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  • FEC Record: Litigation

Bialek v. Gonzales

August 1, 2007

On June 28, 2007, the U.S. District Court for the District of Colorado granted the Commission's motion to dismiss the suit by Barry Bialek against the U.S. Attorney General and the FEC, holding that the Attorney General has discretion over whether to investigate and prosecute criminal violations of the Federal Election Campaign Act (the Act) and is not required to wait for a referral of a case from the Commission.


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.

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.

Court decision

The District Court held that the Act does not limit the Attorney General's authority to investigate and prosecute criminal violations of the Act and that the Commission's actions are not a prerequisite to the Attorney General's investigation.

Upon creating the Federal Election Commission, Congress gave the Commission exclusive jurisdiction to enforce the civil provisions of the Act. 2 U.S.C. 437c(b)(1). The Commission may refer a violation to the Attorney General if, by four votes of the Commissioners, the Commission determines that there is probable cause to believe that a "knowing and willful" violation occurred. 2 U.S.C. 437g(a)(5)(C).

The plaintiff claimed that because the Act grants the Commission exclusive jurisdiction over civil violations and contains a referral provision, criminal violations must first be handled by the Commission, and the Attorney General may only become involved in the matter once the Commission has voted to refer the violation. The court rejected the plaintiff's argument, holding that there is a presumption against any limitation on the Attorney General's prosecutorial authority and Congress must show "clear and unambiguous" intent to restrict the Attorney General's authority to investigate and prosecute criminal offenses. The Act does not explicitly restrict the Attorney General in any way. The court held that nothing in the plain language of the Act required a referral prior to prosecution by the Attorney General.

Additionally, the court held that the legislative history of the Act does not show Congressional intent to limit the prosecutorial authority of the Attorney General.

The district court granted the Commission's motion to dismiss and dismissed the case with prejudice against the plaintiff.

Bialek v. Gonzales, U.S. District Court for the District of Colorado, 07:CV-00321-WYD-PAC.

  • Author 
    • Meredith Metzler