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DEMOCRATIC CONGRESSIONAL CAMPAIGN COMM. v. FEC

October 2, 1986

Democratic Congressional Campaign Committee, Plaintiff,
v.
Federal Election Commission, Defendant



The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States Judge

 Plaintiff initiated this action to seek review of the Federal Election Commission's ("FEC" or "the Commission") dismissal of a complaint filed pursuant to 2 U.S.C. Section 437g(a). The case is before the Court on cross motions for summary judgment. Because the FEC's dismissal of plaintiff's complaint was "contrary to law," the plaintiff's motion for summary judgment is granted and the Commission is directed to conform with this order within thirty (30) days. 2 U.S.C. Section 437g(a)(8)(C).

 I. BACKGROUND

 This case arises out of a series of mailings sent to constituents of Representative Fernand St. Germain of Rhode Island's first congressional district by a group entitled Rhode Island Citizens for Accountability in Government. The mailings referred to allegations in newspapers that "Congressman St. Germain has amassed a multimillion dollar personal fortune by using his public position to help wealthy investors," FEC Matter Under Review ("MUR") 2116, Complaint, Exhibit B, and the mailings encouraged recipients to petition the United States House of Representatives Ethics Committee to officially investigate these charges. Id.

 Plaintiffs assert without challenge that the Rhode Island Citizens group had only two members. Memorandum of Points and Authorities In Support of Plaintiff's Motion for Summary Judgment at 4-5. Plaintiffs also assert, again without challenge, that the mailing at issue here had actually been prepared and paid for, not by the Rhode Island Citizens group, but by the National Republican Campaign Committee ("NRCC"). Id.

 In fact, it is not disputed that the NRCC contributed $ 10,000 toward these mailings. The NRCC did not allocate the costs incurred in the mailing against the Federal Election Act's Section 441a(d) expenditure limitations. *fn1" Believing that the costs of this mailing should have been counted against NRCC's expenditure limitations, the Democratic Congressional Campaign Committee ("DCCC") filed a complaint with the FEC pursuant to 2 U.S.C. Section 437g(a)(1) on December 20, 1985. *fn2" In its response, NRCC argued that the expenditures were not subject to the Section 441a(d) limitations. Specifically, NRCC contended that the mailing contained no "electioneering message" as defined by the FEC because it neither "depicted a clearly identified candidate" nor "conveyed an electioneering message." FEC MUR 2116, Response of NRCC at 7, citing 1 Fed. Election Campaign Fin. Guide (CCH) P 5819 (May 30, 1985) ("Advisory Opinion 1985-14").

 The FEC's General Counsel's Office disagreed. After reviewing the precedent of Advisory Opinion 1985-14, the General Counsel concluded that the communications at issue here did in fact convey an electioneering message. FEC MUR 2116, Report of General Counsel at 5-7. Thus the General Counsel deemed that the Rhode Island Citizens's mailing was subject to Section 441a(d) limitations and on this basis the Counsel, on May 19, 1986, recommended that the Commission "find reason to believe" that NRCC had violated Section 441a(d). Id. at 7.

 Despite the 1985-14 precedent and the General Counsel's recommendation, when the Commission voted on DCCC's complaint on June 5, 1986, only three commissioners voted to "find reason to believe" that NRCC had violated Section 441a(d); two commissioners voted against such a finding and one commissioner abstained from voting. Lacking four affirmative votes, the FEC then:

 
Decided by a vote of 6-0 to:
 
a. Find no reason to believe that the National Republican Congressional Committee . . . violated 2 U.S.C. (Section) 441d . . . .
 
c. Close the file.
 
d. Send the appropriate letters.

 FEC MUR 2116, Certification. Neither the FEC nor any of the individual Commissioners issued an opinion explaining the vote. Rather, DCCC was informed by letter that the FEC had dismissed its complaint and that the "Federal Election Campaign Act allows a complainant to seek judicial review of the Commission's dismissal of this action. See Section 437g(a)(8)." Letter of Federal Election Commission by Lawrence M. Noble, Deputy General Counsel, to Robert F. Bauer, ...


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