 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 24, 2020              Decided June 12, 2020

                        No. 19-5117

             LEVEL THE PLAYING FIELD, ET AL.,
                      APPELLANTS

                             v.

             FEDERAL ELECTION COMMISSION,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:15-cv-01397)



    Alexandra A.E. Shapiro argued the cause for appellants.
With her on the briefs were Eric S. Olney and Jacob S. Wolf.

     Haven G. Ward argued the cause for appellee. With her on
the brief were Lisa J. Stevenson and Kevin Deeley.

   Before: PILLARD and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
                                2

     RANDOLPH, Senior Circuit Judge: The Commission on
Presidential Debates (the “CPD”) is a private non-profit
corporation. For more than thirty years, it has hosted televised
debates among the leading candidates for President and Vice
President of the United States. The CPD uses several factors to
decide which candidates are eligible to participate in its debates.
At the center of this controversy is the CPD’s compliance with
rules of the Federal Election Commission (the “Commission”)
for determining which candidates are, or will be, eligible to
participate in the debates.

     The Commission’s regulations allow a non-profit
organization to stage candidate debates in federal elections so
long as the organization does not “endorse, support, or oppose
political candidates or political parties.”          11 C.F.R.
§ 110.13(a)(1). The debates must “include at least two
candidates” and cannot be structured “to promote or advance
one candidate over another.” Id. at § 110.13(b). Staging
organizations must use “pre-established objective criteria” to
select eligible candidates, and for general election debates,
cannot “use nomination by a particular political party as the sole
objective criterion.” Id. at § 110.13(c).

     The plaintiffs in this case are Level the Playing Field, a
non-profit corporation created to promote independent
candidates for elected office; Peter Ackerman, a registered voter
from the District of Columbia; the Green Party; and the
Libertarian National Committee, Inc. They argue that the CPD
routinely endorses and supports Republican and Democratic
nominees at the expense of third-party candidates. They also
contend that the CPD uses subjective and biased criteria for
selecting debate participants.

     Although the CPD is by definition involved in politics, it
neither endorses nor opposes candidates for the Presidency. The
                                3

government does not fund the CPD, nor does any political party,
political action committee, or candidate. It is governed by an
independent Board of Directors.

     To participate in a CPD-sponsored debate, there are three
requirements. The candidate must be qualified under the
Constitution to be President. The candidate must be on the
ballot of enough states to have a mathematical chance of
winning a majority vote in the Electoral College. And the
candidate must have a level of support of at least 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.

     Plaintiffs began their case with two administrative
complaints. The first challenged the 15% polling criterion,
which the CPD used to determine eligibility for participation in
the debates preceding the 2012 Presidential election. The
Commission decided 5-0 (with one recusal) that the CPD’s
criterion did not violate the Commission’s debate rules. The
second complaint asked the Commission to initiate a rulemaking
to change its rules to prohibit debate sponsors from using public
opinion polls as a criterion for eligibility. The Commission
rejected this request by a vote of 4-2. Based on these votes, the
Commission dismissed both administrative complaints.

     Plaintiffs sought review in the district court, alleging that
the dismissal of their complaints violated the Administrative
Procedure Act. For reasons unnecessary to discuss, the district
court remanded both administrative matters to the Commission
for further consideration of the record. The Commission
adhered to its original decision. On the return of the case to the
district court, the court granted summary judgment in favor of
the Commission. We agree with the district court’s thorough
                               4

and well-reasoned decision and, applying de novo review, we
affirm.

                               I.

      Judicial review of decisions by the Federal Election
Commission is highly deferential. Hagelin v. FEC, 411 F.3d
237, 242 (D.C. Cir. 2005). We presume the validity of the
Commission’s decisions and will reverse them only if they are
contrary to law, not supported by substantial evidence, or are
arbitrary, capricious, or an abuse of discretion. Id.

     Plaintiffs urge us to apply a less deferential standard of
review, arguing that the Commission’s decisions display a
“pattern of suspect decisionmaking,” “bias,” and a “partisan
agenda.” But as we have previously explained, the “arbitrary
and capricious and substantial evidence standards” are “fully
adequate to capture partisan or discriminatory FEC behavior.”
Hagelin, 411 F.3d at 243. Indeed, decisions featuring
unjustifiable bias or partisanship are precisely the types of
agency actions that “would work a violation of the arbitrary-
and-capricious standard.” Id. (citation, internal quotation marks
and alteration omitted). Accordingly, we need not create a new
standard of review to assess the appropriateness of the
Commission’s actions in this case.

                               II.

     Plaintiffs believe that the CPD is an “overtly partisan”
organization whose goal “is to exclude independent candidates.”
They argue that the Commission refused to recognize this bias,
thereby ignoring the regulations that require debate sponsors not
to endorse, support, or oppose political parties or their
candidates.
                                5

     As evidence of the CPD’s purported partisanship, plaintiffs
highlight various statements and campaign contributions made
by the CPD’s founders and leaders. For example, announcing
the formation of the CPD in 1987, the Democratic and
Republican National Committees “emphasiz[ed] the bipartisan
nature” of the CPD and noted that the debates would be “party-
sponsored.” Frank Fahrenkopf, then chairman of the Republican
National Committee and a current CPD co-chair, indicated that
the CPD “was not likely to look with favor on including third-
party candidates in the debates.” Similarly, Paul Kirk, the
chairman of the Democratic National Committee at the time and
a former CPD co-chair, said he “personally believed that the
[CPD] should exclude third-party candidates from the debates.”

     The Commission carefully considered these and other
statements made when the CPD was created in 1987. It found
the statements to have “limited persuasive value” for three
reasons. First, the Commission reasoned that decades-old
declarations are not particularly probative of current bias, as
organizations can change. Second, the early statements about
the CPD must be understood in the context of trying to
institutionalize televised debates as a “permanent part of the
political process.” And third, statements made by individuals do
not necessarily reflect an organization’s endorsement or support.
Each of these explanations was reasonable.

     Take the first explanation. The record supports the
Commission’s view that the CPD has changed over time,
making “concerted efforts to be independent in recent years.”
After third-party candidate Ross Perot’s exclusion from the 1996
debates, for instance, the CPD “adopted new candidate selection
criteria and retained a polling consultant to ensure” “careful and
thoughtful application” of the new criteria. The Commission
also noted that the CPD “conducts a review after every
presidential election of issues relating to the debates.” In light
                               6

of these changes and ongoing reviews, it was reasonable for the
Commission to believe that statements made about the CPD in
1987 do not adequately describe the CPD as it exists today. See
Hagelin, 411 F.3d at 244.

     It was also reasonable for the Commission to place the early
statements made by Fahrenkopf and others in context. For
instance, the Commission credited a sworn declaration from
Fahrenkopf explaining that when the CPD was first created, “the
major impediment to” institutionalizing televised debates “was
securing the commitment of both major party nominees to
debate.” Thus, references to a “bipartisan” and “party-
sponsored” organization were meant to convey only that the
CPD would not favor one leading political party at the expense
of the other. American politics has, for most of American
history, been organized around two parties. See Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 367 (1997). So it is
plausible that leaders of the newly-created CPD used terms like
“bipartisan” and “party-sponsored” to assure and secure support
from both major parties.

     The Commission explained that “even if these written and
oral statements did reflect more current sentiments, they are not
indicative of CPD’s organizational endorsement of or support
for the Democratic and Republican Parties and their
candidates. ...” The record supports this finding. The 1987
statement announcing the formation of the CPD, for instance,
was released by the Democratic and Republican National
Committees, and not by the CPD. Paul Kirk’s statement that the
CPD should exclude third-party candidates was based on his
personal view, and he added that “he could not speak for the
[C]ommission.”

    Plaintiffs characterize the Commission’s explanations as
“spurious” and attack the affidavits submitted by Fahrenkopf
                               7

and others as “boilerplate” and “meaningless.” But as the
district court explained, that plaintiffs may disagree with the
Commission’s weighing of the evidence presented to it is not
enough for the courts to overturn the Commission’s decisions as
arbitrary, capricious, or contrary to law. See Level the Playing
Field v. FEC, 381 F. Supp. 3d 78, 101 (D.D.C. 2019). The
Commission considered plaintiffs’ submissions and articulated
reasonable explanations for assigning the decades-old statements
little probative value.

     Plaintiffs also presented the Commission with
contemporaneous evidence of the CPD’s alleged bias. In 2015,
for example, Fahrenkopf was interviewed by Sky News. During
the interview he said that the CPD “primarily go[es] with the
two leading candidates” from the “two political part[ies].” In
2011, Fahrenkopf wrote an op-ed in which he praised the
Republican Party and described it as “our great party.” And
since 1997, Fahrenkopf has donated tens of thousands of dollars
to Republican congressional and presidential candidates.

     Michael McCurry is also a co-chair of the CPD. He
previously served as President Bill Clinton’s press secretary and
as a director of communications for the Democratic National
Committee. Since 2008, McCurry has given tens of thousands
of dollars to Democrats. Plaintiffs claim that the statements and
contributions made by Fahrenkopf and McCurry are illustrative
of the CPD’s partisan bias.

     The Commission rejected this argument, again providing
reasonable explanations supported by the record. For example,
the Commission noted that during the 2015 Sky News interview,
Fahrenkopf was asked “about the impact of multiple candidates
(the questioner posited seven) on the educational value of
debates.” Fahrenkopf responded by lamenting the quality of
primary debates, which can feature “seven or eight people on the
                                8

stage,” and which “people jokingly say” are “less of a debate
than a cattle show.” He then said: “That’s why in the general
election debate, we have a system, and we . . . primarily go with
the two leading candidates, it’s between the two political party
candidates . . . except for 1992 when Ross Perot participated in
the debates.” The context of the interview thus makes clear that
Fahrenkopf was expressing a preference for smaller debates
where the candidates with the most support are given more time
to share their views with voters. He was not, as plaintiffs
suggest, admitting that the CPD seeks to exclude independent
candidates to benefit Democratic and Republican candidates.
Considering Fahrenkopf’s words in the appropriate context, the
Commission justifiably concluded that plaintiffs’ “interpretation
is not dispositive.”

     With respect to Farenkopf’s 2011 op-ed and the donations
he and others have made to candidates from the two major
political parties, the Commission stated that “individuals may
wear multiple hats to represent multiple interests.” And if this
is permissible, the Commission reasoned, it follows that “an
individual’s leadership role in a given organization does not
restrict his or her ability to speak freely on political issues or
make contributions to political committees when he or she does
so in his or her personal capacity.”

     Reviewing the record, the Commission found no evidence
that Farenkopf’s 2011 op-ed was written in his official capacity
as a CPD co-chair or was intended in any way to represent the
views of the organization. Similarly, plaintiffs cannot identify
a single instance of a donation to a Democrat or Republican that
was made by the CPD or one of its leaders acting in his or her
official capacity.

    Plaintiffs’ arguments, then, amount to a disagreement with
the Commission’s view that personal partisan activities do not
                                9

necessarily reflect the views or biases of the organization for
which a person works. But again, as the district court held,
“such a disagreement does not discharge [p]laintiffs of their
burden to establish that the [Commission’s view] was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 381 F. Supp. 3d at 105. Plaintiffs have
not met that burden. The Commission has consistently
maintained that individuals may support political candidates
when acting in their personal capacities, even if they would be
prohibited from doing so in their professional capacities. See,
e.g. FEC Advisory Op. 2007-05; Advisory Op. 2005-02;
Advisory Op. 2003-10. And this position is well-founded. It is
axiomatic that, for an agent’s statement to be attributable to the
principal, the “speaking must be done in the capacity of agent
and connected with the business of the principal.” Restatement
(First) of Agency § 288 cmt. b (Am. Law Inst. 1933).

    In sum, far from ignoring plaintiffs’ evidence, the
Commission thoughtfully evaluated the record.               The
Commission offered detailed explanations in support of its view
that plaintiffs failed to show impermissible bias against
independent candidates or in favor of candidates from the two
major political parties. And though plaintiffs may disagree with
these explanations, they have failed to show that the
Commission’s decisionmaking was arbitrary or unreasonable.



                               III.

     Plaintiffs also contend that the CPD’s use of a 15% polling
requirement to select debate candidates is “subjective” and
favors major-party candidates. This threshold, they argue,
violates 11 C.F.R. § 110.13(c), which requires staging
organizations to “use pre-established objective criteria to
                               10

determine which candidates may participate in a debate.” In
support of this claim, plaintiffs presented the Commission with
two expert reports. The first, written by Dr. Clifford Young,
posits that “on average, an independent candidate must achieve
a minimum of 60% name recognition, and likely 80%, in order
to obtain 15% vote share.” The second, prepared by Douglas
Schoen, suggests that an independent candidate “should
reasonably expect to spend approximately $266,059,803 to run
a viable campaign capable of reaching 15% support in polls by
September of the election year.”

     Plaintiffs argue that these studies show the 15% threshold
is not objective because, while major party candidates “benefit
from the widespread media coverage of the presidential
primaries,” independent candidates “have no analogous
mechanism for generating name recognition.” And if an
independent candidate must spend over $260 million to achieve
15% support, plaintiffs reason, “[o]nly a self-funded billionaire
could realistically hope to compete as an independent.”

     The Commission considered and rejected these arguments.
Evaluating the expert reports, the Commission found several
“limitations that undermine their persuasiveness.” The Young
Report, for instance, “correlates polling results to name
recognition alone,” but as Dr. Young himself acknowledged,
several other factors affect a candidate’s poll numbers, including
“fundraising, candidate positioning, election results, and
idiosyncratic events.” The Commission also noted that “neither
the Young Report nor [plaintiffs] . . . ever establish that
independent candidates do not or cannot meet 60-80 percent
name recognition.” The Commission cited as a counter-example
a 2016 YouGov poll, which found that 63% of registered voters
had heard of Libertarian candidate Gary Johnson, while 59%
had heard of Green Party candidate Jill Stein.
                                11

     These critiques of the Young Report are reasonable. The
omission of relevant variables from a statistical analysis “may
render the analysis less probative than it otherwise might be.”
Bazemore v. Friday, 478 U.S. 385, 400 (1986) (per curiam)
(Brennan, J., concurring). It is quite plausible that a factor like
the unpopularity of major-party candidates could lead to a high
degree of support for an independent candidate who has less
than 60% name recognition. And the Commission reasonably
relied on a YouGov poll to question the notion that independent
candidates cannot achieve 60% name recognition. Though the
Young Report posited 60% name recognition was necessary
among the American public and the poll only shows name
recognition among registered voters, the poll still suggests
independent candidates may sometimes earn significant name
recognition. See also Buchanan v. FEC, 112 F. Supp. 2d 58, 74
(D.D.C. 2000) (listing George Wallace, John Anderson, and
Ross Perot as examples of independent candidates who achieved
at least 15% support in pre-election polling).

     The Commission identified many reasons to discount the
findings of the Schoen Report, too. For example, the
Commission found that the $260 million estimate rests “on the
assumption that independent candidates are unable to attract
earned media (i.e., free coverage).” The Schoen Report also
fails to account for the role of social media, which the
Commission notes has “enabled the ubiquitous sharing of
[candidates’] messages among vast global networks.”

    Again, these critiques are reasonable and well-supported.
As the Commission highlights, Libertarian candidate Gary
Johnson received extensive media coverage during the 2016
presidential election. And at least some of that coverage was not
generated by the campaign’s spending. See, e.g., Jonah
Bromwich, ‘I Guess I’m Having an Aleppo Moment’: Gary
                               12

Johnson Can’t Name a Single Foreign Leader, N.Y. Times, Sep.
28, 2016, available at https://www.nytimes.com/2016/09/
29/us/politics/gary-johnson-aleppo-moment.html. The
Commission similarly cited the example of the 2016 Trump
campaign, during which “digital media reportedly replaced field
offices,” “thereby reducing another traditional campaign cost.”

     More broadly, we need not conclusively determine the
validity or persuasiveness of the Young and Schoen reports to
decide this case. Even if both reports are correct, and it takes a
large amount of money and name recognition for a candidate to
be viable, the 15% polling criterion is not impermissible.

     All that is required is that the CPD use a “pre-established
objective criteria” to determine debate eligibility. 11 C.F.R.
§ 110.13(c). Plaintiffs have identified many reasons why it
might be difficult for an independent candidate to achieve the
support of 15% of the electorate. But a threshold does not
become “subjective” merely because it is difficult to reach.
There is no legal requirement that the Commission make it
easier for independent candidates to run for President of the
United States. The Commission thus acted reasonably in
determining that a 15% polling threshold is an objective
requirement.

                               IV.

     In addition to challenging the CPD’s existing criteria,
plaintiffs asked the Commission to initiate a rulemaking to
revise and amend 11 C.F.R. § 110.13(c). Specifically, they
believe the Commission’s rules should preclude debate sponsors
from using any polling threshold and should instead require the
CPD to select some other unspecified “objective, unbiased
criteria for debate admission.”
                              13

     The Commission rejected the request to change its
regulations. Our review of a rulemaking denial is “extremely
limited and highly deferential.” Massachusetts v. EPA, 549 U.S.
497, 527-28 (2007) (internal quotation marks and citation
omitted). Federal agencies have “broad discretion to choose
how best to marshal [their] limited resources and personnel to
carry out [their] delegated responsibilities.” Id. at 527.

     Applying this even more deferential standard, we affirm the
Commission’s decision.         Plaintiffs suggest that the
Commission’s rejection of their petition was arbitrary and
capricious “for the same reasons” they challenge the
Commission’s decisions about the CPD’s neutrality and the 15%
polling criterion. Because we have found that the Commission
acted reasonably in reaching those decisions, we hold that the
Commission did not err by electing not to initiate a rulemaking.

    For these reasons, the district court’s grant of summary
judgment to the Commission is affirmed.

                                                    So ordered.
