The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
Plaintiff brought this action pursuant to the Federal Election Campaign Act (FECA), 2 U.S.C. § 437g(a)(8), to seek review of the Federal Election Commission's (FEC) dismissal of plaintiff's complaint against the Republican National Independent Expenditure Committee (RNIEC). Plaintiff contends that the RNIEC violated 2 U.S.C. § 441a(d)(3)(A)(i) or § 441a(a) in connection with the 1983 special election in which Dan Evans was elected to the United States Senate. Plaintiff asserts that the RNIEC was affiliated with the National Republican Senatorial Committee (NRSC) or the Republican National Committee (RNC), and that it coordinated its activities with the NRSC, and that therefore, its expenditures on behalf of Evans were not "independent" within the meaning of the FECA. Plaintiff urges the Court to hold, as a matter of law, that the NRSC and RNIEC are affiliated or that they coordinated their expenditures. Alternatively, plaintiff seeks an order requiring the FEC to reconsider plaintiff's administrative complaint under what it contends are the proper statutory standards.
Briefly, the background of this case is as follows: In March 1983, Rodney Smith became treasurer and co-founder of the RNIEC, which registered with the FEC as a non-party political committee making independent expenditures. Two months earlier, he had completed a six-year stint as finance director and treasurer of NRSC, and he had been finance director of the Republican National Committee prior to that time. Smith's co-founder of the RNIEC was United States Senator John Heinz, who subsequently served as chairman of that committee's Advisory Panel. Senator Heinz had served as chairman of the NRSC until 1980, but he retained his membership in the NRSC until he resigned on November 14, 1983. He had suspended his activities on behalf of NRSC and taken a leave of absence on October 6, 1983.
On September 1, 1983, Senator Henry Jackson of Washington died, and a special election for his seat was set for November 8, 1983. On September 12, 1983, Evans was appointed to temporarily fill the vacancy, and he declared his candidacy in the special election. Senator Heinz met with Senator Richard Lugar, chairman of the NRSC, on September 15, 1983, at which time Senator Lugar urged him to withdraw from the NRSC because of his activities on behalf of the RNIEC. On September 19, 1983, the RNIEC formally decided to make independent expenditures on behalf of Evans, and it subsequently spent $ 185,000 for his candidacy. To raise this and other money, the RNIEC used a contributor list which Smith took with him when he left the NRSC, and a second list belonging to Senator Heinz. Much of the money was spent to mail "election-grams" to voters. During the campaign, the NRSC spent $ 260,000, which was the maximum it was permitted to spend under 2 U.S.C. § 441a(d)(3)(A)(i).
Common Cause filed a complaint with the FEC charging that the RNIEC's expenditures should not be treated as independent. The FEC consolidated Common Cause's complaint with another filed by the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee, alleging that the FECA was violated by the RNIEC, the NRSC, Senator Heinz, Smith, and the Dan Evans for Senate Committee. On July 10, 1984, based upon the recommendations of its General Counsel, the FEC found reason to believe that the RNIEC had violated 2 U.S.C. § 441a(a). The General Counsel's original recommendation to find reason to believe that the committees were affiliated was based on three factors: "Smith's close links between both committees; the fact that Senator Heinz was involved with both committees; and the fact that the RNIEC used the same contributor list used by the NRSC." (General Counsel's Brief, June 21, 1984, at 8.)
The General Counsel subsequently sent questions to the RNIEC and the NRSC. After reviewing the responses and the record, the General Counsel prepared another brief, dated October 30, 1984,
in which he recommended that the FEC find no probable cause that the RNIEC violated the Act. In this brief the General Counsel determined that "it does not appear that [Smith] used [his] links to either acquire information from the NRSC or inform that organization of the RNIEC's plans concerning the Evans senate race." (General Counsel's Brief at 8.) He further concluded that while Senator Heinz's dual membership could lead to a presumption of affiliation in other circumstances, such a presumption was inappropriate where Senator Heinz "was not provided with information concerning NRSC's plans and activities in Washington state." (General Counsel's Brief at 11.) Finally, the General Counsel concluded that a "genuine dispute" between Smith and the NRSC over the ownership of the contributor list in question "militat[ed] against the list as a presumption of the affiliation of the two committees." (General Counsel's Brief at 11.) On February 12, 1985, the FEC unanimously voted to dismiss the complaint against the RNIEC, and plaintiff subsequently filed the present action.
Congress provided that the FEC's dismissal of a complaint should be reversed only if contrary to law. Federal Election Commission v. Democratic Senatorial Campaign Commission, 454 U.S. 27, 37, 102 S. Ct. 38, 44, 70 L. Ed. 2d 23 (1981). "The FEC's decision is 'contrary to law' if (1) the FEC dismissed the complaint as the result of an impermissible interpretation of the Act, (citation omitted), or (2) if the FEC's dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion." Orloski v. Federal Election Commission, 254 U.S. App. D.C. 111, 795 F.2d 156, 161 (D.C.Cir.1986).
In reviewing an agency's interpretation of a statute committed to its administration, a court must first look to the legislation. Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984); Common Cause v. Federal Election Commission, 268 U.S. App. D.C. 440, 842 F.2d 436, 439 (D.C.Cir.1988). If the statute and its legislative history reveal a clear intent, that intent must be adhered to. Id. If, however, the legislation is silent or ambiguous, the court's task is not to interpret the statute as it thinks best, but to determine if the agency's construction is a reasonable one. Id. To be sufficiently rational, the interpretation must be consistent with the purposes of the Act. Federal Election Commission v. Democratic Senatorial Campaign Commission, 454 U.S. at 41, 102 S. Ct. at 47; United States v. Vogel Fertilizer Co., 455 U.S. 16, 26, 102 S. Ct. 821, 828, 70 L. Ed. 2d 792 (1982).
In a recent case involving the FEC's dismissal of claims, the Court of Appeals stated that "deference is particularly appropriate in the context of the FECA, which explicitly relies on the bipartisan Commission as its primary enforcer." Common Cause v. Federal Election Commission, 842 F.2d at 448, (citing Federal Election Commission v. Democratic Senatorial Campaign Commission, 454 U.S. at 37, 102 S. Ct. at 44). However, the case of Federal Election Commission v. Democratic Senatorial Campaign Commission indicates that an agency is entitled to less deference when its interpretations are inconsistent. 454 U.S. at 37, 102 S. Ct. at 44.
Plaintiff asserts that the Court should look to the General Counsel's brief of October 30, 1984 for the Commission's rationale. The FEC maintains that the General Counsel's brief provides the "possible rationale" for the Commission's action, but that any defects in the brief are irrelevant since its analysis "may or may not have been accepted by the Commission." (FEC Opposition, filed December 23, 1885, at 4.) The FEC makes this argument despite the fact that it relies entirely upon the brief in its memorandum in support of its motion. (FEC Memorandum, filed November 21, 1985, at 15 et seq.)
When the FEC's decision follows the recommendation of the General Counsel, the Court may review the decision on the basis of the rationale set out in the brief or report. Federal Election Commission v. Democratic Senatorial Campaign Commission, 454 U.S. at 38 n. 19, 102 S. Ct. at 45 n. 19. Thus, unless the FEC can point to a separate statement of the Commission's rationale, the General Counsel's brief should be presumed to contain the Commission's ...