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ALLIANCE FOR DEMOCRACY v. FEDERAL ELECTION COMMISSION

ALLIANCE FOR DEMOCRACY, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

I. Introduction

Plaintiffs are the Alliance for Democracy, Hedy Epstein, and Ben Kjelshus. Alliance for Democracy is a non-profit, nonpartisan grassroots organization advocating the full public funding of elections. Compl. ¶ 1. Hedy Epstein and Ben Kjelshus are members of Alliance for Democracy and Missouri voters. Id. ¶¶ 2-3. For the purposes of this Memorandum Opinion, Plaintiffs will be collectively referred to as "Alliance." The Federal Election Commission ("FEC" or "Commission") is the independent agency of the United States Government empowered with exclusive jurisdiction to administer, interpret, and enforce the Federal Election Campaign Act of 1971, as amended ("FECA" or "Act"). See generally 2 U.S.C. §§ 437c(b)(1), 437d(a) and 437g. Plaintiffs allege that the FEC failed to act or delayed in acting with regard to the FEC's investigation of Ashcroft 2000, the Spirit of America PAC, and Garrett Lott, the treasurer of these political action committees.

  II. Background

  The FEC is authorized to institute investigations of possible violations of the FECA. 2 U.S.C. §§ 427g(a)(1) and (2). The FECA permits any person to file a signed, sworn administrative complaint with the FEC alleging a violation of the Act. 2 U.S.C. § 437g(a)(1).

  When a complaint is filed, the FEC notifies the respondents named in the administrative complaint, who are then given an opportunity to respond. 2 U.S.C. § 437g(a)(1). After reviewing the complaint and responses, the FEC then prepares a recommendation, addressing whether there is a "reason to believe" a violation of the FECA has occurred. 2 U.S.C. § 437g(a)(2). If the Commission finds that a reason to believe exists, it can proceed to "make an investigation of [the] alleged violation, which may include a field investigation or audit, in accordance with the provisions of [section 437g(a)]." 2 U.S.C. § 437g(a)(2). At the conclusion of the investigation, the statute authorizes the FEC's General Counsel to recommend that the Commission vote on whether there is "probable cause to believe" that the Act has been violated. 2 U.S.C. § 427g(a)(3). The General Counsel then prepares a report to the Commission recommending what action should be taken. 11 C.F.R. § 111.16. Upon consideration of the briefs and report, the Commission determines whether or not there is "probable cause to believe" a violation has occurred. 2 U.S.C. § 437g(a)(4)(A)(i). If the Commission finds probable cause to believe that a violation has occurred, the Commission is required to attempt to resolve the matter by "informal method of conference, conciliation, and persuasion, and to enter into a conciliation agreement" with the respondents. 2 U.S.C. § 437g(a)(4)(A)(i). The Commission is required to attempt to reach a conciliation agreement for at least 30 days and not more than 90 days. 2 U.S.C. § 437g(a)(4)(A)(i).

  If the Commission is unable to resolve the matter through voluntary conciliation, the Commission may vote to authorize the filing of a de novo civil suit in district court to enforce the Act. If the Commission determines that no violation occurred or dismisses the administrative complaint for some other reason, the complainant has an opportunity to seek judicial review of that determination. 2 U.S.C. § 437g(a)(8)(A). Section 437g(a)(8) also allows a party who has filed an administrative complaint with the Commission to seek judicial review in this Court should the Commission "fail to act" on a complaint within 120 days. 2 U.S.C. § 437g(a)(8)(A). If the Court finds that the Commission's dismissal or failure to act was "contrary to law," it may order the Commission to conform to the Court's decision, but must give the agency 30 days to do so. 2 U.S.C. § 437g(a)(8)(C).

  On March 8, 2001, Alliance filed an administrative complaint. The Commission processed the complaint and sent notification to the respondents, who filed responses with the Commission. Def.'s Mot. Ex. 1-2. On July 10, 2002, the Office of General Counsel submitted a report recommending that the Commission find "reason to believe" that the respondents violated the Act. Id. On July 23, 2002, the Commission decided by a 6 to 0 vote to find "reason to believe" that the Spirit of America PAC and Garrett M. Lott, as treasurer; Ashcroft 2000 and Garrett M. Lott, as treasurer; and another entity violated the Act.

  On April 23, 2003, the FEC's Office of General Counsel submitted the General Counsel's Brief to the Commission, recommending that it find probable cause to believe that the Act has been violated by Ashcroft 2000, Spirit of America PAC, and Garrett Lott. On June 5, 2003, respondents filed a joint reply to the FEC's Brief.

  On July 2, 2003, the Office of General Counsel provided the Commission with another report recommending again that it find probable cause to believe that the Act had been violated by Ashcroft 2000, Garrett Lott, and Sprit of America PAC, and recommending no further action with respect to any other entity.

  The Commission met on July 8, 2003, and requested additional investigation. The General Counsel's Office submitted a supplemental brief on August 25, 2003, and the respondents submitted a reply brief on September 16, 2003. The General Counsel renewed its earlier probable cause recommendation. Id. at 15.

  On September 30, 2003, the Commission found probable cause to believe that Ashcroft 2000 and its treasurer, Garrett Lott, violated 2 U.S.C. §§ 441a(f) and 434(b). Id. at 15-16. The Commission also found probable cause to believe that the Spirit of American PAC and its treasurer, Garrett Lott, violated 2 U.S.C. §§ 441a(a)(2)(A) and 434(b). Id. Following the Commission's probable cause determination, the Commission entered into conciliation negotiations with the respondents. On December 11, 2003, a final conciliation agreement was reached with all of the administrative respondents: Ashcroft 2000, Spirit of America PAC, and Garrett Lott, the treasurer of those political action committees.

  In light of these developments, the FEC argues that plaintiffs have succeeded in the purpose of their lawsuit — spurring the FEC into action — and this case should be dismissed. Plaintiffs argue that this case is not moot because, in addition to injunctive relief, plaintiffs seek a Declaratory Judgment stating that the FEC acted unlawfully in its delay.

  The FEC's Motion to Dismiss for lack of jurisdiction as well as Alliance's Motion to Compel are currently pending. Because this Court must consider jurisdiction in the first instance, the Motion to Dismiss shall be considered first.

  III. Discussion

  A. Because the Commission has completed its final action, this case is moot.

  "Article III, section 2 of the Constitution limits federal courts to deciding `actual ongoing controversies.'" 21st Century Telsis v. FCC, 318 F.3d 192, 198 (D.C. Cir. 2003). A federal court has no "power to render advisory opinions [or] . . . decide questions that cannot affect the rights of the litigants in the case before them." National Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). Given the recent events, there is no relief that the Court could provide under 2 U.S.C. § 437g(a)(8)(C) and the FEC has completed the action sought in plaintiffs' complaint.

  Title 2 U.S.C. § 437g(a)(8) allows for limited judicial review of whether the Commission's "failure to act" on an administrative complaint is "contrary to law." It appears to this Court that the FEC has completed all the actions delay of which could arguably be found "contrary to law" under 2 U.S.C. § 437g(a)(8). Moreover, the FEC has taken action, so it can no longer be said to have "failed to act." 2 U.S.C. § 437g(a)(8)(C). The only relief authorized by the applicable provision is an order in which "the court may ...


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