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Doe v. Federal Election Commission

United States District Court, District of Columbia

May 29, 2018

JOHN DOE 1 & JOHN DOE 2, Plaintiffs,



         Plaintiffs John Doe 1 and John Doe 2, a trustee and the trust, challenge the decision of the Federal Election Commission (“FEC”) to disclose their identities when it publicly releases the file pertaining to an investigation that is now closed. Plaintiffs, whose names and identifying information appear in the file, assert that the agency's decision is unlawful because releasing their identities would violate the Federal Election Campaign Act and its regulations, the Freedom of Information Act, and plaintiff's rights under the First Amendment of the U.S. Constitution. They have brought this case under the Administrative Procedure Act and ask the Court to enjoin the agency from disclosing their identities as part of its release of the investigative file.

         For the reasons explained below, the Court will not enjoin defendant's disclosure of plaintiffs' identities pursuant to the agency's disclosure policy.


         The Federal Election Campaign Act (“FECA” or “the Act”) is a statute that imposes extensive recordkeeping and disclosure requirements of campaign contributions in an effort “to remedy corruption of the political process.” FEC v. Akins, 524 U.S. 11, 11 (1998). Among its requirements, the Act prohibits “mak[ing] a contribution in the name of another person or knowingly permit[ting] his name to be used to effect such a contribution” or “knowingly accept[ing] a contribution made by one person in the name of another person.” 52 U.S.C. § 30122. The Act established the Federal Election Commission, and it requires the agency to investigate violations of the Act. 52 U.S.C. §§ 30106(a)-(b), 30107(a). It also sets forth requirements for how the agency's investigations are handled, including the public disclosure of the results of investigations and of the materials and information uncovered in them. See, e.g., 52 USC §§ 30109(a)(12)(A); (a)(4)(B)(ii). This case concerns whether the identities of an individual and an entity, who were not named as respondents in an FEC investigation, but were alleged to have had some role in or connection to the activities being investigated, may be disclosed by the agency as part of the release of its investigative materials.


         On February 27, 2015, the FEC received an administrative complaint from Citizens for Responsibility and Ethics in Washington (“CREW”), alleging that American Conservative Union, Now or Never PAC, the PAC's treasurer James C. Thomas III, and an unknown respondent violated the Federal Election Campaign Act when American Conservative Union made a $1.71 million contribution, which it received from an unknown respondent, to Now or Never PAC. See Pls.' Emergency Mot. for TRO and Prelim. Inj. and Mem. of P. & A. in Supp., (Sealed) [Dkt. # 4], [1] (Redacted) [Dkt. # 13] (“Pls.' Mot.”) at 2-3; Decl. of John Doe 1, (Sealed) [Dkt. # 4-1], (Redacted) [Dkt. # 13-1] ¶ 3; Resp. to Pls.' Mot., (Sealed) [Dkt. # 8] (Redacted) [Dkt. # 16] (“Def's. Opp.”) at 1; see also CREW's Admin. Compl., ¶¶ 1, 13-20, files/legal/murs/6920/17044434345.pdf.

         The agency initiated an investigation based on these allegations, Matter Under Review (“MUR”) 6920, and it identified Government Integrity LLC as the “unknown respondent.” Def.'s Opp. at 1. The FEC's Office of General Counsel (“OCG”) learned through discovery that Government Integrity wired $1.8 million to American Conservative Union on the same day that American Conservative Union sent $1.7 million to Now or Never PAC and that John Doe 2 - which had a relationship with Government Integrity[2] - had transmitted funds to Government Integrity immediately before that.[3] See Third General Counsel's Report (Sept. 15, 2017) at 6,

         On August 10, 2017, the OGC served a subpoena for information on plaintiffs John Doe 1 and John Doe 2. Def.'s Opp. at 1-2. Plaintiffs refused to respond to the subpoena, Def.'s Opp. at 1-2, and on September 15, 2017, the OGC recommended that the Commission find reason to believe that plaintiffs violated 52 U.S.C. § 30122 and authorize the filing of a civil action to enforce the subpoena. Pls.' Reply Mem. in Supp. of Pls.' Mot., (Sealed) [Dkt. # 8]; (Redacted) [Dkt. # 25] (“Pls.' Reply”) at 3; Third General Counsel's Report at 12-13.

         On September 20, 2017, the Commission rejected the OGC recommendation by a vote of 3 to 2. Pls.' Reply at 3; Def.'s Opp. at 2; Certification (Sept. 20, 2017), legal/murs/6920/17044434647.pdf. That same day, the Commission voted 5 to 0 to authorize the OGC to pursue conciliation with American Conservative Union and “pre-probable cause” conciliation with Government Integrity, Now or Never PAC, and Mr. Thomas. Id. Finally, it voted 5 to 0 to “[t]ake no action at this time on the remaining recommendations” of the OGC. Id. The FEC did not inform plaintiffs of the OGC's allegations and recommendations. Pls.' Reply at 3-4.

         Thereafter, the agency entered into conciliation discussions with respondents to the investigation and ultimately reached a conciliation agreement with them. See Def.'s Opp. at 2; Pls.' Reply at 4. On October 24, 2017, the Commission voted unanimously to approve the conciliation agreement, which involved Government Integrity, American Conservative Union, Now or Never PAC, and James C. Thomas III. Def.'s Opp. at 2; Certification (Oct. 24, 2017), That agreement concluded MUR 6920. Id. Government Integrity agreed not to contest the Commission's finding against it any further, and the respondents collectively agreed to pay a civil penalty of $350, 000. Def.'s Opp. at 2.

         On November 3, 2017, the FEC notified CREW of the results of its investigation, advising that:

the Commission found that there was probable cause to believe American Conservative Union violated 52 U.S.C. § 30122 . . . . The Commission also found reason to believe that Government Integrity, LLC, violated 52 U.S.C. § 30122; that Now or Never PAC and James C. Thomas, III in his official capacity as treasurer knowingly and willfully violated 52 U.S.C. §§ 30122 and 30104(b); and that James C. Thomas, III knowingly and willfully violated 52 U.S.C. §§ 30122 and 30104(b).

         Letter from Antoinette Fuoto, FEC, to Anne L. Weismann, CREW (Nov. 3, 2017), (“FEC Closing Letter”), at 1.

         The FEC also advised that pursuant to its disclosure policy, “[d]ocuments related to the case [would] be placed on the public record within 30 days” - or by December 3, 2017. FEC Closing Letter at 1, citing Disclosure of Certain Documents in Enforcement and Other Matters, 81 Fed. Reg. 50, 702 (Aug. 2, 2016) (“Disclosure Policy”).

         Counsel for plaintiffs and counsel for Government Integrity objected to the publication of their clients' names and identifying information in connection with the release of the investigative file. Pls.' Mot. at 3. While the agency was considering these objections, and after the 30-day deadline to release the investigation file had passed, CREW contacted the agency to ask when it would publish the file. Def.'s Opp. at 3.

         On December 12, 2017, the FEC told counsel for Government Integrity that, pursuant to its disclosure policy, the agency would not redact plaintiffs' names when it released the investigative file. Pls.' Mot. at 3. Two days later, on December 14, the FEC advised plaintiffs' counsel of this decision. Pls.' Reply at 4; Def.'s Opp. at 3. Plaintiffs asked the agency to wait two business days to publish the file, and the agency agreed to wait until December 18, 2017 at 5:00 p.m. or later to do so. Pls.' Mot. at 4; Def.'s Opp. at 3.

         On the next day, December 15, 2017, plaintiffs filed this lawsuit. Compl., (Sealed) [Dkt. # 1]; (Redacted) [Dkt. # 12]; Pls.' Mot. They filed a sealed complaint and a sealed motion for a temporary restraining order, asking the Court to enjoin the agency from releasing their identities in its investigative file. On December 18, 2017, defendant filed its opposition to plaintiffs' motion, Def.'s Opp., and on that day, the Court held a sealed hearing in which the FEC agreed to redact plaintiffs' names and any other identifying information from its investigative file and not publish the redacted information until further order of the Court in this case. Min. Order (Dec. 18. 2017). In light of that agreement, the Court denied plaintiffs' motion for a temporary restraining order as moot and consolidated the motion for a preliminary injunction with the merits of the case. Id., citing Fed. R. Civ. Proc. 65.

         On December 19, 2017, Commissioner Ellen Weintraub released through Twitter a redacted version of a Statement of Reasons concerning this matter and the September 20 vote of 2 to 3 against authorizing action to enforce the subpoena against plaintiffs. Pls.' Reply, Ex. C; Commissioner Weintraub Statement of Reasons, 17044435456.pdf (“Weintraub Statement of Reasons”). On December 20, 2017, Commission Vice Chair Caroline Hunter and Commissioner Lee Goodman issued their own Statement of Reasons about the vote. Statement of Reasons (Dec. 20, 2017), murs/6920/17044435563.pdf (“Hunter and Goodman Statement of Reasons”).

         On December 22, 2017, defendant filed notice with the Court that it had published a redacted version of the investigative file. Notice [Dkt. # 20]. On January 3, 2018, plaintiffs filed their reply in support of their motion. Pls.' Reply. Finally, on February 12, 2018, CREW filed an amicus brief in this matter.[4] Brief of CREW and Anne Weismann as Amici Curiae [Dkt. # 45].


         The Administrative Procedure Act (“APA”) establishes the scope of judicial review of agency action. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 545-49 (1978). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” in excess of statutory authority, or “without observance of procedure required by law.” 5 U.S.C. §§ 706(2)(A), (C) and (D).

         Courts are required to analyze an agency's interpretation of a statute by following the two-step procedure set forth in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). First, the court must determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If the court concludes that the statute is either silent or ambiguous, the second step of the court's review process is to determine whether the interpretation proffered by the agency is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.

         Once a reviewing court reaches the second step, it must accord “considerable weight” to an executive agency's construction of a statutory scheme it has been “entrusted to administer.” Id. at 844. “[U]nder Chevron, courts are bound to uphold an agency interpretation as long as it is reasonable - regardless whether there may be other reasonable or, even more reasonable, views.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998). And the court must defer to an agency's reading of its own regulations unless it is “plainly erroneous or inconsistent with the regulation.” Id. at 1320 (internal quotation marks omitted).


         The Federal Election Campaign Act has a number of provisions that address the confidentiality of investigation materials. The Court has concluded that the issue cannot be resolved at the Chevron step one stage, since none of the statutory provision cited by the parties speaks directly to the matter.

         I. Disclosure in this case is neither barred by 52 U.S.C. § 30109(a)(4)(B)(i), as plaintiffs contend, nor required by section 30109(a)(4)(B)(ii), as the FEC contends.

         The Federal Election Commission's administrative enforcement authority is set forth in 52 U.S.C § 30109. Subsection (a)(4) specifies the informal methods and procedures the agency may invoke to correct or prevent violations of FECA. Id. at § 30109(a)(4). Subsection (a)(4)(A) requires the FEC to attempt to correct or prevent a violation through a number of informal methods, and it authorizes the agency to enter into conciliation agreements with any person involved. Id. at § 30109(a)(4)(A). “A conciliation agreement, unless violated, is a complete bar to any further action by the Commission.” Id.

         The Commission seeks to disclose its investigative file for MUR 6920 pursuant to subsection (a)(4)(B), which governs disclosures by the agency within the context of these conciliation attempts and agreements. Def.'s Opp. at 4. Subsection (a)(4)(B)(i) states the following with regard to conciliation attempts:

No action by the Commission or any person, and no information derived, in connection with any conciliation attempt by the Commission under subparagraph (A) may be made public by the Commission without the ...

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