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COMMON CAUSE v. FEC

August 25, 1988

COMMON CAUSE, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant



The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE.

 Common Cause and the other plaintiffs in this case have filed a motion seeking to enforce this court's order that the Federal Election Commission (FEC) reconsider its refusal to promulgate rules, under the Federal Election Campaign Act (FECA), *fn1" regulating so-called "soft money" in federal elections. The plaintiffs have asked the court to order the FEC to propose rules within 30 days, to compel the FEC to make the proposed regulations final as soon as is practicable thereafter, and to retain jurisdiction to ensure that the FEC complies with the mandate. For the reasons set forth herein, the court will not, at this time, impose a timetable on the FEC in the manner sought by Common Cause, but will instead retain jurisdiction and hold this motion in abeyance. While the motion is in abeyance, the FEC will report to the court on its progress toward compliance.

 I.

 "Soft money" denotes contributions to federally regulated campaign committees in excess of the aggregate amounts permitted for federal elections by the FECA; these contributions, even if directed to national campaign entities, are permissible if the money is not to be used in connection with federal elections. But Common Cause has contended that these excess contributions, purportedly devoted to state and local purposes, are pervasively and unlawfully dedicated to activities that influence federal elections, such as voter registration drives and other party-building activities that redound to the benefit of federal candidates.

 Although the campaign committees are required to count a portion of such expenditures toward their federal limits on a "reasonable basis," *fn2" Common Cause alleged in a petition to the FEC for rulemaking that there has been widespread abuse of this allocation requirement, and that the FEC's failure to regulate this allocation process more closely is contrary to law. The FEC denied the petition, and Common Cause sought review of that denial in this court. In a Memorandum and Order filed on August 3, 1987, *fn3" the court granted partial summary judgment to Common Cause and ordered the FEC to reconsider the petition for rulemaking.

 After rejecting a contention by Common Cause that no allocation process is permissible at all under the FECA as amended, the court held that

 
Common Cause is nonetheless correct that the FEC's failure to regulate improper or inaccurate allocation between federal and nonfederal funds with respect to these activities was contrary to law, since Congress clearly stated in the FECA that all monies spent by state committees on these activities vis-a-vis federal elections must be paid for "from contributions subject to the limitations and prohibitions of this Act." 2 U.S.C. ยงยง 431(8)(B)(x)(2), 431(8)(xii)(2), 431(9)(B)(viii), 431(9)(B)(ix)(2). That is, with respect to federal elections, "soft money" cannot properly be used for these activities under the FECA. *fn4"

 Chiding the Commission for "permitting a variety of allocation methods and no clear guidance to those in whose interest it is to use as much 'soft money ' in federal elections as they can," *fn5" the court held that the FEC had interpreted the FECA "in a way that flatly contradicts Congress's express purpose." The FEC was ordered to reconsider the petition "with an eye to revising" the pertinent regulations. *fn6" None of the parties sought review of the court's decision.

 More than seven months after the decision, the FEC published a Notice of Inquiry, *fn7" assertedly to generate "comment on the utility of allocation methods considered in the past as well as suggestions for alternative approaches." *fn8" Three comments were submitted, and four months have passed since the close of the comment period without further consideration by the Commission. At a hearing on this motion, counsel for the FEC would project no timetable for further action on the soft money issue, other than to represent that the comments already submitted will be before the Commission sometime in September, 1988. FEC counsel attributed this uncertainty to the many demands on Commission resources during an election year.

 During the pendency of this issue, public attention to allegations of "soft money" abuses by the major political parties has increased, and these allegations find some confirmation in pronouncements by party leaders, who reportedly are set on exploiting the absence of regulation in fundraising for the 1988 presidential race. *fn9" While it is not for the court to pass on the accuracy of these reports or to assess the magnitude of the problem at this juncture, it is undisputed that there is a public perception of widespread abuse, suggesting that the consequences of the regulatory failure identified a year ago are at least as unsettling now as then. *fn10"

 II.

 Common Cause correctly has identified two jurisdictional bases for its current motion: first, the court has inherent jurisdiction to interpret and enforce its prior orders, jurisdiction recognized in the federal courts' statutory authority to issue all writs "necessary or appropriate in aid of their respective jurisdiction"; *fn11" second, the court has federal question jurisdiction *fn12" to "compel agency action unlawfully withheld or unreasonably delayed" under the Administrative Procedure Act. *fn13"

 Under either jurisdictional theory, however, Common Cause must confront the federal courts' settled reluctance to insinuate themselves into the administration of an agency simply because that agency has been less than expeditious. As our court of appeals has pointed out, with respect to the FEC in particular, "it is not for the judiciary to ride roughshod over agency procedures or sit as a board of superintendance [sic] directing where limited agency resources will be devoted. We are not here to run the agencies." *fn14" Indeed, in the case principally relied on by the plaintiffs, this circuit warned that ...


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