There has been no allegation that either the Secretary of the Senate or the Clerk of the House influenced the outcome of FEC decisionmaking.
Indeed, defendants have not alleged that the Secretary and the Clerk were even present for or participated in the proceedings in question. They serve as non-voting members and as such have no real say in the outcome of any Commission proceedings. To declare the FEC unconstitutional because the statute allows certain individuals to sit as nonvoting members of the Commission would be an excessive remedy for what is only an alleged and insubstantial infringement. At best, if defendants are correct in their assessment of the Constitution, the appropriate remedy for the problem would be to bar the Secretary and the Clerk from attending Commission meetings. Since there has been no showing that these nonvoting members had any involvement in the decisions made in connection with this action, there is no need for the Court to concern itself with this separation of powers argument.
IV. Assessment of Penalties and Injunctive Relief
Although the parties in this case have requested further oral argument on the issue of penalties, the Court believes that it has all the relevant information it needs to decide this issue. Plaintiffs are seeking one penalty from the PVF and Grant Wills and one from the ILA, each in the amount of the October 20 payment that constituted the violation. That amount is $ 415,744.72. The statute, 2 U.S.C. § 437(g)(a)(6)(A), allows the Court to assess a penalty no greater than the amount implicated in the violation, but it does not require that the Court select any particular amount.
To anyone reviewing the October 20 payment, it was obvious that the October 20 payment was not legally permissible. The defendants constructed a legal argument in an attempt to defend their actions, but that argument elevates form far above substance and holds no weight with this Court. Defendants could have achieved the end result of all these transactions in a legally permissible manner had they used better financial planning and realized that the PVF would ultimately need the money. Therefore, the Court does not find that defendants have engaged in the kind of impermissible conduct that would require the assessment of a penalty for the full $ 415,744.72. Such a penalty would simply not be proportional to the violative conduct. Moreover, the record does not indicate that the defendants are chronic violators of the campaign finance laws who need stiff punishment.
Nonetheless, the fact remains that the money was spent on campaign-related expenditures in violation of FECA. In recognition of that fact, the Court will assess a penalty against the defendants that will reflect the nature and the effect of the violation as well as the effort expended by the Commission and its staff in enforcing the federal election laws.
Accordingly, the Court will assess a penalty measured by the costs incurred by the FEC in investigating and prosecuting this action. Defendants shall pay the ordinary costs associated with litigation as well as the full amount of attorney's fees and other personnel expenses allocable to this action. Plaintiffs shall have fifteen days to provide the Court with an accounting of the costs involved.
Finally, plaintiffs seek an injunction that prohibits defendants from repeating the violation. Defendants maintained the position in open court that they had not violated the federal election laws, and they refused to promise that they would not repeat the transaction implicated here because they wished to maintain flexibility in their bookkeeping. Based on this representation, the Court finds that an injunction is appropriate because it is possible the violation will be repeated. As the Court noted at the hearing, if defendants maintain close scrutiny over their accounts, there should be no need to repeat the violation.
An appropriate order accompanies this opinion.
For the reasons stated in the aforegoing opinion, it is this 15 day of November, 1991, hereby
DECLARED that defendants violated section 441b of the Federal Election Campaign Act when on October 20, 1988 the National Rifle Association - Institute for Legislative Action paid $ 415,744.72 to the NRA Political Victory Fund; and it is
ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those persons in active concert or participating with them in their activities, shall not make or receive payments made by a corporation to a segregated fund to reimburse said fund for solicitation expenses, unless such payments are made in accordance with each and every requirement of 11 C.F.R. § 114.5(b)(3), i.e. such payments are made no later than thirty days after the segregated fund makes the initial expenditure for solicitation; and it is further
ORDERED that defendants shall pay a civil penalty measured by the amount of the total costs incurred by the Federal Election Commission in investigating and prosecuting this action. The plaintiff shall have fifteen days to submit to the Court, upon notice to the plaintiff, a full accounting of all such costs, including attorneys' fees, fees for other personnel, and other associated costs.