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Citizens for Responsibility and Ethics in Washington v. Federal Election Commission

November 14, 2005


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") filed this action under the Federal Election Campaigns Act ("FECA"), 2 U.S.C. § 431 et seq. CREW seeks judicial review, as a party "aggrieved" under 2 U.S.C. § 437(g)(a)(8)(A), of defendant Federal Election Commission's ("FEC") decision to dismiss CREW's administrative complaint. Presently before the Court is the FEC's motion for summary judgment. For the reasons discussed below, the Court will grant the FEC's motion.


CREW is a non-partisan, non-profit watchdog entity organized under 26 U.S.C. § 501(c)(3) of the Internal Revenue Code. Sloan Decl. at ¶ 2; Def.'s Statement of Material Facts as to Which There is No Genuine Issue ("Def.'s Statement") at 1 ¶ 2. CREW is not comprised of members who are eligible to vote, does not participate in political campaigns, does not contribute to political campaigns, and is legally foreclosed from doing so because of its status as a § 501(c)(3) entity. Def.'s Statement at 1 ¶ 2. CREW describes its core mission as protecting the citizenry's right to be informed of the activities of government officials and "ensuring the integrity of government officials." Pl.'s Mem. Opp'n to Def.'s Mot. Summ. J. ("Pl.'s Mem. Opp'n") at 5; see also Sloan Decl. at ¶ 2. To achieve this goal, CREW utilizes a number of tools designed to "empower citizens to have an influential voice in government decisions and in the government decision-making process," the most significant of which is the "dissemination of information" to the voting public. Pl.'s Mem. Opp'n at 5; see also Sloan Decl. at ¶ 2.

As part of its mission, CREW seeks "to expose unethical and illegal conduct of government officials" and files complaints with the FEC against alleged violators of federal campaign finance laws. Pl.'s Mem. Opp'n at 5; Sloan Decl. at ¶ 3. On February 4, 2004, CREW filed such a complaint against President George W. Bush's 2004 presidential campaign ("Bush-Cheney '04") as well as the campaign's manager and treasurer, Kenneth Mehlman and David Herndon, respectively. See Def.'s Exh. A at 1-2; Def.'s Statement at ¶ 6. The complaint also named Americans for Tax Reform ("ATR") and the organization's president, Grover Norquist. Def.'s Exh. A; see also Def.'s Statement at ¶ 6; Sloan Decl. at ¶ 4. Specifically, CREW alleged that a master contact list, containing the names and contact information of conservative activists, had been provided by Norquist to Mehlman, who then passed it on to Bush-Cheney '04. Def.'s Exh. A at 1-2. CREW asserted that this master contact list constituted an in-kind contribution under FECA. Id. at 2. The complaint was entirely based on a Washington Post article that was written by a journalist who had witnessed the exchange. See Laura Blumenfeld, Sowing the Seeds of GOP Domination: Conservative Norquist Cultivates Grass Roots Beyond the Beltway, WASH. POST, Jan. 12, 2004, at A01 ("Def.'s Exh. B").

CREW challenged the legality of the in-kind contribution on several fronts: (1) if the list was actually provided by ATR, with Norquist only acting as a messenger, then it constituted an illegal corporate contribution under 2 U.S.C. § 441b(a); (2) if, on the other hand, Norquist contributed the list personally, then it constituted an excessive contribution by an individual under 2 U.S.C. § 441a(a)(1)(A); and (3) regardless of the identity of the actual contributor, Bush-Cheney '04, Mehlman, and Herndon violated FECA by not reporting the in-kind contribution as required by 2 U.S.C. § 434 (a)-(b). Def.'s Exh. A at 2. After an investigation, the FEC agreed that the contact list constituted an in-kind contribution under FECA, id., and ultimately found reason to believe that Bush-Cheney '04, Mehlman, Herndon, and ATR violated § 441b(a), id. at 10, and that Bush-Cheney '04 and Herndon violated § 434(b), id. at 11. However, the FEC utilized its prosecutorial discretion to close the investigation and dismiss CREW's complaint because the value of the list "appear[ed] to be limited in size and impact." Id. at 3-4. Because the individuals named on the list were already active supporters of conservative causes, the FEC surmised that they were probably already aware of and involved in Bush-Cheney '04's efforts. Id. at 10-11. Furthermore, the FEC found that Bush-Cheney '04 probably already possessed some of the materials, and that if any of the materials were available through public media -- like ATR's website -- then the already negligible value of the list would be further reduced. Id.

On December 13, 2004, CREW filed a judicial complaint with the Court under FECA, arguing that it is a party "aggrieved" under 2 U.S.C. § 437(g)(a)(8)(A) and challenging the FEC's decision not to pursue further investigation. Compl. at 4 ¶ 11. The FEC filed a motion for summary judgment on April 15, 2005, arguing that CREW lacks standing to pursue this action in an Article III court. Def.'s Mem. Supp. at 3. CREW wants the FEC to require the administrative defendants to assign a monetary value to the list, and to disclose publicly that dollar figure, because CREW claims that without this information, it is unable to accomplish its core mission of public education and voter empowerment through the dissemination of information. Pl.'s Mem. Opp'n at 15-17, 21; see also Sloan Decl. at ¶ 5-8. CREW submits that FECA confers a statutory entitlement to the value of the list because, under FEC v. Akins, 524 U.S. 11 (1998), and Kean for Congress Committee v. FEC, Civil Action No. 04-0007 (D.D.C. Jan. 25, 2005) (memorandum opinion) ("Kean Mem. Op."), this information is helpful for voting purposes. See Pl.'s Mem. Opp'n at 18; see also id. at 24-25. The deprivation of knowledge as to the precise value of the list, CREW claims, has prevented CREW from "receiv[ing] all that it is due from the administrative process." Id. at 23. CREW asserts that this, in turn, constitutes an injury in fact that is sufficient to support informational standing, and that its resources have been drained as a result of its efforts to obtain the value of the list. Id. at 16; see also Sloan Decl. at ¶ 9.

The FEC, in contrast, believes that CREW seeks only the enforcement of the law, Def.'s Mem. Supp. at 16, and that CREW has not suffered any injury in fact, id. at 12-15. Rather, the FEC characterizes any alleged harm as "abstract," Def.'s Reply at 1; "generalized," id. at 3, and "speculati[ve]," id. at 4. According to the FEC, CREW has fallen well short of establishing that it has suffered the requisite programmatic harm to invoke the informational standing doctrine under Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997), because CREW has identified no specific use to which it would put the sought-after information. Def.'s Mem. Supp. at 13-14; Def.'s Reply at 7, 10-12. Instead, the FEC claims that CREW has only identified generic interests in public education and voter empowerment, both of which boil down to a broad interest in having the law enforced and "get[ting] the bad guys." Def.'s Reply at 13 (citing Common Cause, 108 F.3d at 418); see also Def.'s Mem. Supp. at 22-23. The FEC argues that CREW really seeks validation of its own estimated value of the list: because CREW thinks the value of the list is significant, rather than de minimus, it seeks to have the FEC pursue the investigation further. See Def.'s Mem. Supp. at 23.

The FEC further argues that the dollar value of the list is not useful for voting purposes because CREW cannot vote, it has no members who can vote, the 2004 presidential election is complete, President Bush is constitutionally foreclosed from seeking another term, and Vice President Cheney has repeatedly confirmed that he will not run for president. Def.'s Mem. Supp. at 18-21. Any information that is useful in voting, the FEC submits, is already available to CREW -- namely: (1) the knowledge that the FEC found reasonable cause to believe FECA was violated; (2) the knowledge of which FECA provisions were violated; (3) the knowledge of the nature of the illegal contribution; (4) the knowledge that both the FEC and the administrative defendants assessed the list's value as de minimus; and (5) the identity of the organizations and individuals involved. Def.'s Mem. Supp. at 23-24; see also Def.'s Mem. Supp. at 18. Thus, the FEC argues that the specific value of the list is not pertinent to voter education or voter choice, and also notes that the list does not lend itself to precise valuation. Def.'s Reply at 4, 8-9.


Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating that no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

To determine whether there is a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-moving party's statements as true, and accept all evidence and make all inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, a non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its position, id. at 252, although the moving party need only point to the absence of evidence proffered by the non-moving party, Celotex, 477 U.S. at 322. Summary judgment is appropriate if the non-moving party fails to offer "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999).

A motion for summary judgment based on lack of subject matter jurisdiction should not be granted "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Kean Mem. Op. at 8-9. Although the plaintiff is given the benefit of all favorable inferences that may be drawn from the facts alleged, the Court "'has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority,' and [the] plaintiff bears the burden of pleading a claim within the Court's subject matter jurisdiction." Kean Mem. Op. at 9 (citing Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d 9, 13 (D.D.C. 2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. ...

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