15468

Proposed Rules Federal Register Vol. 82, No. 59

Wednesday, March 29, 2017

This section of the FEDERAL REGISTER participating candidates, requires the Commission had not adequately contains notices to the public of the proposed staging organizations to ‘‘use pre- addressed evidence concerning the 15% issuance of rules and regulations. The established objective criteria to vote share polling threshold used by the purpose of these notices is to give interested determine which candidates may Commission on Presidential Debates persons an opportunity to participate in the participate in a debate’’ and further (‘‘CPD’’) as a criterion for inclusion in rule making prior to the adoption of the final rules. specifies that, for general election presidential general election debates. debates, staging organizations ‘‘shall not See id. at *12 (noting that ‘‘for thirty use nomination by a particular political years [CPD] has been the only debate FEDERAL ELECTION COMMISSION party as the sole objective criterion to staging organization for presidential determine whether to include a debates’’ and concluding that 11 CFR Part 110 candidate in a debate.’’ 11 CFR Commission had arbitrarily ignored evidence particular to CPD’s polling [Notice 2017–09] 110.13(c). The petition asks the Commission to amend 11 CFR 110.13(c) criterion). The Court declined to ‘‘take Candidate Debates in two respects: (1) To preclude the extraordinary step of ordering sponsors of general election presidential promulgation of a new rule,’’ but AGENCY: Federal Election Commission. and vice presidential debates from instead remanded for the Commission to ACTION: Supplemental Notice of requiring that a candidate meet a polling ‘‘give the Petition the consideration it Disposition of Petition for Rulemaking. threshold in order to be included in the requires’’ and publish a new reasoned debate; and (2) to require sponsors of disposition or the commencement of SUMMARY: On February 1, 2017, the U.S. general election presidential and vice rulemaking ‘‘if the Commission so District Court for the District of presidential debates to have a set of decides.’’ Id. at *11, *13 (citing Shays v. Columbia ordered the Commission to objective, unbiased criteria for debate FEC, 424 F. Supp. 2d 100, 116–17 reconsider its disposition of the Petition participation that do not require (D.D.C. 2006)). for Rulemaking filed by Level the candidates to satisfy a polling threshold. In accordance with the Court’s Playing Field and to issue a new The petition included, in addition to instructions, the Commission has decision consistent with the Court’s legal arguments, reports and other reconsidered the full rulemaking record. opinion. The Petition for Rulemaking evidence in support of its position. On the basis of this review, the asks the Commission to amend its Commission again declines to initiate a regulation on candidate debates to Procedural History rulemaking to amend 11 CFR 110.13(c) revise the criteria governing the The Commission published a Notice at this time. The analysis below is inclusion of candidates in presidential of Availability seeking comment on the intended to supplement, rather than and vice presidential general election petition on November 14, 2014. replace, the analysis that the debates. In this supplement to the Candidate Debates, 79 FR 68137. The Commission provided in its original Notice of Disposition, as directed by the Commission received 1264 comments in Notice of Disposition. 80 FR 72616. Court, the Commission provides further response to that notice, including one explanation of its decision to not initiate Purpose and Requirements of Existing from the Petitioner that included Candidate Debate Regulation a rulemaking at this time. updated and additional factual As the Commission stated in adopting DATES: March 29, 2017. submissions. On November 20, 2015, ADDRESSES: The petition and other the current candidate debate regulation the Commission published in the in 1995, ‘‘the purpose of section 110.13 documents relating to this matter are Federal Register a Notice of Disposition available on the Commission’s Web site, . . . is to provide a specific exception in which it explained why it would not so that certain nonprofit organizations www.fec.gov/fosers (reference REG initiate a rulemaking. Candidate 2014–06), and in the Commission’s . . . and the news media may stage Debates, 80 FR 72616. debates, without being deemed to have Public Records Office, 999 E Street NW., The Petitioner and others sued on the , DC 20463. made prohibited corporate contributions basis that the Commission’s failure to to the candidates taking part in FOR FURTHER INFORMATION CONTACT: Mr. initiate a rulemaking was arbitrary and debates.’’ Corporate and Labor Robert M. Knop, Assistant General capricious in violation of the Organization Activity; Express Counsel, or Ms. Jessica Selinkoff, Administrative Procedure Act. See Level Advocacy and Coordination with Attorney, 999 E Street NW., the Playing Field v. FEC, No. 15–cv– Candidates, 60 FR 64260, 64261 (Dec. Washington, DC 20463, (202) 694–1650 1397, 2017 WL 437400 at *1 (D.D.C. 14, 1995).1 Accordingly, the or (800) 424–9530. Feb. 1, 2017) (citing 5 U.S.C. 706). On Commission has required that debate SUPPLEMENTARY INFORMATION: On February 1, 2017, the U.S. District Court ‘‘staging organizations use pre- September 11, 2014, the Commission for the District of Columbia concluded received a Petition for Rulemaking from that the Commission acted arbitrarily 1 See also Funding and Sponsorship of Federal Level the Playing Field (‘‘Petitioner’’) and capriciously by failing to Candidate Debates, 44 FR 76734 (Dec. 27, 1979) regarding the Commission’s regulation thoroughly consider the presented (explaining that, through candidate debate rule, costs of staging multi-candidate nonpartisan at 11 CFR 110.13(c). That regulation evidence and explain its decision; the debates are not contributions or expenditures); 11 governs the criteria that debate staging Court ordered the Commission to CFR 100.92 (excluding funds provided for costs of organizations use for inclusion in reconsider its disposition of the petition candidate debates staged under 11 CFR 110.13 from candidate debates. The regulation, to and issue a new decision consistent definition of ‘‘contribution’’); 11 CFR 100.154 (excluding funds used for costs of candidate debates prevent corporate spending on debates with the Court’s opinion. See id. at *13. staged under 11 CFR 110.13 from definition of from constituting contributions to the In particular, the Court concluded that ‘‘expenditure’’).

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established objective criteria to avoid The Arguments for Changing the unreliability of polling—both generally the real or apparent potential for a quid Regulation and with respect to independent and pro quo, and to ensure the integrity and The petition and many of the third-party candidates—renders the fairness of the process.’’ Id. at 64262. In comments supporting it essentially 15% threshold unattainable and discussing objective selection criteria, argue that CPD’s 15% threshold is a unreasonable for independent and third- the Commission has noted that debate non-objective criterion because it is party candidates. staging organizations may use them to unreliable and/or intended to unfairly The crux of the petition’s factual ‘‘control the number of candidates benefit major party candidates at the submissions consists of two reports that participating in . . . a meaningful expense of independent and third-party purport to show that CPD’s 15% debate’’ but must not use criteria candidates. The Court summarized the threshold is designed to result in the ‘‘designed to result in the selection of petition’s arguments as attempting to exclusion of independent or third-party certain pre-chosen participants.’’ Id. The establish, first, that ‘‘CPD’s polling candidates. The first report, by Dr. Commission has further explained that threshold is being used subjectively to Clifford Young, concludes that in order while ‘‘[t]he choice of which objective exclude independent and third-party to reach a 15% threshold, a candidate criteria to use is largely left to the candidates’’ and, second, that ‘‘polling must achieve name recognition among discretion of the staging organization,’’ 3 thresholds are particularly unreliable 60–80% of the population. The second, the rule contains an implied and susceptible to . . . subjective use at by Douglas Schoen, estimates that the reasonableness requirement. Id. Within the presidential level, undermining the cost to a third-party or independent the realm of reasonable criteria, the FEC’s stated goal of using ‘objective candidate of achieving 60% name Commission has stated that it ‘‘gives criteria to avoid the real or apparent recognition would be over $266 million, great latitude in establishing the criteria potential for a quid pro quo, and to including almost $120 million for paid for participant selection’’ to debate ensure the integrity and fairness of the media content production and staging organizations under 11 CFR process.’ ’’ Level the Playing Field, 2017 dissemination, which the report 110.13.2 First General Counsel’s Report WL 437400 at *12. concludes is not a reasonably reachable at n.5, MUR 5530 (Commission on 4 In essence, the petition argues that figure for a non-major-party candidate. Presidential Debates) (May 4, 2005), there are biases against third-party and Additionally, both the Young and http://eqs.fec.gov/eqsdocsMUR/ independent candidates in accurate Schoen reports conclude that polling in 000043F0.pdf. three-way races is inherently unreliable In the first major enforcement action polling, and therefore that a polling threshold requirement like CPD’s and not, therefore, an objective measure under this regulation almost two of the viability of third-party and decades ago, the Commission found that presents these candidates with a Catch- 22 scenario: independent candidates. In reaching CPD’s use of polling data (among other their conclusions, both the Young and criteria) did not result in an unlawful [A polling threshold] effectively Schoen reports assert that third-party corporate contribution, with five institutionalizes the Democratic and Republican candidates as the only options and independent candidates are Commissioners observing that it would disadvantaged by the fact that they do make ‘‘little sense’’ if ‘‘a debate sponsor with which the voters are presented. A third- party or independent candidate who is not benefit from a ‘‘party halo effect’’ by could not look at the latest poll results excluded from the debates loses the which Democratic and Republican even though the rest of the nation could opportunity to take the stage against the candidates—regardless of name look at this as an indicator of a major party nominees and demonstrate that recognition—may garner a minimum candidate’s popularity.’’ MUR 4451/ he or she is a better alternative; the media vote share in polling merely for being 4473 Commission Statement of Reasons does not cover the candidate; and the associated with a major party, in at 8 n.7 (Commission on Presidential candidate does not get the public exposure addition to benefitting from increased Debates) (Apr. 6, 1998), http:// necessary to compete. The ‘‘determination’’ _ that a [third-party or independent] candidate name recognition from media coverage www.fec.gov/disclosure data/mur/ of the major party primary season.5 4451.pdf#page=459. Citing this is not viable because he or she lacks a certain amount of support becomes a self-fulfilling The Commission’s Assessment of the statement, one court noted with respect prophecy. to the use of polling thresholds as Petition’s Factual Submissions debate selection criteria that ‘‘[i]t is Petition at 3. The petition argues that inclusion of independent and third- 1. Submissions Regarding Whether a difficult to understand why it would be 15% Threshold Cannot Be Attained by unreasonable or subjective to consider party candidates in presidential general election debates furthers voter (and Therefore Excludes) Independent the extent of a candidate’s electoral and Third-Party Candidates support prior to the debate to determine education and voter turnout, which, the whether the candidate is viable enough petition asserts, are policy purposes The Young Report’s conclusion that to be included.’’ Buchanan v. FEC, 112 underlying the regulation. third-party and independent candidates require a 60–80% name recognition to F. Supp. 2d 58, 75 (D.D.C. 2000). Summary of Petition Evidence in meet CPD’s 15% threshold does not Nonetheless, the Commission has noted Support of Changing the Regulation that while it cannot reasonably provide a persuasive basis for changing ‘‘question[ ] each and every . . . In support of the argument that the candidate debate regulation. Dr. candidate assessment criterion,’’ it can polling thresholds have the purpose or Young acknowledges that his report’s evaluate ‘‘evidence that [such a] effect of favoring major party candidates analysis is one-dimensional; it criterion was ‘fixed’ or arranged in some over third-party or independent correlates polling results to name manner so as to guarantee a preordained candidates, the petition presents facts recognition alone, and then it draws result.’’ MUR 4451/4473 Commission and analysis regarding the name conclusions regarding hypothetical Statement of Reasons at 8–9 recognition required to poll at CPD’s third-party candidate performance (Commission on Presidential Debates). 15% threshold and the amount of based on that one factor. More money required to gain that level of 2 See Candidate Debates and News Stories, 61 FR name recognition. The petition provides 3 Petition Ex. 3 (‘‘Young Report’’). 18049 (Apr. 24, 1996) (quoting H.R. Rep. No. 93– further factual submissions that, 4 Petition Ex. 11 (‘‘Schoen Report’’). 1239 at 4 (1974)). according to the petition, show that the 5 See Young Report at ¶¶ 21–22.

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specifically, Dr. Young acknowledges stage in all three models, even if only in does not find that this premise is that polling results are not merely a part, may amplify polling errors, which adequately established by the Young function of name recognition—they are the report notes are higher earlier in the Report, and therefore the Commission a much more complex confluence of election cycle than during the later questions whether the Schoen Report factors. See Young Report at ¶¶ 10, ‘‘election salience’’ period—from one possesses any meaningful evidentiary 20(d) (listing other factors, beyond name day to several months before election value. But even assuming that a recognition, affecting candidate vote day—during which people start paying candidate must reach 60–80% name share, including ‘‘fundraising, candidate more attention to the election. Id. at recognition to achieve a 15% threshold positioning, election results, and ¶¶ 43(g), (i). Additionally, the use of the in vote share, the Commission finds the idiosyncratic events’’); see also Nate early party primary stage as the point of Schoen Report not to provide a reasoned Silver, A Polling Based Forecast of the comparison for third-party or evidentiary basis for amending the rule Republican Primary Field, independent candidates’ name at issue. FiveThirtyEight Politics (May 11, 2011) recognition in September does not The Commission is unpersuaded by (attached to Petition as Exhibit 20) address or account for differences in the the Schoen Report primarily because the (noting that, more than name size of the candidate fields at those report builds its conclusion through an recognition, ‘‘laying the groundwork for points in time. Thus, the Young Report’s extensive series of unsupported a run quite early on,’’ including efforts observations regarding early primary suppositions and assertions. For to ‘‘hire staff, cultivate early support, candidates provide little or no example, to explain a significant portion brush up [ ] media skills,’’ predicts later persuasive evidence as to the effect of a of its calculations, the report states that vote share success). Due to the Young polling threshold on presidential ‘‘the media will not cover an Report’s focus on this one correlative general election candidates. independent candidate until they are factor, the report does not purport to In addition, the petition appears to certainly in the debates.’’ Schoen Report establish any causative effect between draw inapposite conclusions from the at 3. But the report provides no basis for name recognition and vote share, and it Young Report’s data. Critically, neither this assertion other than an unexplained does not account for how external forces the Young Report nor other evidence reference to the number of publications apart from name recognition—such as submitted with the petition or ‘‘follow[ing]’’ one particular candidate fundraising, candidate positioning, comments establishes that third-party or (id. at 5), and the Commission is aware election results, and idiosyncratic independent candidates do not or of at least three non-major-party events—may influence vote share. For cannot meet 60–80% name recognition. candidates who did not participate in example, the report does not take into In fact, at least one third-party candidate the general election debates but received 6 consideration forces that might increase was reported to achieve over 60% name significant media attention in 2016. the vote share of an otherwise recognition in the most recent In another premise that the report uses to build its later conclusions, the unfamiliar independent candidate— presidential campaign prior to the Schoen Report asserts that independent such as high unfavorable ratings among general election debates. See Poll candidates are disadvantaged because major party candidates—or forces that Results: Third Party Candidates, they ‘‘must resort to launching a might decrease the vote share of an YouGov (Aug. 25–26, 2016), available at massive national media campaign’’ independent candidate who has become https://d25d2506sfb94s.cloudfront.net/ _ while major party candidates ‘‘by well-recognized—such as policy cumulus uploads/document/ wc35k48hrs/tabs_HP_Third_Party_ competing in small state primaries, can preferences or political missteps. Candidates_20160831.pdf (showing build their name recognition without Because it largely omits analysis of all and having 63% other factors beyond name recognition, and 59% name recognition among 6 Searches of the Thompson Reuters Westlaw the Commission is not persuaded that registered voters, respectively). Thus, ‘‘Newspaper’’ database for mentions in 2016 of the Young Report’s conclusions are a independent and third-party 2016 presidential there is no information in the sufficient basis on which to determine candidate names (‘‘Gary Johnson,’’ ‘‘Jill Stein,’’ and rulemaking record showing that 60– ‘‘Evan McMullin’’) show thousands of results. that a 15% polling threshold is so 80% name recognition is a prohibitively Moreover, the number of results for references to inherently unreachable by non-major- high bar for independent candidates. In these independent candidates was comparable to party candidates that the Commission the number of results for references to several major other words, even if the Commission should provide that sponsors of general party candidates during comparable time periods. were to assume arguendo that 60–80% Using as a baseline the 277 days from the lead up election presidential debates must be name recognition correlates with 15% to the first Republican party primary debate until prohibited as a matter of law from using was determined to be the vote share, there is no information in presumptive nominee (August 1, 2015, to May 4, it in order to fulfill the statutory the record demonstrating that these prohibition on corporate contributions. 2016), and the similar 277-day period of September thresholds inherently function to 4, 2015 (before the first Democratic primary debate) Moreover, even within the confines of exclude third-party or independent to June 7, 2016 (when became the name recognition, the Young Report is presumptive Democratic nominee), the Commission candidates because of their party status. looked at mentions for independent candidates only weakly applicable to the debates at Instead, the petition uses Dr. Young’s during the 277 days before the general election issue, which are presidential general name recognition threshold as a (February 5–November, 7, 2016). Those results election debates. The Young Report springboard to the primary argument of show that Gary Johnson (with 3,001 results) was reaches its 60–80% name recognition the Schoen Report: That the cost of comparable to and (with 2,894 and 3,274 results, respectively); Jill result through three models, all of achieving 15% vote share is Stein (with 1,744 results) was comparable to Rick which extrapolate from data about name prohibitively high for independent Perry and Martin O’Malley (with 2,278 and 2,566 recognition of major party candidates at candidates. The Schoen Report starts results, respectively); and Evan McMullin (with 353 the early stages of the party primary from the premise that 60–80% name results) was comparable to , , and (with 424, 521, and 937 process (i.e., before the Iowa caucuses) recognition is necessary to gain a 15% results, respectively). And, while searches for because, the report explains, ‘‘party halo vote share and proceeds to estimate the Donald Trump’s and Hillary Clinton’s names effects’’ may be lower during early amount of money that an independent returned significantly more results (7,451 and primary polling. Young Report at ¶ 22. candidate would need to spend to reach 7,404, respectively), those results were in line with other candidates who did not achieve high vote The decision to measure name 60–80% name recognition. For the share in the party primaries, such as with recognition at this extraordinarily early reasons stated above, the Commission 7,102 results.

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the costs of running a national In addition, the Schoen Report states in approximately June of the election campaign.’’ Id. In support of this that media costs to accomplish 60% year and must raise name recognition statement, the report states that name recognition are higher in three- from nothing to 60% within the three ‘‘Obama’s 2008 victory in the Iowa way races due to increased competition, months before CPD looks at polls in caucuses catapulted him to national and the report increases its cost estimate September is unrelated to the realities of prominence.’’ Id. In fact, polling expert accordingly.7 But the 60% figure is presidential elections. Presidential Nate Silver has noted that ‘‘contrary to apparently drawn from the Young candidates—major party and third-party the conventional wisdom, which holds Report, which, as discussed above, alike—generally begin campaigning a that Barack Obama suddenly burst onto addresses the very earliest stages of full year or more before the election, the political scene, the polling shows major party primaries. Like the Young see, e.g., Jill Stein, FEC Form 2 (July 6, that he was already reasonably well- Report, the Schoen Report does not 2015) (declaring candidacy for president known to voters in advance of the 2008 explain why or how this 60% figure can in 2016 election cycle), and they rarely primaries, largely as a result of his be extrapolated from early major party start with zero name recognition, see, speech at the 2004 Democratic National primaries to three-way general elections. e.g., Petition Ex. 13 (Gallup report The Schoen Report ultimately adopts Convention. His name was recognized showing 11 candidates (including an estimated cost of at least $100 by around 60 percent of primary voters Libertarian Gary Johnson) with over million for a media buy that an by late 2006, and that figure quickly 10% name recognition in January 2011). independent candidate would require to The Schoen Report’s scenario—and the ramped up to 80 or 90 percent after he gain the name recognition to meet the declared for the presidency in February, conclusions that the report draws from 15% threshold. Schoen Report at 6. Not it—therefore provides no persuasive 2007.’’ Nate Silver, A Brief History of only does this figure rely upon the support for the petition’s assertion that Primary Polling, Part II, FiveThirtyEight faulty assumptions that the Commission the candidate debate regulation must be (Apr. 4, 2011), https://fivethirtyeight. has already noted, it is also unreliable revised. com/features/a-brief-history-of-primary- for at least four additional reasons. polling-part-ii/. The only other basis First, the $100 million figure is taken Third, the Schoen Report bases its that the report provides for this portion from an estimate from ‘‘a leading estimate of campaign and paid media of its conclusion is the statement that corporate and political media buying costs on the assertion that independent Senator ‘‘spent only firm,’’ without any underlying data and candidates are unable to attract news $21,980 in [Iowa], or 73 cents per vote’’ without any explanation of the media coverage. See Schoen Report at 4. in 2012. Schoen Report at 5. It is not circumstances under which the firm But the report’s assertion, based clear how the newspaper article cited by purportedly offered that estimate. Nor primarily on research published in the report derived this figure, and does the report address (or even 1999,8 seems particularly antiquated in Schoen (despite having access to all acknowledge) any biases in that the age of digital and social media. See relevant financial data through the estimate that may stem from a media Farhad Manjoo, I Ignored Trump News FEC’s Web site) does not appear to have buying firm’s financial interest in for a Week. Here’s What I Learned, NY assessed its accuracy. In fact, reports estimating or promoting high media buy Times, Feb. 22, 2017, https:// filed with the Commission for the costs. The Schoen Report simply www.nytimes.com/2017/02/22/ period ending three days before the provides no evidentiary basis for the technology/trump-news-media- Iowa caucus show that Senator Commission to credit this third-person ignore.html (discussing news media Santorum made disbursements of estimate. coverage during and since 2016 $1,906,018. Rick Santorum for Second, the $100 million estimate presidential election campaign in light President, FEC Form 3P at 4 (Jan. 31, presumes that a candidate must go from of social media pressures). The 2012), http://docquery.fec.gov/pdf/317/ zero percent name recognition to 60% Commission declines to promulgate name recognition, without noting the 12950383317/12950383317.pdf. While rules that will govern the 2020 likelihood of a candidate starting from not all of these disbursements were presidential election and beyond on the zero or otherwise explaining this targeted to Iowa, the candidate’s total basis of opinions that are premised on assumption. The Schoen Report such obsolete data. spending in relation to the caucuses in suggests, by consistently comparing the that state was far higher than $21,980. hypothetical independent candidate’s Fourth, the Schoen Report’s media Even looking at only reported position with the positions of his ‘‘two’’ cost estimates do not appear to take disbursements to Iowa payees (and, (and only two) major party candidate account of media purchases in support therefore, not including payments to competitors, that this zero percent of a candidate by outside groups, media buyers and others outside of Iowa baseline occurs at some point after the including independent expenditure- for activities targeted towards Iowa), the major parties have established only political committees (‘‘IEOPCs’’). filings shows that Santorum spent over presumptive nominees. See, e.g., IEOPCs may create, produce, and $112,000 in Iowa between October 1 Schoen Report at 10–11 (discussing ‘‘the distribute communications in support and December 31, 2011, for purposes two major party campaigns’’ with whom of, but independently of, a particular including rent, payroll, lodging, direct hypothetical independent candidate candidate, and in 2016 several IEOPCs mail, advertising, communication needing 60% name recognition will be supported third-party candidate Gary consulting, and coalition building. Id. competing for ad buy time); id. at 15 Thus, the Schoen Report’s use of (same). A hypothetical situation in 8 Schoen Report at 4 (citing Paul Herrnson & Rob unexplained second-hand analysis which a person with zero percent name Faucheux, Outside Looking In: Views of Third Party undercuts its credibility, and the facts and Independent Candidates, Campaigns & recognition decides to run for president Elections (Aug. 1999)). The assertion also appears demonstrated by the public record give to be in tension with the statutory exclusion of the the Commission reason to doubt the 7 Schoen Report at 3; see also id. at 10 (asserting, news media coverage from legal treatment as Schoen Report’s calculations regarding without supporting data or sources, that costs will campaign spending. See 52 U.S.C. 30101(9)(B)(i) any extra benefit major party primary likely be ‘‘significantly’’ higher ‘‘in an election year (excluding ‘‘any news story . . . distributed featuring three viable candidates’’ and, therefore, through the facilities of any broadcasting station, candidates receive from their media adding 5% premium to report’s earlier cost newspaper, magazine, or other periodical’’ from expenditures. estimates). definition of ‘‘expenditure’’).

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Johnson in just that way.9 In addition, For all of the foregoing reasons, the Money Race, Bloomberg Politics (Dec. 9, IEOPCs may raise unlimited funds from Commission finds the Schoen Report 2016), https://www.bloomberg.com/ individuals and from sources, like unpersuasive. politics/graphics/2016-presidential- corporations, otherwise prohibited Finally, the petition acknowledges campaign-fundraising/ (noting that under the Federal Election Campaign that a number of third-party presidential Trump’s spending to ‘‘target[ ] specific Act, 52 U.S.C. 30101–46. Thus, the candidates have performed sufficiently groups of Clinton backers with negative existence and rise of IEOPCs undermine well that they were included or would ads on social media to lower Democratic the Schoen Report’s assumptions about have been included in debates with turnout . . . may have been a factor in the amount of the average contribution 15% thresholds. See Petition at 15–16. Trump’s performance in battleground to a candidate, as well as the report’s Indeed, the petition notes that as many states’’). extrapolations about the number of as six candidates would apparently have In sum, the Commission concludes individual contributions needed and satisfied this requirement at some point that the petition does not present total sum necessary to reach Dr. Young’s during their campaigns: Roosevelt in credible evidence that a 15% threshold 60–80% name recognition threshold. 1912, LaFolette in 1924, Thurmond in is so unobtainable by independent or See Schoen Report at 24–25 (estimating 1948, Wallace in 1968, Anderson in third-party candidates that it is per se third-party candidate’s ‘‘hypothetical 1980, and Perot in 1992. Id. The petition subjective or intended to exclude them. asks the Commission to categorically average donation’’ on basis of 2. Submissions Regarding Whether Polls disregard these examples because they ‘‘assumption for average donation’’ of are Unreliable and Systematically predate the Internet, and in some cases, ‘‘plurality’’ of Obama and Romney Disfavor Independent and Third-Party the television. Petition at 16.13 As contributors under $2600 maximum). Candidate Ultimately, the unreliability of the discussed above, the Commission agrees Schoen Report’s conclusions is most that pre-Internet candidacies provide The Young Report’s examination of polling error in three-way races with clearly demonstrated by the fact that only a relatively weak basis assessing independents seeks to determine, third-party candidate Gary Johnson how easy or difficult it would be for essentially, if the threshold is drawn in reached 60% name recognition by candidates to achieve 15% vote share in the right place to identify candidates August 31, 2016.10 In the 2016 election a modern election. But to the extent that that actually have a 15% vote share. cycle through August 31, Johnson had the availability of Internet Young Report at ¶ 60. The Young Report spent almost $5.5 million; this amount communication has changed this concludes that polls in three-way races represents total disbursements for all calculus, the Commission notes that have greater errors than polls in two- purposes, including, but not limited to, advertising on the Internet can cost way races. Specifically, the Young media buys.11 According to the Schoen significantly less money than advertising in more traditional media Report extrapolates from gubernatorial Report, such a result should have been election polls taken two months before impossible: Johnson should not have that was available to those pre-Internet independent candidates. See, e.g. the general election (the point at which been able to achieve 60% name CPD uses polls as a debate inclusion recognition until he spent at least $266 Internet Communications, 71 FR 18589, 18589 (Apr. 12, 2006) (describing criterion) where there is an 8% error million—fifty times more than he rate in three-way races compared to a actually did.12 Internet as ‘‘low-cost means of civic engagement and political advocacy’’ and 5.5% error rate in two-way races. Id. at noting that Internet presents minimal ¶¶ 52–56. Adjusting for the fact that 9 See Open Secrets, Independent Expenditures, gubernatorial race polling is ‘‘more error Gary Johnson, 2016 cycle, https://www.opensecrets. barriers to entry compared to ‘‘television org/pres16/outside-spending?id=N00033226 (listing or radio broadcasts or most other forms prone’’ than presidential race polling, six ‘‘Super PACs’’ or IEOPCs supporting Johnson, of mass communication’’); Associated the Young Report concludes that the two of which spent over $1 million in support) (last Press, Here’s How Much Less than applicable error rate is 6.04%. Id. at ¶¶ visited Feb. 24, 2017). Hillary Clinton Donald Trump Spent on 57–58. The Young Report continues to 10 See Ariel Edwards-Levy, Third-Party extrapolate the effect of this error on Candidates are Getting a Boost in Name the Election, Fortune (Dec. 9, 2016), Recognition, Huffington Post (Aug. 31, 2016) http://fortune.com/2016/12/09/hillary- candidates, such as independent or (noting Johnson’s name recognition); Poll Results: clinton-donald-trump-campaign- third-party candidates, that poll close to Third Party Candidates, YouGov (Aug. 25–26, spending/ (comparing Hillary Clinton’s the 15% threshold; for these candidates, 2016), available at https://d25d2506sfb94s.cloud the Young Report concludes that there front.net/cumulus_uploads/document/wc35k48hrs/ ‘‘more traditional’’ television-heavy tabs_HP_Third_Party_Candidates_20160831.pdf advertising strategy in campaign’s last is an approximately 40% chance that a (showing Gary Johnson and Jill Stein having 63% weeks—$72 million on TV ads and third-party or independent candidate and 59% name recognition among registered voters, about $16 million on Internet ads—with who holds the support of 15% of the respectively). population would be excluded. Id. at ¶¶ 11 Donald Trump’s ‘‘nearly $39 million on See Gary Johnson 2016, FEC Form 3P at 3–4 59–66. (Sept. 20, 2016), http://docquery.fec.gov/pdf/391/ last-minute TV ads and another $29 201609209032026391/201609209032026391.pdf million on digital’’); see also Bill Allison The Commission is unpersuaded by (showing receipts of $7,937,608 and disbursements et al., Tracking the 2016 Presidential this analysis for two fundamental of $5,444,704). reasons. First, as the Commission noted 12 The Young and Schoen Reports do not address 13 The petition also asks the Commission to in its original notice of disposition, the a circumstance in which a candidate, like Gary disregard the strong polling results of third-party or Johnson, reaches at least 60% name recognition but fact that polling data can be erroneous independent candidates, like George Wallace and does not mean that a debate staging does not reach a 15% threshold. The Commission John Anderson, who have a prior affiliation with a notes, though, that this circumstance (in which major political party. Petition at 15. The organization acts subjectively in using name recognition does not translate to high vote Commission is not persuaded that disregarding it. 80 FR at 72618 n.6. By way of share) might be explained by the other factors those polling results would be reasonable in the analogy, consider a school district with beyond name recognition that affect vote share, context of assessing, as required by the court, including ‘‘fundraising, candidate positioning, whether the CPD’s 15% threshold under the current a policy of canceling school if a majority election results, and idiosyncratic events,’’ candidate debate regulation acts ‘‘subjectively to of local television news stations predict mentioned in the Young Report. See Young Report exclude independent and third-party candidates,’’ at least six inches of snow for the next at ¶¶ 10, 20(d). Moreover, the circumstance in since the threshold would apply to all third-party day. That policy would be facially which name recognition does not translate to high and independent candidates, regardless of prior vote share is not unique to third party candidates. affiliation. Level the Playing Field, 2017 WL 437400 objective, even though such weather See note 6, above (discussing Jeb Bush). at *12. forecasts are known to be significantly

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inaccurate. The policy would be party and independent candidates,’’ and on Election Day.’’ Commission on subjective only if the inaccuracy in the therefore the CPD might ‘‘cherry pick Presidential Debates, Comment at Ex. 2 forecast were systematically biased for from among the myriad polls that exist ¶ 20 (Declaration of Frank M. Newport, or against the condition being triggered in order to engineer a specific Editor-in-Chief, Gallup Organization) (e.g., if the local weather forecasters outcome.’’ Petition at 17–18. But the (Dec. 15, 2014), http://sers.fec.gov/ regularly used high-end estimates of petition presents no evidence that such fosers/showpdf.htm?docid=310982. As snow to drive viewer interest). But this manipulation has ever occurred, and the the Newport Declaration notes, ‘‘there is demonstrates the second reason the Commission is unwilling to predicate a no doubt that properly conducted polls Commission is unpersuaded by the rule change on unsupported speculation remain the best measure of public petition’s submissions regarding polling of wrongdoing. A debate sponsor who support for a candidate . . . at the time unreliability: The petition provides no took actions to manipulate the ‘‘pre- the polls are conducted.’’ Id. at Ex. 2 ¶ evidence that the polling error is biased established’’ and ‘‘objective’’ selection 21. in a manner specific to party affiliation, criteria so as to ‘‘select[ ] certain pre- 3. Submissions Regarding the that is, that polling is biased against chosen participants’’ by cherry-picking Desirability of Expanding Debate third-party or independent candidates. polls that excluded other candidates Participation Indeed, the petition explicitly would violate the existing rule. acknowledges that ‘‘it [is] wholly Corporate and Labor Organization The petition and most of the unclear whether the polling over- or Activity; Express Advocacy and commenters who support it rely underestimate[s] the potential of the Coordination with Candidates, 60 FR at primarily on policy arguments that third party candidate.’’ Petition at 19 64262. polling thresholds are inconsistent with (quoting Schoen Report at 28). Thus, the the purposes of the existing regulations The petition further argues that and that those purposes would be better Commission concludes that the petition lowering the polling threshold is does not demonstrate that statistical served by, in essence, including more insufficient to solve polling error voices on the debate stage.15 The errors in polling data render the use of problems. As an initial matter, the such data subjective or show that it is Commission explained in its original Commission notes that the Young Notice of Disposition why it was not intended to exclude third-party Report does not conclude that any and candidates.14 persuaded by the petition’s ‘‘arguments all polling thresholds are unreliable. On The petition does imply that third- in favor of debate selection criteria that this point, in addition to the Young and party and independent candidates are at a disadvantage because ‘‘there is no Schoen Reports discussed above, 15 A substantial majority of the comments that the requirement that pollsters test third- Petitioner cites an article from Nate Commission received on the petition were cursory Silver on Republican primaries for the and consisted of a single sentence expressing conclusion that ‘‘a simple poll does not support for the petition. See, e.g., Comment by 14 Because this data, even as cited by the petition, Amanda Powell, REG 2014–06 Amendment of 11 does not show that the regulation should be capture a candidate’s potential.’’ CFR 110.13(c) (Dec. 15, 2014) (‘‘I support the amended, the Commission need not further assess Petition at 17 (citing Nate Silver, A petition.’’), http://sers.fec.gov/fosers/ the data’s validity. Nonetheless, the Commission Polling Based Forecast of the showpdf.htm?docid=310989. Additionally, the notes that there are significant structural differences League of Women Voters ‘‘does not support between the state polls cited by Dr. Young and Republican Primary Field, amending the FEC regulation to preclude sponsors national presidential polls. See, e.g., Young Report FiveThirtyEight Politics (May 11, 2011) of general election presidential and vice at ¶¶ 41 (explaining differences between reputable (attached to Petition as Exhibit 20)). The presidential debates from requiring that a candidate national and state or local polls, with respect to cited article, though, concludes what meet a polling threshold in order to be included in both number of interviews and margins of error), 57 the debate,’’ but did generally support opening a (showing significant differences between state and appears to be the opposite of the point rulemaking, though without supporting or federal polling at different points in time). Although for which it is cited; it starts by proposing any specific proposal. Comment by Dr. Young adjusts the state-poll results before explaining that it will prove the author’s League of Women Voters, REG 2014–06 applying them to his national analysis, (see id. ¶ contention that ‘‘polls have enough Amendment of 11 CFR 110.13(c) (Dec. 15, 2014), 58), the manner in which the adjustment is http://sers.fec.gov/fosers/ described leaves unexplained whether the predictive power to be a worthwhile showpdf.htm?docid=310985. The comment did not, adjustment accounts for all of the relevant starting point.’’ Petition, Ex. 20. In fact, however, present any substantial justification for differences between state and national polls. that article was part four of a four part doing so. Moreover, such an open-ended inquiry The Petitioner also submitted in response to the series. The second sentence of part one was not the focus of the petition for rulemaking. Notice of Availability a comment with additional Another commenter, FairVote, indicated that it data concerning ‘‘grossly inaccurate’’ polling in of that series explained that the series ‘‘do[es] not oppose the use of polling as a debate 2014 midterm Senate and gubernatorial elections. was intended to show that ‘‘national selection criterion so long as candidates have an Level the Playing Field, Comment at 1 (Nov. 26, polls of primary voters—even [nine alternative means of qualifying for inclusion.’’ See 2014), http://sers.fec.gov/fosers/ months] out from the Iowa caucuses and Comment by FairVote, REG 2014–06 Amendment of showpdf.htm?docid=310980. However, attachments 11 CFR 110.13(c) (Dec. 15, 2014), http:// to the comment note that ‘‘midterm polling biases New Hampshire primary—do have a sers.fec.gov/fosers/showpdf.htm?docid=310974. in Senate elections are far worse than in reasonable amount of predictive power That commenter emphasized the Commission’s presidential elections.’’ Id. at Exhibit A. And a chart in informing us as to the identity of the recognition of the educational purpose of candidate created by the Petitioner for the comment shows debates and advocated that including additional that, of ten races with purportedly high polling eventual nominee.’’ Nate Silver, A Brief candidates in debates would ‘‘broaden the errors in races without a ‘‘viable third-party or History of Primary Polling, Part I, substantive discussion within the debates.’’ Id. As independent candidate,’’ the two races included in FiveThirtyEight (Mar. 31, 2011), https:// explained supra, however, the main purpose of the the chart with the lowest polling error are, in fact, .com/features/a-brief- regulation at issue is to clarify when money spent the only two races that include a third-party or on debate sponsorship is exempt from the FECA’s independent candidate. Compare Level the Playing history-of-primary-polling-part-i/. definition of ‘‘contribution.’’ The Commission’s Field, Comment at 3 (showing Georgia and North Moreover, polls like those used in recognition of the educational value of debates does Carolina Senate races with the lowest final polling September by CPD are not ‘‘inaccurate’’ not alter its view that the determination of which errors of those entries in chart) to Level the Playing or ‘‘unreliable’’ simply because their candidates participate in a given debate should Field, Comment at Exhibit C (showing Georgia and generally be left to the organizations sponsoring North Carolina Senate as only races included in assessments of vote share do not match such events. See supra. In addition, while the chart that involved three-way race polling). For all the final vote share on Election Day; Commenter supported Petitioner’s proposed of these reasons, the Commission is not persuaded such polls are ‘‘designed to measure the alternative to select a third debate participant based that the Petitioner’s submissions regarding state and true level of public support at the time upon the number of signatures gathered to obtain Senate polls indicate any systematic, anti-third- ballot access, the existing rule already permits this party flaw in the polls at issue here, which are the poll is administered,’’ not ‘‘to alternative and thus amending the rule is not presidential general election polls. measure the true level of public support required to allow for that approach. See id.

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would include more candidates in Dated: March 23, 2017. Examining the AD Docket general election presidential and vice Steven T. Walther, You may examine the AD docket on presidential debates.’’ 80 FR at 72617. Chairman, Federal Election Commission. the Internet at http:// As the Commission explained, ‘‘The [FR Doc. 2017–06150 Filed 3–28–17; 8:45 am] www.regulations.gov by searching for rule at section 110.13(c) . . . is not BILLING CODE 6715–01–P and locating Docket No. FAA–2011– intended to maximize the number of 0961; or in person at the Docket debate participants; it is intended to Management Facility between 9 a.m. ensure that staging organizations do not and 5 p.m., Monday through Friday, DEPARTMENT OF TRANSPORTATION select participants in such a way that except Federal holidays. The AD docket the costs of a debate constitute corporate Federal Aviation Administration contains this proposed AD, the contributions to the candidates taking regulatory evaluation, any comments part.’’ Id. That is the only basis on 14 CFR Part 39 received, and other information. The which the Commission is authorized to street address for the Docket Office regulate in this area. The Commission [Docket No. FAA–2011–0961; Directorate (phone: 800–647–5527) is in the has no independent statutory basis for Identifier 2011–NE–22–AD] ADDRESSES section. Comments will be regulating the number of candidates available in the AD docket shortly after who participate in debates, and the RIN 2120–AA64 receipt. merits or drawbacks of increasing such FOR FURTHER INFORMATION CONTACT: John Airworthiness Directives; Rolls-Royce participation—except to the limited Tallarovic, Aerospace Engineer, Chicago Corporation Turboshaft Engines extent that they implicate federal Aircraft Certification Office, FAA, 2300 campaign finance law — are policy AGENCY: Federal Aviation E. Devon Ave., Des Plaines, IL 60018; questions outside the Commission’s Administration (FAA), DOT. phone: 847–294–8180; fax: 847–294– 7834; email: [email protected]. jurisdiction. ACTION: Notice of proposed rulemaking SUPPLEMENTARY INFORMATION: Conclusion (NPRM). Comments Invited SUMMARY: We propose to supersede The evidence presented to the We invite you to send any written Commission in the petition and Airworthiness Directive (AD) 2015–02– 22, which applies to certain Rolls-Royce relevant data, views, or arguments about comments on the impracticability of Corporation (RRC) model 250 turboprop this NPRM. Send your comments to an independent candidates reaching the and turboshaft engines. AD 2015–02–22 address listed under the ADDRESSES 15% threshold and on the unreliability currently requires repetitive visual section. Include ‘‘Docket No. FAA– of polling do not lead the Commission inspections and fluorescent-penetrant 2011–0961; Directorate Identifier 2011– to conclude that the CPD’s use of such inspection (FPIs) on certain 3rd-stage NE–22–AD’’ at the beginning of your a threshold for selecting debate and 4th-stage turbine wheels for cracks comments. We specifically invite participants is per se subjective, so as to in the turbine wheel blades. Since we comments on the overall regulatory, require initiating a rulemaking to amend issued AD 2015–02–22, we determined economic, environmental, and energy 11 CFR 110.13(c). While the reports by that it is necessary to remove the 4th- aspects of this NPRM. We will consider Dr. Young and Mr. Schoen, in addition stage wheels at the next inspection. We all comments received by the closing to the historical polling and campaign are also proposing to revise the date and may amend this NPRM finance data presented with the petition, applicability to remove all RRC because of those comments. demonstrate certain challenges that turboprop engines and add additional We will post all comments we independent candidates may face when turboshaft engines. This proposed AD receive, without change, to http:// seeking the presidency, these would require repetitive visual www.regulations.gov, including any personal information you provide. We submissions do not demonstrate either inspections and FPIs of 3rd-stage will also post a report summarizing each that the threshold is so high that only turbine wheels while removing from substantive verbal contact we receive Democratic and Republican nominees service 4th-stage turbine wheels. We are about this NPRM. could reasonably achieve it, or that the proposing this AD to correct the unsafe threshold is intended to result in the condition on these products. Discussion selection of those nominees to DATES: We must receive comments on On January 20, 2015, we issued AD participate in the debates. this proposed AD by May 15, 2017. 2015–02–22, Amendment 39–18090 (80 For all of the above reasons, in ADDRESSES: You may send comments, FR 5452, February 2, 2015), (‘‘AD 2015– addition to the reasons discussed in the using the procedures found in 14 CFR 02–22’’), for certain RRC 250–B17, Notice of Disposition published in 2015, 11.43 and 11.45, by any of the following –B17B, –B17C, –B17D, –B17E, –B17F, see Candidate Debates, 80 FR 72616, methods: –B17F/1, –B17F/2, turboprop engines; • and because the Commission has Federal eRulemaking Portal: Go to and 250–C20, –C20B, –C20F, –C20J, determined that further pursuit of a http://www.regulations.gov. Follow the –C20R, –C20R/1, –C20R/2, –C20R/4, rulemaking would not be a prudent use instructions for submitting comments. –C20S, and –C20W turboshaft engines. • Fax: 202–493–2251. Note that, for the purposes of this of available Commission resources, see • 11 CFR 200.5(e), the Commission Mail: U.S. Department of proposed AD, we now consider the RRC Transportation, Docket Operations, M– declines to commence a rulemaking that 250–C20S engine a turboprop engine. 30, West Building Ground Floor, Room RRC engine type certificate data sheet would amend the criteria for staging W12–140, 1200 New Jersey Avenue SE., No. E4CE, Revision 42, dated June 29, candidate debates in 11 CFR 110.13(c) Washington, DC 20590. 2010, classifies it as a turboshaft engine, to prohibit the use of a polling threshold • Hand Delivery: Deliver to Mail but then clarifies in Note 11 that it to determine participation in address above between 9 a.m. and 5 functions as a turboprop engine. presidential general election debates. p.m., Monday through Friday, except AD 2015–02–22 requires repetitive On behalf of the Commission, Federal holidays. visual inspections and FPIs on certain

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