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Citizens For Responsibility and Ethics In Washington, et al v. Federal Election Commission

August 1, 2011

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, ET AL., PLAINTIFFS,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington (CREW) and its Executive Director, Melanie Sloan, bring this suit alleging that the Federal Election Commission wrongfully dismissed their administrative complaint. In addition, they claim that the Commission did not provide timely notice of the dismissal or the reasons therefor. Because Plaintiffs have not sufficiently articulated a concrete and particularized injury, they lack standing to pursue these claims.*fn1

I.Factual Background

A. FECA

The Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431 et seq., as amended by the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, seeks to remedy any actual or perceived corruption of the political process through contribution and expenditure limitations as well as recordkeeping and disclosure requirements. See Federal Election Commission v. Akins, 524 U.S. 11, 14 (1998). The Federal Election Commission (FEC) is the independent, executive-branch agency that oversees the implementation and administration of FECA. 2 U.S.C. § 437c. The Commission is composed of six voting members, no more than three of whom may be affiliated with the same political party, who are appointed by the President and confirmed by the Senate. § 437c(a)(1).

The FEC is the exclusive civil enforcement authority for violations of FECA. §§ 437c(b)(1); 437d(e). Any person who believes that a violation of the Act has occurred may file a signed and sworn complaint with the FEC. § 437g(a)(1). Upon receipt of a complaint, the FEC must, within five days, notify the person or persons alleged in the complaint to have committed such a violation. Id. The subjects of the complaint then have fifteen days to demonstrate to the FEC that no action should be taken against them on the basis of the complaint. Id. If the Commission determines, by a vote of at least four of its members, that it has "reason to believe that a person has committed, or is about to commit, a violation," the Commission must conduct an investigation. § 437g(a)(2). After the investigation, the General Counsel of the Commission then makes a recommendation regarding how to proceed by filing with the Commission a "brief stating the position of the general counsel on the legal and factual issues of the case." § 437g(a)(3). After considering this recommendation, the Commission then determines how to proceed -- e.g., it may dismiss the complaint, attempt to correct or prevent the violation, enter into a conciliation agreement with any person involved, or institute enforcement proceedings up to and including a civil suit in federal district court against the violators. See §§ 437g(a)(4)-(6).

If at any time the Commission votes to dismiss a complaint filed under § 437g(a)(1), the filer may seek judicial review. § 437g(a)(8). Section 437g(a)(8) provides the timeline and legal standard for such an action:

(A) Any party aggrieved by an order of the Commission dismissing a complaint filed by such party under paragraph (1), or by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition with the United States District Court for the District of Columbia.

(B) Any petition under subparagraph (A) shall be filed, in the case of a dismissal of a complaint by the Commission, within 60 days after the date of the dismissal.

(C) In any proceeding under this paragraph the court may declare that the dismissal of the complaint or the failure to act is contrary to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.

In determining whether the Commission's decision to dismiss a complaint (also known as a "Matter Under Review" or "MUR") was contrary to law, the Court may review the General Counsel's brief in cases where the General Counsel recommended dismissal, see FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 38 n.19 (1981), or the Commission's "Statement of Reasons" in cases where the Commission declined to follow the General Counsel's recommendation to proceed with the case. See Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997).

B. CREW

CREW is a § 501(c)(3) non-profit corporation that "uses a combination of research, litigation, and advocacy to advance its mission" of "ensuring the integrity of government officials and [] protecting the right of citizens to be informed about the activities of government officials." Am. Compl., ¶ 5. In furtherance of this goal, CREW and its Executive Director, Plaintiff Melanie Sloan, "monitor[] the campaign finance activities of those who run for federal office and publicize[] those who violate federal campaign finance laws through its website, press releases, reports, and other methods of distribution." Id. at ¶ 6. CREW also "files complaints with the FEC when it discovers violations" of FECA. Id.

C. The Current Action

Plaintiffs initiated this case on August 11, 2010, and filed their Amended Complaint on October 28, 2010. Plaintiffs' claims arise from the FEC's decision to dismiss MUR 5908, an administrative complaint Plaintiffs filed against Peace Through Strength Political Action Committee (PTS PAC) and its treasurer, Meredith Kelley, on March 14, 2007. Id., ¶ 33; Opp., Exh. 1 (Federal Election Commission Complaint In the Matter of: Peace through Strength PAC and Meredith Kelley, Treasurer).

PTS PAC was the political action committee of Representative Duncan Hunter, who was a candidate for President of the United States during the 2008 election. Am. Compl., ¶ 33. Plaintiffs generally complained that PTS PAC provided support to Hunter, in violation of FECA, both during the "testing the waters" phase before he officially entered the presidential race, as well as after he registered his principal campaign committee, Hunter for President (also called the Hunter Committee). See FEC Complaint. More specifically, Plaintiffs' administrative complaint alleged four separate counts against PTS PAC. First, Plaintiffs alleged that Hunter "traveled extensively to early presidential primary states . . . using PTS PAC to 'test the waters' for his presidential candidacy," id., ¶ 25; by receiving 11 individual contributions (totaling $52,650) that exceeded FECA's $2,300 individual contribution limit to an individual engaged in "testing the waters," PTS PAC knowingly accepted $27,350 in excessive contributions in violation § 441a(f). Id., ¶ 27. Second, Plaintiffs alleged that because PTS PAC expended over $5,000 on advertisements designed to publicize Hunter's intention to campaign for federal office, it was required to register with the FEC as Hunter's principal campaign committee, but failed to do so in violation of § 433(a). Id., ¶¶ 23-31. Third, Plaintiffs alleged that by paying an amount in excess of $5,000 for PTS PAC advertisements featuring Hunter after the formation of Hunter for President, PTS PAC made excessive in-kind contributions to Hunter for President in violation of § 441a(a)(2)(A) and 11 C.F.R. § 110.2(b)(1). Id., ¶¶ 32-35. Finally, Plaintiffs alleged that to the extent PTS PAC had failed to report disbursements for certain television advertisements in December 2006, it violated 11 C.F.R. §§ 104.3(b) and 104.9(a). Id., ¶¶ 36-37.

After reviewing the administrative complaint and PTS PAC's response, the FEC's General Counsel prepared an initial report recommending that the Commission find reason to believe that PTS PAC, Meredith Kelley, Duncan Hunter, Hunter for President, and Treasurer Bruce Young had violated FECA. Opp., Exh. 3 (First General Counsel's Report). The First General Counsel's Report did not address CREW's claims exactly as they appeared in the administrative complaint, but instead found somewhat different violations. Although Plaintiffs' administrative complaint had focused on the advertisements paid for by PTS PAC, this Report concluded that while "the television ads that are the primary focus of the complaint did not constitute an in-kind contribution to Hunter's presidential campaign or cause Hunter to trigger candidate status, it appears that other PTS PAC disbursements did lead to violations of the Act." Id. at 3. Specifically, the General Counsel recommended that the Commission find reason to believe that: (1) Duncan Hunter failed to timely file a Statement of Candidacy and to maintain records of contributions received and expenditures made while he was "testing the waters"; (2) Hunter for President, Inc. and its Treasurer, Bruce Young, failed to report contributions received and expenditures made by Hunter during the "testing the waters" period after it had registered as Hunter's principal campaign committee and was required to file reports of receipts and disbursements with the Commission; and (3) PTS PAC and its Treasurer, Meredith Kelley, made excessive in-kind contributions to Duncan Hunter for his Presidential campaign and that Duncan Hunter and Hunter for President, Inc. and Bruce Young accepted excessive contributions. Id. The potentially excessive in-kind contributions identified in this Report related not to the advertisements funded by PTS PAC, but rather to PTS PAC's funding of Hunter's travel to early primary states during his "testing the waters" phase. Id. at 11. The General Counsel recommended that the Commission "take no action at this time" regarding the allegations that PTS PAC and Meredith Kelley failed to report disbursements for the television advertisements run in December 2006. Id. at 3.

Based on the First General Counsel's Report, the Commission found reason to believe that violations of FECA had occurred, see Am. Compl., ¶ 35, and conducted an investigation of the issues raised by MUR 5908. Following the investigation, the General Counsel prepared her second report to the Commission. See Opp., Exh. 4 (General Counsel's Report #2). Portions of Report #2 are redacted, including some of the General Counsel's recommendations. See, e.g., id. at 3, 13-15. The public portions of this Report, however, reveal that PTS PAC expended $10,243 on Hunter's "testing-the-waters" travel between November 2006 and January 2007, and the "investigation confirmed that PTS PAC violated 2 U.S.C. §§ 441a(a)(2) and 434(b), by making and failing to report excessive in-kind contributions to the Hunter Committee and that Hunter and the Hunter Committee violated 2 U.S.C. §§ 441a(f) and 434, by accepting and failing to report PTS PAC's excessive in-kind contributions." Id. at 2-3. With respect to allegations that Hunter was late in filing his Statement of Candidacy, the General Counsel recommended that "[b]ecause the Statement of Candidacy was only three days late, . . . we are not recommending the Commission pursue a civil penalty for these violations." Id. at 10-11. She again recommended that the Commission find no reason to believe PTS PAC and Meredith Kelley violated §§ 434(b) and 441a(a)(2) with respect to the televisions advertisements. Id. at 15.

Having received both General Counsel's Reports, the FEC voted to dismiss MUR 5908 on June 29, 2010, thereby triggering Plaintiffs' 60-day clock in which to appeal the dismissal. Am. Compl., ¶¶ 47, 36. In its Statement of Reasons for dismissing CREW's administrative complaint, the Commission addressed CREW's allegations regarding excessive contributions and reporting violations. See Mot., Exh. 1 (Statement of Reasons). The Commission explained:

The Commission's investigation indicates that PTS PAC made approximately $10,200 in disbursements for travel expenses incurred during approximately the same time that Congressman Hunter was testing the waters for his presidential campaign. . . . PTS PAC is subject to a maximum contribution limit of $5,000. Therefore, if any of the disbursements at issue were on behalf of the Hunter Committee, they would have resulted in up to $10,200 in in-kind contributions that were not reported, of which up to $5,200 would have been ...


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