FEC v. AFSCME-PQ

On July 10, 1990, the U.S. District Court for the District of Columbia granted the FEC's motion for summary judgment, ruling that the American Federation of State, County and Municipal Employees-P.E.O.P.L.E., Qualified (AFSCME-PQ), the separate segregated fund of AFSCME, and its treasurer, William Lucy, violated the law when they delayed the disclosure of in-kind contributions to the 1982 and 1984 Indiana House campaigns of Representative Frank McCloskey. (Civil Action No. 88-3208.) On October 31, 1991, the court assessed a civil penalty of $2,000 against the defendants.

During September of 1982 and 1984, AFSCME-PQ established telephone banks that were used in part to advocate the election of Representative McCloskey. Instead of reporting these in-kind contributions at the time they were made (i.e., when the services were provided on behalf of the candidate), AFSCME-PQ reported them after it paid the bills for the services, some months after the services were provided.

Although AFSCME-PQ claimed that the in-kind contributions were reported on time (i.e., when the funds were disbursed), the court disagreed, citing the statutory requirement that a committee must disclose the name and address of "each political committee which has received a contribution from the reporting committee during the reporting period, together with the date and amount of any such contribution." 2 U.S.C. §434(b)(6)(B)(i). Because AFSCME-PQ reported on a monthly basis, the contributions should have been disclosed in the months immediately following the making of the contributions, i.e., the operation of the phone banks.

Penalty

In its October 1991 ruling on the penalty, the court observed that, although there was no bad faith by the defendants, "there is always harm to the public when the FECA is violated." Considering the maximum penalty of $10,000 inappropriate here, the court said a $2,000 penalty would serve the public's interest "by punishing a violation of the plain language of the statute." The court declined, however, to permanently enjoin defendants from future violations of 2 U.S.C. §434(b). The court pointed out that defendants cured the violation and have since complied with the reporting provision. Because "there has been no showing of a reasonable likelihood that the defendants will commit future violations," the court decided the public interest would not be substantially advanced by an injunction.

Source: FEC Record, October 1990, p. 7; and January 1992, p. 7.

FEC v. AMERICAN INTERNATIONAL DEMOGRAPHIC SERVICES

On February 10, 1986, the U.S. District Court for the Eastern District of Virginia issued an order permanently enjoining American International Demographic Services, Inc. (A.I.D.S.) and its Vice President, Ernest Halter, from using FEC campaign finance information for commercial purposes. The court imposed a $3,500 civil penalty on the defendants for illegal use of the information. (Civil Action No. 85-0437-A.)

Background

The Federal Election Campaign Act states that "...any information copied from reports or statements may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes, other than using the name and address of any political committee to solicit contributions from such committee." 2 U.S.C. §438(a)(4). While the Commission has allowed FEC information on political committees to be used for contribution solicitations, the agency has forbidden the use of individual contributor information for commercial purposes (e.g., product advertisements) or for solicitations.

The defendants' violation of this provision involved their illegal use of two FEC computer tapes containing individual contributor information that had been disclosed on FEC reports filed by political committees. The tapes had been purchased by Mr. Halter's wife on behalf on the Voter Information Council PAC (VICPAC), a nonconnected political committee she had established in April 1982. (Mrs. Halter claimed she had purchased the tapes to purge outdated information on lists owned by VICPAC and by her.) As part of an agreement A.I.D.S. had entered into with Working Names, Inc., a list management company, Mr. Halter subsequently transferred the two FEC tapes to the company. Working Names used the tapes, along with two other FEC tapes, to create four mailing lists which the company marketed to list brokers and mailers.

The defendants' illegal use of FEC contributor information was discovered by the National Republican Congressional Committee (NRCC) when a direct mail piece was addressed to "Kane Orsell," a fictitious contributor NRCC had listed on a report filed with the FEC. (FEC regulations allow a political committee to "salt" its FEC report with up to ten fictitious names and addresses for purposes of detecting such illegal use of its contributor names. 11 CFR 104.3(e).) The mailing was sent by the American Legislative Exchange Council, which had rented its list of addresses from a broker that Working Names had supplied with lists. (The Council had purchased the list for a one-time use.)

After tracing original ownership of the mailing list back to A.I.D.S., NRCC held a meeting with Mr. Halter in which he agreed, among other things, to take the names of NRCC contributors off the list broker market and to provide NRCC with a list of the direct mail companies that had rented the names. Mr. Halter failed to do any of these things. Consequently, on September 28, 1982, the NRCC filed a complaint against both Mr. Halter and A.I.D.S. with the FEC. After investigating the matter, the FEC found probable cause to believe that the defendants had violated the election law. Subsequently, when defendants failed to enter into a conciliation agreement with the agency, the FEC brought suit against them in the district court.

FEC's Suit

In its suit, the FEC asked the court to declare that Mr. Halter and A.I.D.S. had violated Section 438(a)(4) by using reports filed with the FEC for commercial purposes. Specifically, the FEC asked the court to find that defendants used FEC information to: a) prepare contributor listings they rented to various organizations through a broker and b) increase the commercial value of contributor listings they already had.

Court's Ruling

After examining the evidence presented for its consideration at trial, the court found that "the defendants willfully violated the Act by having Working Names manage the [two FEC computer] tapes for the purpose of renting them out to brokers and mailers." Mr. Halter filed an appeal with the U.S. Court of Appeals, 4th Circuit on March 31, 1986.

Appeals Court Ruling

On February 2, 1987, the U.S. Court of Appeals for the Fourth Circuit dismissed FEC v. Ernest Halter (Appeal No. 86-1560). The court's action responded to Mr. Halter's request for a dismissal of his appeal.

Source: FEC Record, April 1986, p. 8; and April 1987, p. 7.

American International Demographic Services, Inc.: FEC v., 629 F. Supp. 317 (E.D. Va. 1986).

FEC v. AMERICANS FOR JESSE JACKSON

On May 19, 1987, the United States District Court for the District of Maryland issued a consent order in FEC v. Americans for Jesse Jackson (Civil Action No. Y-86-3766). Americans for Jesse Jackson was a 1984 political committee that was not authorized by Presidential primary candidate Jesse Jackson. In the consent order, the parties agreed that Americans for Jesse Jackson violated the Act in several ways:

• The committee failed to file a statement of organization with the Commission after it had spent over $1,000 expressly advocating the election of Presidential candidate Jesse Jackson. 2 U.S.C. §433(a).
• It failed to file the required reports of receipts and expenditures with the Commission. 2 U.S.C. §434.
• It used the name of Jesse Jackson in its name even though the committee was not authorized by the candidate. 2 U.S.C. §432(e)(4).
• It failed to include, on a mail solicitation for contributions, the name of the person who paid for the communication. 2 U.S.C. §441d(a)(3).

The defendant agreed to pay a civil penalty of $500 and to file all outstanding reports with the Committee within 30 days.

Source: FEC Record, August 1987, p. 9.

FEC v. AMERICA'S PAC

In a default judgment entered on January 14, 1993, the U.S. District Court of the Central District of California ordered America's PAC (a state committee) and Neil Barry Rincover, as executive director and acting treasurer, to pay a $25,000 civil penalty for violating the Federal Election Campaign Act. (Civil Action No. CV-92-2747-LGB.)

The court found that defendants failed to forward a $2,000 earmarked contribution from the Physicians Interindemnity/PAC to Bill Press, a U.S. Senate candidate. The acceptance of the earmarked contribution caused America's PAC to become a federal political committee with registration and reporting obligations. The court ruled that the defendants, by failing to fulfill those obligations, violated 2 U.S.C. §§433(a) and 434(a)(1). The court also found that they violated §432(b)(1) by failing to forward the earmarked contribution and the required information to the candidate. Finally, because the check contained corporate funds, the court found that defendants knowingly accepted a prohibited contribution, in violation of §441b(a). They were ordered to pay a $25,000 penalty, refund the $2,000 contribution to the PAC and file a Statement of Organization and required reports, all within 15 days.

Furthermore, given defendants' default in the litigation, the court found there was a likelihood that defendants would repeat the violations and therefore enjoined them from further violations of the provisions cited above.

Contempt Ruling

On May 23, 1994, America's PAC and Mr. Rincover, were held in civil contempt by the district court for failing to comply with the January 1993 default judgment.

Earlier, on April 18, 1994, responding to an FEC petition, the court had ordered the defendants to show cause why they should not be held in contempt. That same day, Mr. Rincover filed a motion to set aside the January 1993 default judgment. (America's PAC never responded to the order to show cause.)

The court, however, rejected Mr. Rincover's motion, finding that his claims did not indicate the "extraordinary circumstances" necessary for the court to set aside a judgment. The court therefore ordered Mr. Rincover and America's PAC to comply with the January 1993 order within 30 days or pay $50 for each day of delay. Exercising its discretion, the court reduced the penalty to $5,000 because all the violations stemmed from a single incident.

Source: FEC Record, April 1993, p. 10; and August 1994, p. 8.

America's PAC: FEC v., No. 92-2747 LGB (Tx) (C.D. Cal. May 23, 1994).

FEC v. ANDERSON FOR SENATOR

Background

On May 7, 1984, the FEC filed suit in the U.S. District Court for the Eastern District of Pennsylvania, seeking action against three defendants: the Tom Anderson for Senator Committee, the principal campaign committee of Mr. Anderson's 1980 Senate campaign; the Pennsylvania Service Station Dealers Association (the Association), an incorporated trade association; and Mary Anderson, the candidate's wife (Civil Action No. 84-2180).

Specifically, the FEC asked the court to declare that:

• By paying Association employees approximately $4,300 in wages for services they provided to the Anderson campaign, the Association made a prohibited in-kind contribution to the campaign, in violation of 2 U.S.C. §441b(a).
• By cosigning a $50,000 campaign loan with Tom Anderson, Mrs. Anderson made a $25,000 contribution to his Senate campaign, thus exceeding the $1,000 contribution limit, in violation of 2 U.S.C. §441a(a)(1)(A).
• By knowingly accepting these unlawful contributions from the Association and Mrs. Anderson, the Anderson campaign violated 2 U.S.C. §441a(f).

Consent Order: Mrs. Anderson

On December 11, 1984, the U.S. District Court for the Eastern District of Pennsylvania issued a consent order resolving claims the Commission had brought against Mary Anderson.

Within 30 days of signing the consent order, Mrs. Anderson agreed to pay a $350 civil penalty to the U.S. Treasury for having exceeded the election law's contributions limits. 2 U.S.C. §441a(a)(1)(A). By cosigning a $50,000 campaign loan with her husband, the candidate, Mrs. Anderson had made a $25,000 contributions to his Senate campaign. The law limits contributions from all individuals, including spouses, to $1,000 per candidate, per election.

Consent Orders: Association and Campaign

During February 1985, the U.S. District Court for the Eastern District of Pennsylvania issued separate consent orders resolving claims the Commission had brought against the Association and the Anderson campaign. Within 30 days of signing their respective consent orders, defendants agreed to comply with the following terms:

• The Pennsylvania-Delaware Service Stations Dealers, Inc. agreed to pay a $1,369 civil penalty to the U.S. Treasury for making a prohibited in-kind contribution
  to the Anderson campaign. The Association had paid employees approximately $4,300 in wages for services they provided to the Anderson campaign.
• The Tom Anderson for Senator Committee agreed to pay a $631 civil penalty for accepting: (1) the prohibited in-kind contribution from the Association and (2) an excessive contribution (in the form of a loan endorsement) from Mrs. Anderson.

Source: FEC Record, July 1984, p. 8; February 1985, p. 6; and August 1985, p. 8.

FEC v. BANK ONE

On May 20, 1987, the United States District Court, Southern District of Ohio, Eastern Division, approved a consent order between the Commission and the defendants in FEC v. Bank One, Columbus, N.A. (Civil Action No. C2-86-1082.) Defendants were: the John Glenn Presidential Committee, Inc., William R. White, treasurer, and Senator John Glenn (Glenn Committee); and Bank One, Columbus, N.A., Ameritrust Company National Association, BancOhio National Bank and the Huntington National Bank (the Banks).

Background

The FEC alleged that $2 million in loans made by the Banks to the Glenn Committee in 1984 were not made on a basis that assured repayment and, therefore, were in violation of 2 U.S.C. §441b(a). After failing to resolve the matter through the conciliation process, the FEC filed suit in federal court on September 9, 1986, and asked the court to find that:

• The four banks violated section 441b(a) of the election law by making prohibited contributions to the Glenn campaign; and
• The Glenn campaign, in turn, violated section 441b(a) of the election law by accepting the contributions.

The FEC also asked the court to assess a civil penalty against each defendant amounting to the greater of $5,000 or 100 percent of the amount involved in each defendant's violation.

Consent Order

The consent order contained the following:

• For purposes of settlement of this litigation only, defendants agreed not to further contest the Commission's allegations that the making and acceptance of the loan was in violation of 2 U.S.C. §441b(a). By agreeing not to further contest the Commission's allegations, defendants did not concede that such allegations were proven by the record or could have been proven at trial.
• In settlement of the litigation, the Glenn Committee agreed to pay $4,000 to the FEC.
• The parties agreed to bear their own costs and fees in this matter.

Source: FEC Record, November 1986, p. 6; and July 1987, p. 5.

Bank One, Columbus, N.A.: FEC v., No. C-2-86-1082 (S.D. Ohio 1987).

FEC v. BEATTY FOR CONGRESS

On January 15, 1987, the U.S. District Court for the Southern District of New York granted the FEC's application for a default judgment in FEC v. Beatty for Congress Committee (Civil Action No. 86-Civ-3894- [RLC]). The court's default judgment decreed that the Beatty for Congress Committee, the principal campaign committee for Vander L. Beatty's 1982 House campaign, and the committee's treasurer, Edward Myers, Jr., violated the election law on several counts.

The court imposed a $5,000 civil penalty on the defendants for each violation and required the defendants to pay the FEC's court costs and attorney's fees. On March 31, 1987, the defendant entered a motion to vacate the default judgment.

On March 21, 1988, the U.S. Court of Appeals for the Second Circuit dismissed the appeal of Mr. Myers in FEC v. Beatty for Congress Committee and Edward Myers (Civil Action No. 88-6011). The FEC and Mr. Myers had filed a Stipulated Dismissal and Settlement Agreement with the court.

Background

On May 16, 1986, the FEC filed suit with the U.S. District Court for the Southern District of New York against the Beatty for Congress Committee and against the committee's treasurer, Mr. Myers. The FEC asked the court to find the defendants in violation of federal campaign finance laws on the following counts:

• Knowingly accepting excessive contributions from individuals and from a political committee (2 U.S.C. §441a(f));
• Knowingly accepting an excessive loan from the candidate's family and failing to report the loan (2 U.S.C. §434(b)(3)(E) and 441a(f) and 11 CFR 104.11(a));
• Accepting prohibited contributions from corporations and labor organizations (2 U.S.C. §441b); and
• Accepting corporate loans and failing to report them (2 U.S.C. §441b and 434(b)(3)(E) and 11 CFR 104.11(a)).

The Commission also asked the court to find the defendants in violation of the FECA's recordkeeping and reporting laws on the following counts:

• Failing to file two 1982 quarterly reports on time (2 U.S.C. §434(a)(2)(A)(iii));
• Failing to file 1982 pre-primary and year-end reports and a 1983 mid-year report (2 U.S.C. §434(a)(2)(A)(i) and (iii) and 434(a)(2)(B)(i));
• Failing to maintain adequate records of contributions (2 U.S.C. §432(c)(1-3));
• Failing to itemize certain contributions and expenditures (2 U.S.C. §434(b)(3-4) and 434(b)(5)(A)); and
• Failing to continuously report two loans until extinguished (11 CFR 104.11(a)).

District Court Ruling

In granting the default judgment against Mr. Myers and the Beatty Committee in January 1987, the court imposed a $5,000 civil penalty for each of the violations. The court denied a motion by Mr. Myers to vacate the default judgment against him in October 1987. Mr. Myers appealed the default judgment to the U.S. Court of Appeals for the Second Circuit.

Court of Appeals

In March 1988, the appeals court dismissed the case after a stipulated agreement was reached between the FEC and Mr. Myers.

By the terms of the agreement, Mr. Myers would withdraw his appeal of the district court's October 1987 decision in the case. The court's decision denied Mr. Myers' motion to set aside the default judgment the court had entered against him in January 1987. That decision had imposed a $5,000 civil penalty on the defendants for each of 17 independent violations of the election law. In addition, the parties agreed that:

• Mr. Myers would pay a $15,000 civil penalty in increments spelled out in the payment schedule contained in the agreement. If he failed to meet the payment schedule within the time frame specified by the agreement, the FEC might reinstate the penalty originally imposed by the district court, plus interest from the entry date of the default judgment.
• After Mr. Myers' final penalty payment, the FEC would file a satisfaction of judgment notice with the court.
• By July 1, 1988, Mr. Myers would file certain original or amended reports for each year between 1983 and 1988. Should Mr. Myers fail to file the reports by July 1, 1988, or if the reports are not adequately filled out, the FEC may increase his civil penalty by $1,000 per month until the reports are filed in compliance with FEC disclosure requirements.
• Upon the acceptable filing of all the Beatty committee's required reports, Mr. Myers would follow FEC procedures for requesting termination of the committee.

Source: FEC Record, June 1986, p. 9; March 1987, p. 6; and June 1988, p. 9.

Beatty for Congress: FEC v., No. 86 Civ. 3894, (S.D.N.Y. Oct 23, 1987) (unpublished opinion).

FEC v. JEFFREY BELL

On April 14, 1980, the U.S. District Court for the District of New Jersey issued a consent judgment agreed to by the Commission and defendant Jeffrey Bell. The Commission had filed suit on January 21, 1980, alleging that the defendant had violated 2 U.S.C. §441a(f) by accepting excessive contributions from his mother, Marjorie Bell, during his 1978 Senatorial campaign in New Jersey. Mr. Bell agreed to pay a civil penalty of $1,500 levied by the court.

Source: FEC Record, June 1980, p. 8.

FEC v. MARJORIE BELL

On April 10, 1980, the U.S. District Court for the District of Columbia issued a consent judgment agreed to by the Commission and defendants Marjorie Bell, the Bell for Senate Committee and its two treasurers, Andrew P. Napolitano and James S. Wagner. The Commission had filed suit on July 20, 1979, claiming that Marjorie Bell had violated the contribution limits of 2 U.S.C. §441a(a)(1)(A) and 441a(a)(3); and that the Bell Committee and its two treasurers had violated 2 U.S.C. §441a(a)(1)(A) and 441a(a)(3); and that the Bell Committee and its two treasurers had violated 2 U.S.C. §441a(f) by knowingly accepting excessive contributions, and 2 U.S.C. §434(b) by failing to report the actual source of the contributions. Marjorie Bell agreed to pay a civil penalty of $500 levied by the court. The Bell for Senate Committee agreed to pay a civil penalty of $4,500 levied against both the Committee and its officers. The Committee also agreed to amend reports filed with the Commission to indicate that Marjorie Bell was the actual source of $52,400 reported as loans from Jeffrey Bell to the Committee.

Source: FEC Record, June 1980, p. 8.

FEC v. BOOKMAN & ASSOCIATES

On May 2, 1989, the U.S. District Court for the Northern District of Georgia, Atlanta Division, issued a final consent order and judgment in FEC v. Ron Bookman & Associates (Civil Action No. 1:88-CV-1807-JTC). The consent order declared that Bookman & Associates, a Georgia corporation, made a $150 contribution to a federal candidate. The Act prohibits corporations from making contributions or expenditures in connection with federal elections. 2 U.S.C. §441b.

The order also declared that Ron Bookman, as president of the company, had violated the law by consenting to the making of the contribution. Section 441b also prohibits corporate officers and executives from consenting to the making of contributions and expenditures.

The consent order included a $500 civil penalty and permanently enjoined the defendants from similar future violations of the Act.

Source: FEC Record, June 1989, p. 8.

FEC v. BRYANT CAMPAIGN COMMITTEE

On September 1, 1989, the U.S. District Court for the Northern District of Texas issued a final consent order and judgment in FEC v. John Bryant Campaign Committee (Civil Action No. CA3-89-1694). The consent order decreed that the committee and its treasurer, Ken Molberg, had violated the election law by accepting a $2,000 excessive contribution from an individual. 2 U.S.C. §441a(f). The order also decreed that the defendants had unlawfully used information contained in another committee's reports for soliciting individuals. 2 U.S.C. §438(a)(4). The consent order included a $500 penalty and a permanent injunction against future similar violations of the law.

Source: FEC Record, November 1989, p. 4.

FEC v. BULL FOR CONGRESS

On June 8, 1990, the U.S. District Court for the District of Maine imposed civil penalties on defendants Chipman C. Bull for Congress, the principal campaign committee for Mr. Bull's 1984 House campaign, and Denise M. Deshane, the committee treasurer, for violating several provisions of the Federal Election Campaign Act. (Civil Action No. 88-0037-B.) In earlier rulings of September 13, 1989, and January 9, 1990, the court found that defendants had violated the law by:

• Knowingly accepting $8,937.50 in excessive contributions from three individuals whose contributions took several formsdirect contributions, guarantees of a $10,000 bank loan and interest payments made on the loan (2 U.S.C. §441a(f));
• Failing to disclose the identification of the three guarantors of the bank loan (§434(b)(3)(E)); and
• Failing to meet the filing deadlines for the two reports covering 1985 activity (§434(a)(2)(B)).

In its June 8 order, the court adopted the civil penalties recommended by a United States Magistrate and assessed a penalty of $18,437.50 against the committee and a $500 penalty against the treasurer.

Source: FEC Record, August 1990, p. 11.

FEC v. CALIFORNIA DEMOCRATIC PARTY

On June 11, 1998, the U.S. District Court for the Eastern District of California denied the California Democratic Party's (CDP's) motion to dismiss a complaint filed against it by the FEC. The FEC alleged that the CDP violated the Federal Election Campaign Act (the Act) when it used only nonfederal funds to pay for a voter registration drive conducted by a ballot measure committee instead of allocating the costs between its federal and nonfederal accounts.

Background

Taxpayers Against Deception-No on 165 (No on 165) was a state political committee organized to defeat a California ballot initiative of the same name. Proposition 165 was designed to reduce state spending on welfare and other social programs and was supported by the state's Republican governor, Pete Wilson. No on 165's strategy was to register prospective voters who supported its efforts to defeat the initiative, and who would likely support Democratic candidates who also were on the ballot during the same electionincluding federal candidates. The CDP ultimately spent $719,000 from its nonfederal account to aid No on 165 in its registration effort, with most of that money being used to register Democratic voters. The CDP did not report the disbursement to the FEC.

The FEC alleged that the CDP used prohibited funds in connection with a federal election, failed to allocate voter registration payments between its federal and nonfederal accounts and failed to report the amounts that should have been allocated. 11 CFR 102.5(a)(1)(i), 104.10(b)(4) and 106.5(d) and 2 U.S.C. §441b(a).

District Court Decision

The court rejected the CDP's arguments for dismissing the case.

The CDP first argued that, since it did not conduct the voter drive, the money it gave to No on 165 was not subject to the allocation regulations. The Commission argued that the CDP's contributions were subject to the regulation because the situation as presented was no different than if the CDP had conducted the voter registration drive itself or hired someone to do so. The court pointed out that the FEC had claimed that the CDP knew that No on 165 would use the money to register Democrats who ostensibly would vote in the general election for both state and federal candidates. Further, the FEC had alleged that No on 165 provided the CDP with weekly updates on the success of the voter drive, with success being measured by the number of Democrats registered. The court said, "it is conceivable that these facts, if proven, could show that the voter registration drive was conducted on behalf of the CDP."

The CDP also argued that it was not subject to the FEC's allocation rules because the voter drive did not urge the support of or opposition to federal candidates. The court rejected this argument because the FEC's regulation at 11 CFR 106.5(a)(2)(iv) explicitly states the opposite, namely that party committees must allocate generic voter drive costs "that urge the general public to register [to vote] without mentioning a specific candidate." The court pointed out that the allocation rules expressly state that no candidate need be mentioned, and that the FEC's interpretation of this rule is entitled to deference.

The CDP also maintained that the FEC did not have the authority to promulgate allocation rules. The court pointed out, however, that the Act's legislative history demonstrates that Congress anticipated the allocation of federal and nonfederal funds when it enacted the 1979 statutory provisions on voter registration activities.

The CDP argued that the allocation regulations as applied are unconstitutional because they restrict the CDP's ability to engage in issue advocacy and curtail its freedom to associate with people with whom it shares the same political leanings. The court stated that the CDP had engaged in activity that went beyond issue advocacy when it contributed money to register Democrats to vote in a federal election. Consequently, the court concluded, the CDP had not shown that the allegations limit its right to engage in issue advocacy.

The court also rejected the CDP's assertion that the regulation impermissibly infringes its freedom of association rights. It stated: "The Supreme Court has made clear that associational rights may beoverborne by the interests Congress has sought to protect in enacting 441b," the provision prohibiting corporate/labor activity. The court added that the regulation is tailored to restrict only funds that would be illegal under 2 U.S.C. §441b.

The court also dismissed former CDP treasurer Gary Paul as a defendant in this case. Mr. Paul was not the committee's treasurer at the time of the alleged violations, and is not currently the treasurer of the CDP.

Source: FEC Record, August 1998, p. 5.

FEC v. CALIFORNIANS FOR A STRONG AMERICA (88-1554)

On November 14, 1988, the U.S. District Court for the Central District of California granted the FEC's motion for a default judgment against the Californians for a Strong America (CSA), a nonconnected political committee, and CSA's treasurer Albert J. Cook. (Civil Action No. 88-1554-AWT.)

In the judgment, the court declared that the defendants had violated 2 U.S.C. §434 (a)(4)(A)(i) and (iv) by failing to file reports covering 1986 activity, that is, two quarterly reports and a year-end report. Accordingly, the court:

• Ordered defendants to pay a $15,000 civil penalty, together with $28.20, to cover the FEC's court costs in the case; and1
• Enjoined defendants from similar violations of the election law in the future.

Source: FEC Record, January 1989, p. 9.

1 See "Contempt Ruling," next column.

FEC v. CALIFORNIANS FOR A STRONG AMERICA (88-6449)

On June 22, 1989, the U.S. District Court for the Central District of California issued a final order and default judgment in FEC v. Californians for a Strong America. (Civil Action No. CV-88-6449-AWT(Ex).) The court decreed that the committee and its treasurer, Albert J. Cook, had violated the election law by:

• Failing to file a 1987 mid-year report on time (2 U.S.C. §434(a)(4)(A)(iv));
• Failing to properly report independent expenditures incurred for radio and television advertisements and fundraising letters advocating the defeat of Senator Alan Cranston in the 1986 Senate election in California (2 U.S.C. §434(b)(6)(B)(iii)); and
• Failing to include a disclaimer notice in at least five solicitation letters (2 U.S.C. §441d(a)(3)).

The court ordered the defendants to comply with the law's reporting requirements within 15 days of the judgment and to pay a civil penalty of $15,000 ($5,000 for each violation). The court also ordered the defendants to pay the FEC's court costs and to refrain from future similar violations of the election law.

Contempt Ruling

On August 13, 1993, the district court held defendants in contempt of court for failing to pay the two $15,000 civil penalties stemming from this and a previous case (No. 88-1554, summarized in the preceding column). By then, the penalties had been outstanding for over three years. In both cases, defendants never responded to the FEC's suits, and the judgments were by default. Defendants also failed to file responses or appear before the court in the contempt proceedings.

The court ordered defendants to pay the penalties, plus accrued back interest, by August 31, 1993. Thereafter, they were to pay an additional $100 per day until they completed payment. Furthermore, if they failed to make full payment by September 30, the court said it would issue a warrant for the arrest of Mr. Cook.

Source: FEC Record, September 1989, p. 8; and October 1993, p. 1.

FEC v. CALIFORNIANS FOR DEMOCRATIC REPRESENTATION

On January 9, 1986, the U.S. District Court for the Central District of California ruled that Californians for Democratic Representation (CDR), a nonprofit organization registered with the California Fair Political Practices Commission, had violated various provisions of the Federal Election Campaign Act in the course of conducting a slate mail program during 1982. (Civil Action No. 85-2086.)

Background

CDR's slate mail program consisted of political ads distributed through direct mail to the general public. In addition to endorsing ballot issues and state and local candidates, CDR's slate mail program endorsed federal candidates active in California's 1982 primary and general elections. Candidates could purchase advertising space from CDR at fair market value. (A candidate's ad might include, for example, his/her photograph and a write-up.) CDR also listed candidates who did not purchase advertising space, at no charge to them.

Court's Ruling

The court ruled that those federal candidates who had paid for advertising space in CDR's slate mailings had not contributed to CDR; nor did their advertising space constitute in-kind contributions from CDR to the candidates.

On the other hand, the court found that costs incurred by CDR for listing federal candidates free of charge in mailings constituted expenditures by CDR on behalf of the candidates, which were subject to the election law. (Nine federal candidates were listed free of charge in mailings for the primary elections, and three candidates were listed in general election mailings.) Accordingly, the court found the CDR had violated the election law by failing to register and report as a political committee when these expenditures exceeded $1,000 during 1982. See 2 U.S.C. §§431(4)(A), 433 and 434.

Finally, the court ruled that CDR's ads failed to state who paid for them and whether or not the candidates had authorized the mailings. See 2 U.S.C. §441d(a).

The court imposed a $15,00 civil penalty on the defendants. Subsequently the court denied defendants' motion to have the penalty reduced.

Source: FEC Record, March 1986, p. 8.

Californians for Democratic Representation: FEC v., No. 85-2086-JMI, (C.D. Cal. Jan. 9, 1986) (unpublished opinion).

FEC v. CAMPAIGN RESOURCE TECHNOLOGIES

On August 3, 1987, the U.S. District Court for the District of Arizona, Tucson Division, approved a final consent order and judgment between the Commission and defendants Campaign Resource Technologies, Inc. (CRT) and John Kaur (Civil Action No. CTV 86-448 TUC ACM).

During the 1983-84 Presidential election cycle, the Bergland for President Committee (the Committee), the principal campaign committee for David Bergland's 1984 Presidential campaign, contracted with CRT for certain campaign services. CRT, in turn, subcontracted certain services to John Kaur, who was doing business as Digitgraph Computer Systems Company (Digitgraph).

In the consent order, defendants CRT and John Kaur agreed that they violated 2 U.S.C. §432(b) by failing to forward to the Committee's treasurer, within 10 days, approximately $6,000 in campaign contribution checks received by CRT and Digitgraph on behalf of the Committee.

The court imposed a $5,000 civil penalty which the defendants agreed to pay within 30 days of filing the consent order. The court also permanently enjoined the defendant from future similar violations of the Act.

Source: FEC Record, September 1987, p. 8.

FEC v. CARTER COMMITTEE FOR A GREATER AMERICA

On July 21, 1986, the U.S. District Court for the Northern District of Georgia approved a consent order between the Commission and the Jimmy Carter Committee for a Greater America, a nonconnected political committee, and the Committee's treasurer, Chip Carter. The consent order provides that defendants violated sections 434(a)(4)(A)(i) and (iii) of the election law during the 1983-84 election cycle by failing to meet the filing deadline for 1984 post-general election and year-end reports.

Within 30 days of filing the consent order, the defendants agreed to pay a $250 civil penalty to the U.S. Treasurer.

The consent order concluded a suit filed by the FEC on April 7, 1986 (Civil Action No. C86-774A).

Source: FEC Record, September 1986, p. 7.

FEC v. CAULDER

On June 16, 1992, the U.S. District Court for the Eastern District of Pennsylvania ruled that Michael Caulder violated 2 U.S.C. §432(b)(3) by knowingly and willfully commingling his personal funds with $51,600 belonging to Alerted Democratic Majority, a political committee. (Defendant had embezzled the committee's funds and supplied false information on the committee's FEC reports in order to disguise the embezzlement.)

The court imposed a $103,200 civil penalty against Mr. Caulder but, in view of his depleted financial situation, suspended all but $3,000 of the penalty, to be paid in monthly installments. The court also permanently enjoined him from violating §432(b)(3) and from engaging in any activity that would result in his being responsible for political committee funds, accounts, financial records or FEC reports.

The FEC may request full payment of the suspended penalty if it discovers that defendant made inaccurate or misleading representations during the litigation or that he violated any terms of the court order. The FEC may also request full or partial payment of the penalty should Mr. Caulder's financial circumstances improve. The court's order and judgment were agreed to by both the FEC and Mr. Caulder. (Civil Action No. 91-CV-5906.)

Source: FEC Record, August 1992, p. 13.

FEC v. CHRISTIAN ACTION NETWORK

On June 28, 1995, the U.S. District Court for the Western District of Virginia, Lynchburg Division, dismissed this case. The FEC had brought suit against the Christian Action Network (CAN) for making independent expenditures1 with corporate funds, for failing to include the proper disclaimer on its political communications and for failing to file the required reports with the FEC.

On August 2, 1996, the U.S. Court of Appeals for the Fourth Circuit, in an unpublished opinion, upheld the district court's dismissal of this case. The court of appeals, finding "no error" in the district court opinion, affirmed that court's decision. Following, on April 7, 1997, the Fourth Circuit granted a request from the CAN that the FEC pay its attorney fees and other costs associated with this case. The court remanded the case to the district court to set the amount to be awarded.

District Court Decision

The communications in questiona television advertisement and two newspaper advertisements that ran during the weeks leading up to the 1992 Presidential general electionassailed then-candidate Bill Clinton's alleged position on homosexual issues.

The court ruled that the communications were outside the Commission's jurisdiction because they did not expressly advocate the election or defeat of Mr. Clinton.

The court reached this conclusion on the basis of the Supreme Court's decision in Buckley v. Valeo. In that case, the Supreme Court said that, for a communication to be considered an independent expenditure and thus subject to FEC regulation, it must expressly advocate the election or defeat of a clearly identified candidate.2 In reviewing relevant court decisions since Buckley, the court found that "political expression, including discussion of public issues and debate on the qualifications of candidates, enjoys extensive First Amendment protection" and that the courts "have adopted a strict interpretation of the 'express advocacy' standard . . . . Thus, courts generally have been disinclined to entertain arguments made by the Commission that focus on anything other than the actual language used in an advertisement."

In arguing the case, the FEC had relied on the Court of Appeals for the Ninth Circuit's decision in FEC v. Furgatch. In that case, the appeals court considered the timing and context of a communication in determining the existence of express advocacy. The FEC stressed that those elements were important here as well: the CAN television advertisement aired in the weeks leading up to the 1992 general election, and, although the ad did not contain words that expressly advocated Mr. Clinton's defeat, its imagery, music, editing, coloring, etc. clearly conveyed that message.

The FEC also pointed out that the newspaper adsboth of which referred to the "voting public" and one of which referred to a Presidential debate scheduled for that dayconveyed a message identical to that of the television ad. Viewed collectively, the FEC contended, the three ads sent voters the message to vote against Mr. Clinton and his policies in the November elections.

The court recognized the validity of the Furgatch approach but noted that the Furgatch court stated that the context and timing of a communication were peripheral to the actual words themselves, and therefore should be given only limited weight when determining the presence of express advocacy.

Focusing on the words contained in the ads, the court said there was no call for electoral action. The newspaper ads' reference to the "voting public" "does not per se translate into an exhortation to vote."

Finding that express advocacy was absent from the ads, the court concluded that "the Defendants' advertisements represent the very type of issue advocacy the Buckley Court sought to exempt from government regulation."

Source: FEC Record, September 1995, p. 2; October 1996, p. 1; and May 1997, p. 5.

Christian Action Network: FEC v., 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996).

1 An independent expenditure is an expenditure made without any coordination with a candidate's campaign for a communication which expressly advocates the election or defeat of a clearly identified candidate for federal office.

2 The court listed the following examples of words that constitute express advocacy: "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

FEC v. CHRISTIAN COALITION

On May 13, 1997, the U.S. District Court for the District of Columbia denied the Christian Coalition's motion for partial dismissal of this case.

The decision meant that the FEC was able to seek declaratory and injunctive relief for all of the alleged violations of the Federal Election Campaign Act (the Act), but was not able to obtain civil penalties for any of the violations that occurred more than five years before the lawsuit was filed.

On August 2, 1999, the district court granted in part and denied in part motions for summary judgment by both the Federal Election Commission (the "FEC" or "Commission") and the Christian Coalition (the "Coalition").

1997 District Court Decision

Statute of Limitations

The Coalition sought dismissal of those portions of the FEC's suit that concerned prohibited activities that had occurred more than five years before the suit was filed--essentially the activities that related to the 1990 election cycle.

At 28 U.S.C. §2462, the law provides for a five-year statute of limitations for certain law enforcement proceedings. The Coalition argued that that time limit started running at the time that the alleged offenses occurred--not when they were reported to the FEC by the Democratic Party of Virginia. The FEC argued that the time began running when it was notified through the administrative complaint process. Because its investigatory powers and resources are limited, the FEC said that it had no way of knowing about the Coalition's alleged conduct until a complaint was filed with the agency.

The court rejected the FEC's argument, citing the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in 3M v. Browner.¹ In that case, the appeals court ruled that an agency's failure to detect violations does not negate the inherent difficulties faced by bringing a case to court long after the alleged violation has occurred. The appeals court noted: "nothing in the language of §2462 even arguably makes the running of the limitation period turn on the degree of difficulty an agency experiences in detecting violations."

The court, however, agreed with the FEC that §2462 provides no shield for the Coalition from declaratory or injunctive relief. At 2 U.S.C. §437g(a)(6), the FEC has the authority to seek injunctive relief separate from its authority to seek legal remedies (e.g., civil fines, penalties and forfeitures).

1999 District Court Decision

The Commission had alleged that the Coalition had made three expenditures for communications that expressly advocated the election or defeat of clearly identified candidates. The court held that the following two communications did not contain express advocacy and, therefore, did not violate the Federal Election Campaign Act's (the "Act") ban on corporate contributions and expenditures made in connection with federal elections:

• A 1992 Montana speech by Ralph Reed, then-Executive Director of the Coalition; and
• A 1994 nationwide direct mail package entitled "Reclaim America."

The court held that a third communication, a 1994 mailing by the Georgia Christian Coalition, did expressly advocate the election of then-Speaker Newt Gingrich in violation of the Act. The court also held that the Coalition violated the Act by making a prohibited corporate contribution to Oliver North's Senate campaign by giving it a mailing list.

The Commission also alleged that the Coalition coordinated its voter guides during the 1990, 1992 and 1994 elections with various federal candidates. In all but one instance, the court decided that there was no coordination. In one election campaign, Oliver North's 1994 U.S. Senate campaign in Virginia, the court determined that there were contested issues to be resolved after a future hearing.

Background and Holding

The Christian Coalition is a nonprofit, nonstock corporation, originally incorporated in Virginia and doing business in the District of Columbia. In 1992 both the Democratic Party of Virginia and the Democratic National Committee filed complaints against the Coalition with the FEC. The two complaints were merged. The Commission found probable cause to believe the Coalition had violated the Act and attempted conciliation with the Coalition. After that attempt failed, the Commission filed this lawsuit in 1996.

The court determined that the two main issues in the litigation were:

• Whether "express advocacy" is limited to communications that use specific phrases or "magic words," such as "Vote for Smith," or whether a more substantive inquiry into the clearly intended effect of a communication is appropriate; and
• What level of contact between a campaign and a corporation constitutes "coordination" and thereby converts a corporate expenditure that influences an election into a prohibited contribution.

Express Advocacy. With regard to the first issue, the court concluded that an express advocacy communication is one that a reasonable person would understand contains an explicit directive--using an active verb (or its functional equivalent)that unmistakably exhorts the audience to take electoral action to support or defeat a clearly identified candidate. The verb (or its functional equivalent) must be considered in the context of the entire communication, including temporal proximity to the election.

Corporate Coordinated Expenditure. With respect to the second issue, the district court limited its decision to "expressive coordinated expenditures" by corporations. The court explained that an "expressive coordinated expenditure" is an expenditure for a communication that (although not containing express advocacy) is "made for the purpose of influencing a federal election in which the spender is responsible for a substantial portion of the speech and for which the spender's choice of speech has been arrived at after coordination with the campaign." Such expenditures are coordinated if the candidate requests or suggests the expenditure, or if the spender engages in substantial discussion or negotiation with the campaign about the communication's content, timing, location, mode, intended audience or volume.

Express Advocacy Issues

Express Advocacy Standard. The FEC alleged that in three instances the Coalition used general treasury funds to finance independent communications that contained express advocacy (i.e., expressly advocated the election or defeat of a clearly identified candidate) and thereby violated §441b of the Act, which prohibits corporations and unions from making expenditures in connection with federal elections.

Based on decisions by the Supreme Court and lower courts in other jurisdictions, the district court held that, in order for an expenditure to contain express advocacy and, if made by a corporation, violate §441b of the Act, the following attributes are necessary:

• The communication must contain an explicit directive. It must use an active verb or its functional equivalent (e.g., "Vote for Smith" or "Smith for Congress" or an unequivocal symbol).
• The "active verb or its immediate equivalent--considered in the context of the entire communication, including its temporal proximity to the election--must unmistakably exhort the [receiver] to take electoral action to support the election or defeat of a clearly identified candidate." Electoral action includes campaigning for and/or contributing to a clearly identified candidate, as well as voting for or against the candidate.

The court said that it is a pure question of law as to whether a reasonable person would understand the communication to expressly advocate a candidate's election or defeat. Once the identity of the speaker (organization paying for the communication) and the content of the communication are proven, a court must determine whether the communication contains express advocacy "solely as a matter of law."

Ralph Reed's 1992 Montana Speech. The FEC alleged that the Christian Coalition used general treasury funds to pay travel expenses and compensation to Ralph Reed, then-Executive Director of the Coalition, for a speech that expressly advocated the defeat of Pat Williams, the Democratic U.S. Representative from Montana's First District. The court held that, while Reed's speech made references to the Democratic incumbent, it did not direct the audience to do anything. He predicted that "victory will be ours" and that "we're going to see Pat Williams sent bags packing . . . in November." The court said this was "prophecy rather than advocacy," because Reed's speech did not contain an explicit exhortation to the audience to take action to defeat Representative Williams. "[I]t can only be concluded that Reed exhibited precisely the 'ingenuity and resourcefulness' in his verb choice that the Buckley Court envisioned possible to circumvent the prohibition on express advocacy. As others have acknowledged, results such as this appear unsatisfyingly formalistic, allowing precisely the sort of communications Congress sought to prohibit to remain immune from liability. . . . But the Supreme Court felt that the First Amendment required a choice between a toothless provision and one with an overbite; results such as this flow directly from that choice."

"Reclaim America" 1994 Mailing. The FEC alleged that portions of a mass mailing called "Reclaim America" included prohibited express advocacy. The Commission argued that, when read in conjunction with the enclosed Christian Coalition scorecard (rating incumbents on specific votes), the cover letter could only be understood to urge support of those incumbents rated favorably and defeat of those rated unfavorably.

Though acknowledging that the cover letter contained explicit directives (e.g., "stand together," "get organized"), the court concluded that a reasonable person could understand the cover letter as a directive to engage in lobbying or issue advocacy with all candidates. The scorecard did not identify which incumbents were candidates in 1994 and did not provide an electoral endorsement of any particular candidate. As a result, there was no express advocacy, and the expenditures did not violate §441b.

Georgia Mailing in 1994. The FEC alleged that a mailing by the Georgia Christian Coalition state affiliate (for which the Coalition admitted it was responsible and liable) contained a cover letter from the Coalition's state chair expressly advocating the re-election of Congressman Newt Gingrich. The mailing also contained a copy of the Coalition's nationwide Congressional scorecard.

The court held that, unlike the other two communications discussed above, "the Georgia mailing was expressly directed at the reader-as-voter." The cover letter announced upcoming primary elections and enclosed two items "[to] help you prepare for your trip to the voting booth." The second item was the congressional scorecard. The letter stated that Newt Gingrich, a Christian Coalition "100 percenter," was the only incumbent facing a primary opponent. The letter also exhorted the voter to take the scorecard to the polls in the general election. "While marginally less direct tha[n] saying 'Vote for Newt Gingrich,' the letter in effect is explicit that the reader should take with him to the voting booth the knowledge that Speaker Gingrich was a 'Christian Coalition 100 percenter' and therefore the reader should vote for him. While the 'express advocacy' standard is susceptible of circumvention by all manner of linguistic artifice, merely changing the verb 'vote' into the noun, 'trip to the voting booth' is insufficient to escape the limited reach of 'express advocacy.'"

Coordination Issues

Corporate Coordinated Expenditures. The court explained that §441b of the Act prohibits corporations from making any contributions or expenditures in connection with any federal election, and the Supreme Court, in Buckley v. Valeo, established that expenditures made in coordination with a campaign are contributions. The court further stated that, in FEC v. Massachusetts Citizens For Life, the Supreme Court "determined that Congress plainly intended the Act to reach corporate expenditures in connection with a federal election. . . . Under that construction, it is manifest that the Coalition's expenditures on voter guides fall within Congress's intended scope for §441b."

The district court went on to distinguish "expressive coordinated expenditures" from other coordinated expenditures. According to the court, an "expressive coordinated expenditure" is an expenditure "for a communication made for the purpose of influencing a federal election in which the spender is responsible for a substantial portion of the speech and for which the spender's choice of speech has been arrived at after coordination with the campaign." The court distinguished this type of coordinated expenditure from other types such as coordinated expenditures for noncommunicative materials (e.g., food or travel expenses for campaign staff).

The court held constitutional that portion of the FEC's regulations that would treat, as contributions, "expressive coordinated expenditures" made at the request or suggestion of the campaign. In the absence of a request or suggestion from the campaign, the court explained, an expressive expenditure is still coordinated where the candidate or his agent exercises control over the communication, or where there has been substantial discussion or negotiation between the campaign and the spender about such things as the contents, timing, location, mode, intended audience, or volume of the communication. A substantial discussion, the court explained, is one from which the spender and the campaign emerge as partners (not necessarily equal partners) or joint venturers in the expressive expenditure. "This standard limits §441b's contribution prohibition on expressive coordinated expenditures to those in which the candidate has taken a sufficient interest to demonstrate that the expenditure is perceived as valuable for meeting the campaign's needs or wants."

The court stated that, under this standard, a voter guide would be considered a coordinated expenditure if the conversation between the spender and the campaign went well beyond inquiry and included, for example, discussion or negotiation over the selection and phrasing of issues to be included in the candidate survey or voter guide. "Coordination requires some to-and-fro between corporation and
campaign . . . ."

With respect to get-out-the-vote ("GOTV") telephone activity, the court held that the level of discussion must involve negotiation regarding such things as the contents of the scripts, when the calls are to be made, location or the audience--including which databases will be used to choose call recipients or the number of people to be called.

Using this standard, the court evaluated the facts surrounding the Coalition's expenditures for voter guides involving the following campaigns.

Bush/Quayle '92 Presidential Campaign. The court held that the Coalition's voter guides and GOTV expenditures, in connection with the 1992 Presidential election, did not qualify as coordinated expenditures--primarily because the court concluded that the Bush/Quayle '92 campaign staff, armed with foreknowledge of the Coalition's plans, chose not to respond to the Coalition's implicit offers to discuss those plans. Although Pat Robertson (Chairman of the Board and former President of the Coalition) and Reed had special access to the Bush/Quayle '92 campaign, and Reed had extensive discussions with campaign staff regarding the campaign's thinking on strategic issues, and the Coalition told the campaign it intended to issue voter guides, "the Coalition did most of the talking." Moreover, there was no request or suggestion by the candidate that the Coalition make expenditures for the voter guides. The corporation's possession of "insider" knowledge from the campaign did not, in itself, establish coordination. More overt acts are required, the court said.

Helms for Senate 1990, Inglis for Congress 1992 and Hayworth for Congress 1994. With regard to three Congressional campaigns (Helms for Senate in 1990, Inglis for Congress in 1992 and Hayworth for Congress in 1994), the court found no coordination. In each case, someone was simultaneously involved in both the Coalition and the campaign, but the court said that such "insider trading" was not sufficient to establish coordination without more overt acts such as expenditures being made at the suggestion or request of the campaign.

North for Senate 1994. In one case, North for Senate in 1994, the Coalition gave to Oliver North's campaign a list of previous delegates to the Virginia Republican convention who were also supporters of the Coalition. The court determined that such lists have commercial value, and therefore the contribution of the list to the North campaign was a prohibited corporation contribution.

The Coalition also distributed voter guides in Virginia in 1994. However, there is a material question of fact as to whether North's campaign manager discussed with Reed which issues should be included in the voter guide. That issue, along with the fair market value of the mailing list, will be determined in later court proceedings.

National Republican Senatorial Campaign Committee. The FEC also had alleged that the Coalition had coordinated with the National Republican Senatorial Campaign Committee to create and distribute voter guides in several states the NRSC considered key in the 1990 elections. The NRSC had contributed $64,000 to the Coalition but had not become a partner in the voter guides by discussing their contents or points of distribution. The court concluded, therefore, that the Coalition had not violated the Act since there had been no discussion or negotiation with regard to the contents or distribution of the voter guides.

Further Proceedings

As described above, the court intends to hold further proceedings to determine whether the Coalition coordinated its expenditures with the North campaign, the value of the list provided to the North campaign and the cost of the Georgia mailing. After these matters are decided, the court will determine the appropriate civil penalty. To avoid delaying any appeal until after the remaining issues are decided, the court entered final judgment on those matters that had been resolved, and also stated in its opinion that its decision "involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

Source: FEC Record, July 1997, p. 2; September 1999, p. 4.

Christian Coalition: FEC v., 965 F. Supp. 66 (D.D.C. 1997); 52 F. Supp.2d 45 (D.D.C. 1999).

¹ 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994).

FEC v. CITIZENS FOR DEMOCRATIC ALTERNATIVES IN 1980

FEC v. FLORIDA FOR KENNEDY

FEC v. MACHINISTS NON-PARTISAN POLITICAL LEAGUE

FEC v. WISCONSIN DEMOCRATS FOR CHANGE IN 1980

Between December 1980 and January 1981, the FEC filed four separate suits in U.S. district courts seeking enforcement of subpoenas it had issued to three "draft Kennedy" political committees registered with the Commission, which had been engaged in promoting the Presidential candidacy of Senator Edward Kennedy during 1979, and to the Machinist Non-Partisan Political League (MNPL), the separate segregated fund of the International Association of Machinists, which had supported the formation of "draft Kennedy" groups in several states during 1979. The Commission filed suit against MNPL and Citizens for Democratic Alternatives in 1980 in the U.S. District Court for the District of Columbia (FEC v. Citizens for Democratic Alternatives in 1980, Civil Action No. 800-0009 and FEC v. Machinists Non-Partisan Political League, Civil Action No. 79-0291), against Wisconsin Democrats for Change in 1980 in the U.S. District Court for the Western District in Wisconsin (FEC v. Wisconsin Democrats for Change in 1980, Civil Action No. 80-C-124) and against the Florida for Kennedy Committee in the U.S. District Court for the Southern District of Florida (FEC v. Florida for Kennedy Committee, Civil Action No. 79-5964-CIV-JLK).

Background

The suits resulted from defendants' failure to comply with subpoenas to produce information, which the FEC had issued as part of an investigation of alleged violations of the election law. 2 U.S.C. §437d. The FEC had received a complaint from the Carter/Mondale Presidential Committee, Inc. on October 4, 1979, alleging that nine named political committees were affiliated within the meaning of 2 U.S.C. §433, 441a(a)(5) and 11 CFR 110.3(a)(1)(ii)(D). The complaint claimed that, as affiliated political committees, the nine committees were subject to a single $5,000 limit on contributions they accepted from a multicandidate committee. 2 U.S.C. §441a(a)(1)(C)(2)(C). The complaint further alleged that the draft committees had received, and MNPL had given to them, contributions in excess of the $5,000 limit. 2 U.S.C. §441a(a).

After finding reason to believe that the draft committees and MNPL had violated the Act, the Commission issued 13 subpoenas to various draft committees and to MNPL in an effort to investigate the draft committees' alleged affiliation.

Continued refusal by the four defendants to comply with their subpoenas prompted the FEC to seek enforcement of the subpoenas in the U.S. district courts. The FEC argued that the subpoenas clearly conformed to the guidelines for the enforcement of an administrative agency's subpoenas established by the Supreme Court in United States v. Morton Salt Co. Specifically, the FEC's inquiries were authorized by 2 U.S.C. §437d(a)(1), they were not too indefinite and the information they sought was reasonably relevant to the FEC's investigation. Further, in seeking court-mandated enforcement of the subpoenas, the Commission had followed the procedures prescribed by 2 U.S.C. §437d(b).

Defendant committees raised collateral issues that challenged the Commission's jurisdiction over political committees organized to draft candidates for federal office and that raised First Amendment questions. Defendants argued that, for purposes of the Act, the Supreme Court had restricted the definition of a "political committee" in Buckley v. Valeo to a group whose major purpose is to influence the nomination or election of a candidate. (Buckley v. Valeo, 424 U.S. at 79.)

District Court Rulings

The district courts ordered enforcement of the Commission's subpoenas. The courts maintained that the subpoenas met the guidelines for enforceability and were within the authority of the agency.

The Wisconsin Democrats for Change in 1980 complied with the Wisconsin district court's subpoena enforcement order. However, Citizens for Democratic Alternatives in 1980 and MNPL filed notices appealing the D.C. district court's decisions to the U.S. Court of Appeals for the District of Columbia Circuit, and the Florida for Kennedy Committee filed a notice appealing the Florida district court's decision to the U.S. Court of Appeals for the Fifth Circuit.

The Florida for Kennedy Committee was granted its application for a stay of the district court's order pending its appeal. The D.C. district and appeals courts denied the stay applications requested by Citizens for Democratic Alternatives in 1980 and MNPL; the Supreme Court also denied a further application made by MNPL. The appellants then produced all documents requested by the Commission.

Appeals Court Decision: MNPL and Citizens for Democratic Alternatives in 1980

On May 19, 1981, the appeals court for the D.C. circuit issued its opinions in FEC v. MNPL and FEC v. Citizens for Democratic Alternatives in 1980. The appeals court found that the Commission "lacked subject matter jurisdiction over the draft activities it sought to investigate." (FEC v. MNPL, slip op. at 7; FEC v. Citizens for Democratic Alternatives in 1980, slip op. at 2). The appeals court vacated the D.C. district court's orders enforcing the subpoenas and remanded the cases to the district court for further proceedings consistent with its ruling. The appeals court limited its decision to the provisions of the Federal Election Campaign Act prior to the 1979 Amendments: "Whatever the post-1979 situation, it is clear to us that in this case the contribution limitations did not apply to the nine groups whose activities did not support an existing 'candidate.'" (FEC v. MNPL, slip op. at 31.) The court did note that the 1979 Amendments to the Act appeared to require that "draft" committees comply only with the Act's reporting requirements.

The appeals court departed from the standard for judicial review of agency subpoenas and established a new "extra careful scrutiny" standard for judicial enforcement of FEC subpoenas. The appeals court reasoned that such a standard was warranted since "the activities which the FEC normally investigates differ in terms of their constitutional significance" from those of concern to other federal agencies. On June 9, 1981, the Commission decided to seek review of the D.C. appeals court's decisions by petitioning the Supreme Court for a writ of certiorari. On October 13, 1981, the Supreme Court denied the petition.

Appeals Court Decision: Florida for Kennedy Committee

On August 2, 1982, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion overturning a ruling of the U.S. District Court for the Southern District of Florida in FEC v. Florida for Kennedy Committee (FKC) (Civil Action No. 80-6013). 681 F.2d 1281 (11th Cir. 1982). The appeals court, with Judge Clark dissenting, found that the Commission lacked subject matter jurisdiction over the FKC's activities. The appeals court therefore reversed the district court's order enforcing subpoenas that the Commission had issued to FKC.

Relying on the Supreme Court's decision in NAACP v. Alabama (357 U.S. 499 [1958]), the appeals court maintained that the usual standard for judicial review of agency subpoenas did not apply in the FEC's case. The appeals court reasoned that "the FEC [must] prove to the satisfaction of the courts that it has statutory investigative authority" before the courts may order enforcement of FEC subpoenas. The appeals court then found that "committees organized to 'draft' a person for federal office" are not "political committees" within the purview of the Act and are not, therefore, subject to the Commission's investigative authority.

Judge Clark, in his dissent to the majority opinion, concluded that the statutory language and legislative history both demonstrated that "draft" committees fall within the jurisdiction of the Act. Judge Clark argued that to exempt draft committees from the Act "would leave a significant portion of political activity outside the coverage of the Act, a construction rejected by the Supreme Court." Judge Clark also found the court's reliance on NAACP v. Alabama to be inappropriate.

On September 22, 1982, the Commission filed a petition with the appeals court for a rehearing of the suit and a suggestion for a rehearing en banc, which was denied October 8, 1982.

Source: FEC Record, July 1981, p. 5; December 1981, p. 6; and November 1982, p. 6.

Citizens for Democratic Alternatives in 1980: FEC v., 655 F.2d 397 (D.C. Cir.), cert. denied, 454 U.S. 897 (1981).

Florida for Kennedy Committee: FEC v., 492 F. Supp. 587 (S.D. Fl. 1979), rev'd, 681 F.2d 1281 (11th Cir. 1982).

Machinists Non-partisan Political Action Committee: FEC v., 655 F.2d 380 (D.C. Cir. 1981), cert. denied, 454 U.S. 897 (1981).

FEC v. CITIZENS FOR LaROUCHE

On September 17, 1984, the U.S. District Court for the District of Columbia issued an order in FEC v. Citizens for LaRouche (Civil Action No. 83-0373), which granted summary judgment in favor of the FEC and dismissed the defendants' counterclaims.

Background

On February 9, 1983, the FEC filed suit against Lyndon H. LaRouche and the Citizens for LaRouche (CFL), Mr. LaRouche's principal campaign committee for his publicly funded Presidential campaign in 1980. In the suit, the FEC asked the district court to declare that the LaRouche campaign had violated a conciliation agreement entered into by CFL with the FEC. The Commission claimed that the campaign had failed to pay any portion of the $15,000 civil penalty stipulated in the agreement. The conciliation agreement had resulted from an enforcement action in which the FEC had found probable cause to believe that, among other violations, the LaRouche campaign had accepted unlawful contributions in 1979 and 1980.

In its suit, therefore, the FEC had asked the district court:

• To declare that CFL had violated the conciliation agreement;
• To order Mr. LaRouche and the LaRouche campaign to pay the $15,000 civil penalty (with interest);
• To permanently enjoin the LaRouche campaign from further violations of the conciliation agreement;
• To declare that Mr. LaRouche was jointly and severally liable for the civil penalty and that, in failing to pay the penalty, he had violated one of the terms of his certification letter. (He had signed the letter in November 1979 as a prerequisite to being eligible for primary matching funds); and
• To permanently enjoin Mr. LaRouche from further violating the terms of the certification letter.

Mr. LaRouche and the LaRouche campaign admitted that it had failed to pay any portion of the civil penalty. The defendants maintained, however, that the entire written conciliation agreement had been voided by the FEC's alleged breach of both the written agreement and a supplemental oral agreement that allegedly had been reached between the campaign and FEC attorneys. As a result, the defendants claimed, the FEC could not recover the civil penalty.

District Court Ruling

The court noted that, under the election law, a conciliation agreement may only be entered into with the affirmative vote of four Commissioners. See 2 U.S.C. §437g(a)(4)(A)(i). The court found, therefore, that it had to base its consideration of the case exclusively on the terms of the written conciliation agreement approved by the Commission. The Commission had not voted on the terms of the alleged oral agreement; nor had the written conciliation agreement made reference to a supplemental oral agreement.

The court noted that, to file a civil action against parties that violate the terms of a conciliation agreement, "the Commission need only establish that the person has violated, in whole or in part, any requirement of such a conciliation agreement.... " See U.S.C. §437g(a)(5)(D). Since the LaRouche campaign admitted that it had never paid the civil penalty required by the conciliation agreement, the court found that "the FEC is entitled to declaratory relief in this action and receipt of an accelerated payment of $15,000 from defendant CFL."

The court further found that the candidate, Lyndon H. LaRouche, must also be held liable for the unpaid civil penalty. The court cited the letter of agreements that Mr. LaRouche had entered into with the FEC as a condition of matching fund eligibility. Under the agreements, both Mr. LaRouche and his campaign committee were held liable for any civil penalties assessed against his campaign. Finding no merit to the campaign's counterclaim for damages resulting from "fraudulent inducement and fraudulent actions by the FEC," the court dismissed the counterclaim "for failure to state a claim upon which relief can be granted."

Source: FEC Record, November 1984, p. 6.

Citizens for LaRouche: FEC v., 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9214, (D.D.C. 1984).

FEC v. CITIZENS FOR THE REPUBLIC

On March 1, 1979, the U.S. District Court for the District of Columbia granted summary judgment to Citizens for the Republic (CFR), defendants in a suit filed by the FEC. In granting judgment to the defendant, the court found that there was no genuine issue as to any material fact.

On August 11, 1977, the Commission found reasonable cause to believe that Citizens for the Republic (formerly Citizens for Reagan, principal campaign committee for former Presidential candidate Ronald Reagan) had violated the Act by failing to report or make best efforts to report the occupations and principal places of business of 35% of those persons who had contributed an aggregate of $100 or more to the candidate, as required by 2 U.S.C. §434(b)(2). On June 23, 1978, the Commission filed suit after unsuccessfully trying, for almost a year, to resolve the matter through conciliation, as required by 2 U.S.C. §437g(a)(5)(A).

The defendant maintained that:

• Section 434(b) does not impose an affirmative duty on the candidate to obtain information which may not exist. Rather, the burden of proof is on the Commission, which must identify persons who contributed more than $100 and establish that, at the time of the contribution, they had an occupation and a principal place of business which they were required to report.
• One cannot be in violation of the law for failure to make best efforts; one can only be in violation for failure to report the required information. In the event that the required information does exist and is not reported, the defendant may be relieved of guilt if he is able to demonstrate that he attempted to obtain the required information and was unable to do so.
• The Commission gave insufficient guidance as to how the Committee might obtain the required information. In the absence of any regulation or guidelines, the Committee efforts were best efforts.

The Commission argued that:

• The Act clearly imposes the burden of obtaining the required information on the candidate.
• If the CFR had been able to demonstrate that they had made an attempt to obtain the required information and had not been successful, their effort would have been sufficient. The Committee's initial mailing to potential contributors did not request the required information, or state that the contributor was required to provide it. The only Committee mailing which pointedly requested the missing information was sent in December 1977 (the relevant reporting period was 1975-76), after the Committee had received 14 requests for additional information from the Commission and after the Committee was aware that the Commission had found reasonable cause to believe it was in violation of the Act.
• Lack of guidance did not hinder other Presidential committees from making satisfactory efforts to obtain the required information. Furthermore, the Commission did provide guidance to the Committee, pointing out its reporting deficiencies, suggesting ways those deficiencies might be corrected, and discussing how other Presidential committees were gathering the required information.

In finding for the defendant, the court concluded that the Commission "had a duty to give more...detailed guidance by regulation." In the absence of such guidance, the efforts made by the Reagan Committee were best efforts.

Source: FEC Record, May 1979, p. 2.

FEC v. CITIZENS PARTY (86-3113)

On July 31, 1987, the U.S. District Court for the District of Columbia entered a default judgment against the Citizens Party, a political party committee, and the party's acting treasurer, Kirby Edmonds, for the respondents' failure to timely pay in full a previously agreed upon civil penalty, in violation of the terms of a conciliation agreement they had entered into with the FEC on March 20, 1986. (FEC v. Citizens Party; Civil Action No. 86-3113 (OG).)

The court also: (1) ordered the defendants to pay interest on the $1,250 unpaid balance of the civil penalty for the period from June 18, 1986, to December 8, 1986, and (2) permanently enjoined the defendants from further violations of the agreement.

Source: FEC Record, March 1987, p. 6.

FEC v. CITIZENS PARTY (87-1577)

On May 1, 1989, the U.S. District Court for the Northern District of New York entered a consent order and judgment in FEC v. Citizens Party (Civil Action No. 87-CV-1577). The judgment declared that the Citizens Party, a political committee, and its treasurer, Kirby Edmonds, knowingly and willfully violated the election law by failing to file four reports in a timely manner: a 1985 year-end report and three 1986 quarterly reports (April, July and October). The consent order and judgment also assessed a civil penalty of $10,000 against the committee. Mr. Edmonds was personally assessed a $500 penalty.

Source: FEC Record, July 1989, p. 7.

FEC v. CLARK

On April 23, 1987, the U.S. District Court for the Middle District of Florida issued a consent order in FEC v. John R. Clark, Jr. (Civil Action No. 86-1841-CIV-T-17B). In the order, the FEC and Mr. Clark agreed that:

• Mr. Clark had entered into a conciliation agreement with the FEC in which he admitted violating section 441f of the election law by knowingly permitting his name to be used for a contribution made in the name of another person. In the conciliation agreement, Mr. Clark also agreed to pay a $250 civil penalty by January 25, 1985.
• Mr. Clark had violated the conciliation agreement by failing to pay the civil penalty on time.
• Mr. Clark paid the civil penalty only after the Commission had notified him that the agency had filed suit against him for failure to pay the penalty.

Finally, Mr. Clark assured the court that, in the future, he would fully comply with the election law.

Source: FEC Record, June 1987, p. 6.

FEC v. CLITRIM

On February 2, 1980, the U.S. Court of Appeals for the Second Circuit remanded FEC v. Central Long Island Tax Reform Immediately et al. to the District Court for the Eastern District of New York with an order to dismiss the suit.

The FEC originally filed the suit on August 1, 1978, alleging that violations of the Act occurred when the Central Long Island Tax Reform Immediately Committee (CLITRIM) published a pamphlet for general circulation in October 1976 at a cost of more than $100. The FEC claimed that, in publishing and distributing the pamphlet, defendants violated the following provisions of the Act:

• 2 U.S.C. §434(e), which requires any "person...who makes...independent expenditures expressly advocating the election or defeat of a clearly identified candidate" in an amount exceeding $100 in any calendar year to report such costs to the FEC; and
• 2 U.S.C. §441d, which requires any person who "makes an expenditure for the purpose of financing a communication expressly advocating the election or defeat of a clearly identified candidate" to state in the communication whether it is authorized by a candidate, his authorized political committees or their agents or any other unauthorized person.

In its motion to dismiss the case, CLITRIM argued that, in its Buckley v. Valeo decision, the Supreme Court had specifically mandated that the Act be amended to regulate only expenditures or communications by persons "expressly advocating the election or defeat of a clearly identified candidate." Buckley v. Valeo, 424 U.S. 1, 43 (1976). Further, "express advocacy" must include at least one of the phrases suggested by the Court in Buckley: "'vote for', 'elect', 'support', 'cast your ballot for', 'Smith for Congress', 'Vote Against', 'defeat', 'reject.'" (424 U.S. 1 (1976) at 52). CLITRIM pointed out that the TRIM Bulletin did not contain any of the terms of "express advocacy" spelled out in Buckley.

Responding to this argument in one of its reply briefs filed with the court of appeals, the FEC maintained that the CLITRIM/National TRIM bulletin was not merely an informational or educational compilation of Congressional voting records. The bulletin discussed TRIM's position on the issue of high taxes and big government, identified federal candidates, critiqued their position on the issue of high taxes and big government and urged the voter to vote with TRIM. The Commission interpreted these communications as "express advocacy" communications within the meaning of 2 U.S.C. §434(e) and as construed by the Supreme Court in Buckley, 424 U.S. at 44, n. 52.

In reaching its decision to dismiss the case, the court of appeals concluded that the CLITRIM Bulletin did not "expressly advocate" the election or defeat of a candidate within the meaning of 2 U.S.C. §§434(e) and 441d. Since, as interpreted by the court, these provisions of the Act did not apply to defendants' conduct, the court concluded the constitutional issues raised by defendants in the case would not represent a case ripe for consideration by the court.

On February 25, 1980, National TRIM and John W. Robbins, intervenor in the case, petitioned the court of appeals for a rehearing. Defendants sought injunctive relief from FEC enforcement proceedings brought against local TRIM committees which were not affected by the court's February 2 order to dismiss the case. On March 5, 1980, the petition for rehearing was denied by the court of appeals.

Source: FEC Record, April 1980, p. 7.

Central Long Island Tax Reform Immediately Committee: FEC v., 616 F.2d 45 (2d Cir. 1980) (en banc).

FEC v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE

In April 1986--four months before the Democratic primary and seven months before the November general election--the Colorado Republican Federal Campaign Committee (the Committee) ran a $15,000 radio ad in response to a series of television ads sponsored by the Senatorial campaign committee of then-Congressman Tim Wirth, a Democrat. The ad contrasted Mr. Wirth's statements in his TV ads with his Congressional voting record, and concluded with the words: "Tim Wirth has a right to run for the Senate, but he doesn't have a right to change the facts."

Under the Federal Election Campaign Act (the Act), the Committee was authorized to spend up to a certain limit on coordinated party expenditures made "in connection with the general election campaign" of the Republican Party candidate running in the U.S. Senate race in Colorado. 2 U.S.C. §441a(d)(3). The Committee, however, had assigned its entire 1986 spending authority to the National Republican Senatorial Committee.

In its campaign finance reports, the Committee characterized the ad as a generic voter education expense that was not subject to the §441a(d) limits. The FEC, however, viewed it as a coordinated party expenditure and filed suit against the Committee for violating the Act's expenditure limits and reporting requirements for this type of expenditure. The Committee counterclaimed with a First Amendment challenge to the constitutionality of the §441a(d) limits.

District Court Decision

On August 31, 1993, the U.S. District Court for the District of Colorado granted summary judgment to the Committee. The court held that the Committee's $15,000 expenditure for a radio ad, because it did not contain "express advocacy," was not subject to the coordinated party expenditure limit.

The court first rejected the Committee's argument that the ad was an "independent expenditure" (rather than a coordinated expenditure)and thus not subject to spending limits--because it was aired before the Republican candidate had been nominated. The court noted that the FEC and the courts have said that party committees are incapable of making independent expenditures. The court concluded that the Committee's expenditure "was made on behalf of the Republican candidate, whomever that might be; and it is irrelevant that no particular person had been designated."

In considering whether the ad was subject to the coordinated party expenditure limits at 2 U.S.C. §441a(d), the district court concluded that only communications that expressly advocate the election or defeat of a candidate qualify as coordinated party expenditures. The court decided that the radio ad did not contain express advocacy, and therefore was not a coordinated party expenditure.

The district court reasoned that in FEC v. Massachusetts Citizens for Life (MCFL), the Supreme Court established that the presence of express advocacy determined whether or not an independent expenditure was made "in connection with" a federal election. Although the MCFL decision dealt with independent expenditures rather than coordinated party expenditures, the district court noted that §441a(d) also includes the phrase "expenditure in connection with" a federal election. The court therefore followed a common law rule: a phrase recurring in a statute is to be interpreted consistently.

The district court then referred to the list of words and phrases, contained in the Supreme Court's Buckley v. Valeo decision as examples of express advocacy. Finding that the Committee's ad did not contain any of these words or phrases, the district court ruled that the expenditure for the ad did not constitute a coordinated party expenditure and therefore did not count toward the Committee's §441a(d) limit.

Appeals Court Decision

On June 23, 1995, the U.S. Court of Appeals for the Tenth Circuit reversed the district court's ruling that express advocacy is a defining feature of coordinated party expenditures. Further, it concluded that the Act's limitation of these expenditures does not violate the Committee's First Amendment rights. The court remanded the case to the district court with instructions to enter judgment in favor of the FEC and to impose on the defendant a proper civil penalty under 2 U.S.C. §437g(a)(6).

Coordinated Party Expenditures and Independent Expenditures

The court of appeals observed that both Buckley and MCFL distinguish between these two types of expenditures:

"The Supreme Court cases have distinguished between the potential for corruption that attaches to contributions and coordinated party expenditures, and those that might develop from independent expenditures, finding less inherent risk in the latter."

The court of appeals also noted that Buckley struck down the Act's limits on independent expenditures as an unwarranted infringement on the First Amendment rights of individuals but upheld the Act's limits on party expenditures because they served the substantial government interest of preserving the integrity of the electoral process. The validity of this interest has been reinforced in subsequent court case decisions.

In the appeals court's view, the distinctions made in these precedents indicate that the phrase "expenditures in connection with" should not be construed the same way with respect to independent expenditures and coordinated party expenditures.

Rather, the court held that judicial deference was due to the Commission's interpretation of its statute. Advisory Opinions 1984-15 and 1985-14 establish the Commission's criteria for determining whether or not a party expenditure counts against the §441a(d) limit: an expenditure counts against the limit if it is made for a communication that (1) clearly identifies a candidate and (2) contains an electioneering message. The presence of express advocacy is not a factor in this determination.

The court then found that the ad identified a candidate (Mr. Wirth) and "unquestionably contained an electioneering message," since it sought to diminish public support for Mr. Wirth and garner support for the then-yet-to-be-named Republican nominee. Consequently, the court reasoned that the radio ad resulted in an "expenditure made in connection with" an election and thus counted against the Committee's §441a(d) limit.

The First Amendment and the
Government's Interest

Citing the reasoning of the Supreme Court in Buckley and subsequent cases, the court of appeals ruled that, as with contribution limits, the coordinated party expenditure limits are a justifiable infringement on the First Amendment rights of party committees.

"The opportunity for abuse is greater when the contributions (or in the instant case, coordinated party expenditures) derive from sources inherently aligned with the candidate, rather than with independent expenditures."

The coordinated party expenditure limits were adopted because of Congressional concern that unchecked party spending would give citizens who make large contributions to party committees undue influence on elected officials. The court concluded that the §441a(d) limits diminish this potential with a minimal impact on the important role of political parties. This follows the precedent set in Buckley that found that these and other contribution and expenditure limits served the overriding government interest of preserving the integrity of the electoral process.

Appeal to Supreme Court

The Commission appealed the Tenth Circuit's decision to the Supreme Court. Oral arguments were presented on April 15, 1996.

Supreme Court Decision

On June 26, 1996, the U.S. Supreme Court ruled that the coordinated party expenditure limits at 2 U.S.C. §441a(d) could not be constitutionally applied to the radio ad aired by the Committee. The Court found that the ad was not coordinated with any candidate; rather it was an independent expenditure that could not constitutionally be subject to the coordinated party expenditure limit.

The FEC had concluded that political parties, because of their special function, are incapable of making electoral expenditures that are "independent" of their own candidates, since the sole reason for a political party's existence is to elect its candidates to public office.

The Court disagreed, stating that, with reference to the radio ad, there was no evidence of coordination between the Committee and the three candidates who were then seeking the Republican Senate nomination. Rather, the ad "was developed by the Colorado Party independently and not pursuant to any general or particular understanding with a candidate." The Court also found that the potential for, or appearance of, corruption, which the Buckley Court found sufficient to justify limiting contributions, was not present to the extent that would justify limiting such independent spending by political parties on behalf of their candidates. Accordingly, the Court concluded that the First Amendment precludes application of the §441a(d) limits to independent campaign expenditures by political parties.

This decision pertained to party spending in connection with congressional races. The Court warned that this opinion does not "address issues that might grow out of the public funding of Presidential campaigns."

The Court decided not to address a constitutional challenge to the §441a(d) coordinated limits brought by the Committee. Instead, the Court chose to "defer consideration of the broader issues until the lower courts have reconsidered the question in light of our current opinion."

This decision vacated the 10th Circuit Court of Appeals' judgment. The case was remanded to the lower courts for further proceedings consistent with this decision.

Concurring and Dissenting Opinions Accompanying This Judgment

Justice Breyer wrote the plurality opinion announcing the judgment of the Court. Although seven Justices concurred in the judgment, only Justices O'Connor and Souter joined Justice Breyer's plurality decision. There were also two separate concurring opinions and one dissent which the remaining Justices signed on to, as follows:

• Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia, filed an opinion concurring in the judgment and dissenting in part. This opinion reasoned that coordinated party expenditures cannot constitutionally be limited because this would impermissibly infringe upon the parties' First Amendment right to engage in political speech.
• Justice Thomas, joined in part by Chief Justice Rehnquist and Justice Scalia, filed an opinion concurring in the judgment and dissenting in part. This opinion also reasoned that the §441a(d) limits are unconstitutional. Justice Thomas, writing for himself only, first explained that there is no constitutional difference between expenditures and contributions, and that neither can constitutionally be limited at all. For this reason, he would overrule Buckley and find unconstitutional all statutory limits on contributions and expenditures. Chief Justice Rehnquist and Justice Scalia did not join this part of Justice Thomas' opinion, but agreed with Justice Thomas' conclusion that, under Buckley, the party expenditure limits at §441a(d) are unconstitutional in their entirety because there is insufficient evidence that coordinated spending by political parties poses a substantial risk of corruption.
• Justice Stevens, joined by Justice Ginsberg, dissented. The dissenters agreed with the FEC's view that all campaign expenditures by political parties should be treated as coordinated with the party's candidates, and concluded that the limit on party expenditures at §441a(d) is constitutional because it serves compelling governmental interests in avoiding both actual corruption and the appearance of corruption, and in leveling the playing field in election campaigns.

District Court Decision on Remand

On February 23, 1999, the district court granted the Committee's motion for summary judgment on its counterclaim, ruling that the coordinated party expenditure limits are unconstitutional and cannot be enforced against the Committee. The court denied the FEC's cross motion for summary judgment and dismissal of the amended counterclaim.

In the district court's view, the FEC needed to demonstrate that:

• §441a(d) serves a compelling government interest and
• §441a(d) is narrowly tailored to achieve that interest.

The court said that the FEC had to show that coordinated party expenditure limits prevent corruption or the appearance of corruption. The FEC had to do more than show "the opportunity" for corruption.

The FEC argued that generous contributors could demand special favors of candidates via their party committee contributions; and that party committees could withhold or grant unlimited coordinated expenditures in order to exact a quid pro quo from candidates who needed financial assistance. The court rejected the first argument, saying that the FEC had shown that large contributors to parties had obtained access to elected officials, but such access did not constitute corruption. The court rejected the analogy to unlimited soft money donations because they may not be used to make coordinated party expenditures. Moreover, because of the limits on individual contributions, the court found the contributor-to-party-to-candidate scenario "an unlikely avenue of corruption."

As to the second argument, the court stated that party committees, by their nature, exert some influence over candidates. "[A] political party's decision to support a candidate who adheres to the parties' beliefs is not corruption. Conversely, a party's refusal to provide a candidate with electoral funds because the candidate's views are at odds with party positions is not an attempt to exert improper influence."

Furthermore, the court stated that in Buckley v. Valeo the Supreme Court's concern with corruption was related to large individual financial contributions--not contributions from party committees.

Finally, the court stated: "The FEC cannot rely on general public dissatisfaction with parties and politicians and the amount of money in the political process . . . to support its claim that the party coordinated expenditure limit serves a compelling purpose and is narrowly tailored to accomplish that purpose."

The court concluded that the FEC had failed to offer relevant, admissible evidence that suggested coordinated party expenditures had to be limited to prevent corruption or its appearance. The court also stated that coordinated party expenditures were "indistinguishable in substance" from the candidate's campaign expenditures. Since, under Buckley, candidate expenditures cannot be limited, coordinated party expenditures also cannot be regulated.

Source: FEC Record, November 1993, p. 1; August 1995, p. 1; August 1996, p. 1; and April 1999, p. 1.

Colorado Republican Federal Campaign Committee: FEC v., 839 F. Supp. 1448 (D. Colo. 1993); 59 F.3d 1015 (10th Cir. 1995), rev'd, 116 S. Ct. 2309 (1996), on remand, 41 F. Supp.2d 1197 (D. Colo. 1999).

FEC v. COMMITTEE FOR A CONSTITUTIONAL PRESIDENCY­McCARTHY '76

On March 7, 1979, the U.S. District Court for the District of Columbia granted summary judgment to the Committee for a Constitutional PresidencyMcCarthy '76, defendants in a suit filed by the FEC on August 22, 1977.

The FEC alleged that the defendants had improperly classified a series of payments (speaking fees from universities) as "other receipts" rather than as "contributions," and requested a mandatory injunction from the court requiring the defendant to amend its reports accordingly.

The court agreed with both parties that there were no material issues in dispute. The court also agreed with the FEC that the payments in question were, in fact, "contributions" rather than "other receipts." However, while the court concluded that the defendant may have committed a technical error, it declined to enter the requested order for the following reasons:

• The defendant had acted in good faith and had fully reported all payments on appropriate FEC forms.
• In 1976, Congress amended the reporting provisions of 434(b), which now provide that when candidates and committees "show that best efforts have been used to obtain and submit the information required by this subsection, they shall be deemed in compliance with this subsection." Since the events of this case occurred before Congress adopted the amendment, the amendment does not control the case. However, it does provide support for the court's view that a candidate could act in good faith and yet technically violate a provision of the Act; it also corroborates the court's conclusion that sanctions should not be imposed on a public figure who acts in good faith.
• The public interest would not be served by the requested court order.

This public interest in disclosure is already satisfied by the detailed information supplied by the defendant. Furthermore, a court-imposed remedy would not ensure better compliance in the future since a candidate who acted in the same manner today would probably not be considered in violation of the Act due to the "best efforts" amendment.

Source: FEC Record, June 1979, p. 6.

Committee for A Constitutional PresidencyMcCarthy '76: FEC v., 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9074 (D.D.C. 1979).

FEC v. COMMITTEE OF 100 DEMOCRATS

On September 30, 1993, the District Court for the District of Columbia granted the Commission's motion for summary judgment against the Committee of 100 Democrats, the Committee to Elect Fusco to Congress (formerly Throw the Rascals Out) and Dominick A. Fusco, the treasurer of both committees.

The court ruled that Mr. Fusco and the committees had violated the terms of two conciliation agreements related to an FEC enforcement action (MUR 3148). The court ordered the defendants to comply with the agreements, assessed $1,000 penalties against each committee and enjoined the defendants from future violations of the agreements.

Noting that Mr. Fusco was named as a party to the conciliation agreements and had signed them both, the court concluded that his "status as a party to each of the agreements subjects him to personal liability for their violation." As a result, the court held Mr. Fusco and the committees "jointly liable" for compliance with the conciliation agreements and payment of the additional penalties.

To comply with the conciliation agreements, the Committee of 100 Democratsand Mr. Fusco, as its treasurerhad to register with the Commission and file the appropriate reports of receipts and disbursements. Mr. Fusco and his Committee to Elect Fusco to Congress were to pay the FEC a $3,500 civil penalty. The court directed the defendants to comply with its order within 10 days.

Payment Schedule

In a court document filed September 13, 1994, the parties in this suit agreed to a schedule for paying the $5,500 in total penalties owed by the three defendants.

The stipulation agreement required the defendants to pay the penalties in monthly installments. If payments were late, interest would accrue on the entire unpaid balance until it was fully paid. Moreover, if defendants failed to carry out their obligations, they would be required to reimburse the FEC for costs and attorneys' fees expended on the case since the September 1993 judgment.

Source: FEC Record, December 1993, p. 3; and November 1994, p. 9.

Committee of 100 Democrats: FEC v., 844 F. Supp. 1 (D.D.C. 1993).

FEC v. COMMITTEE TO ELECT BENNIE BATTS

On February 14, 1989, the U.S. District Court for the Southern District of New York granted the FEC's motion for summary judgment in FEC v. Committee to Elect Bennie O. Batts (Civil Action No. 87-5789(GLG)). The committee was Mr. Batts' principal campaign committee for his unsuccessful 1984 primary campaign in New York's 20th Congressional District.

The court found that the committee and its acting treasurer, Evelyn Batts (the candidate's wife), violated the election law by:

• Failing to amend its Statement of Organization to reflect Mrs. Batts' actual role as treasurer and as custodian of the committee's books and accounts and to disclose a campaign depository (2 U.S.C. §433(c));
• Commingling committee funds with the personal funds of Mrs. Batts in Mrs. Batts' personal bank account (2 U.S.C. §432(b)(3));
• Failing to use the official campaign depository for receiving contributions and making expenditures (2 U.S.C. §432(h)(l)); and
• Knowingly accepting more than $10,000 in excessive contributions from Mrs. Batts' personal account (2 U.S.C. §441a(f)).

The court also found that Mrs. Batts personally violated the election law by making excessive contributions from her personal account.

Observing that the committee's violations had resulted from "at most...sloppy bookkeeping and unprofessional behavior," and that there was no implication that the defendants had been "motivated by personal gain," the court assessed civil penalties of $100 against the committee and its acting treasurer, Mrs. Batts. The court also assessed a $1 civil penalty against Mrs. Batts personally. In addition, the court permanently enjoined the defendants from similar future violations of the election law.

Source: FEC Record, May 1989, p. 8.

FEC v. DSCC (95-2881)

On January 16, 1997, the U.S. District Court for the Northern District of Georgia, Atlanta Division, ruled that the Democratic Senatorial Campaign Committee (DSCC) violated the Federal Election Campaign Act (the Act) when it contributed $17,500 to a Senatorial candidate's runoff election after having already contributed the same amount during the primary and general elections.

The second contribution violated the Act at §441a(h), which sets a $17,500 limit for national committeessuch as the DSCC and the National Republican Senatorial Committee (NRSC)when giving to a candidate for the U.S. Senate.

On July 7, 1997, the court ordered the DSCC to pay a $175 penalty for violating the Act during the 1992 Senatorial race. The sum amounts to 1 percent of the DSCC's violation of $17,500.

Background

The excessive contribution was made during the unusual circumstances surrounding the 1992 Senatorial campaign in Georgia. A state law, which has since been changed, required that the winner of the Senate seat receive a majority of the vote.

Former Senator Wyche Fowler Jr., a Democrat, had a plurality in the general election in 1992, receiving 49 percent of the ballots cast. Republican Senator Paul Coverdell, who challenged Mr. Fowler in the race, came in second with 48 percent of the vote. Because no candidate received a majority of votes, a runoff election was held between the two men. Mr. Coverdell won that race with 51 percent of the vote.

During the primary and general elections, the DSCC contributed $17,500 to Mr. Fowler's campaign, and then contributed another $17,500 to his runoff election.

District Court Finds for FEC

The court ruled in the FEC's favor. The court held that the language and legislative history of the Act, coupled with accepted principles of statutory construction, support the view that §441a(h) precluded the DSCC from making a second contribution of $17,500.

The court pointed out that, unlike individuals and other committees, national committees have a higher contribution limit under §441a(h) and greater discretion in allocating the sum during the length of a campaign. For example, individuals have a $1,000 contribution limit per election (primary, general and runoff), per candidate. Multicandidate PACs have a $5,000 contribution limit per election, per candidate. The court held that national committees, such as the DSCC, may allocate part or all of their $17,500 contribution limit to a Senatorial candidate at any stage of the election campaign.

The DSCC had argued that the FEC had erroneously interpreted the $17,500 limit with respect to post-general election runoffs and that Congress had intended the statute to be part of an effort to expand the role of national committees. However, the court said that the language of §441a(h) was unambiguous and that, even if it were not, the FEC's interpretation of it would be entitled to deference. In AO 1978-25, the court pointed out, the Commission had confirmed that §441a(h) did indeed establish a single contribution limit without regard to whether there were primary, general or runoff elections.

The DSCC had also argued unsuccessfully that the unusual nature of the Georgia majority-winner rule was not taken into account when Congress adopted the statute, and that, had its members known of such a scenario, it would have drafted the law differently. The court said that such speculation would not cause the court to disregard the language of the law.

The court rejected the DSCC's claim that its First and Fifth Amendment rights of freedom of association and equal protection were violated. The DSCC said the law denied them the freedom to associate with Mr. Fowler's campaign because "no committee would ever reserve funds for the uncertain prospect of a runoff." It also pointed out that other types of committees and individuals were able to contribute to Mr. Fowler's runoff election.

The court said that, while a difficult allocation issue confronted the DSCC, the law does not infringe on its right to associate with whomever it wishes. The DSCC lawfully made more than $200,000 in coordinated expenditures under 2 U.S.C. §441a(d)1 in support of Mr. Fowler's runoff campaign. Further, the DSCC does not have to be treated the same as other types of committees in respect to contribution limits. "Party committees, individuals, and other organizations and corporations are not similarly situated entities for election regulation purposes," the court said.

Pursuant to a prior agreement of the parties, the court ordered briefing on the appropriate sanctions for DSCC's violation of §441a(h).

Penalty

In determining an appropriate penalty, the court considered these four factors:

• Good or bad faith actions by the defendant,
• Injury to the public resulting from the defendant's conduct,
• Ability of the defendant to pay the penalty and
• Vindication of the FEC's authority.

The court found that the DSCC did act in good faith because it had believed that it was acting lawfully when it made the second $17,500 contribution. The court also determined that the second contribution did no harm to the public. While the FEC had argued that "any violation of the [Act's] limits undermines a public perception of integrity of the election process," the court disagreed with such a blanket assertion. It also found that the FEC did not require vindication in this case and noted that the DSCC's ability to pay did not justify assessing it with a large penalty, which is what the FEC had requested.

In its deliberations, the court also considered the penalty negotiated with the NRSC in a conciliation agreement for a violation of a different provision of the Act2 U.S.C. §441din connection with the same election. That penalty amounted to 1 percent of the approximately $500,000 violation, or $5,000.

Source: FEC Record, March 1997, p. 2; and August 1997, p. 3.

1 Under 2 U.S.C. §441a(d), the national party is entitled to make limited expenditures for the general election in cooperation with the candidate (in addition to the contributions it is otherwise entitled to make).

FEC v. DRAMESI FOR CONGRESS

On July 25, 1986, the U.S. District Court for the District of New Jersey granted the FEC's motion for summary judgment in FEC v. Dramesi for Congress Committee (Civil Action No. 85-4039). The court found that the John A. Dramesi for Congress Committee's treasurer, Russell E. Paul, had violated 2 U.S.C. §441a(f) by knowingly accepting an excessive contribution from the New Jersey Republican State Committee (the State Committee) and ordered Mr. Paul to pay a $5,000 civil penalty to the U.S. Treasurer.1 The court had previously entered a $5,000 default judgment against the Dramesi Committee for accepting the excessive contribution.

In 1990, the U.S. District Court for the District of New Jersey granted a motion by the FEC to hold the committee and Mr. Paul, as treasurer, in contempt of court for failing to pay the penalties imposed in 1986 (FEC v. Dramesi for Congress Committee, No. 85-4039(MHC) (D.N.J. Sept. 5, 1990) (unpublished opinion)).

Background

In 1982, when the State Committee made a $5,000 contribution to the Dramesi Committee, the State Committee had not achieved multicandidate status because it had not yet satisfied the six-month registration requirement.2 Consequently, the State Committee was only eligible to make a contribution of up to $1,000 per election to each Republican Congressional candidate in New Jersey, and the Dramesi Committee could legally receive only $1,000 for the primary election.

On learning of the State Committee's excessive contributions to Republican House candidates, the FEC initiated enforcement proceedings against the State Committee. When the Commission failed to reach a settlement with the Dramesi Committee, the agency filed a suit against the Committee and its treasurer in which it asked the court to: (1) assess a $5,000 civil penalty against the Committee for accepting the State Committee's excessive contribution and (2) order the Dramesi Committee to refund the excessive portion ($4,000) to the State Committee.

The Court's Ruling

The court observed that, under the FEC regulations, the treasurer of a political committee has to "'make his or her best efforts to determine the legality of a contribution.'"3 The court therefore found that "Mr. Paul...had a duty to determine [the contribution's] propriety. Instead, he merely assumed from the source of the contribution that it was legal."

Nor did the court find any merit to defendant's contention that he had no way of knowing the contribution was illegal. The court noted that the defendant could have consulted the Index of Multicandidate Political Committees, an "exhaustive list of such eligible [multicandidate] committees, compiled by the FEC, [which] was readily available to the defendants."

The court therefore found that "Mr. Paul, as Treasurer of the Dramesi Committee, acted intentionally in accepting the $5,000 contribution in question, and was fully aware of the facts rendering his conduct unlawful." Accordingly, the court ruled that defendant "knowingly accepted" the State Committee's excessive contribution, in violation of 2 U.S.C. §441a(f).

FEC's Contempt Motion

Although finding the Dramesi committee in contempt, the court did not take any action against it since the committee is defunct. The court, however, rejected Mr. Paul's argument that he should not be held personally liable for payment of the penalty imposed against him. The court stated that, in its previous decision in this case, "we determined that Russell E. Paul's liability was distinct from the liability of the Committee." The court went on to state that, because "political committees have a tendency to dissolve after an unsuccessful campaign," Congress chose to hold an individualthe committee treasurerresponsible for compliance with the Federal Election Campaign Act. See 2 U.S.C. §432(a) and (c). It therefore follows that "an individual will also stand responsible for his indiscretions as a treasurer."

The court, in addition to holding Mr. Paul in contempt, ordered him to pay the $5,000 penalty within 30 days. The court imposed a $50 per day assessment if payment was not complete within 30 days. On January 2, 1991, the court issued stipulation and order in which Mr. Paul agreed to pay a total of $5,317 to the FEC. That amount represented the original $5,000 penalty, $91 in interest charges and $226 in FEC costs. The Commission agreed to waive the contempt penalties of $50 a day (which had been accumulating since the original contempt order in 1990) provided that Mr. Paul pay the $5,317 by March 1, 1991.

Source: FEC Record, September 1986, p. 6; November 1990, p. 9; and March 1991, p. 10.

Dramesi for Congress Committee: FEC v., 640 F. Supp. 985 (D.N.J. 1986).

1 On June 16, 1986, the U.S. District Court for the District of Columbia found that another New Jersey House incumbent campaigning for reelection in 1982 had not knowingly accepted an excessive contribution from the New Jersey Republican State Committee. See FEC v. Re-Elect Hollenbeck to Congress Committee.

2 Multicandidate committees may contribute up to $5,000 per election to a candidate's authorized committee(s) or any other political committee. To achieve multicandidate status, a committee must have more than 50 contributors, have been registered for at least six months and, with the exception of state party committee, have made contributions to five or more candidates for federal office. 2 U.S.C. Section 441a(a)(4); 11 CFR 100.5(e)(3).

3 See 11 CFR 103.3(b)(1).

FEC v. FORBES

On February 19, 1999, the U.S. District Court for the Southern District of New York dismissed this lawsuit after both parties asked for the action. The court order was preceded by the Commission's 4-2 vote to withdraw the lawsuit against 1996 Presidential candidate Malcolm S. "Steve" Forbes, Jr.

The FEC had asked the court in September 1998 to find that bi-weekly columns authored by the candidate in Forbes Magazine resulted in violations of the Federal Election Campaign Act by Mr. Forbes, the magazine, his 1996 committee and the corporation he controls.

Background

In November 1995, while running for the Republican nomination, Mr. Forbes took a leave of absence from Forbes, Inc., but continued to write the weekly column "Fact and Comment" for the company's flagship publication, Forbes Magazine. In addition, Mr. Forbes continued to be listed as editor-in-chief on the magazine's masthead, and he controlled the length, content and format of the articles. Excerpts of these columns also appeared in another Forbes publication, The Hills-Bedminster Press. The columns discussed some of the same themes Mr. Forbes pressed during his presidential campaign, including the flat tax, term limits, abortion and foreign intervention in Bosnia, and have been valued at $94,900.

The Commission contended that Mr. Forbes's columns were not bona fide news accounts and were not part of a general pattern of campaign-related news accounts that gave reasonably equal coverage to all opposing candidates. Furthermore, the Commission argued that Forbes, Inc., published the columns in consultation with Mr. Forbes while he was a candidate, thereby turning the corporation's expenditure for the columns--$94,900--into a contribution to the Forbes campaign.

In addition, the Forbes committee failed to report the value of the columns in any of its reports filed with the Commission. 2 U.S.C. §434(b)(2)(A).

The FEC asked the court to find that Forbes, Inc., made prohibited in-kind corporate contributions to the Forbes committee and that Mr. Forbes, in his capacity as CEO, violated the Act by consenting to the contributions. The FEC also asked the court to find that Mr. Forbes, the Forbes committee and the committee treasurer violated that Act when they knowingly accepted the prohibited in-kind contributions. The FEC asked the court to enjoin the defendants from violating the Act further and to assess a civil penalty against them.

Source: FEC Record, November 1998, p. 2; and April 1999, p. 5.

FEC v. FRANKLIN

On September 27, 1989, the U.S. Court of Appeals for the Fourth Circuit granted the FEC's motion for summary affirmance in FEC v. William Franklin (No. 89-1512). The appeals court remanded the case to the district court (Civil Action No. 89-324-N).

Background

In October 1988 Mr. Robb, the Democratic nominee for the U.S. Senate in Virginia, filed a complaint with the Commission alleging that Mr. Franklin's unknown employer had violated the election law by failing to report payments made to Mr. Franklin to investigate rumors linking the candidate with persons allegedly implicated in drug use or drug trafficking. Mr. Franklin was a private investigator and an attorney working in Virginia. Conducted during the height of the 1988 campaign, Mr. Franklin's investigation was the subject of several news stories.

The Robb campaign also alleged that the contribution limits may have been violated by Mr. Franklin's client.

After finding "reason to believe" that the law had been violated, the Commission sent Mr. Franklin a questionnaire about the nature and purpose of his investigation and asking on whose behalf it was conducted. Mr. Franklin answered some of the questions, but he refused to identify the person who had hired him, invoking attorney-client privilege. The FEC subsequently obtained a court order requiring Mr. Franklin to respond fully to the questions.

Along with ordering Mr. Franklin to identify his employer, the court ordered the FEC not to disclose the identity of that person until a formal enforcement action commenced, or the individual waived confidentiality, or until disclosure was mandated by the election law.

District Court Decision

Mr. Franklin challenged the FEC's actions on four grounds:

• The FEC lacked subject-matter jurisdiction over the original complaint because the Robb campaign had identified only "John Doe, Employer of William Franklin" as the respondent. This fact, Mr. Franklin argued, prevented the FEC from fulfilling its statutory requirements in acting on the complaint.
• The complaint from the Robb campaign was inadequate to launch an FEC investigation.
• The FEC's finding