United States District Court, District of Columbia
E. Boasberg United States District Judge.
third party ever intervene to defend an election-related suit
in which the government agency has defaulted? Plaintiffs
Campaign Legal Center and one of its directors brought this
case against the Federal Election Commission, challenging the
FEC's dismissal of CLC's administrative complaint
regarding Hillary Clinton's 2016 presidential campaign.
The Commission, however, could not garner the four votes
needed to defend its dismissal in this Court. And now the
respondents to CLC's administrative complaint - Correct
the Record, a political-action committee, and Hillary for
America - have moved to intervene as defendants here. The
result, then, is that Intervenors would effectively take the
defaulting FEC's place in this suit. Although this is an
unusual request, the Court will grant the Motion over
Federal Election Campaign Act, in addition to creating
substantive campaign-finance law, sets out the scheme for its
enforcement: “Any person who believes a violation of
[FECA] . . . has occurred may file a complaint with the
Commission.” 52 U.S.C. § 30109(a)(1). The Federal
Election Commission, made up of six politically diverse
voting members, id. § 30106(a)(1)-(2), must in
turn notify the “person alleged in the complaint to
have committed such a violation.” Id. §
period for that respondent to rebut the complaint, the
Commission votes as to whether it “has reason to
believe” that the respondent violated FECA.
Id. § 30109(a)(2). It is aided in this
determination by briefs submitted by its Office of General
Counsel and the respondent stating their respective positions
“on the legal and factual issues of the case.”
Id. § 30109(a)(3). Four Commissioners must vote
in the affirmative for the case to move on to an
investigation. Id. § 30109(a)(2). If the
Commission does not so find and thus dismisses the
administrative complaint, the complainant may then
“file a petition with the United States District Court
for the District of Columbia” within 60 days of the
dismissal. Id. § 30109(a)(8)(A)-(B). The
Commission must again have four affirmative votes to defend
this civil action against the dismissal order. Id.
§§ 30106(c), 30107(a)(6).
Court's review of such a petition is limited: it
“may declare that the dismissal of the complaint or the
failure to act [was] contrary to law, ” id.
§ 30109(a)(8)(C) - that is, it “may not disturb a
Commission decision to dismiss a complaint unless the
dismissal was based on an ‘impermissible interpretation
of the Act . . . or was arbitrary or capricious, or an abuse
of discretion.” Common Cause v. FEC, 108 F.3d
413, 415 (D.C. Cir. 1997) (omission in original) (quoting
Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)).
If the Court does find that the dismissal was contrary to
law, “[it] may direct the Commission to conform with
such declaration within 30 days.” 52 U.S.C. §
had all six voting Commissioners for several years leading up
to 2017. All Commissioners, Federal Election
(last visited Nov. 6, 2019). But as of June 2019, when it
voted on the complaint at issue in this case, it was two
voting members short. Id. (Although not relevant
here, the Court notes that in August 2019, a third
Commissioner left, leaving three vacant spots that have yet
to be filled. Id.)
October 2016, CLC filed an administrative complaint with the
FEC, alleging that Hillary for America and Correct the Record
had violated FECA's rules for “coordinated
expenditures” between campaigns and political-action
committees. The FEC grouped this complaint with similar ones
filed by other persons, and OGC recommended that the
Commissioners find reason to believe HFA and CTR had violated
FECA. See ECF No. 10 (Motion to Intervene), Exh. 3
(Office of General Counsel Report) at 27. The Commissioners
split 2-2, however, and so did not have the four votes needed
to proceed. See ECF No. 10-5 (Proposed Motion to
Dismiss), Exh. D (FEC Certification) at 1. They consequently
dismissed the administrative complaints. Id. at 4.
August of this year, CLC and one of its directors, Catherine
Hinckley Kelley, filed suit in this Court challenging the
FEC's dismissal order as “contrary to law”
per 52 U.S.C. § 30109(a)(8). See ECF No. 1
(Complaint) at 22-23. Plaintiffs, whom the Court will jointly
refer to as CLC, have since amended their Complaint.
See ECF No. 15.
FEC, however, failed to garner the four affirmative votes
required by 52 U.S.C. §§ 30106(c) and 30107(a)(6)
for the agency to defend this civil suit. See FEC
Certification at 3. The vote was 3-1, with Chair Weintraub
dissenting. Id.; see also Statement of
Reasons of Chair Ellen L. Weintraub, Federal Election
Commission (Sept. 20, 2019), https://eqs.fec.gov/
eqsdocsMUR/69402.pdf (hereinafter Weintraub SOR). An entry of
default against it will thus ultimately ensue. See
October of this year, HFA and CTR moved to intervene as
Defendants, arguing for intervention of right or, in the
alternative, permissive intervention. CLC opposes the Motion.
Rule of Civil Procedure 24(a) addresses intervention of
right, and Rule 24(b) covers permissive intervention. The
former requires the Court to allow intervention by
anyone who “claims an interest relating to the . . .
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.” Fed.R.Civ.P. 24(a)(2). In this Circuit,
then, a movant must fulfill four requirements: “(1) the
application to intervene must be timely; (2) the applicant
must demonstrate a legally protected interest in the action;
(3) the action must threaten to impair that interest; and (4)
no party to the action can be an adequate representative of
the applicant's interests.” Deutsche Bank
Nat'l Trust Co. v. FDIC, 717 F.3d 189, 192 (D.C.
Cir. 2013) (quoting Karsner v. Lothian, 532 F.3d
876, 885 (D.C. Cir. 2008)). In addition, movants for
intervention in the D.C. Circuit are required “to
demonstrate Article III standing.” Crossroads
Grassroots Policy Strategies v. FEC, 788 F.3d 312, 316
(D.C. Cir. 2015).
24(b), conversely, allows the Court to grant
intervention where the intervenor makes a timely motion and
“has a claim or defense that shares with the main
action a common question of law or fact.” Fed.R.Civ.P.
24(b)(1)(B). It also “must consider whether the
intervention will unduly delay or ...