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

United States District Court, District of Columbia

March 29, 2019


         Re Document Nos. 12, 13




         This case concerns the degree to which the Federal Election Commission (“FEC”) can shield an enforcement action from judicial review by invoking its discretion to bring that action in the first place. Plaintiffs, Citizens for Responsibility and Ethics in Washington (“CREW”) and Noah Bookbinder, CREW's executive director, initiated this action against the FEC under the Federal Election Campaign Act (“FECA”). They argue that the FEC improperly dismissed their administrative complaint against New Models, a non-profit entity based in Washington, D.C. According to Plaintiffs, New Models failed to register and report as a “political committee” in 2012, in violation of FECA, yet the FEC declined to investigate that violation. The FEC Commissioners charged with explaining the dismissal justified the FEC's action with a lengthy analysis of statutory text and case law. They also, however, stated that dismissal was appropriate because pursing an investigation of New Models would not be an appropriate use of the FEC's limited resources. In other words, they invoked the FEC's “prosecutorial discretion” to decline enforcing FECA against New Models.

         Pending before the Court are the parties' ripe cross-motions for summary judgment. The FEC argues, relying heavily on a recent D.C. Circuit decision, that because the Commissioners exercised prosecutorial discretion to dismiss Plaintiffs' administrative complaint, this Court is barred from reviewing any portion of that dismissal. Plaintiffs resist the application of that “magic words” standard, and the Court is sympathetic to Plaintiffs' concerns. However, having reviewed the relevant case law and the parties' briefing, the Court concludes that, at least in this case, it cannot review the FEC's invocation of its unreviewable discretion. Thus, for the reasons stated more fully below, the FEC's motion for summary judgment is granted and Plaintiffs' motion for summary judgment is denied.


         A. Statutory and Regulatory Framework

         1. Federal Election Campaign Act

         Congress enacted FECA, 52 U.S.C. §§ 30101-30126, to prevent money from corrupting or appearing to corrupt the positions taken by candidates for federal office, and those candidates' actions while in office. See generally Citizens United v. FEC, 558 U.S. 310, 370-71 (2010). In pursuit of this goal, FECA limits the amount of money that individual donors may contribute to particular types of election-related causes. See, e.g., 52 U.S.C. § 30116(a)(1)(A) (stating that “no person shall make contributions . . . to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $2, 000.”). FECA also requires that certain categories of politically-inclined organizations disclose to the public how they spend their money and-more importantly-where that money comes from. See Id. § 30104.

         This case concerns FECA's disclosure requirements for a specific type of organization: a “political committee.” FECA defines a “political committee” as “any committee, club, association, or other group of persons” that receives “contributions” or makes “expenditures” “aggregating in excess of $1, 000 during a calendar year.” id. § 30101(4)(A). “Contributions” and “expenditures” are in turn defined as payments made with a purpose to “influenc[e] any election for Federal office.” See Id. § 30101(8)(A), (9)(A). The Supreme Court has further narrowed the scope of FECA's rules governing political committees, holding that they cover only “organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976). The FEC determines a group's “major purpose” on a case-by-case basis, taking into account the group's allocation of spending, public and private statements, and overall conduct.[1] See Supplemental Explanation & Justification, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007); Shays v. FEC, 511 F.Supp.2d 19, 23, 30 (D.D.C. 2007). Put simply, then, as it pertains to this case, an organization must register as a political committee if: (1) it receives contributions or makes expenditures of more than $1, 000 in a calendar year for the purpose of influencing a federal election; and (2) its major purpose is the nomination or election of a candidate for federal office.

         Classification as a political committee has significant practical consequences. FECA requires political committees to register with the FEC, hire a treasurer, and keep records of the names and addresses of contributors. See 52 U.S.C. §§ 30102-03. Political committees must also file detailed monthly reports identifying, among other information, the amount of money contributed to the reporting committee by individuals and other political committees, the identities of those individuals and political committees, the amount of money contributed by the reporting committee to other political committees, and the identities of those political committees. See Id. § 30104(b). And once an organization becomes a political committee, it may only terminate its status if it “will no longer receive any contributions or make any disbursements” and “has no outstanding debts or obligations, ” id. § 30103(d)(1), or with the Commission's permission under certain circumstances, see 11 C.F.R. § 102.4. “In sum, regulatory obligations, prohibitions, and First Amendment impingements associated with political-committee status are weighty and extensive.” Administrative Record at 99 (“AR099”), ECF No. 21.

         2. FECA Enforcement

         The FEC (or the “Commission”) protects voters' access to “information ‘as to where political campaign money comes from and how it is spent by the candidate.'” Buckley, 424 U.S. at 66-67 (quoting H.R. Rep. No. 92-564 at 4 (1971)). More specifically, the Commission has the power to “administer, seek to obtain compliance with, and formulate policy with respect to” FECA, and its disclosure requirements. 52 U.S.C. § 30106(b)(1). The Commission is also charged with preventing, investigating, and correcting FECA violations. See Id. 30109(a). FECA provides the Commission with broad investigatory powers in service of that mission, including subpoena power and the power to bring civil actions. See Id. § 30107. The Commission is structurally bipartisan: of the six members, no more than three may be from the same political party. Id. § 30106(a)(1).[2]

         FECA provides the framework by which the Commission must investigate and address FECA violations. First, as happened here, an individual or organization may file a sworn administrative complaint with the Commission asserting that a FECA violation has occurred. See Id. § 30109(a)(1); see also 11 C.F.R. § 111.4.[3] Next, based on the complaint and any FEC Office of General Counsel (“OGC”) recommendations, see 11 C.F.R. § 111.7, the Commissioners vote on whether there is “reason to believe that a person has committed, or is about to commit, ” a FECA violation, 52 U.S.C. § 30109(a)(2). Four votes are required to move forward with an investigation. Id. Thus, if a full complement of six Commissioners participate in the process, three negative “reason to believe” votes may block any investigation or enforcement action. But, as in this case, when fewer than six Commissioners participate, even fewer negative votes may block further action. If four Commissioners find reason to believe that a violation occurred or will occur, the Commission and its OGC must investigate the complaint further. See Id. § 30109(a)(2), (3). After the investigation, the Commissioners must again vote on whether there is “probable cause to believe” that a violation occurred or is about to occur. See Id. § 30109(a)(4). And again, four votes are required. See Id. If the Commission determines that probable cause exists, the OGC attempts to informally and privately resolve the dispute with the alleged violator. See Id. §§ 30109(a)(4)(A)(i)-(B)(i). If those attempts fail, the Commissioners must again vote-and again, four votes are required to move forward-on whether to institute a civil action in federal court. See Id. § 30109(a)(6)(A).[4]

         Congress did not stop there, however. It built into FECA a mechanism for citizens to ensure that the Commission upholds its obligation to safeguard electoral integrity. In a somewhat uncommon legislative step, Congress provided for judicial review of Commission decisions not to enforce FECA.

         The review mechanism works as follows. If the Commissioners deadlock on a “reason to believe” vote, they may vote to dismiss the administrative complaint that prompted the vote. See Id. § 30106(c) (“[T]he affirmative vote of [four] members of the Commission shall be required in order for the Commission to take any [enforcement or other authoritative] action.”); id. § 30109(a)(1) (noting that the Commission may “vote to dismiss” an administrative complaint). At that point, as happened here, the Commissioners who voted not to proceed with the matter (the “Controlling Commissioners”) must issue a statement explaining their reasons. See CREW v. FEC (“CREW/CHGO”), 892 F.3d 434, 437 (D.C. Cir. 2018), petition for reh'g en banc filed, No. 17-5049 (D.C. Cir. July 27, 2018); FEC v. Nat'l Republican Senatorial Comm. (“NRSC”), 966 F.2d 1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC, 842 F.2d 436, 448-49 (D.C. Cir. 1988); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. Cir. 1987). Any “party aggrieved” by the dismissal “may file a petition” for review by a court in this district. 52 U.S.C. § 30109(a)(8)(A). If the reviewing court determines that the Controlling Commissioners acted “contrary to law” in dismissing the complaint, the court must explain that conclusion and direct the Commission to “conform with such declaration within [thirty] days.” See Id. § 30109(a)(8)(C). Finally, if the Commission fails to conform to the court's order within thirty days, the complainant may file a civil action in its own name, in federal court, to remedy the claimed violation. See id.

         B. Factual and Procedural Background

         New Models was incorporated in 2000 as a non-profit organization with the purpose of “research[ing] national issues” and “participat[ing] in issue advocacy when appropriate.” AR094. It “conducted polls, maintained a website that published information about public policy, sponsored and made available polling results and research papers, and made grants to other organizations.” AR095. The Controlling Commissioners determined that from 2002 through 2015, New Models spent approximately $17.2 million. See AR095-96. While the specific uses of most of those funds are unclear, the parties agree that in 2012, New Models contributed approximately $3.1 million to registered political committees, nearly 70% of its spending that year. See Id. Other than a $265, 000 contribution in 2010, see AR095, the record does not indicate that New Models ever donated money to political ...

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