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  • FEC Record: Litigation

Bialek v. Mukasey

August 1, 2008

On June 24, 2008, the U.S. Court of Appeals for the 10th Circuit affirmed the district court’s dismissal of plaintiff Barry Bialek’s suit against the U.S. Attorney General and the FEC, agreeing 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 from the Commission.


According to the complaint filed February 14, 2007, Mr. 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.

In June 2007, the District Court granted the Commission’s motion to dismiss the plaintiff’s suit with prejudice, holding that the Attorney General’s discretion over whether to investigate a potential criminal violation of the Act does not require a referral from the Commission. See August 2007 Record

Court decision

The appellate court affirmed the district court’s decision. The appellate court agreed with the district court that Congress did not expressly 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.

The Act provides the Commission with 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 appellate court agreed with the district court’s rejection of the 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 limit the Attorney General in any way. The court held that nothing in the plain language of the Act nor the legislative history required a referral prior to prosecution by the Attorney General.

The appellate court found that the Commission and the Department of Justice have concurrent jurisdiction to investigate knowing and willful violations of the Act. Both agencies may initiate investigations and make referrals to each other.

U.S. Court of Appeals for the Tenth Circuit, 07-cv-00321-WYDPAC.

  • Author 
    • Meredith Metzler