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Campaign Legal Center v. Federal Election Commission

United States District Court, District of Columbia

November 15, 2019

CAMPAIGN LEGAL CENTER, et al., Plaintiffs,
v.
FEDERAL ELECTION COMMISSION, Defendant.

          MEMORANDUM OPINION

          James E. Boasberg United States District Judge.

         Can a 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 CLC's objection.

         I. Background

         The 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. § 30109(a)(1).

         After a 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).

         This 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. § 30109(a)(8)(C).

         The FEC had all six voting Commissioners for several years leading up to 2017. All Commissioners, Federal Election Commission, https://www.fec.gov/about/leadership-and-structure/commissioners/ (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.)

         In 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.

         In 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.

         The 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 Fed.R.Civ.P. 55(a).

         In 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.

         II. Legal Standard

         Federal 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).

         Rule 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 ...


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