UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
PATRICK J. BUCHANAN,
8233 Old Courthouse Road
Vienna, VA 22182
BUCHANAN REFORM,
8233 Old Courthouse Road
Vienna, VA 22182
ANGELA M. BUCHANAN, and
8233 Old Courthouse Road
Vienna, VA 22182
Plaintiffs,
v.
FEDERAL ELECTION COMMISSION,
999 E Street, N.W.
Washington, D.C. 20643
Defendant.
Case No.:
COMPLAINT AND PETITION FOR REVIEW OF FEDERAL
ELECTION COMMISSION'S DISMISSAL OF PLAINTIFFS'
ADMINISTRATIVE COMPLAINT
Introduction
1. Plaintiffs Patrick J. Buchanan, Buchanan
Reform, and Angela M. Buchanan petition this Court to declare
that Defendant Federal Election Commission ("FEC") acted
contrary to law when it dismissed the administrative complaint
filed by Plaintiffs on March 20, 2000. (Ex.1).
2. Plaintiffs filed a complaint with the FEC pursuant
to 2 U.S.C § 437g(a)(1) (1994 & Supp. IV 1998) and 11 C.F.R.
§ 111.4 (1999) alleging that the Commission on Presidential
Debates is violating the Federal Election Campaign Act
("FECA"), 2 U.S.C. §§ 431 et seq., by failing to register as a
political committee, failing to file reports of receipts and
expenditures, making prohibited corporate expenditures, and
illegally accepting corporate contributions.
3. Plaintiffs' administrative complaint complied with
all requirements of 2 U.S.C. § 437g(a)(1) and 11 C.F.R. §
111.4.
4. The FEC dismissed Plaintiffs' complaint on July
19, 2000, 121 days after Plaintiffs' administrative complaint
was filed. (Ex. 2). The General Counsel's Report
recommended that the Commission find no reason to believe
that the CPD violated the FECA by making expenditures in
connection with a federal election, accepting contributions from
corporations, making contributions to political committees,
failing to register as a political committee, or failing to report
contributions.
Jurisdiction and Venue
5. This action arises under the FECA, 2 U.S.C. §§
431 et seq., and the Declaratory Judgment Act, 28 U.S.C. §
2201 (1994 & Supp. IV 1998). The jurisdiction of this Court is
conferred by 2 U.S.C. § 437g(a)(8)(A) and 28 U.S.C. § 1331.
6. Venue resides in this district pursuant to 2
U.S.C. § 437g(a)(8)(A) and 28 U.S.C. § 1391(e).
Parties
7. Plaintiff Patrick J. Buchanan is an individual who
complies with each of the eligibility criteria set forth in Article II,
Section 1 of the United States Constitution: (a) he is at least
35 years of age, (b) he is a natural born citizen of the United
States, and (c) he has been a resident of the United States for
more than 14 years. Mr. Buchanan is, or will be prior to the
time set by the CPD for selection of debate participants, on a
sufficient number of state ballots to a have mathematical
chance of garnering in excess of 270 votes in the Electoral
College. Mr. Buchanan is a candidate for the Reform Party
nomination for the office of President of the United States. As
a political competitor of the Democratic and Republican
candidates and as a registered voter interested in the
presidential electoral process, Mr. Buchanan is entitled to
know exactly which political committees are supporting which
candidates, and also is entitled to information concerning
individuals and entities that have chosen to support the
Democratic and Republican nominees. Possession of this type
of information would assist Mr. Buchanan in his campaign for
the Presidency. This information would also help Mr.
Buchanan, and others to whom he would communicate the
information, in evaluating the various candidates for President
and Vice President. The inability of Mr. Buchanan to obtain
information that the FECA expressly requires be made
available will result in a substantial, concrete and particularized
injury to him and other similarly situated voters. Mr.
Buchanan's address is 8233 Old Courthouse Road, Vienna,
Virginia 22182.
8. Plaintiff Buchanan Reform is the principal
campaign committee of Patrick J. Buchanan. As Mr.
Buchanan's principal campaign committee, Buchanan Reform
is a direct competitor of the campaign committees of the
Democratic and Republican presidential candidates.
Buchanan Reform is entitled to know what political committees
are supporting which candidates, and is also entitled to
information concerning individuals and entities that have
chosen to financially support the Democratic and Republican
nominees. The inability of Buchanan Reform to obtain
information that the FECA expressly requires be made
available will result in a substantial, concrete and particularized
injury to it. In addition, Buchanan Reform will be harmed if its
candidates are not permitted to participate in the presidential
and vice presidential debates as their chances of prevailing in
the presidential election would be significantly reduced.
Indeed, the millions of dollars of free television time will provide
substantial and tangible assistance to the campaign
committees of the Democratic and Republican candidates that
Buchanan Reform would find impossible to duplicate. The
address of Buchanan Reform is 8233 Old Courthouse Road,
Vienna, Virginia 22182.
9. Plaintiff Angela Buchanan is a registered voter
and a political supporter of the Reform Party and Patrick J.
Buchanan. As such, Ms. Buchanan has a specific interest in
having an opportunity to compare and contrast the views of
Patrick J. Buchanan and/or the Reform Party with those of the
nominees of the Democratic and Republican parties. Moreover,
as a registered voter interested in the presidential electoral
process, Ms. Buchanan is entitled to know exactly which
political committees are supporting which candidates, and also
is entitled to information concerning individuals and entities
that have chosen to support the Democratic and Republican
nominees. Possession of this type of information would assist
Ms. Buchanan, and others to whom she would communicate
the information, in evaluating the various candidates for
President and Vice President. The inability of Ms. Buchanan
to obtain information that the FECA expressly requires be
made available will result in a substantial, concrete and
particularized injury to her and other similarly situated voters.
Ms. Buchanan's address is 8233 Old Courthouse Road,
Vienna, Virginia 22182.
10. Defendant Federal Election Commission is an
independent administrative agency of the United States,
created pursuant to 2 U.S.C. § 437c, whose voting members
are appointed by the President with the advice and consent of
the Senate. The FEC is responsible for enforcing the FECA.
Pursuant to 2 U.S.C. § 437c(b)(1) and 2 U.S.C. § 437g, the
FEC is required to investigate any alleged violation of the
FECA. The address of the FEC is 999 E Street, N.W.,
Washington, D.C. 20463.
General Allegations
11. The CPD is a not-for-profit corporation organized
under the laws of the District of Columbia. The CPD staged all
of the presidential debates in 1988, 1992, and 1996 and is
expected to stage all of the presidential debates this year. On
or about January 6, 2000 the CPD announced that it will
sponsor a series of three presidential debates and one vice
presidential debate to occur in October, 2000.
12. The CPD accepts contributions from various for-
profit corporations to fund the staging of its debates. The CPD
has already accepted a $2 million contribution from Anhauser-
Busch in return for sponsorship of this year's debates.
13. 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 $1000.
14. Therefore, the CPD is required by FECA to
register as a "political committee," and to file regularly reports
of receipts and expenditures, which it has not done. 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.
15. 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 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. § 110.13(a).
16. 11 C.F.R. § 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.
17. 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.
18. 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.
Count One
The FEC Acted Contrary to Law by Dismissing Plaintiffs'
Administrative Complaint.
19. Plaintiffs repeat and reallege the allegations in
Paragraphs 1 through 20 above as if fully set forth herein.
I. The CPD Is an Illegal Political Committee.
20. The FECA defines "expenditures" as, inter alia, ".
. . any purchase, payment, distribution, loan, advance, deposit,
or gift of money or anything of value, made by any person for
the purpose of influencing any election for federal office. . . ." 2
U.S.C. § 431(9)(A); see also 11 C.F.R. § 100.8(a)(1).
21. The debates staged by the CPD are organized for
the purpose of influencing voters to support either the
Democratic or Republican presidential and vice presidential
candidates. These debates provide substantial and tangible
benefits to the presidential and vice presidential candidates of
the Democratic and Republican Parties and will improve those
candidates' chances for election and reduce the chances of the
candidates of other parties, including the candidates of the
Reform Party.
22. Participation in the debates provides significant
benefits for the candidates and may significantly influence the
election. For example, when Ross Perot, a third party
candidate, was permitted to participate in the 1992 debates
sponsored by the CPD, polls taken before the debate showed
that Mr. Perot had the support of approximately 7% of the
electorate; after participating in the debates, Mr. Perot received
the support of approximately 19% of the electorate in the
general election.
23. Any funds that the CPD has expended or will
expend to stage the debates are "expenditures" as defined by
the FECA.
24. The FECA defines a political committee as, inter
alia, "any committee, club association, or other groups of
persons which receives contributions aggregating in excess of
$1000 during a calendar year or which makes expenditures
aggregating in excess of $1000 during a calendar year." 2
U.S.C. § 431(4)(A).
25. The CPD has received contributions in excess of
$1000 and has made expenditures in excess of $1000 in this
calendar year for the purposes of staging the presidential and
vice presidential debates. The CPD is a political committee as
defined by the FECA.
26. Political committees are required to file a
Statement of Organization with the FEC. 2 U.S.C. § 433.
27. The CPD has not filed a Statement of
Organization with the FEC, in violation of the FECA.
28. FECA requires that political committees file
reports detailing contributions received and expenditures made
by the committee. 2 U.S.C. § 434.
29. The CPD has not filed reports of contributions and
expenditures, in violation of the FECA.
30. The FECA prohibits contributions by a corporation
in connection with an election. 2 U.S.C. § 441b.
31. The contributions of the CPD and the sponsoring
corporations in connection with the debate are in violation of 2
U.S.C § 441b.
32. The FECA places dollar limits on contributions
which may be made to candidates and political committees. 2
U.S.C. § 441a(a). The FECA makes it unlawful for any political
candidate or committee to accept contributions in violation of
this section. 2 U.S.C. § 441a(f).
33. The CPD, a political committee, has knowingly
accepted contributions in excess of the statutory limits, in
violation of 2 U.S.C. § 441a(f).
II. The CPD's Staging of the Debates Does Not Fall Within
the Safe Harbor of 2 U.S.C. § 431(9)(B)(ii).
34. The FECA excludes "non-partisan activity
designed to encourage individuals to vote or to register to vote"
from the definition of "expenditure." 2 U.S.C. § 431(9)(B)(ii).
35. The FEC has promulgated regulations
implementing 2 U.S.C. § 431(9)(B)(ii) which create a "safe
harbor" for organizations to receive unlimited tax-deductible
corporate contributions and to spend unlimited amounts to
stage candidate debates. Specifically, the regulations provide
that "[a] nonprofit organization described in 11 C.F.R. §
110.13(a)(1) may use its own funds and may accept funds
donated by corporations or labor organizations under paragraph
(f)(3) of this section to defray costs incurred in staging
candidate debates held in accordance with 11 C.F.R. §
110.13." 11 C.F.R. § 114(f)(1).
36. In order to qualify for this exception to the limits
on corporate and political committee contributions and
expenditures, the debate staging organization must meet
several criteria, as specified in 11 C.F.R. § 110.13 and 11
C.F.R. § 114. Among these criteria is the requirement that an
organization must be a "[n]onprofit organization[s] described in
26 U.S.C. 501(c)(3) or (c)(4). . . which do[es] not endorse,
support, or oppose political candidates or political parties." In
addition, the debate staging organization must use "pre-
established objective criteria to determine which candidates
may participate in a debate." 11 C.F.R . § 110.13(c).
A. The CPD Is Not a Nonpartisan Organization.
37. The CPD is a bipartisan organization which
supports the Democratic and Republican Parties and their
candidates and opposes all other parties and candidates. The
CPD was created to provide the Republican and Democratic
Parties control over candidate debates. The CPD originated in
1985 when the Chairmen of the Democratic and Republican
National Committees agreed that those two parties should
cooperate in sponsoring presidential and vice presidential
debates.
38. In its own words, the CPD is a bipartisan
organization created to "implement joint sponsorship of general
election . . . debates, . . . by the national Republican and
Democratic Committee between their respective nominees."
See, e.g. Joint News Release of the Democratic National
Committee and the Republican National Committee, RNC and
DNC Establish Commission on Presidential Debates (Feb. 18,
1987). The CPD is currently, and always has been, chaired by
Frank J. Fahrenkopf, Jr., a former chairman of the Republican
National Committee, and Paul G. Kirk, a former chairman of
the Democratic National Committee. Membership on the
CPD's Board of Directors is divided among representatives of
the Democratic and Republican Parties and includes elected
officials from those parties. There are no CPD Board members
representing a party other than the Democratic or Republican
parties.
39. The CPD's bipartisan agenda includes the goal of
excluding third party candidates from the debates. Historically,
third party candidates have raised issues that the major parties
would rather not address. It is in the CPD's and the
Democratic and Republican Parties' interest to exclude third
party candidates from the debates.
40. The CPD does not meet the requirement that
debates be staged by a non-partisan organization that does
not endorse, support, or oppose political candidates or political
parties. See 2 U.S.C. § 431(9)(B)(ii); 11 C.F.R. § 110.13(a).
Since the CPD is an organization which supports the
Republican and Democratic political parties, the FEC cannot
reasonably conclude that the CPD qualifies as a debate
staging organization under 11 C.F.R. § 110.13 (a).
B. The CPD Has Not Selected "Pre-established, Objective
Criteria" to Determine Participants in the Debates.
41. The FEC's regulations governing candidate
selection criteria provide that staging organizations must use
"pre-established objective criteria to determine which
candidates may participate in a debate." 11 C.F.R. §
110.13(c).
42. Since the CPD is not a nonpartisan or neutral
organization, the debate criteria should be subject to close
scrutiny by the FEC to determine if they are truly objective, or
only apparently objective, and subject to manipulation to
achieve the CPD's explicit goal of bipartisan debates between
Republican and Democratic nominees.
43. The CPD has historically selected debate
participant criteria which are subjective and are designed to
exclude third party candidates.
44. On January 6, 2000, the CPD announced the
criteria governing candidate selection for the 2000 presidential
and vice presidential debates. These criteria are (1) evidence of
Constitutional eligibility; (2) evidence of ballot access; and (3)
indicators of electoral support.
45. The CPD has stated that candidates must have "a
level of support of at least 15% (fifteen percent) of the national
electorate as determined by five selected national public
opinion polling organizations, using the average of these
organizations' most recently publicly reported results at the
time of the determination." See Commission on Presidential
Debates, Nonpartisan Candidate Selection Criteria for 2000
General Election Debate Participation (Jan. 6, 2000).
46. The CPD's selection of a 15% threshold is a
subjective choice designed to exclude third party candidates
from the debates.
47. The CPD's selection of the means of determining
support - the averaging of five national polls - is a subjective
choice which may unfairly exclude third party candidates from
the debates.
48. National opinion polls have significant error rates,
making
them a subjective means of determining national support.
49. Averaging five different polls - each of which have
different sample sizes, sample make-up, and error rates - is
not an objective measure of candidate eligibility to participate
in the debates.
50. The CPD's decision to use pre-debate poll
standings to determine debate participation is a subjective and
unreasonable choice, since 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. The pre-
debate support 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 allow it to exclude third party
candidates from the debates.
51. The 15% criterion chosen by the CPD is three
times higher than the number chosen by Congress to
determine entitlement for federal funding. Federal funding is
provided to parties which obtain the support of 5% of the
electorate in the previous election cycle. This 5% criterion is
the only statutory definition of electoral significance.
52. The subjective criteria chosen by the CPD
exclude the Reform Party candidates from the debates despite
the fact that the Reform Party has met the objective
qualification for federal funding by garnering over 5% of the
electoral vote in the previous presidential election.
53. Since the CPD is using non-objective, malleable
criteria to determine which candidates may participate in the
debates, the FEC cannot reasonably conclude that the CPD is
using pre-established objective criteria as required by 11
C.F.R. § 110.13(c).
54. The FEC cannot reasonably conclude that the
CPD is a nonpartisan organization which does not support,
endorse, or oppose political candidates or political parties.
Furthermore, the FEC cannot reasonably conclude that the
debate participation criteria selected by the FEC are objective
or pre-established. Therefore, the FEC must conclude that the
CPD is acting as a political committee that is illegally
accepting corporate funds, making expenditures in support of
the Democratic and Republican parties, failing to register as a
political committee, and failing to report expenditures and
contributions.
55. The FEC is required by law to enforce the
provisions of the FECA, including those violated by the CPD.
58. FEC's dismissal of Plaintiffs' administrative
complaint is arbitrary and capricious and contrary to law.
PRAYER FOR RELIEF
The Plaintiffs respectfully request that the Court:
A. Declare that FEC's dismissal of Plaintiffs'
administrative complaint is arbitrary, capricious and contrary to
law;
B. Declare any and all expenditures made by the CPD or
contributions to the CPD illegal pursuant to 2 U.S.C. § 441b;
C. Declare that the CPD debate criteria do not conform
with the requirements of 11 C.F.R. § 110.13 and 11 C.F.R. §
114;
D. Declare that the CPD must use debate participant
criteria that include all candidates eligible for federal funding;
E. Issue an order directing the FEC to act in
conformance with this Court's declaration;
F. Award Plaintiffs their reasonable costs and attorney's
fees pursuant to 28 U.S.C. § 2412;
G. Grant an expedited schedule of briefing so that a
decision on the merits will be issued at least 30 days before
the first presidential debate on October 3, 2000; and
H. Grant such other relief as the Court deems just and
proper.
Respectfully submitted,
____________________________
John J. Duffy, D.C. Bar # 170936
Cynthia L. Taub, DC. Bar # 445906
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20038
202-429-3000 202-429-3902 (fax)
Attorneys for Plaintiffs
Dated: July 25, 2000
