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February 8, 1988

Congressman Fortney H. (Pete) Stark, Plaintiff,
Federal Election Commission, et al., Defendants

The opinion of the court was delivered by: JACKSON


 Plaintiff Rep. Fortney H. (Pete) Stark, a Democratic Congressman from California, sues the Federal Election Commission ("FEC"), and others, for declaratory and injunctive relief under the Federal Election Campaign Act of 1971, as amended ("FECA" or the "Act"), 2 U.S.C. § 431 et seq. (1985). Stark alleges that the FEC improperly dismissed his complaint of violations of the Act by his Republican opponent and his backers during the 1986 election campaign, and asks that the FEC be ordered to reinstate it, and to pursue the appropriate remedies if, upon investigation, it finds probable cause to believe the violations occurred. *fn1" The case is presently before the Court on cross-motions for summary judgment, the parties' agreeing that the facts material thereto appear without dispute from the pleadings, and various extracts from the record made before the FEC and attached to the pleadings and motions papers. For the reasons set forth below, plaintiff's motion for summary judgment will be denied, defendants' motion will be granted, and the complaint dismissed with prejudice.


 Shortly before Election Day, 1986, Congressman Stark, the incumbent, filed a complaint with the General Counsel of the FEC alleging multiple violations of the Act by his challenger David M. Williams, the "Williams for Congress Committee," and certain national and state medical associations and their political action committees ("PACs") supporting him, in connection with their common efforts to cause his election. (Williams, in the event, lost the election by a better than two-to-one margin.) The General Counsel elicited responses to the complaint from the alleged offenders, accepted amendments to the complaint adding new charges and a new respondent in February, 1987, and in due course submitted his General Counsel's Report on the matter to the Commission on May 26, 1987.

 In his Report the General Counsel recommended that the Commission summarily reject the charges against the national and state medical associations and the latter's PAC, (and charges against the National Republican Congressional Committee added by amendment), but he recommended that it find "reason to believe" that Williams, his campaign committee, and the American Medical Association Political Action Committee ("AMPAC") had violated the Act in several particulars and proceed with the investigation mandated in such cases by 2 U.S.C. § 437g(a)(2). On June 9, 1987, the six Commissioners voted unanimously to accept the recommendations of exoneration, but they divided 3-3 on the recommendations for "reason to believe" findings against Williams, his committee, and AMPAC. Because by statute the FEC is empowered to act only upon "the affirmative vote of 4 members," 2 U.S.C. § 437c(c), the Commission then voted unanimously to dismiss the complaint and close the case. Stark timely filed his complaint in this Court two weeks later as a "party aggrieved" by the dismissal to declare it "contrary to law." 2 U.S.C. § 437g(a)(8)(A), (C). *fn2"


 The Commission initially took the position that judicial review was not available for dismissals-by-deadlock which are, it says, essentially non-decisions, and it has not yet altogether abandoned hope for that position while it ponders a further appeal of the recent decision of the Court of Appeals for this Circuit which rejected it, Democratic Congressional Campaign Committee v. FEC, 265 U.S. App. D.C. 372, 831 F.2d 1131 (D.C. Cir. 1987) (" DCCC "), decided October 23, 1987, some months after these cross-motions were filed. This Court, however, is not only bound by that decision until it is overturned, it is also satisfied that it is not likely to be, and the Court of Appeals was clearly correct in holding that the section of the statute affording judicial review of dismissals generally, § 437g(a)(8)(A), imposes neither vote-count nor substantive-issue conditions upon the right it confers. In DCCC, however, the court found it necessary to remand the case to the FEC to explain why it had deadlocked, over a General Counsel's recommendation to find "reason to believe," ". . . leaving undisturbed apparently contradictory [FEC] precedent," DCCC, 831 F.2d at 1133, which was not disclosed by the record. In the instant case the reasons for the deadlock are manifested in the separate statements of the Commissioners "concurring" in and "dissenting" from the General Counsel's recommendations as well as the transcript of the Commission's deliberations. This Court's task, therefore, as it understands the teaching of DCCC, is to ascertain "whether reason or caprice determined the dismissal of [plaintiff's] complaint," as to which it may consider the statements of the individual Commissioners themselves. Id. at 1135. *fn3"


 It appeared that AMPAC had made three mailings to its membership advocating the election of Williams (or the defeat of Stark), one of which was a solicitation of funds for Williams' campaign. The solicitation was accompanied by an envelope, pre-addressed to the " Williams' for Congress Committee" by AMPAC, in which contributions could be directly remitted, and by a pledge card, pre-addressed to AMPAC (by AMPAC), by which contributors could notify AMPAC of their contributions. The solicitation produced some $ 30,000 of the total of $ 63,000 Williams spent on his own campaign. And AMPAC acknowledged spending a total of $ 250,000 of its own money to persuade voters to elect Williams.

 AMPAC and Williams insisted that AMPAC's expenditures were "independent expenditures" on which the Act places no limits, i.e., activities "expressly advocating the election or defeat of a clearly identified candidate . . . without cooperation or consultation with any candidate, or [his] authorized committee or agent . . . and . . . not made in concert with, or at the request or suggestion of, any candidate, or [his] authorized committee or agent . . . ." 2 U.S.C. § 431(17). See 11 C.F.R. § 109.1. They denied any coordination with one another whatsoever. AMPAC asserted that it simply liked what it knew of Williams (or certainly preferred him to Stark) and undertook on its own to promote his candidacy.

 The General Counsel was dubious. In a 1980 Advisory Opinion, A.O. 1980-46, Fed. Election Camp. Fin. Guide para. 5508 (CCH) (June 25, 1980), the Commission had declared that a PAC which solicited and collected contributions made payable to a candidate for office (or his committee), "bundled" them, and forwarded them to the candidate's committee, would be making an "in kind," i.e., not an "independent," contribution to him to the extent of the cost to it of doing so. The General Counsel saw no significant distinction between collecting and forwarding contributions, and providing pre-addressed envelopes in which they could be directly mailed and verified by a "pledge card" pre-addressed to the PAC. Thus, he concluded, AMPAC had at least made an in-kind contribution to Williams to the extent of the cost of its fund-raising solicitation.

 It was also alleged by Stark (and admitted by Williams) that Williams had discussed a televised debate with Stark with a journalist, which might be sponsored by the League of Women Voters, with the AMA as a possible source of funding for it. The debate never took place. There was no evidence that either the League of Women Voters, the AMA, or AMPAC ever heard of the proposal, much less extended any financial support ...

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