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During February and March 2007, Barry Bialek, Jon Marcus and Jack and Renee Beam filed separate, but substantially similar complaints with district courts in Colorado, Arizona and Northern Illinois, respectively, alleging that the Commission violated the Federal Election Campaign Act (the Act) by "tacitly cooperating and conspiring with" Attorney General Alberto Gonzales to circumvent the Act.

According to the complaint filed February 14, 2007, Plaintiff Barry Bialek made contributions towards John Edwards’ 2004 Presidential campaign. In November 2005, the U.S. Attorney General began an investigation into possible violations of the Act by the plaintiff. See April 2007 Record [PDF]. The plaintiff filed a complaint with the District Court in Colorado, alleging that the Commission must refer, by a vote of the majority of the Commission, a matter to the Attorney General prior to the Attorney General investigating or prosecuting a violation of the Act.

These cases are related to the Fieger v. Gonzales case currently pending in the Eastern District of Michigan, in which Geoffrey Fieger alleges that the Act grants the Commission exclusive jurisdiction over criminal violations and bars the Department of Justice from conducting any grand jury investigations unless and until the Commission makes a referral. See March 2007 Record [PDF].


The plaintiffs made contributions to John Edwards’ 2004 presidential campaign. According to the complaints, the plaintiffs are being investigated by the Department of Justice for violations of the Act. Mr. Bialek was summoned before a grand jury in November 2006 and Mr. Marcus was summoned before a grand jury in October 2006.

The plaintiffs assert that by giving "exclusive jurisdiction" over the Act to the Commission, Congress determined that no criminal investigation can take place unless the Commission has formally referred the criminal matters to the Attorney General. The plaintiffs claim that the Attorney General’s investigations are unlawful and unconstitutional since the Commission did not refer the plaintiffs’ alleged violations to the Attorney General.

In addition to those allegations, the Beam plaintiffs allege that Attorney Gonzales intentionally interfered with the Commission’s investigation and that the Commission’s failure to conduct its own investigation violates the Act and the Administrative Procedures Act.


The Bialek and Marcus complaints seek a declaration that the defendants’ actions are unlawful and the award of costs and attorneys’ fees. In addition to this relief, the Beam complaint asks the court to declare the that the Commission has failed to uphold the Act and to issue a Writ of Mandamus requiring the Commission to conduct its own investigation into the matter prior to any investigation by the Attorney General.

Plaintiffs Beam

On March 7, 2008, the U.S. District Court for the Northern District of Illinois granted the Commission’s motion to dismiss the First Amended Complaint filed by Jack and Renee Beam (the plaintiffs) against the U.S. Attorney General and the Chairman of the FEC. The court held that it lacked subject matter jurisdiction over plaintiffs’ claims, that plaintiffs failed to establish Article III standing, the case was not ripe for review and the FEC did not violate the Federal Election Campaign Act (the Act).

The District Court found in favor of the Commission and the Department of Justice on every issue addressed in the decision. The court held that the plaintiffs lacked standing necessary for the court to have subject matter jurisdiction over the suit. The plaintiffs did not allege in their complaint that the Department of Justice had "raided" their own home or seized their own bank records, but alleged only raids affecting other Fieger associates and employees. The plaintiffs did not show that they had suffered any harm and thus did not meet the judicial requirement of "injury in fact." The Court also found plaintiffs failed to establish standing with respect to the RFPA claim because they relied only upon "unsubstantiated speculation" that the Commission had possession of their private banking records and that the Commission had illicitly obtained those records.

The court also found that the plaintiffs’ case was not ripe for review. The court stated that because neither the Attorney General nor the FEC had made decisions about whether or how to enforce applicable laws against the plaintiffs, the court could not assess whether any agency misconduct affected the plaintiffs. Additionally, the plaintiffs identified no hardship that they would suffer if the court were to wait to decide their claims until the alleged investigations were complete.

Although the plaintiffs alleged that the Commission violated the Act in several ways, the court found that the allegations provided no basis for relief. The court agreed with the other District Court decisions in Fieger v. Gonzales and Bialek v. Gonzales. The court held that, contrary to plaintiffs’ assertions, the FEC is not required to refer a matter to the Department of Justice prior to the Attorney General initiating an investigation. The Attorney General has sole authority to investigate and prosecute criminal violations of the U.S. Code, unless Congress clearly and unambiguously restricts that authority.

The court found no evidence that Congress intended to limit the Attorney General’s authority to prosecute criminal violations of the Act. Regarding the plaintiffs’ request that the court order the FEC to conduct an investigation into the alleged illegal activities, the court found that "the judiciary has no power to dictate the timing or nature of an investigation," or require the FEC to conduct an investigation at all.

The court granted leave to plaintiffs to file a Second Amended Complaint. Plaintiffs filed their new complaint on March 24, 2008.

Related Litigation:

  • Bialek v. Mukasey [formerly Bialek v. Keisler; Bialek v. Gonzales], U.S. District Court for the District of Colorado, 07-CV-00321-WYD-PAL.
  • Marcus v. Mukasey [formerly Marcus v. Gonzales], U.S. District Court for the District of Arizona, CV070398-PCT-EHC.

Source:   FEC Record -- April 2007 [PDF]; August 2007 [PDF]; May 2008 [PDF]; August 2008 [PDF].

Related Documents:

District Court Documents (Northern District of IL) (07-1227)