[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72616-72618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29494]


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FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2015-11]


Candidate Debates

AGENCY: Federal Election Commission.

ACTION: Notice of Disposition of Petition for Rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking (``petition'') filed on September 11, 2014, by Level the 
Playing Field. The petition asks the Commission to amend its regulation 
on candidate debates to revise the criteria governing the inclusion of 
candidates in presidential and vice presidential candidate debates. The 
Commission is not initiating a rulemaking at this time.

DATES: November 20, 2015.

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 
regarding the Commission's regulation at 11 CFR 110.13(c). That 
regulation governs the criteria that debate staging organizations 
(which the petitioner refers to as ``sponsors'') use for inclusion in 
candidate debates. The regulation 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 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. One 
comment, that of an organization that stages presidential and vice 
presidential debates, opposed the petition; the remaining comments 
either supported the petition or took no position thereon.
    The petition and many of the comments supporting it argue that a 
staging organization's requirement that a candidate meet a polling 
threshold for inclusion in a debate unfairly benefits major party 
candidates at the expense of independent and third party candidates. As 
an alternative, the petition and some of the comments proposed 
requiring staging organizations to include each candidate who has 
qualified for the general election ballot in states that collectively 
have enough Electoral College votes for the candidate to attain the 
presidency.\1\ The petition states that

[[Page 72617]]

this would provide an objective, and more inclusive, criterion 
preferable to polling thresholds. Other commenters did not necessarily 
support or oppose the petitioner's proposed alternative but supported a 
rulemaking to determine if changes are warranted. Still other 
commenters proposed alternative and additional rule modifications for 
the Commission's consideration, such as a requirement that debate 
staging organizations provide the public with information about 
candidates not included in a debate.
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    \1\ Specifically, the petitioner proposes that a presidential 
candidate who, at a given date during the election year, has secured 
ballot access in states that collectively have at least 270 
Electoral College votes (of a total possible 538 votes), could 
potentially qualify to participate in the general election debate.
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    The commenter that opposed the petition urged the Commission to 
continue allowing a debate staging organization substantial discretion 
in formulating the nonpartisan objective candidate selection criteria 
of its choice. This commenter further argued that its particular 
polling thresholds are reasonable and objective selection criteria 
adopted for nonpartisan reasons and designed to advance voter 
education. This commenter also asserted that the petitioner's proposed 
alternative would favor early ballot qualification by candidates with 
the most resources over more meaningful measures of candidate support 
and viability.
    The Commission has evaluated the petition and comments and decided 
not to initiate a rulemaking to amend 11 CFR 110.13(c) at this time.
    As the Commission stated in adopting the current candidate debate 
rule 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).\2\ Accordingly, the Commission has required that debate 
``staging organizations use pre-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.\3\ 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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    \2\ 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'').
    \3\ 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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    The Commission has a well-established history of ensuring that 
corporate contributions are not made to candidates taking part in 
debates, including by evaluating the objectivity and neutrality of a 
debate staging organization's selection criteria in the Commission's 
enforcement process. Enforcement matters regarding that issue have 
involved a wide range of candidate selection criteria, including 
polling thresholds (from 5% to 15%), campaign finance activity levels 
(such as a minimum number of contributors as shown in reports filed 
with the Commission), campaign engagement levels (such as numbers of 
yard signs or participation in neighborhood association meetings), 
ballot access, and office eligibility. See, e.g., First General 
Counsel's Report at 5 n.5, MUR 5530 (Commission on Presidential 
Debates) (May 4, 2005), http://eqs.fec.gov/eqsdocsMUR/000043F0.pdf 
(including 15% polling threshold and ballot access criteria). In each 
of these matters, the Commission evaluated whether the criteria were 
objective, pre-established, and not arranged in a manner to promote or 
advance one candidate over another so as to constitute corporate 
contributions to the participating candidates.
    In these enforcement matters, the Commission has carefully examined 
the use of polling thresholds and found that they can be objective and 
otherwise lawful selection criteria for candidate debates. Indeed, 
almost two decades ago, the Commission found that a staging 
organization'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).
    Because the regulation at issue is designed to provide debate 
sponsors with discretion within a framework of objective and neutral 
debate criteria, and because the Commission can evaluate the 
objectivity and neutrality of a debate sponsor's selection criteria 
through the enforcement process, the Commission finds that the 
rulemaking proposed by the petition is not necessary at this time. The 
Commission concludes that section 110.13(c) in its current form 
provides adequate regulatory implementation of the corporate 
contribution ban and is preferable to a rigid rule that would prohibit 
or mandate use of particular debate selection criteria in all debates. 
See 11 CFR 200.5(c) (listing desirability of proceeding on case-by-case 
basis as consideration in declining to initiate rulemaking); see also 
MUR 4451/4473 Commission Statement of Reasons at 8-9 (Commission on 
Presidential Debates) (noting that Commission cannot reasonably 
``question[ ] each and every . . . candidate assessment criterion'' but 
can evaluate ``evidence that [such a] criterion was `fixed' or arranged 
in some manner so as to guarantee a preordained result'').
    The petition and the commenters who support it rely primarily on 
policy arguments in favor of debate selection criteria that would 
include more candidates in general election presidential and vice 
presidential debates. The rule at section 110.13(c), however, 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. Corporate and Labor Organization Activity; 
Express Advocacy and Coordination with

[[Page 72618]]

Candidates, 60 FR at 64261-62. Staging organizations' use of polling 
criteria is a reasonable way for a debate staging organization to 
select and ``control the number of candidates participating in . . . a 
meaningful debate,'' id., and to do so in a way that is objective and 
does not constitute a corporate contribution. A per se rule prohibiting 
the use of polling criteria is therefore not necessary to prevent 
debates from constituting unlawful contributions.
    Furthermore, the rule at 11 CFR 110.13(c) already permits the use 
of criteria by staging organizations that could result in larger 
numbers of candidates participating in debates. Indeed, the specific 
criterion that the petition asks the Commission to include in a revised 
section 110.13(c) is already lawful: A debate staging organization has 
the discretion to stage a general election presidential or vice 
presidential debate using selection criteria similar to the Electoral 
College approach preferred by the petitioner (so long as the 
organization's reasonable selection criteria are pre-established, 
objective, and not designed to result in the selection of certain pre-
chosen participants). No rule change is necessary to enable that 
approach, and the petitioner may sponsor a debate using such criteria 
or persuade a debate sponsor to do so.\4\
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    \4\ If the petitioner (or another entity) is unsure whether it 
is a debate ``staging organization'' as defined in 11 CFR 110.13(a), 
it may ask the Commission for an advisory opinion on the matter. 
See, e.g., Advisory Opinion 1988-22 (San Joaquin Republicans) 
(concluding that advisory opinion requestor, which did not yet have 
relevant tax status, was not within candidate debate exemption). 
Similarly, if a debate staging organization wishes to ask the 
Commission to conclude that its proposed candidate selection 
criteria are objective and not designed to result in the selection 
of certain pre-chosen participants (and thus protect itself from a 
later enforcement action), it may seek an advisory opinion on that 
question. See 52 U.S.C. 30108(c) (establishing scope of protection 
of advisory opinions).
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    The petition sets forth certain data in support of its argument 
that the use of polling thresholds as a debate selection criterion by 
one staging organization ``creates a hurdle that third-party and 
independent candidates cannot reasonably expect to clear,'' and 
therefore is designed to result in the selection of certain pre-chosen 
participants. Petition at 15. The use of polling data by a single 
debate staging organization for candidate debates for a single office, 
however, does not suggest the need for a rule change. The Commission 
acknowledges that lower (or no) polling threshold selection criteria 
may open debates to more candidates and that polling thresholds could 
be used to promote or advance one candidate (or group of candidates) 
over another. But to the extent that a debate staging organization uses 
non-objective selection criteria ``designed to result in the selection 
of certain pre-chosen participants,'' this would already be unlawful 
under the Commission's existing regulation. Corporate and Labor 
Organization Activity; Express Advocacy and Coordination with 
Candidates, 60 FR at 64262.
    Finally, the Commission notes that the petition focuses on and 
seeks to amend the rule only with respect to polling threshold criteria 
in the selection of participants for presidential general election 
debates. However, the candidate debate rule applies to all debates 
(primary and general election) ``at the presidential, House, and Senate 
levels.'' Funding and Sponsorship of Candidate Debates, 44 FR 39348 
(July 5, 1979).\5\ In the absence of any indication that polling 
thresholds are inherently unobjective or otherwise unlawful as applied 
to all federal elections (and the Commission is aware of no such 
indication),\6\ the Commission declines to initiate a rulemaking that 
would impose a nationwide prohibition on the use of such thresholds, or 
that could result in giving different legal effect to the use of 
polling criterion in different elections.
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    \5\ Indeed, the Commission has analyzed, in the enforcement 
context, debate staging organizations' criteria under 11 CFR 
110.13(c) at all levels of federal elections. See, e.g., MUR 5650 
(Associated Students of the Univ. of Arizona) (Senate debate); MUR 
5530 (Commission on Presidential Debates) (presidential general 
election debates).
    \6\ The petitioner provided data intended to demonstrate that 
polling figures are sometimes inaccurate, but the fact that polls 
can be inaccurate does not mean that a staging organization acts 
unobjectively by using them.
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    For all of the above reasons, the Commission therefore declines to 
commence a rulemaking to amend the criteria for staging candidate 
debates in 11 CFR 110.13(c).

    On behalf of the Commission.

    Dated: November 9, 2015.
Ann M. Ravel,
Chair, Federal Election Commission.
[FR Doc. 2015-29494 Filed 11-19-15; 8:45 am]
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