The CPD has made, and intends to make, in connection with its proposed series of debates between the Democratic and
Republican candidates for the offices of President and Vice President, payments for goods and services, significantly in excess of
$1,000. Such payments will provide substantial and tangible benefits to the Republican and Democratic candidates in their
campaigns for the offices of President and Vice President and will influence and improve the chances of election of the
Republican and Democratic Party candidates over the chances of the Reform Party candidates for those offices. Such payments
are, therefore, "expenditures" and "in-kind contributions" as defined by the Federal Election Campaign Act of 1971 (the "Act" or
"FECA"), as amended, 2 U.S.C. §§ 431 et. seq. (1997 and Supp. 1999).
Because in the aggregate these contributions total in excess of $1,000 in a calendar year, the CPD is required by the Act to
register as a "political committee," and to file regularly reports of receipts and expenditures, which, to date, it has not done, and
which, to our knowledge, it has no intention of doing. Moreover, the CPD’s expenditures for these debates are in violation of the
prohibition against expenditures by a corporation that is contained in 2 U.S.C. § 441b. In addition, the CPD has received, and
continues to receive, from other corporations donations that in the aggregate total more than $1,000 in a calendar year. Because
these donations have been made for the purpose of sponsoring the debates between the Republican and Democratic candidates,
they are "contributions" under the Act. As a political committee, the CPD’s receipt of contributions from corporations constitutes a
violation of 2 U.S.C. § 441a(f) and 2 U.S.C. § 441a(a).
The CPD’s staging of the debates does not fall within the "safe harbor" of 2 U.S.C. § 431(9)(B)(ii), which has been construed by
the Federal Election Commission (the "FEC") to exempt, under certain circumstances, corporate sponsorship of nonpartisan
candidate debates from the general prohibition on corporate contributions and expenditures. See 11 C.F.R. § 110.13. The CPD’s
sponsorship of the debates is not, however, a nonpartisan voter education effort. It is, by the CPD’s own admissions, a bipartisan
voter education effort, an effort to inform the public about the views of the Republican and Democratic candidates, and,
consequently, to influence voters to choose one of those two candidates to the detriment of the candidates of third parties, including
the Reform Party. Moreover, the CPD was created specifically to provide the Republican and Democratic Parties with control
over the presidential and vice-presidential candidate debates in the general election and to exclude third party candidates from
those debates, and it continues to operate to do so. The CPD does not, therefore, meet the requirement that staging organizations
not support or oppose political parties. See 11 C.F.R. Section 110.13(a).
The CPD’s criteria for the selection of candidates for the forthcoming presidential election cycle also do not satisfy the
requirements of Section 110.13(c) of the FEC’s regulations. The CPD’s selection and application of its criteria must be subject to
particular scrutiny in light of the CPD’s creation, and continued control, by the former Chairmen of the Republican and Democratic
Parties, its control by a Board of Directors consisting of persons closely identified with the Republican and Democratic Parties, and
its identified goal of sponsoring bipartisan debates. The FEC’s regulations were designed with "neutral" non-profit organizations in
mind, organizations whose nonpartisan voter education goals could be presumed. The CPD is, on the other hand, a bipartisan
organization, whose announced goals in the sponsorship of debates are antithetical to the fair treatment of candidates of parties
other than the Republican and Democratic Parties.
Section 110.13(c) provides that a sponsoring organization may limit the number of candidates that can participate in a debate only if
it uses "pre-established objective criteria." (emphasis added). The CPD’s announced criteria for the present election cycle will
exclude a candidate unless the candidate has a level of support, prior to the debates, of at least fifteen percent (15%) of the
national electorate as determined by five selected national public opinion polling organizations, using the average of those
organizations’ most recent publicly reported results at the time of the determination.
The CPD’s criterion of a "level of support" in the national electorate prior to the debate is not an "objective criterion." The purpose
of the debates is to provide a candidate with an opportunity to influence voters and to increase his/her support in the national
electorate. Consequently, support for a candidate in the national electorate prior to the debates is not reasonably related to the
selection of candidates for the debates. Moreover, the FEC’s objective criteria requirement was designed to prevent a debate
sponsor from manipulating the candidate selection process and making a "partisan selection" of debate participants. The criterion of
pre-debate support does not serve these goals. The criterion permits the CPD to introduce "subjective" elements into the candidate
selection process – such as the level of support required and the method of determining support – that allows the CPD to exclude
third party candidates from the debates. The Reform Party demonstrated sufficient support in the national electorate in the 1996
general election to meet the standard set by Congress to separate significant "third parties" from insignificant "third parties," and to
qualify for federal funding of its candidates for the present general election campaign. Its qualification for federal funding – a truly
objective criterion – must satisfy any concern about its electoral significance or support for its candidates in the national electorate
that would be appropriate for consideration.
The CPD’s decision to select 15% as the level of support necessary to participate in the debates is solely the "subjective" judgment
of the CPD concerning the level of "support" in the national electorate that it considers appropriate. The CPD has not provided any
explanation or support for its choice, and it is three times the level selected by Congress for federal funding. Indeed, the only
apparent basis for the selection of 15% was that it was deemed by the CPD to be sufficiently high to deny the Reform Party
nominee – and in particular the leading candidate for that nomination, Mr. Buchanan – the opportunity to participate in the debates.
Finally, the CPD’s decision to use a "fixed percentage" (15%) of level of support and to use the average of five public opinion polls
to determine level of support has no rational basis, and is purely subjective. No poll can "determine" a single percentage of support;
it can only predict a "range" of values in which the actual figure may lie. Margins of error in the range of +/- 3% to +/- 5% indicate
that an estimated plurality of 13% for a candidate could be as large as 16-18% with a high degree of statistical confidence. To
eliminate a candidate, therefore, without considering the margin of error would produce an "unreasonable" and, consequently,
"subjective" result. The CPD’s decision to average five identified pre-existing polls with different methodologies is similarly flawed.
Polls that relate to different populations, which the proposed polls are likely to do, cannot be combined under any circumstances.
Moreover, if the sample sizes of the identified polls differ, a simple average would not account for the fact that polls with larger
samples are inherently more reliable.
The Complainants, therefore, request that the FEC find that the CPD’s pre-debate support criterion violates both the Act and the
FEC’s implementing regulations because it is neither pre-existing nor objective. The FEC should, therefore, direct the CPD to
replace the pre-debate support criterion with the criterion of public funding in the general election. Additionally, the FEC should find
that, as a result of its improper candidate selection criterion, the CPD is acting as an illegal, non-reporting political committee that is
receiving and making illegal corporate contributions.
