[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
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 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]
 BILLING CODE 6715-01-P