party or independent] candidate is
not viable because he or she lacks a certain amount of support
becomes a self-fulfilling prophecy.
Petition at 3. The petition argues that inclusion of independent and
third-party candidates in presidential general election debates
furthers voter education and voter turnout, which, the petition
asserts, are policy purposes underlying the regulation.
Summary of Petition Evidence in Support of Changing the Regulation
In support of the argument that polling thresholds have the purpose
or effect of favoring major party candidates over third-party or
independent candidates, the petition presents facts and analysis
regarding the name recognition required to poll at CPD's 15% threshold
and the amount of money required to gain that level of name
recognition. The petition provides further factual submissions that,
according to the petition, show that the unreliability of polling--both
generally and with respect to independent and third-party candidates--
renders the 15% threshold unattainable and unreasonable for independent
and third-party candidates.
The crux of the petition's factual submissions consists of two
reports that purport to show that CPD's 15% threshold is designed to
result in the exclusion of independent or third-party candidates. The
first report, by Dr. Clifford Young, concludes that in order to reach a
15% threshold, a candidate must achieve name recognition among 60-80%
of the population.\3\ The second, by Douglas Schoen, estimates that the
cost to a third-party or independent candidate of achieving 60% name
recognition would be over $266 million, including almost $120 million
for paid media content production and dissemination, which the report
concludes is not a reasonably reachable figure for a non-major-party
candidate.\4\ Additionally, both the Young and Schoen reports conclude
that polling in three-way races is inherently unreliable and not,
therefore, an objective measure of the viability of third-party and
independent candidates. In reaching their conclusions, both the Young
and Schoen reports assert that third-party and independent candidates
are disadvantaged by the fact that they do not benefit from a ``party
halo effect'' by which Democratic and Republican candidates--regardless
of name recognition--may garner a minimum vote share in polling merely
for being associated with a major party, in addition to benefitting
from increased name recognition from media coverage of the major party
primary season.\5\
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\3\ Petition Ex. 3 (``Young Report'').
\4\ Petition Ex. 11 (``Schoen Report'').
\5\ See Young Report at ]] 21-22.
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The Commission's Assessment of the Petition's Factual Submissions
1. Submissions Regarding Whether a 15% Threshold Cannot Be Attained by
(and Therefore Excludes) Independent and Third-Party Candidates
The Young Report's conclusion that third-party and independent
candidates require a 60-80% name recognition to meet CPD's 15%
threshold does not provide a persuasive basis for changing the
candidate debate regulation. Dr. Young acknowledges that his report's
analysis is one-dimensional; it correlates polling results to name
recognition alone, and then it draws conclusions regarding hypothetical
third-party candidate performance based on that one factor. More
[[Page 15470]]
specifically, Dr. Young acknowledges that polling results are not
merely a function of name recognition--they are a much more complex
confluence of factors. See Young Report at ]] 10, 20(d) (listing other
factors, beyond name recognition, affecting candidate vote share,
including ``fundraising, candidate positioning, election results, and
idiosyncratic events''); see also Nate Silver, A Polling Based Forecast
of the Republican Primary Field, FiveThirtyEight Politics (May 11,
2011) (attached to Petition as Exhibit 20) (noting that, more than name
recognition, ``laying the groundwork for a run quite early on,''
including efforts to ``hire staff, cultivate early support, brush up [
] media skills,'' predicts later vote share success). Due to the Young
Report's focus on this one correlative factor, the report does not
purport to establish any causative effect between name recognition and
vote share, and it does not account for how external forces apart from
name recognition--such as fundraising, candidate positioning, election
results, and idiosyncratic events--may influence vote share. For
example, the report does not take into consideration forces that might
increase the vote share of an otherwise unfamiliar independent
candidate--such as high unfavorable ratings among major party
candidates--or forces that might decrease the vote share of an
independent candidate who has become well-recognized--such as policy
preferences or political missteps. Because it largely omits analysis of
all other factors beyond name recognition, the Commission is not
persuaded that the Young Report's conclusions are a sufficient basis on
which to determine that a 15% polling threshold is so inherently
unreachable by non-major-party candidates that the Commission should
provide that sponsors of general election presidential debates must be
prohibited as a matter of law from using it in order to fulfill the
statutory prohibition on corporate contributions.
Moreover, even within the confines of name recognition, the Young
Report is only weakly applicable to the debates at issue, which are
presidential general election debates. The Young Report reaches its 60-
80% name recognition result through three models, all of which
extrapolate from data about name recognition of major party candidates
at the early stages of the party primary process (i.e., before the Iowa
caucuses) because, the report explains, ``party halo effects'' may be
lower during early primary polling. Young Report at ] 22. The decision
to measure name recognition at this extraordinarily early stage in all
three models, even if only in part, may amplify polling errors, which
the report notes are higher earlier in the election cycle than during
the later ``election salience'' period--from one day to several months
before election day--during which people start paying more attention to
the election. Id. at ]] 43(g), (i). Additionally, the use of the early
party primary stage as the point of comparison for third-party or
independent candidates' name recognition in September does not address
or account for differences in the size of the candidate fields at those
points in time. Thus, the Young Report's observations regarding early
primary candidates provide little or no persuasive evidence as to the
effect of a polling threshold on presidential general election
candidates.
In addition, the petition appears to draw inapposite conclusions
from the Young Report's data. Critically, neither the Young Report nor
other evidence submitted with the petition or comments establishes that
third-party or independent candidates do not or cannot meet 60-80% name
recognition. In fact, at least one third-party candidate was reported
to achieve over 60% name recognition in the most recent presidential
campaign prior to the general election debates. See Poll Results: Third
Party Candidates, YouGov (Aug. 25-26, 2016), available at https://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/wc35k48hrs/tabs_HP_Third_Party_Candidates_20160831.pdf (showing Gary Johnson and
Jill Stein having 63% and 59% name recognition among registered voters,
respectively). Thus, there is no information in the rulemaking record
showing that 60-80% name recognition is a prohibitively high bar for
independent candidates. In other words, even if the Commission were to
assume arguendo that 60-80% name recognition correlates with 15% vote
share, there is no information in the record demonstrating that these
thresholds inherently function to exclude third-party or independent
candidates because of their party status.
Instead, the petition uses Dr. Young's name recognition threshold
as a springboard to the primary argument of the Schoen Report: That the
cost of achieving 15% vote share is prohibitively high for independent
candidates. The Schoen Report starts from the premise that 60-80% name
recognition is necessary to gain a 15% vote share and proceeds to
estimate the amount of money that an independent candidate would need
to spend to reach 60-80% name recognition. For the reasons stated
above, the Commission does not find that this premise is adequately
established by the Young Report, and therefore the Commission questions
whether the Schoen Report possesses any meaningful evidentiary value.
But even assuming that a candidate must reach 60-80% name recognition
to achieve a 15% threshold in vote share, the Commission finds the
Schoen Report not to provide a reasoned evidentiary basis for amending
the rule at issue.
The Commission is unpersuaded by the Schoen Report primarily
because the report builds its conclusion through an extensive series of
unsupported suppositions and assertions. For example, to explain a
significant portion of its calculations, the report states that ``the
media will not cover an independent candidate until they are certainly
in the debates.'' Schoen Report at 3. But the report provides no basis
for this assertion other than an unexplained reference to the number of
publications ``follow[ing]'' one particular candidate (id. at 5), and
the Commission is aware of at least three non-major-party candidates
who did not participate in the general election debates but received
significant media attention in 2016.\6\
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\6\ Searches of the Thompson Reuters Westlaw ``Newspaper''
database for mentions in 2016 of independent and third-party 2016
presidential candidate names (``Gary Johnson,'' ``Jill Stein,'' and
``Evan McMullin'') show thousands of results. Moreover, the number
of results for references to these independent candidates was
comparable to the number of results for references to several major
party candidates during comparable time periods. Using as a baseline
the 277 days from the lead up to the first Republican party primary
debate until Donald Trump was determined to be the presumptive
nominee (August 1, 2015, to May 4, 2016), and the similar 277-day
period of September 4, 2015 (before the first Democratic primary
debate) to June 7, 2016 (when Hillary Clinton became the presumptive
Democratic nominee), the Commission looked at mentions for
independent candidates during the 277 days before the general
election (February 5-November, 7, 2016). Those results show that
Gary Johnson (with 3,001 results) was comparable to Bobby Jindal and
Mike Huckabee (with 2,894 and 3,274 results, respectively); Jill
Stein (with 1,744 results) was comparable to Rick Perry and Martin
O'Malley (with 2,278 and 2,566 results, respectively); and Evan
McMullin (with 353 results) was comparable to Lincoln Chafee, Jim
Webb, and George Pataki (with 424, 521, and 937 results,
respectively). And, while searches for Donald Trump's and Hillary
Clinton's names returned significantly more results (7,451 and
7,404, respectively), those results were in line with other
candidates who did not achieve high vote share in the party
primaries, such as Jeb Bush with 7,102 results.
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In another premise that the report uses to build its later
conclusions, the Schoen Report asserts that independent candidates are
disadvantaged because they ``must resort to launching a massive
national media campaign'' while major party candidates ``by competing
in small state primaries, can build their name recognition without
[[Page 15471]]
the costs of running a national campaign.'' Id. In support of this
statement, the report states that ``Obama's 2008 victory in the Iowa
caucuses catapulted him to national prominence.'' Id. In fact, polling
expert Nate Silver has noted that ``contrary to the conventional
wisdom, which holds that Barack Obama suddenly burst onto the political
scene, the polling shows that he was already reasonably well-known to
voters in advance of the 2008 primaries, largely as a result of his
speech at the 2004 Democratic National Convention. His name was
recognized by around 60 percent of primary voters by late 2006, and
that figure quickly ramped up to 80 or 90 percent after he declared for
the presidency in February, 2007.'' Nate Silver, A Brief History of
Primary Polling, Part II, FiveThirtyEight (Apr. 4, 2011), https://fivethirtyeight.com/features/a-brief-history-of-primary-polling-part-ii/. The only other basis that the report provides for this portion of
its conclusion is the statement that Senator Rick Santorum ``spent only
$21,980 in [Iowa], or 73 cents per vote'' in 2012. Schoen Report at 5.
It is not clear how the newspaper article cited by the report derived
this figure, and Schoen (despite having access to all relevant
financial data through the FEC's Web site) does not appear to have
assessed its accuracy. In fact, reports filed with the Commission for
the period ending three days before the Iowa caucus show that Senator
Santorum made disbursements of $1,906,018. Rick Santorum for President,
FEC Form 3P at 4 (Jan. 31, 2012), http://docquery.fec.gov/pdf/317/12950383317/12950383317.pdf. While not all of these disbursements were
targeted to Iowa, the candidate's total spending in relation to the
caucuses in that state was far higher than $21,980. Even looking at
only reported disbursements to Iowa payees (and, therefore, not
including payments to media buyers and others outside of Iowa for
activities targeted towards Iowa), the filings shows that Santorum
spent over $112,000 in Iowa between October 1 and December 31, 2011,
for purposes including rent, payroll, lodging, direct mail,
advertising, communication consulting, and coalition building. Id.
Thus, the Schoen Report's use of unexplained second-hand analysis
undercuts its credibility, and the facts demonstrated by the public
record give the Commission reason to doubt the Schoen Report's
calculations regarding any extra benefit major party primary candidates
receive from their media expenditures.
In addition, the Schoen Report states that media costs to
accomplish 60% name recognition are higher in three-way races due to
increased competition, and the report increases its cost estimate
accordingly.\7\ But the 60% figure is apparently drawn from the Young
Report, which, as discussed above, addresses the very earliest stages
of major party primaries. Like the Young Report, the Schoen Report does
not explain why or how this 60% figure can be extrapolated from early
major party primaries to three-way general elections.
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\7\ Schoen Report at 3; see also id. at 10 (asserting, without
supporting data or sources, that costs will likely be
``significantly'' higher ``in an election year featuring three
viable candidates'' and, therefore, adding 5% premium to report's
earlier cost estimates).
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The Schoen Report ultimately adopts an estimated cost of at least
$100 million for a media buy that an independent candidate would
require to gain the name recognition to meet the 15% threshold. Schoen
Report at 6. Not only does this figure rely upon the faulty assumptions
that the Commission has already noted, it is also unreliable for at
least four additional reasons.
First, the $100 million figure is taken from an estimate from ``a
leading corporate and political media buying firm,'' without any
underlying data and without any explanation of the circumstances under
which the firm purportedly offered that estimate. Nor does the report
address (or even acknowledge) any biases in that estimate that may stem
from a media buying firm's financial interest in estimating or
promoting high media buy costs. The Schoen Report simply provides no
evidentiary basis for the Commission to credit this third-person
estimate.
Second, the $100 million estimate presumes that a candidate must go
from zero percent name recognition to 60% name recognition, without
noting the likelihood of a candidate starting from zero or otherwise
explaining this assumption. The Schoen Report suggests, by consistently
comparing the hypothetical independent candidate's position with the
positions of his ``two'' (and only two) major party candidate
competitors, that this zero percent baseline occurs at some point after
the major parties have established presumptive nominees. See, e.g.,
Schoen Report at 10-11 (discussing ``the two major party campaigns''
with whom hypothetical independent candidate needing 60% name
recognition will be competing for ad buy time); id. at 15 (same). A
hypothetical situation in which a person with zero percent name
recognition decides to run for president in approximately June of the
election year and must raise name recognition from nothing to 60%
within the three months before CPD looks at polls in September is
unrelated to the realities of presidential elections. Presidential
candidates--major party and third-party alike--generally begin
campaigning a full year or more before the election, see, e.g., Jill
Stein, FEC Form 2 (July 6, 2015) (declaring candidacy for president in
2016 election cycle), and they rarely start with zero name recognition,
see, e.g., Petition Ex. 13 (Gallup report showing 11 candidates
(including Libertarian Gary Johnson) with over 10% name recognition in
January 2011). The Schoen Report's scenario--and the conclusions that
the report draws from it--therefore provides no persuasive support for
the petition's assertion that the candidate debate regulation must be
revised.
Third, the Schoen Report bases its estimate of campaign and paid
media costs on the assertion that independent candidates are unable to
attract news media coverage. See Schoen Report at 4. But the report's
assertion, based primarily on research published in 1999,\8\ seems
particularly antiquated in the age of digital and social media. See
Farhad Manjoo, I Ignored Trump News for a Week. Here's What I Learned,
NY Times, Feb. 22, 2017, https://www.nytimes.com/2017/02/22/technology/trump-news-media-ignore.html (discussing news media coverage during and
since 2016 presidential election campaign in light of social media
pressures). The Commission declines to promulgate rules that will
govern the 2020 presidential election and beyond on the basis of
opinions that are premised on such obsolete data.
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\8\ Schoen Report at 4 (citing Paul Herrnson & Rob Faucheux,
Outside Looking In: Views of Third Party and Independent Candidates,
Campaigns & Elections (Aug. 1999)). The assertion also appears to be
in tension with the statutory exclusion of the news media coverage
from legal treatment as campaign spending. See 52 U.S.C.
30101(9)(B)(i) (excluding ``any news story . . . distributed through
the facilities of any broadcasting station, newspaper, magazine, or
other periodical'' from definition of ``expenditure'').
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Fourth, the Schoen Report's media cost estimates do not appear to
take account of media purchases in support of a candidate by outside
groups, including independent expenditure-only political committees
(``IEOPCs''). IEOPCs may create, produce, and distribute communications
in support of, but independently of, a particular candidate, and in
2016 several IEOPCs supported third-party candidate Gary
[[Page 15472]]
Johnson in just that way.\9\ In addition, IEOPCs may raise unlimited
funds from individuals and from sources, like corporations, otherwise
prohibited under the Federal Election Campaign Act, 52 U.S.C. 30101-46.
Thus, the existence and rise of IEOPCs undermine the Schoen Report's
assumptions about the amount of the average contribution to a
candidate, as well as the report's extrapolations about the number of
individual contributions needed and total sum necessary to reach Dr.
Young's 60-80% name recognition threshold. See Schoen Report at 24-25
(estimating third-party candidate's ``hypothetical average donation''
on basis of ``assumption for average donation'' of ``plurality'' of
Obama and Romney contributors under $2600 maximum).
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\9\ See Open Secrets, Independent Expenditures, Gary Johnson,
2016 cycle, https://www.opensecrets.org/pres16/outside-spending?id=N00033226 (listing six ``Super PACs'' or IEOPCs
supporting Johnson, two of which spent over $1 million in support)
(last visited Feb. 24, 2017).
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Ultimately, the unreliability of the Schoen Report's conclusions is
most clearly demonstrated by the fact that third-party candidate Gary
Johnson reached 60% name recognition by August 31, 2016.\10\ In the
2016 election cycle through August 31, Johnson had spent almost $5.5
million; this amount represents total disbursements for all purposes,
including, but not limited to, media buys.\11\ According to the Schoen
Report, such a result should have been impossible: Johnson should not
have been able to achieve 60% name recognition until he spent at least
$266 million--fifty times more than he actually did.\12\
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\10\ See Ariel Edwards-Levy, Third-Party Candidates are Getting
a Boost in Name Recognition, Huffington Post (Aug. 31, 2016) (noting
Johnson's name recognition); Poll Results: Third Party Candidates,
YouGov (Aug. 25-26, 2016), available at https://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/wc35k48hrs/tabs_HP_Third_Party_Candidates_20160831.pdf (showing Gary Johnson
and Jill Stein having 63% and 59% name recognition among registered
voters, respectively).
\11\ See Gary Johnson 2016, FEC Form 3P at 3-4 (Sept. 20, 2016),
http://docquery.fec.gov/pdf/391/201609209032026391/201609209032026391.pdf (showing receipts of $7,937,608 and
disbursements of $5,444,704).
\12\ The Young and Schoen Reports do not address a circumstance
in which a candidate, like Gary Johnson, reaches at least 60% name
recognition but does not reach a 15% threshold. The Commission
notes, though, that this circumstance (in which name recognition
does not translate to high vote share) might be explained by the
other factors beyond name recognition that affect vote share,
including ``fundraising, candidate positioning, election results,
and idiosyncratic events,'' mentioned in the Young Report. See Young
Report at ]] 10, 20(d). Moreover, the circumstance in which name
recognition does not translate to high vote share is not unique to
third party candidates. See note 6, above (discussing Jeb Bush).
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For all of the foregoing reasons, the Commission finds the Schoen
Report unpersuasive.
Finally, the petition acknowledges that a number of third-party
presidential candidates have performed sufficiently well that they were
included or would have been included in debates with 15% thresholds.
See Petition at 15-16. Indeed, the petition notes that as many as six
candidates would apparently have satisfied this requirement at some
point during their campaigns: Roosevelt in 1912, LaFolette in 1924,
Thurmond in 1948, Wallace in 1968, Anderson in 1980, and Perot in 1992.
Id. The petition asks the Commission to categorically disregard these
examples because they predate the Internet, and in some cases, the
television. Petition at 16.\13\ As discussed above, the Commission
agrees that pre-Internet candidacies provide only a relatively weak
basis assessing how easy or difficult it would be for candidates to
achieve 15% vote share in a modern election. But to the extent that the
availability of Internet communication has changed this calculus, the
Commission notes that advertising on the Internet can cost
significantly less money than advertising in more traditional media
that was available to those pre-Internet independent candidates. See,
e.g. Internet Communications, 71 FR 18589, 18589 (Apr. 12, 2006)
(describing Internet as ``low-cost means of civic engagement and
political advocacy'' and noting that Internet presents minimal barriers
to entry compared to ``television or radio broadcasts or most other
forms of mass communication''); Associated Press, Here's How Much Less
than Hillary Clinton Donald Trump Spent on the Election, Fortune (Dec.
9, 2016), http://fortune.com/2016/12/09/hillary-clinton-donald-trump-campaign-spending/ (comparing Hillary Clinton's ``more traditional''
television-heavy advertising strategy in campaign's last weeks--$72
million on TV ads and about $16 million on Internet ads--with Donald
Trump's ``nearly $39 million on last-minute TV ads and another $29
million on digital''); see also Bill Allison et al., Tracking the 2016
Presidential Money Race, Bloomberg Politics (Dec. 9, 2016), https://www.bloomberg.com/politics/graphics/2016-presidential-campaign-fundraising/ (noting that Trump's spending to ``target[ ] specific
groups of Clinton backers with negative ads on social media to lower
Democratic turnout . . . may have been a factor in Trump's performance
in battleground states'').
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\13\ The petition also asks the Commission to disregard the
strong polling results of third-party or independent candidates,
like George Wallace and John Anderson, who have a prior affiliation
with a major political party. Petition at 15. The Commission is not
persuaded that disregarding those polling results would be
reasonable in the context of assessing, as required by the court,
whether the CPD's 15% threshold under the current candidate debate
regulation acts ``subjectively to exclude independent and third-
party candidates,'' since the threshold would apply to all third-
party and independent candidates, regardless of prior affiliation.
Level the Playing Field, 2017 WL 437400 at *12.
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In sum, the Commission concludes that the petition does not present
credible evidence that a 15% threshold is so unobtainable by
independent or third-party candidates that it is per se subjective or
intended to exclude them.
2. Submissions Regarding Whether Polls are Unreliable and
Systematically Disfavor Independent and Third-Party Candidate
The Young Report's examination of polling error in three-way races
with independents seeks to determine, essentially, if the threshold is
drawn in the right place to identify candidates that actually have a
15% vote share. Young Report at ] 60. The Young Report concludes that
polls in three-way races have greater errors than polls in two-way
races. Specifically, the Young Report extrapolates from gubernatorial
election polls taken two months before the general election (the point
at which CPD uses polls as a debate inclusion criterion) where there is
an 8% error rate in three-way races compared to a 5.5% error rate in
two-way races. Id. at ]] 52-56. Adjusting for the fact that
gubernatorial race polling is ``more error prone'' than presidential
race polling, the Young Report concludes that the applicable error rate
is 6.04%. Id. at ]] 57-58. The Young Report continues to extrapolate
the effect of this error on candidates, such as independent or third-
party candidates, that poll close to the 15% threshold; for these
candidates, the Young Report concludes that there is an approximately
40% chance that a third-party or independent candidate who holds the
support of 15% of the population would be excluded. Id. at ]] 59-66.
The Commission is unpersuaded by this analysis for two fundamental
reasons. First, as the Commission noted in its original notice of
disposition, the fact that polling data can be erroneous does not mean
that a debate staging organization acts subjectively in using it. 80 FR
at 72618 n.6. By way of analogy, consider a school district with a
policy of canceling school if a majority of local television news
stations predict at least six inches of snow for the next day. That
policy would be facially objective, even though such weather forecasts
are known to be significantly
[[Page 15473]]
inaccurate. The policy would be subjective only if the inaccuracy in
the forecast were systematically biased for or against the condition
being triggered (e.g., if the local weather forecasters regularly used
high-end estimates of snow to drive viewer interest). But this
demonstrates the second reason the Commission is unpersuaded by the
petition's submissions regarding polling unreliability: The petition
provides no evidence that the polling error is biased in a manner
specific to party affiliation, that is, that polling is biased against
third-party or independent candidates. Indeed, the petition explicitly
acknowledges that ``it [is] wholly unclear whether the polling over- or
underestimate[s] the potential of the third party candidate.'' Petition
at 19 (quoting Schoen Report at 28). Thus, the Commission concludes
that the petition does not demonstrate that statistical errors in
polling data render the use of such data subjective or show that it is
intended to exclude third-party candidates.\14\
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\14\ Because this data, even as cited by the petition, does not
show that the regulation should be amended, the Commission need not
further assess the data's validity. Nonetheless, the Commission
notes that there are significant structural differences between the
state polls cited by Dr. Young and national presidential polls. See,
e.g., Young Report at ]] 41 (explaining differences between
reputable national and state or local polls, with respect to both
number of interviews and margins of error), 57 (showing significant
differences between state and federal polling at different points in
time). Although Dr. Young adjusts the state-poll results before
applying them to his national analysis, (see id. ] 58), the manner
in which the adjustment is described leaves unexplained whether the
adjustment accounts for all of the relevant differences between
state and national polls.
The Petitioner also submitted in response to the Notice of
Availability a comment with additional data concerning ``grossly
inaccurate'' polling in 2014 midterm Senate and gubernatorial
elections. Level the Playing Field, Comment at 1 (Nov. 26, 2014),
http://sers.fec.gov/fosers/showpdf.htm?docid=310980. However,
attachments to the comment note that ``midterm polling biases in
Senate elections are far worse than in presidential elections.'' Id.
at Exhibit A. And a chart created by the Petitioner for the comment
shows that, of ten races with purportedly high polling errors in
races without a ``viable third-party or independent candidate,'' the
two races included in the chart with the lowest polling error are,
in fact, the only two races that include a third-party or
independent candidate. Compare Level the Playing Field, Comment at 3
(showing Georgia and North Carolina Senate races with the lowest
final polling errors of those entries in chart) to Level the Playing
Field, Comment at Exhibit C (showing Georgia and North Carolina
Senate as only races included in chart that involved three-way race
polling). For all of these reasons, the Commission is not persuaded
that the Petitioner's submissions regarding state and Senate polls
indicate any systematic, anti-third-party flaw in the polls at issue
here, which are presidential general election polls.
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The petition does imply that third-party and independent candidates
are at a disadvantage because ``there is no requirement that pollsters
test third-party and independent candidates,'' and therefore the CPD
might ``cherry pick from among the myriad polls that exist in order to
engineer a specific outcome.'' Petition at 17-18. But the petition
presents no evidence that such manipulation has ever occurred, and the
Commission is unwilling to predicate a rule change on unsupported
speculation of wrongdoing. A debate sponsor who took actions to
manipulate the ``pre-established'' and ``objective'' selection criteria
so as to ``select[ ] certain pre-chosen participants'' by cherry-
picking polls that excluded other candidates would violate the existing
rule. Corporate and Labor Organization Activity; Express Advocacy and
Coordination with Candidates, 60 FR at 64262.
The petition further argues that lowering the polling threshold is
insufficient to solve polling error problems. As an initial matter, the
Commission notes that the Young Report does not conclude that any and
all polling thresholds are unreliable. On this point, in addition to
the Young and Schoen Reports discussed above, Petitioner cites an
article from Nate Silver on Republican primaries for the conclusion
that ``a simple poll does not capture a candidate's potential.''
Petition at 17 (citing Nate Silver, A Polling Based Forecast of the
Republican Primary Field, FiveThirtyEight Politics (May 11, 2011)
(attached to Petition as Exhibit 20)). The cited article, though,
concludes what appears to be the opposite of the point for which it is
cited; it starts by explaining that it will prove the author's
contention that ``polls have enough predictive power to be a worthwhile
starting point.'' Petition, Ex. 20. In fact, that article was part four
of a four part series. The second sentence of part one of that series
explained that the series was intended to show that ``national polls of
primary voters--even [nine months] out from the Iowa caucuses and New
Hampshire primary--do have a reasonable amount of predictive power in
informing us as to the identity of the eventual nominee.'' Nate Silver,
A Brief History of Primary Polling, Part I, FiveThirtyEight (Mar. 31,
2011), https://fivethirtyeight.com/features/a-brief-history-of-primary-polling-part-i/. Moreover, polls like those used in September by CPD
are not ``inaccurate'' or ``unreliable'' simply because their
assessments of vote share do not match the final vote share on Election
Day; such polls are ``designed to measure the true level of public
support at the time the poll is administered,'' not ``to measure the
true level of public support on Election Day.'' Commission on
Presidential Debates, Comment at Ex. 2 ] 20 (Declaration of Frank M.
Newport, Editor-in-Chief, Gallup Organization) (Dec. 15, 2014), http://sers.fec.gov/fosers/showpdf.htm?docid=310982. As the Newport
Declaration notes, ``there is no doubt that properly conducted polls
remain the best measure of public support for a candidate . . . at the
time the polls are conducted.'' Id. at Ex. 2 ] 21.
3. Submissions Regarding the Desirability of Expanding Debate
Participation
The petition and most of the commenters who support it rely
primarily on policy arguments that polling thresholds are inconsistent
with the purposes of the existing regulations and that those purposes
would be better served by, in essence, including more voices on the
debate stage.\15\ The Commission explained in its original Notice of
Disposition why it was not persuaded by the petition's ``arguments in
favor of debate selection criteria that
[[Page 15474]]
would include more candidates in general election presidential and vice
presidential debates.'' 80 FR at 72617. As the Commission explained,
``The rule at section 110.13(c) . . . is not intended to maximize the
number of debate participants; it is intended to ensure that staging
organizations do not select participants in such a way that the costs
of a debate constitute corporate contributions to the candidates taking
part.'' Id. That is the only basis on which the Commission is
authorized to regulate in this area. The Commission has no independent
statutory basis for regulating the number of candidates who participate
in debates, and the merits or drawbacks of increasing such
participation--except to the limited extent that they implicate federal
campaign finance law -- are policy questions outside the Commission's
jurisdiction.
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\15\ A substantial majority of the comments that the Commission
received on the petition were cursory and consisted of a single
sentence expressing support for the petition. See, e.g., Comment by
Amanda Powell, REG 2014-06 Amendment of 11 CFR 110.13(c) (Dec. 15,
2014) (``I support the petition.''), http://sers.fec.gov/fosers/showpdf.htm?docid=310989. Additionally, the League of Women Voters
``does not support amending the FEC regulation to preclude sponsors
of general election presidential and vice presidential debates from
requiring that a candidate meet a polling threshold in order to be
included in the debate,'' but did generally support opening a
rulemaking, though without supporting or proposing any specific
proposal. Comment by League of Women Voters, REG 2014-06 Amendment
of 11 CFR 110.13(c) (Dec. 15, 2014), http://sers.fec.gov/fosers/showpdf.htm?docid=310985. The comment did not, however, present any
substantial justification for doing so. Moreover, such an open-ended
inquiry was not the focus of the petition for rulemaking.
Another commenter, FairVote, indicated that it ``do[es] not
oppose the use of polling as a debate selection criterion so long as
candidates have an alternative means of qualifying for inclusion.''
See Comment by FairVote, REG 2014-06 Amendment of 11 CFR 110.13(c)
(Dec. 15, 2014), http://sers.fec.gov/fosers/showpdf.htm?docid=310974. That commenter emphasized the Commission's
recognition of the educational purpose of candidate debates and
advocated that including additional candidates in debates would
``broaden the substantive discussion within the debates.'' Id. As
explained supra, however, the main purpose of the regulation at
issue is to clarify when money spent on debate sponsorship is exempt
from the FECA's definition of ``contribution.'' The Commission's
recognition of the educational value of debates does not alter its
view that the determination of which candidates participate in a
given debate should generally be left to the organizations
sponsoring such events. See supra. In addition, while the Commenter
supported Petitioner's proposed alternative to select a third debate
participant based upon the number of signatures gathered to obtain
ballot access, the existing rule already permits this alternative
and thus amending the rule is not required to allow for that
approach. See id.
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Conclusion
The evidence presented to the Commission in the petition and
comments on the impracticability of independent candidates reaching the
15% threshold and on the unreliability of polling do not lead the
Commission to conclude that the CPD's use of such a threshold for
selecting debate participants is per se subjective, so as to require
initiating a rulemaking to amend 11 CFR 110.13(c). While the reports by
Dr. Young and Mr. Schoen, in addition to the historical polling and
campaign finance data presented with the petition, demonstrate certain
challenges that independent candidates may face when seeking the
presidency, these submissions do not demonstrate either that the
threshold is so high that only Democratic and Republican nominees could
reasonably achieve it, or that the threshold is intended to result in
the selection of those nominees to participate in the debates.
For all of the above reasons, in addition to the reasons discussed
in the Notice of Disposition published in 2015, see Candidate Debates,
80 FR 72616, and because the Commission has determined that further
pursuit of a rulemaking would not be a prudent use of available
Commission resources, see 11 CFR 200.5(e), the Commission declines to
commence a rulemaking that would amend the criteria for staging
candidate debates in 11 CFR 110.13(c) to prohibit the use of a polling
threshold to determine participation in presidential general election
debates.
On behalf of the Commission,
Dated: March 23, 2017.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. 2017-06150 Filed 3-28-17; 8:45 am]
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