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
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.
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
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) ...