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On July 25, 2014, the U.S. District Court for the District of Columbia dismissed a lawsuit filed by former U.S. Senate candidate Dan La Botz challenging the Commission’s decision to dismiss an administrative complaint he submitted in 2010. In that complaint, Mr. La Botz alleged he had been unlawfully excluded from televised candidate debates in Ohio.
Mr. La Botz’s lawsuit – filed on July 1, 2013 – arises from a previous challenge filed in the same court in July 2011 (La Botz v. FEC, 11-1247RC). In that case, Mr. La Botz alleged that the Commission wrongfully dismissed the administrative complaint that he filed against the Ohio News Organization and its member newspapers (“ONO”). Mr. La Botz alleged that the ONO failed to use pre-established and objective standards when inviting participants to a series of televised debates from which Mr. La Botz was excluded, and as a result, the costs of the debates constituted prohibited, in-kind corporate contributions to the participating campaigns. The Commission dismissed the administrative complaint, finding no reason to believe that ONO violated the Federal Election Campaign Act (the Act) or Commission regulations because ONO’s criteria for participation in the debate were pre-established and objective. On September 5, 2012, the district court concluded that the Commission’s dismissal of the administrative complaint was not supported by substantial evidence and remanded the matter to the agency. La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012).
Upon remand, the Commission exercised its prosecutorial discretion and again dismissed Mr. La Botz’s administrative complaint. It concluded that there was insufficient evidence to provide reason to believe that the ONO failed to use pre-established objective criteria in selecting debate participants. The Commission also decided that further pursuit of the matter would not be an efficient use of the agency’s limited resources.
In response, Mr. La Botz filed a second complaint with the district court alleging that the Commission erred as a matter of law in dismissing the complaint in the remanded matter (La Botz v. FEC, 13-997RC). He alleged that the Commission’s findings contradicted the district court’s holdings, the Act and the Commission’s regulations. Mr. La Botz sought a declaration from the court that the Commission's dismissal of his administrative complaint was arbitrary and capricious, contrary to law, and an abuse of discretion. On September 13, 2013, the Commission filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.
The court agreed with the FEC that it lacked jurisdiction because Mr. La Botz did not have standing. To meet the constitutional requirements of standing, a plaintiff must show at the time the suit commences that 1) he has suffered an injury in fact; 2) there is a causal connection between the alleged injury and the conduct at issue that is fairly traceable to the defendant; and 3) it is likely that the injury will be redressed by a favorable decision. La Botz v. FEC, ___ F. Supp. 2d ___, 2014 WL 3686764 (D.D.C. July 25, 2014), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, and Del Monte Fresh Produce Co. v. U.S., 570 F.3d 316, 324 (D.C. Cir. 2009).) The court determined that Mr. La Botz did not have standing when he filed his 2013 claim because his injury was no longer redressable: Mr. La Botz said that he would not run for office in Ohio, since he has relocated to New York. “Given that he will not be running for office again in Ohio, a favorable decision by this court will not redress his injuries, as the ONO’s selection criteria will no longer affect his campaigning.” Since there was no way for the court to redress Mr. La Botz’s injury, the court found that he lacked standing.
The court added that even if it found Mr. La Botz had standing, it also lacked jurisdiction because the case is moot. To overcome an argument of mootness, the challenged practices must be “capable of repetition, yet evading review.” The court found that Mr. La Botz could not demonstrate a reasonable expectation that he (or a similarly situated party) would be subject to the ONO’s alleged unfair debate practices in the future. “The ONO’s debate selection criteria are now pre-existing and in written form, so there is no chance that a candidate … will be subject to purportedly post-hoc rationales by the ONO.” Further, since Mr. La Botz has relocated to New York, it is no longer likely that he will run for Senate again in Ohio and would not be subject to the same action by the ONO. Therefore, the court held that Mr. La Botz’s claim is moot and the court therefore lacks jurisdiction.
The court then concluded that even if it found jurisdiction, it would still dismiss the case on the merits given the Commission’s broad prosecutorial discretion. It found that Mr. La Botz failed to meet the substantial burden of showing that the Commission’s dismissal of his complaint was contrary to law or an abuse of discretion. The court determined that it was “entirely reasonable for the FEC to opt not to pursue Mr. La Botz’s claim, but rather to expend its resources on more salient and potentially fruitful matters.”