The opinion of the court was delivered by: PAUL L. FRIEDMAN
This matter is before the Court on defendant's motion for a preliminary injunction. As motions judge, the undersigned considered the matter and heard oral argument in the absence of Judge Oberdorfer, to whom the case is assigned.
The Federal Election Commission instituted this lawsuit against defendant, GOPAC, Inc., alleging that between June 1989 and May 8, 1991, GOPAC violated the Federal Election Campaign Act by failing to register and report as a political committee while allegedly raising and expending funds for the purpose of influencing federal elections. See 2 U.S.C. §§ 433(a), 434(a). GOPAC moved to dismiss for failure to state a claim, contending that during the relevant time period, its activities were restricted to supporting state and local candidates and that it did not advocate the election or defeat of any federal candidates.
On December 23, 1994, Judge Oberdorfer denied defendant's motion to dismiss, ruling that "if the Commission were able to establish that, at a particular point in time before GOPAC registered and began reporting, its major objective was, in fact, to elect a particular federal candidate or particular federal candidates, then it should follow that GOPAC was, at that time, a political committee obligated to register and report." Federal Election Commission v. GOPAC, Inc., 871 F. Supp. 1466, 1470 (D.D.C. 1994) (emphasis in original). Accordingly, informal discovery commenced and continues on the issue of GOPAC's major purposes in 1989 and 1990.
During discovery, the Commission requested that GOPAC produce lists of names, current addresses and telephone numbers of the 200 individuals who made the largest contributions in response to a specific GOPAC solicitation and of all of GOPAC's "Charter Members" during the 1989-1990 election cycle.
GOPAC declined to produce this information. In some of the documents that were produced by GOPAC, however, the Commission found names of some contributors and notified defendant of that fact. During the week of August 14, 1995, the FEC telephoned approximately 50 individual contributors, actually speaking with fewer than ten. According to the FEC, each contributor with whom it spoke was informed that the Commission was calling in connection with this lawsuit, that cooperation with the FEC was entirely voluntary, that the contributor did not have to answer any questions, and that any information the contributor provided might become public in this litigation. See Declaration of Franciszka A. Monarski ("Monarski Decl.") P 19. The purpose of these telephone conversations was to ascertain whether the contributors "thought or were told by GOPAC, that the purpose of GOPAC was to facilitate the election of candidates to federal office." Id. at P 18.
Believing that such communications intrude into the privacy and associational rights of its donors, that the questions asked of contributors are irrelevant to the litigation as framed by the Court, and that they are designed solely to harass GOPAC contributors and to deter them from association with GOPAC, defendant moved for a preliminary injunction to prohibit the Commission from making any further contacts with GOPAC contributors.
II. REQUEST FOR PRELIMINARY INJUNCTION
This Circuit has adopted a four-part test to determine when a preliminary injunction is appropriate. A party seeking an injunction must demonstrate (1) that it is likely to prevail on the merits; (2) that it will suffer irreparable harm absent the grant of injunctive relief; (3) that an injunction would not substantially impair the rights of the non-movant or other interested parties; and (4) that an injunction would be in the public interest, or at least would not be adverse to the public interest. Sea Containers Ltd. v. Stena AB, 281 U.S. App. D.C. 400, 890 F.2d 1205, 1208 (D.C. Cir. 1989). This four-part test is a flexible one: injunctive relief may be granted with either a high likelihood of success and some injury, or vice versa. Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985). "Plaintiffs are not required to prevail on each of these factors; rather the factors should be viewed as a continuum -- more of one factor compensating for less of another." Brown v. Artery Organization, Inc., 654 F. Supp. 1106, 1114 (D.D.C. 1987).
While it has denominated its application a motion for preliminary injunction, what defendant really seeks is a protective order under Rule 26(c) of the Federal Rules of Civil Procedure. Rule 26(c) recognizes the Court's authority, for good cause shown, to enter any order "which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense . . . ." Rule 26(c), Fed. R. Civ. P. Thus, the merits as to which GOPAC must demonstrate a likelihood of success on this motion relate to its claim that the informal discovery being pursued by the Commission is irrelevant, oppressive or otherwise inappropriate, rather than to the substantive claims and defenses underlying the lawsuit To obtain relief, therefore, GOPAC must "articulate specific facts showing 'clearly defined and serious injury' resulting from the discovery sought . . . , and cannot rely on merely conclusory statements." Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987) (emphasis added); see Rule 26(c), Fed. R. Civ. P. In this case, then, the likelihood of success prong and the irreparable harm prong of the test for preliminary injunction are somewhat similar.
In claiming that it is an appropriate party to assert its contributors' rights, GOPAC relies on the Supreme Court's decisions in NAACP v. Alabama, 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958), Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), and Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977). The Court concludes, however, that these cases are inapposite, as they are premised upon a representative relationship between the organization and its members, a relationship in which the organization "and its members are in every practical sense identical." NAACP v. Alabama, 357 U.S. at 459. The fact is, however, that GOPAC "is not a traditional voluntary membership organization such as a trade association, for it has no members at all." Hunt v. Washington State Apple Advertising Comm., 432 U.S. at 342. GOPAC's contributors, even those denominated as Charter Members, are not "members" as that word is traditionally used. GOPAC uses the words "contributors," "donors," and "members" interchangeably and has provided no evidence that "Charter Members" have any of the traditional membership benefits, privileges or other attributes of membership, not even a membership card. Nothing in the record suggests a relationship between GOPAC and its contributors of a kind or of a degree that would implicate this line of cases.
GOPAC also relies on Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87 (1982), both to bolster its standing argument and for the more substantive proposition that the Commission's inquiry into the identity of Charter Members and other contributors violates the privacy and associational rights of such persons and that such violations may cause sufficiently irreparable harm to merit injunctive relief. The Socialist Workers case is not on point. There, compelled disclosure of the names of members belonging to the Socialist Workers Party was found to violate the First Amendment because such persons, if identified, would be subject to threats, harassment or reprisals. See Brown v. Socialist Workers 74 Campaign Committee, 459 U.S. at 102-03. Here, disclosure of the names of GOPAC's Charter Members is not an issue. The names of some Charter Members were found in documents provided to the Commission by GOPAC, and a list of 150 of GOPAC's largest contributors during 1987 to 1993 apparently is publicly available on the Internet. See FEC Exhibit 15. Furthermore, to state the obvious, no comparable stigma attaches to association with Speaker Gingrich or to GOPAC as once attached to members of the Socialist Workers Party. GOPAC does not have standing to assert the privacy and associational rights of its contributors.
In a related argument, but one that seeks to avoid the standing problems of the first, GOPAC claims that donors will be reluctant to contribute, or may even refrain from contributing, to GOPAC if; in doing so, they will be subjected to telephone calls from the Federal Election Commission. Consequently, as the lifeline of any political action committee is fundraising, GOPAC argues that potential diminished financial support of GOPAC is a cognizable interest in the discovery addressed to GOPAC's members. Under the case law, however, this argument may be viable only if GOPAC can ...