500 Filth Avenue, 40th Floor New York, NY 10110 tel: 212-257-4860 fax: 212-202-6417 sa Shapiro Arato LLP www.shaplroarato.com Alexandra A.E. Shapiro [email protected] Direct; 212-257-4881 i October 20, 2015 1 I VIA FEDEX I Federal Election Commission J Office of Complaints Examination p,' ^ " and Legal Administration ............ • : Attn: Frankie Hampton • -=• 999 E Street. N.W. Washington, D.C. 20463 [email protected] Re: MUR 6942, In the Matter of the Commission on Presidential Debates, et al.. if Dear Ms. Hampton: We represent the Green Party of the United States and the Libertarian National Committee, Inc., the complainants in the above-referenced matter. We write to provide the Federal Election Commission with additional evidence based on events occurring after the Complaint was filed, which supports the Complaint. I On September 11,2014, Level the Playing Field and Dr. Peter Ackerman filed an administrative complaint with the Commission against the Commission on Presidential Debates ("CPD") and its leadership. The Commission designated the matter MUR 6869. On June 16, 2015 and June 18, 2015, respectively, the Green Party of the United States and the Libertarian National Committee submitted requests seeking to join the complaint in MUR 6869, or, in the alternative, seeking to file a new administrative complaint. The Commission designated that matter MUR 6942. The Commission subsequently dismissed the administrative complaint in MUR 6869, although it did not indicate whether that dismissal covered MUR 6942. The complaints in MURs 6869 and 6942 both allege that the CPD and its leadership, who are responsible for hosting the general election presidential debates, have violated FECA and the FEC's regulations governing debate sponsorship. The CPD bars candidates from participating in the debates if they do not poll at 15% in an average of five national polls taken approximately two months before the election. As detailed in the Complaint, the CPD's 15% rule is biased against third-party and independent candidates, see Complaint at 33-47, and therefore violates the requirement that debate selection criteria "must be free of 'content bias," and not geared to the selection of certain pre-chosen participants." First General Counsel's Report at 7, MUR 5395 (Dow Jones) (Jan. 13,2005) (quotation marks omitted). One of the reasons that the CPD's 15% rule discriminates against independent and third- party candidates in violation of the FEC's regulation is that pre-election polls are frequently inaccurate, as confirmed by results in recent elections, both in the United States and abroad. See Ltr. of Alexandra A.E. Shapiro to Kim Collins, MUR 6869 (Nov. 24,2014) at 2-4, submitted herewith as Exhibit 1. The recent experience of the Gallup Organization, which assists the CPD in applying its 15% rule, is emblematic of polling's inherent unreliability. The CPD adopted its 15% rule in 2000, and has used it in every presidential election since. See Ltr. of Lewis K. Loss to the Office of the General Counsel of the FEC, MUR 6869 (Dec. 15, 2014) at 7, submitted herewith as Exhibit 2. In each such election. Dr. Frank Newport, the Editor-in-Chief of Gallup, has been primarily responsible for selecting the five national polls used by the CPD in connection with the 15% rule, and, in every election, he has chosen polls conducted by Gallup as one of the national polls. See Decl. of Fra^ Newport, MUR 6869, at 2-3, submitted herewith as Exhibits. The CPD has also relied on Dr. Newport to defend it from administrative complaints filed with the Commission. The CPD purports to be "extraordinarily careful in how it selects and uses polling data," primarily because it "has relied on the expertise of Dr. Frank Newport." Exhibit 2 at 10. Likewise, Dr. Newport has submitted declarations to the Commission on the CPD's behalf, including in MUR 6869 and in MURs 4987, 5004, and 5021, earlier matters involving the CPD on which the Commission relied in dismissing the complaint in MUR 6869. In these declarations. Dr. Newport has touted public opinion polling as a "science" or a "scientific process." Exhibit 3 at 4; see also Decl. of Frank Newport, MUR 4987, at 2, submitted herewith as Exhibit 4 (describing polling as a "highly developed and tested scientific process"). He has also claimed that polls are "reliable," and that "the methodology [of polling] continues to improve" and "evolve[]." Exhibit 3 at 4-5; Exhibit 4 at 2 (asserting that public opinion polling "has a high degree of reliability"). However, the results fi-om recent Gallup polls belie Dr. Newport's and the CPD's unfounded faith in polling. Gallup's polls throughout the 2012 presidential election exhibited substantial inaccuracies, "consistently show[ing] Mr. Roraney aJiead by about six percentage points" in an election that President Obama won by 3.87%, and possessing an average margin of error of 7.2%. See Nate Silver, Which Polls Fared Best (and Worst) in the 2012 Presidential Race, N.Y. Times (Nov. 10, 2012), lul»://|jvelhirtveitilit.blogs;nvtimes.com/201.2/11/1 QAvhich- poll.s-fared-best-and-worst-m-the-2012-T>residential-ra.ce/? .r=l. submitted herewith as Exhibit 5. The errors were "among the worst results" of all polling firms, and consistent with Gallup's recent "poor" performance in pre-election polling. Id. (criticizing Gallup as having "three poor elections in a row," including the 2008 presidential election); see also Nate Silver, Gallup vs. the World, N.Y. Times (Oct. 18, 2012), h.ltp://Fi.vethirtvciEht.blou.s.nvtimes.coin/2Q12/10/18/ualliip- v.s-lhc-worJd/. submitted herewith as Exhibit 6. Gallup's recent failures have led to soul-searching within the organization. Dr. Newport has publicly conceded that Gallup has no "definitive answer" for its errors, and that Gallup's polls were toward the "inaccurate end of the spectrum." See Scott Clement, Gallup explains what went wrong in 2012, Wash. Post (June 4,2013), http.s://www.w:i.shingtonoo.st.conT/new.s/lhe-fi.\'Avp/20l3/Q6/04/t>alliio-exnlaiii.s-what-werit- wi ong-in-20l2/l submitted herewith as Exhibit 7; Steven Shepard, Gallup Blew Its Presidential polls, but Why?, Nat'l J. (Nov. 18, 2012), hUp:/Av\Vw.nationaliouiiuil.com/s/88751/galliip-blcw- il.s-pre.sitlerititil-poll.s-wliv?Q='galliio%20steven%2()shcixird&a=&t=&c=&s=Nonc<Se~No.ne. submitted.herewith as Exhibit 8. Vowing to be ready for the next presidential election, Gallup undertook a detailed review of its pre-election polling methodology, and, in response, has recently announced that it will no longer conduct public opinion polling for the 2016 presidential primary race at all. See Steven Shepard, Gallup gives up the horse race, Politico (Oct. 7,2015), htl.p://www.nolilico.coin/sL()i v/2015/i0/aallun-ooll.^2016-poll.slcri»-214493. submitted herewith as Exhibit 9. Gallup's abdication from the field of polling for the presidential primary race is a tacit acknowledgement that it no longer has confidence in the accuracy of its public opinion polling. It shows that, contrary to Dr. Newport's assertions in his submissions to the FEC that polling is "rcliable"-and-'^scientifiCi"-his-own-polling'Organization-recognizes-thathorse-race.polling-has— become inherently unreliable. Moreover, as explained in the Complaint, the flaws and errors of pre-election polling disproportionately affect independent and third-party candidates, who, in comparison to Democratic and Republican Party candidates, are more likely to have support close to the 15% threshold and are therefore far more likely to be wrongly excluded under the CPD's 1.5% rule. See Complaint at 40-44. The demonstrable arbitrariness of pre-election polling systematically discriminates against independent and third-party candidates, and fatally undermines the CPD's argument that polling is an objective criterion under the.Commission's debate staging regulations. For these reasons and those set forth in the Complaint, the Green Party of the United States and the Libertarian National Committee respectfully request that the FEC find the CPD and its leaders have violated FECA and the regulations governing debate sponsorship, and grant the relief sought in the Complaint. Sincerely, o Alexandra A.E. Shapiro cc: Robert William Bonham, III (via email) Ends. 500 Firth Avenue, 40th Floor New York, NY 10110 tel: 212-257-4660 fax: 212-202-6417 Shapiro Arato & Isserles LLP www.shapirooraio.com Alexandra A.E. Shapiro. [email protected] Direct; 212-257-4881 November 24,2014 V-IA EMAIL .AND. FEDEX 1 Federal Election Commission i? Office of Complaints Examination y and Legal Administration i Attn: Kim Collins, Paralegal •i 999 E Street. N.W. g Washington, D.C. 20463 [email protected] 3 Re: MUR 6869, In the Matter of the Commission on Presidential Debates et al. Dear Ms. Collins: We represent Level the Playing Field and Dr. Peter Ackerman, the complainants in the above-referenced matter. We write to provide the Federal Election Commission with additional evidence based on events occurring after the Complaint was filed, which supports the Complairit. The Complaint alleges that the Commission on Presidential Debates ("CPD") and its < leadership, who are responsible for hosting the general election presidential debates, have i violated ^e FEC's regulations governing debate sponsorship. The CPD bars candidates from participating in the debates if they do not poll at 15% in. an average of five national polls taken approximately two months before the election. As detailed in the Complaint, this 15% rule systematically discriminates against third-party and independent candidates, see Complaint at 33-47, and therefore violates the requirement that debate selection criteria "must be free of 'content bias,' and not geared to the selection of certain pre-chosen participants." First General Counsel's Report at 7, MUR 5395 (Dow Jones) (Jan.