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December 19, 2001


The opinion of the court was delivered by: Gladys Kessler, United States District Judge.


Plaintiffs are the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") and DNC Services Corporation/Democratic National Committee (collectively, "DNC") They bring this action to prevent disclosure by Defendant, the Federal Election Commission ("FEC" or "Commission"), of approximately 6, 000 pages of documents obtained during the FEC's investigation of Plaintiffs.

As a preliminary matter, this Court observes that this is a case in which, to put it colloquially, "what is sauce for the Democratic goose" will also be "sauce for the Republican gander." The legal issue raised in this case is critical to all players in the political arena because it concerns the FEC's statutory authority to disclose to the public — and to political opponents — extraordinarily sensitive political information that would not be available in the absence of an investigation of complaints filed with the FEC. That information includes plans and strategies for winning elections, materials detailing political and associational activities, and personal information concerning hundreds of employees, volunteers and members of the Plaintiff organizations.

The matter is now before the Court on the Motions for Summary Judgment of Plaintiffs [#15] and Defendant [#29]. Upon consideration of the motions, oppositions, replies, the Motions Hearing held in this matter on November 1, 2001, the amicus curiae brief of the James Madison Center for Free Speech,*fn1 and the entire record herein, and for the reasons discussed below, the Court concludes that the FEC's decision to disclose the documents obtained during its investigation of Plaintiffs is arbitrary, capricious and contrary to law. The confidentiality mandate of the Federal Election Campaign Act ("FECA" or "Act"), 2 U.S.C. § 431-55, and the Commission's own implementing regulations, clearly prohibit the FEC from disclosing the more than 6, 000 pages of documents in issue. Accordingly, the Court grants Plaintiffs' Motion for Summary Judgment and denies Defendant's Motion.*fn2


A. Overview of the FEC's Enforcement of FECA*fn3

The FEC is an independent, federal agency charged with the exclusive jurisdiction to administer and enforce FECA. FECA permits any person to file an administrative complaint with the FEC alleging violation thereof. 2 U.S.C. § 437g(a)(1). Once a complaint is filed alleging violations of FECA, the FEC notifies any and all respondents*fn4 and invites written responses. 2 U.S.C. § 437g(a)(1). The FEC then reviews the complaint and any responses filed thereto to determine whether there is "reason to believe" that a violation of FECA has occurred or is about to occur. 2 U.S.C. § 437g(a)(2) If the FEC determines that there is "reason to believe" that FECA has been or will be violated, it undertakes an "investigation" of the alleged violation. 2 U.S.C. § 437g(a)(2). After completion of an investigation, the Commission votes on whether there is "probable cause" to believe FECA has been violated. 2 U.S.C. § 437g(a)(3). If the Commission finds that there is no probable cause to believe that a violation of FECA has occurred, the investigation is closed and the case is dismissed. Complainants may challenge this dismissal in federal district court. 2 U.S.C. § 437g(a)(8)(A). If, on the other hand, the Commission concludes that there is probable cause to believe that FECA has been violated, it must first attempt conciliation, and failing that, may seek enforcement of FECA in federal district court. 2 U.S.C. § 437g(a)(6)(A).

B. The FEC's Investigation of Plaintiffs

Between December of 1995 and November of 1996, the FEC received eleven complaints alleging that Plaintiffs' activities in connection with the 1996 election year violated FECA. One complaint was filed by the National Republican Senatorial Committee, and the remaining ten were filed by the National Republican Congressional Committee and an independent political action committee chaired by Oliver L. North. Those complaints alleged that the AFL-CIO and its affiliated unions had coordinated their federal campaign activities with the Democratic Party, the White House, and individual candidates.

On June 17, 1997, upon review of the eleven complaints and Plaintiffs' written responses thereto, the Commission found "reason to believe" that Plaintiffs had violated FECA by making illegal in-kind contributions.*fn5 Thereafter, the Commission undertook a formal "investigation" of Plaintiffs. On July 11, 2000, after a three-year investigation, the Commission determined that there was no "probable cause" to believe that FECA had been violated and dismissed the complaints against Plaintiffs.*fn6 Complainants did not appeal the FEC's dismissal.

C. The FEC's Disclosure Decision

On April 19, 2001, the FEC notified Plaintiffs that it intended to make publicly available a portion of the investigatory file pertaining to the complaints filed against Plaintiffs. In particular, the FEC informed Plaintiffs that it planned to release some 6,000 pages from the FEC's investigatory file, which totals 45,000 to 55,000 pages.*fn7 The FEC planned to do so by transferring the following documents to microfiche and placing them in its Public Records Room: the eleven complaints filed with the Commission against Plaintiffs, including all attachments; Plaintiffs' responses to the complaints, including all supporting affidavits; all correspondence between Plaintiffs, their counsel and the FEC; motions submitted by parties to the FEC; answers to interrogatories and other discovery requests submitted to the FEC by respondents and witnesses; reports submitted to the FEC by General Counsel; and certifications of all actions taken by the Commission during its investigation.

In three separate letters, of May 4, May 8, and May 11, 2001, Plaintiffs requested that these documents not be made public and explained that they believed disclosure would violate, inter alia, a confidentiality provision of FECA, namely § 437g(a)(12)(A). That provision states in full:

Any notification or investigation made under this section shall not be made public by the Commission or by any person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.

2 U.S.C. § 437g(a)(12)(A). Plaintiffs further explained that the proposed disclosure would reveal confidential and highly sensitive information about how the Democratic Party carries out its political programs and about the AFL-CIO's political activities, strategies and tactics.*fn8 Plaintiffs also argued that because the documents contain names and identifying information of hundreds of Plaintiffs' employees, officials, and volunteers, disclosure would violate FOIA Exemptions 4 and 7(C).*fn9

The FEC denied Plaintiffs' requests on July 10, 2001, on the grounds that FECA and FOIA required disclosure of the investigative file.*fn10 Plaintiffs filed this action seeking to enjoin disclosure of these documents. On July 17, 2001, the Court entered a preliminary injunction, which was consented to by all parties and which prohibited disclosure of the documents in question.*fn11


The parties have filed motions for summary judgment. Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)

Furthermore, because this action is a challenge to the FEC's decision to disclose documents, it, like other agency actions, is reviewed under the arbitrary and capricious standard of the APA. See 5 U.S.C. § 706(2)(A).


A. The FEC's Disclosure Decision Is Not Entitled to Chevron Deference Because The Plain Meaning of § 437g(a)(12)(A) Prohibits Disclosure.

Plaintiffs' principal argument is that § 437g(a)(12)(A) of FECA, which is the statute's confidentiality provision, unambiguously prohibits disclosure of the investigative file. As this case involves the question of the FEC's interpretation of a provision of FECA, the Court proceeds according to the familiar two-step inquiry of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)

Under the first step of Chevron, the reviewing court must ascertain the plain meaning of the statute. To that end, a court "must first exhaust the `traditional tools of statutory construction,' to determine whether Congress has spoken to the precise question at issue." Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995) (quoting Chevron, 467 U.S. at 843 n.9). In particular, a court considers the text of the particular provision under examination, its statutory context, and its purpose. American Bankers Association v. National Credit Union Administration, 271 F.3d 262, 265 (D.C. Cir. 2001); County of Los Angeles v. Shalala, 192 F.3d 1005, 1014 (D.C. Cir. 1999); Southern California Edison Co. v. FERC, 116 F.3d 507, 515 (D.C. Cir. 1997); If this search yields a clear result, then Congress has expressed its intention as to the question, and deference is not appropriate. See Hammontree v. NLRB, 894 F.2d 438, 441 (D.C. Cir. 1990). If, however, "the statute is silent or ambiguous with respect to the specific issue," Chevron, 467 U.S. at 843, Congress has not spoken clearly, and the Court proceeds to the second step of Chevron. At that stage, a permissible agency interpretation of the statute merits judicial deference. Id.

As discussed below, upon examination of the traditional tools of statutory construction, including a review of the text, legislative purpose, and statutory context of § 437g(a)(12)(A), the Court concludes that the plain meaning of § 437g(a)(12)(A) ...

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