Common Cause also charges that while those violations were called to the attention of the Federal Election Commission (Commission or FEC), the Commission nonetheless failed to act timely on the complaints as required by the Act. The issue raised by the administrative complaints is the relationship between the AMA and its political action committee the American Medical Political Action Committee (AMPAC) on the one hand and the various state medical associations and their respective political action committees (PACs) on the other.
In June, 1978, Common Cause asserted in an administrative complaint that AMPAC and the state medical PACs constituted a single political committee as defined by the FECA, 2 U.S.C. § 441a(a)(5),
and therefore were limited to a total contribution of $ 5000 per candidate for federal elective office in each election cycle. The complaint listed numerous instances in the 1976 congressional election where the combined contributions of AMPAC and a state PAC to an individual candidate or committee exceeded the $ 5000 limit. In November, 1978, Common Cause brought this action requesting the Court to enter a judgment declaring that the Commission's failure to act on its complaint was contrary to law and to issue an injunction directing the Commission to proceed in conformity with the Court's declaration within 30 days.
Following several years of investigation, the Commission in recent months has executed conciliation agreements
with AMPAC and most of the state medical PACs named in the 1978 administrative complaint, prohibiting the combined contributions complained of by Common Cause.
Before the Court at this time are cross motions for summary judgment. When Common Cause sought summary judgment, the Commission had entered conciliation agreements only with AMPAC and several state PACs named in the June, 1978 complaint. Accordingly, Common Cause argued that the relief provided by those agreements was inadequate and that in any event it came too late. The additional agreements reached by the Commission since the filing of Common Cause's motion alter the facts considerably and compel a different conclusion.
For the reasons set forth the Court concludes that the Commission's action with regard to those situations in which it has entered conciliation agreements is not contrary to law. The Court also concludes that the Commission's failure to take final action with respect to the remaining state PACs named by Common Cause is not unlawful. If required statutory action is not pursued within the prescribed time, Common Cause may bring suit in its own name to remedy the violations alleged.
In its June, 1978 complaint the plaintiffs alleged forty-eight contribution violations by AMPAC and some twenty state PACs. In an earlier administrative complaint of October, 1976, Common Cause alleged twenty-one similar violations for a total of sixty-nine violations in twenty-four states.
All of the violations save one involved a contribution by AMPAC and a single state PAC to a congressional candidate or his political committee. The exception was the allegation in the June, 1978 complaint that AMPAC and two state committees, the Texas PAC and the Florida PAC, had contributed $ 5000, $ 5000 and $ 1000 respectively to the congressional candidacy of Ron Paul of Texas.
In February, 1977, between the filing of Common Cause's two administrative complaints, the Commission expanded its investigation to all state medical associations and PACs while focusing on seven states where there was relatively large financial activity by the PACs in concert with AMPAC. In addition to Common Cause's initial 1976 complaint, four other complaints from different sources had been filed by February, 1977, all alleging contribution violations by AMPAC and the state political committees. The Commission investigation was well underway when Common Cause filed its second complaint in June, 1978. Five of the state PACs cited by Common Cause those of Florida, North Carolina, Ohio, Pennsylvania, and Texas were among the seven targeted by the Commission.
During the course of its investigation, the Commission mailed informal requests for information to each respondent, conducted over 60 depositions, and collected approximately 60,000 pages of documents. In the process, the Commission issued orders or subpoenas for relevant documents. Deposition of witnesses for the AMA, AMPAC, each of the seven targeted state PACs and one of the targeted state associations were also scheduled. The Commission's efforts were resisted and it was in turn compelled to file subpoena enforcement actions in the appropriate federal district court on at least nine separate occasions. By the end of 1978, most of the subpoena enforcement actions were resolved.
In addition, the Commission issued numerous subpoenas which did not require judicial enforcement. Subsequent to the filing of Common Cause's June, 1978 complaint, subpoenas were issued to the AMA and AMPAC for additional document production and to twenty-two state PACs and seventeen state medical societies for document production.
At a July, 1979, pretrial conference, in response to the Court's expression of concern at the slowness of the administrative proceeding, Commission counsel stated that the investigation was entering the final stages. In August, the General Counsel was to present general findings to the Commission in the form of an "overview" report and shortly thereafter recommendations as to whether or not there was reasonable cause to believe that violations of FECA had occurred.
In light of these representations, the Court received and reviewed in camera the General Counsel's overview report, his recommendations, and the final actions taken by the Commission. Certain interim reports previously submitted to the Commission were also made available. The plaintiffs were given access to these materials subject to two protective orders.
In the fall of 1979, the Commission found reasonable cause to believe that the reporting requirements and contributions limits of the Act had been violated. It then entered separate conciliation agreements with AMPAC and five of the targeted state PACs. Three of the five state PACs were among the twenty-four cited in Common Cause's two administrative complaints. The Commission has since executed similar agreements with eleven additional state PACs named in the Common Cause complaints and is reportedly in the process of concluding agreements with the remaining ten state PACs named by Common Cause.
The agreement with AMPAC provides that
AMPAC will not make contributions to any candidate or political committee which, when aggregated with contributions to the same candidate or same political committee by any of the political committees of the recognized medical associations . . . exceed the contribution limitations of 2 U.S.C. § 441a(a)(2).
AMPAC has also reported all of the state political committees in its statement of organization filed with the Commission, resolving its alleged violation of the Act's reporting requirement, § 433(b)(2).
The conciliation agreements with the individual state PACs contain similar provisions. In each the state PAC agrees not to aggregate political contributions with AMPAC in excess of $ 5000 and to report its relationship with AMPAC in its statement of organization filed with the FEC.
The Legal Issue
The Court is called upon to determine whether the Commission failed to act on Common Cause's administrative complaint, and if so, whether that failure was contrary to law. § 437g(a)(9)(A) and (C). When this action was filed, the statute permitted a person aggrieved by the failure of the Commission to act on a complaint within 90 days of filing, to challenge that failure within 60 days of the 90 day period. Since the Commission has entered conciliation agreements with AMPAC and a majority of the state PACs cited by Common Cause, it has taken final action as to most of the violations complained of. The question is thus whether the Commission action is an adequate and timely response to the June, 1978 administrative complaint.
Common Cause argues that any action short of "final" action within 90 days of the filing of an administrative complaint is contrary to law within the meaning of the statute. It defines final action as the agency's dismissal of the complaint, entering a conciliation agreement, or commencement of a civil suit against the respondent. Alternatively, plaintiffs argue that if final action is not required within 90 days, the standard to be applied is whether the Commission has acted "expeditiously." See § 437g(a)(3)(A).
The Commission views the 90 day provision as jurisdictional, giving the Court power after such time to decide whether the agency's failure to act is contrary to law. The standard the Court should employ, it argues, is whether the Commission's action or lack thereof is arbitrary and capricious, and an abuse of discretion.
The language and intent of the relevant provisions of the Act, the duties and powers given the Commission in the enforcement scheme, as well as the recent amendments to the Act support the agency's position.
First, the provision under which plaintiffs brought this action, authorizing judicial review after 90 days of the Commission's failure to act on a complaint, provides that "the court may declare that . . . the failure to act, is contrary to law . . . ." § 437g(a)(9)(C) (emphasis added). The Court is given discretion in the determination and indeed if final action were required in all cases within 90 days, the separate provision of FECA requiring the agency to investigate administrative complaints "expeditiously," § 437g(a)(3)(A), would be ambiguous and arguably surplusage as well.
Secondly, the issue raised by the several administrative complaints whether AMPAC and the state medical PACs are a single committee for purposes of FECA's contributions ceilings was not one that could be resolved summarily. The relevant section of the Act provides in part:
all contributions made by political committees established or financed or maintained or controlled by any corporation, labor organization, or any other person, including any parent, subsidiary, branch, division, department, or local unit of such corporation, labor organization, or any other person, or by any group of such persons, shall be considered to have been made by a single political committee . . . .