argue, because the FCPA was "unworkable" and filled with "loopholes," that ". . . strict enforcement . . . might very well have encouraged candidates to take advantage of the loopholes, and plaintiffs, instead of having untimely information might well have had no information at all." Believing that defendants' latter argument was not seriously advanced, the court will give it like consideration. The obvious answer of course is that if such a situation presented itself the legislative process could have been invoked to have the "loopholes" filled.
"The 'gist of the question of standing ' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. '"
A court looks for "standing" in order to assure that the dispute will be presented in an adversary context and in a form capable of judicial resolution.
Plaintiffs allege that they were injured as a result of defendants' failure to enforce the FCPA, and the court feels that this allegation provides the injury in fact element of the standing requirement.
In addition to showing injury in fact, a plaintiff must also show that he is within the zone of interest sought to be protected by the statute in question.
The requirements of the FCPA that the filed financial reports be made public and that they be filed before an election suggests that at least one purpose of the Act was to provide voters with relevant information upon which to base an informed decision. Therefore the court finds that plaintiffs have shown themselves to be within the zone of interest sought to be protected by the Act.
The court also finds that plaintiffs have shown the necessary "logical nexus" between the status asserted and the claim presented for adjudication.
The defendants' argument that plaintiffs' quarrel is with the tardy candidates ". . . fails to focus on the exact nature of the grievance appearing in the complaint."
Here, as in Diggs, supra, plaintiffs' injury may have been caused directly by the acts of third parties, and thus their primary quarrel with them. "But this does not foreclose the existence of a judicially cognizable dispute between . . . (plaintiffs), on the one hand, and . . . (defendants), on the other, who are said to be acting in derogation . . ."
of their statutory and constitutional duties. Having met all of the requirements, the court holds that plaintiffs have standing to pursue this action.
The plaintiffs allege that the Clerk and the Secretary failed to enforce the Act in that they did not forward to the Attorney General the names of those persons whom they knew to have violated the Act. These two defendants, however, assert that the FCPA only required that they receive the filed statements, preserve them for two years, and make them available for public inspection, and imposed no enforcement duties upon them whatsoever. Finding that this argument is well taken, the action is dismissed as to the Clerk of the House of Representatives and Secretary of the Senate for failure to state a claim upon which relief can be granted.
The defendants Attorney General and United States Attorney move to dismiss on the additional ground that their prosecutorial responsibilities under the FCPA ". . . are wholly discretionary functions and are not subject to judicial direction or review." This necessarily follows, they assert, from the constitutional grant of power to the executive to execute the laws and the doctrine of separation of powers. This constitutional mandate to the executive, through the Attorney General, to execute the laws is absolutely discretionary, and ". . . extends not merely to declining individual prosecutions but to the general enforcement of the laws of the United States." The plaintiffs contend, however, that they are not attempting to force the Attorney General and United States Attorney to exercise their discretion to prosecute violators of the Act in any particular way, but only to force them to exercise their discretion one way or another concerning individual violators. The defendants, plaintiffs assert, have an official policy of non-enforcement of the Act and have thereby refused to exercise their discretion at all concerning individual violators. Therefore, plaintiffs say, the court can, and should, order the defendants to investigate alleged individual violators to determine whether any of such violations merit prosecution, and that mandamus is the proper remedy to compel such action.
While the authorities cited by the parties are not directly on point, they do provide the court with considerable guidance. The proposition that the Attorney General may, through the exercise of his discretion, nullify for all practical purposes an act of Congress, at first blush, appears harsh and untenable. Upon careful examination, however, the wisdom behind the judiciary's refusal to supervise the exercise of the prosecutor's discretion becomes apparent.
In Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963),
plaintiffs sought to compel the Attorney General and Director of the Federal Bureau of Investigation to bring criminal prosecutions against certain state officials of Mississippi who were alleged to have been responsible for the deprivation of certain of plaintiffs' civil rights. The court (Judge Youngdahl) held that the initiation of the criminal process by the defendants was ". . . clearly discretionary, and decisions respecting such actions are committed to the Executive branch of the Government, not to the courts." Quoting from Pugach v. Klein, 193 F. Supp. 630 (D.D.C. 1961), the court said that the reason for this limitation upon the judiciary's power was that:
Article II, Section 3 of the Constitution, provides that "(the President) shall take care that the laws (shall) be faithfully executed." The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the Courts, nor in private citizens, but squarely in the executive arm of the government. Congress has implemented the power of the President by conferring the power and the duty to institute prosecution for federal offenses upon the United States Attorney for each district. 28 U.S.C.A. § 507. In exercising his power, the United States Attorney acts in an administrative capacity as the representative of the public . . .
Circuit Judge Wright, in a concurring opinion which, per curiam, affirmed Moses, stated that ". . . an investigation as to the adequacy, or the execution, of . . . (the federal civil rights) laws is not a matter within the jurisdiction of the judicial branch of this Government."
Likewise, in Powell v. Katzenbach, 123 U.S. App. D.C. 250, 359 F.2d 234 (1965), the question of "whether and when" prosecution was to be instituted was said to be "well settled," and within the discretion of the Attorney General. Judge (now Chief Justice) Burger, speaking for the Court in Newman v. United States, 127 U.S. App. D.C. 263, 382 F.2d 479 (1967), would refuse to review even "irrational" decisions by the prosecutor, reasoning that:
. . . . We do our assigned task of appellate review best if we stay within our own limits, recognizing that we are neither omnipotent so as to have our own mandates run without limit, nor omniscient so as to be able to direct all branches of government. The Constitution places on the Executive the duty to see that "laws are faithfully executed" and the responsibility must reside with that power. 382 F.2d at 482, N. 9.
In Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970), a case very similar to this one, the plaintiffs sought, inter alia, ". . . to compel by mandamus the Attorney General and the United States Attorney for the Eastern District of Michigan to prosecute known civil rights violators . . ." The court dismissed the complaint as to those defendants on the ground that institution of the criminal process under the civil rights laws fell within their discretion and could not be compelled by mandamus. And in United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965),
it was said to follow ". . . as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."
In Redmond v. United States, 384 U.S. 264, 86 S. Ct. 1415, 16 L. Ed. 2d 521 (1966), the Court recognized the authority of the Attorney General to refuse to prosecute certain classes of violators in accordance with a delineated policy.
In Pugach, supra, the court, after pointing out the many "elements in the equation" for determining whether a criminal prosecution should be commenced, stated that:
All of these considerations point up the wisdom of vesting broad discretion in the United States Attorney. The federal courts are powerless to interfere with his discretionary power . . . The remedy of any dereliction of his duty lies, not with the courts, but, with the executive branch of our government and ultimately with the people. 193 F. Supp. at 635.