election matter until it was competing with new 1984 election priorities. The Commission's effort to overcome the delay attributable to these discovery disputes was not commensurate with the admitted and obvious importance of this matter, or the indication of the statute that the Commission should conduct its investigations "expeditiously."
This factor too, thus, weighs heavily in favor of a finding that the Commission's failure to act was, on and before October 4, 1984, contrary to law.
3. " Nature of the Sphere of Regulation " -- The Federal Election Campaign Act regulates a very sensitive area of the public interest. While damage due to agency delay may be tolerable when the interests at stake are merely economic, they are less tolerable when the interest at stake is less subject to easy remedy, such as where human health and welfare are at stake, as stated by the Court of Appeals. Similarly, given the extreme sensitivity of political expression and the electoral process in our constitutional system, the failure of the Commission to pursue this matter expeditiously at all times in its handling of this matter is less tolerable than would be delay in an economic regulation context. This factor too, thus, weighs in favor of a finding that the Commission's delay was, on and before October 4, 1984, contrary to law.
4. " Effect on Agency Priorities of Ordering Expedited Action " -- As noted, the FEC represented at the hearing on this matter on October 4, 1984, that there was no staff or other resource deficiency precluding the ability of the Commission to act on the complaint at that time. Transcript of Hearing of October 4, 1984, at 44. Nothing in the more recent pleadings or arguments contradicts this representation. Thus, this factor does not weigh against requiring the agency to proceed to an expedited resolution of the matter.
5. " Nature and Extent of Interest Prejudiced by Delay " -- The Commission has conceded that the "nature of the threat posed by this case is significant." Defendant's Memorandum on Cross-Motions for Summary Judgment at 11. Moreover, the fact that Congressman Rose filed his FEC complaint in connection with activities that took place during the 1982 election, which has already concluded, does not make the "nature" or "extent" of the threat any less significant. The FEC has expressly conceded that Congressman Rose's complaint describes a course of conduct by the respondent that may well continue or recur even though the 1982 election has passed. Transcript of October 4, 1984 Hearing at 74. Congressman Rose is himself a candidate for re-election at this time and his campaign, as well as the campaigns of others, could well be affected by such recurrence. Thus, this factor also weighs heavily against tolerating the delay that occurred in this matter.
6. " Agency Impropriety " -- As the Court of Appeals has explained, the Court need not find "any improprieties" in the Commission's actions to find that delay beyond October 4 would be "unreasonable." Thus, the Court need not and does not make such findings.
On careful consideration of the factors laid out above, the Court finds that on and before October 4, 1984, the Commission's action on plaintiff's complaint was unreasonably delayed contrary to law, in violation of the standards of 5 U.S.C. § 706(1) as incorporated in 2 U.S.C. § 437g(a)(8)(C). An Order On Reconsideration has granted plaintiff's motion for summary judgment, denied defendant's motion for summary judgment, issued a declaration pursuant to 2 U.S.C. § 437g(a)(8)(C), and granted other relief as appropriate.
On January 29, 1985, defendant Federal Election Commission submitted notice to the Court that respondents in MUR 1503 had, that day, publicly filed a complaint in a newly instituted action against the Commission, National Congressional Club v. Federal Election Commission, No. 85-0299 (D.D.C., filed Jan. 29, 1985), which disclosed the proceedings and current status in MUR 1503. The submission states that, "in light of the public filing of that complaint, . . . the Commission no longer objects to lifting the court's seal on the remainder of the record in this case." The Court has reviewed the publicly-filed complaint in No. 85-0299 and heard counsel for the parties and amicus curiae at a hearing in open court on January 31, 1985. None opposes unsealing of the record in this case.
A Court of Appeals Order filed November 14, 1984, requires the Federal Election Commission to give that Court prompt written notice of any order of any other court which makes the sealed documents public. That Court should have an opportunity to react to the notice.
In light of the foregoing, it is this 31st day of January, 1985, hereby
ORDERED: that the Protective Order of October 5, 1984, should be, and is hereby, VACATED, effective at noon, February 4, 1985.