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On March 8, 2010, the U.S.
District Court for the District of
Columbia denied the Commission’s
motion to dismiss and denied Utility
Workers Union of America, Local
369’s (Plaintiff’s) oral motion for
summary judgment regarding the
Plaintiff’s suit against the FEC for
dismissing an administrative complaint
alleging that Covanta Energy
Corporation (“Covanta”) unlawfully
solicited contributions to its
separate segregated fund (SSF) in
its employee handbook. The district
court remanded the case to the
Commission for further explanation
and proceedings consistent with the
court’s opinion.
The Plaintiff filed an administrative
complaint with the Commission
in October 2008 alleging
that Covanta violated the Federal
Election Campaign Act (the Act) by
including language in its employee
handbook that solicited contributions
from employees to Covanta’s SSF.
Under the Act, SSFs may only solicit
contributions from a corporation’s
"restricted class," which consists of
stockholders, executive and administrative
personnel and the families of
both groups. 2 U.S.C. §441b(b). The
Plaintiff alleged that the handbook
violated the Act by impermissibly
soliciting all employees and by not
following other requirements.
The FEC dismissed the Plaintiff’s complaint. Applying the standard set forth in Commission advisory opinions for determining whether a communication amounts to a solicitation, the Commission concluded that the language in Covanta’s employee handbook was not a solicitation because it did not encourage support for the [SSF] or facilitate the making of contributions to the [SSF], but "merely convey[ed] information that might engender inquiry."
The Plaintiff brought suit challenging the Commission’s dismissal of its administrative complaint under 2 U.S.C. §437g(a)(8)(A), which states that any party aggrieved by an order of the Commission dismissing a complaint may file a petition with the U.S. District Court for the District of Columbia.
The Plaintiff argued that the
Commission’s dismissal of the
administrative complaint was flawed
and that the Commission’s Explanation
and Justification (E&J) on
SSF solicitations calls into question
the Commission’s order. That E&J
explains that an SSF "may accept
unsolicited contributions from persons
otherwise permitted by the Act
to make contributions. Informing
persons of the right to accept such
contributions is, however, a solicitation."
H.R. Doc. No. 95-44, 109
(January 12, 1977). 1
The district court held that it
could not sustain the Commission’s
administrative decision because
neither the Factual and Legal Analysis
explaining the decision nor the
precedent it cites enables the court
to discern the Commission’s rationale
in determining that the Covanta
handbook did not inform persons of
the SSF’s right to accept contributions,
and thus that is was not a solicitation
as interpreted by the E&J.
The court held that a remand to
the Commission for further explanation
is the appropriate remedy in this
situation because, on remand, the
Commission may be able to supply a
reasoned analysis for its dismissal of
the Plaintiff’s complaint in a manner
consistent with the E&J. The court
also held that the Commission did
not improperly rely on its own past
advisory opinions when it cited them
in its order.
Footnote:
1 The Commission’s Explanation and Justification is available on the FEC’s website.
Source: FEC Record -- April 2010 [PDF].
