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Ralph Nader v. Federal Election Commission

November 9, 2011

RALPH NADER, PLAINTIFF,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

Before the Court are plaintiff's Motion [16] for Summary Judgment and defendant's cross-Motion [18] for Summary Judgment. Having carefully considered the Motions, Oppositions, Replies, the entire record in this case, and the applicable law, the Court will grant defendant's Motion for Summary Judgment and deny plaintiff's Motion for Summary Judgment. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.

I.BACKGROUND

In May 2008, former Independent Party Presidential candidate Ralph Nader filed an administrative complaint with the Federal Election Commission ("FEC"). AR at 1. He alleged a conspiracy by many individuals, law firms, and political organizations affiliated with the Democratic Party to deny him and his running mate, Peter Camejo, ballot access in 18 states as candidates for President and Vice President of the United States in the 2004 general election. Id. at 2. This effort allegedly resulted in violations of the Federal Election Campaign Act of 1971, as amended ("FECA" or "Act"). Id. at 3.

Nader's complaint contained three counts. Count 1 alleged that the Democratic National Committee ("DNC"), "18 state or local Democratic Parties, the Kerry--Edwards Campaign, the Ballot Project," and "at least 95 lawyers from 53 law firms" made unreported contributions to the Kerry--Edwards Campaign, in violation of 2 U.S.C. §§ 434, 441a, and 441b. Id. at 90--93. Nader's theory was that the value of the legal services provided by law firms and individual lawyers who assisted in ballot challenges to Nader--Camejo constituted "contributions" to either the DNC or the Kerry--Edwards Campaign, and therefore resulted in violations of FECA's reporting requirements and contribution limits, as well as its ban on corporate contributions. Id. at 91. Count 2 accused the Service Employees International Union ("SEIU") and a Section 527 group called America Coming Together ("ACT") of making unreported contributions in connection with an effort to deny Nader--Camejo ballot access in Oregon, in violation of 2 U.S.C. §§ 441b(a) and 441a(a)(2)(B). Id. at 93--94. Count 3 alleged that several Section 527 organizations violated, inter alia, 2 U.S.C. §§ 434 and 441a by failing to register with the FEC and report contributions. Id. at 95--98.

The FEC assigned Nader's complaint a Matter Under Review ("MUR") number of 6021, and notified him that the "respondent(s)" in the complaint would receive notice within five business days, id. at 576, as is required by FECA. 2 U.S.C. § 437g(a)(1). Although Nader's complaint alleged that hundreds of individuals and entities violated FECA, the agency initially notified only David Thorne (treasurer of Kerry--Edwards 2004, Inc.), AR at 577, and Andrew Tobias (treasurer of the DNC). Id. at 579. The FEC decided to limit the number of persons and entities it would notify because it believed (erroneously) that Nader's complaint was "duplicative of previous MURs dismissing similar allegations," and because limiting the number of notices would "reserve resources" and comport with its "practice of avoiding over-notification." Id. at 1730.06. Also, at some point in the FEC's consideration of Nader's complaint, it assigned to it an "Enforcement Priority System" rating of "70/TIER: 1," indicating that the Nader matter had been deemed, at least initially, to be of a high enforcement priority. See id. at 1730.02; Pl.'s Notice [22] 2.

In September 2008 (and again in January 2009), Mr. Nader supplemented his complaint, naming dozens of additional alleged violators of FECA and adding what amounted to a fourth count, which asserted that Pennsylvania state employees had worked on petition challenges at taxpayer expense to prevent Green Party nominee Carl Romanelli from appearing on the ballot as an Independent candidate for United States Senate in 2006. AR at 609. Also in September 2008, the FEC decided to notify the various Section 527 groups that Nader, in Count 3, claimed had failed to register as political committees. Id. at 729 (American Coming Together ("ACT")), 731 (Uniting People for Victory), 733 (United Progressives for Victory), 735 (National Progress Fund), 737 (Americans for Jobs), 739 (The Ballot Project, Inc.).

In November 2009, the FEC's General Counsel, Thomasenia P. Duncan, submitted a 32-page report to the Commission that recommended, inter alia, that the Commission find no reason to believe that the DNC, the Kerry Committee, their treasurers, or John Kerry personally violated FECA. Id. at 1730.32. The Commission later voted 6-0 in favor of the General Counsel's recommendations, and closed MUR 6021. Id. at 1810--11. Specifically, the Commission made the following findings:

1. Find no reason to believe that the Democratic National Committee, and Andrew Tobias, in his official capacity as treasurer, violated 2 U.S.C. §§ 441a(f), 441b and 434(b).

2. Find no reason to believe that Kerry for President 2004, Inc. and David Thorne, in his official capacity as treasurer, violated 2 U.S.C. §§ 441b, 441a(f) and 434(b).

3. Find no reason to believe that Kerry--Edwards 2004, Inc. and David Thorne, in his official capacity as treasurer, violated 2 U.S.C. §§ 441b, 441a(f) and 434(b).

4. Find no reason to believe that John Kerry violated the Federal Election Campaign Act of 1971, as amended, or the Commission's regulations.

5. Find no reason to believe that America Coming Together violated 2 U.S.C. §§ 434(b) and 441a(a)(1)(A) with respect to the allegation that it made an undisclosed excessive in-kind contribution.

6. Find no reason to believe America Coming Together violated 2 U.S.C. § 433.

7. Dismiss the complaint as to The Ballot Project.

8. Dismiss the complaint as to National Progress Fund, Uniting People for Victory, and Americans for Jobs.

9. Dismiss the complaint as to America Coming Together with respect to the allegation that it violated 2 U.S.C. § 434 by failing to report ballot expenditures.

10. Approve the Factual and Legal Analyses, as recommended in the First General Counsel's Report dated November 30, 2009 . . . .

11. Approve the appropriate letters. 12. Close the MUR 6021 file as to all Respondents and other persons and entities named in the complaint, as supplemented.

Id. at 1810--11.

After MUR 6021 was closed, Nader filed this complaint in this Court for wrongful dismissal pursuant to 2 U.S.C. § 437g(8)(A). Compl. [1] 30. Nader claimed that the FEC's decision was contrary to law, arbitrary and capricious, and an abuse of discretion because the agency failed to notify all of the respondents named in the administrative complaint and because its decision to dismiss the complaint as to certain respondents and close the MUR was unsupported. Id. at 1--2.

II.STANDARD OF REVIEW

Congress passed the Federal Election Campaign Act of 1971 as a "comprehensive approach to the problem of political campaign reform and excessively high campaign costs. Its provisions deal with the communications media, campaign contributions, disclosure and reporting requirements, and tax incentives to encourage the small donor to contribute to the candidate or party of his choice." Hernstadt ...


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