Citizens for Responsibility and Ethics in Washington (CREW), et al. v. FEC (10-1350)(District court 2011)

On August 1, 2011, the U.S. District Court for the District of Columbia entered judgment in favor of the Commission in Citizens for Responsibility and Ethics in Washington (CREW) et al. v. FEC, granting the Commission’s motion to dismiss this case. CREW and its executive director Melanie Sloan had filed suit alleging that the Commission had wrongfully dismissed their administrative complaint and claiming that the agency had failed to provide timely notice of its dismissal as well as the reasons for dismissal.

Background

In March 2007, plaintiffs filed an enforcement complaint with the FEC against Peace Through Strength Political Action Committee (PTS PAC), a leadership PAC sponsored by Representative Duncan Hunter. The complaint alleged that the PAC provided financial support in amounts beyond those permitted by the Federal Election Campaign Act (the Act) to Representative Hunter’s Presidential exploratory committee in the form of excessive expenditures for advertisements.

The First General Counsel’s report found that, while the expenditures made by PTS PAC for ads cited by CREW in its complaint did not appear to constitute violations of the Act, other disbursements by PTS PAC did indicate possible violations by the exploratory committee. The report recommended that the Commission find reason to believe that (1) Representative Hunter failed to timely file a Statement of Candidacy for President and to maintain a record of contributions received or expenditures made while he was exploring a potential candidacy for President; (2) his Presidential campaign committee, Hunter for President, Inc. (HFP), failed to report contributions received or expenditures made during the exploratory period; and (3) PTS PAC made, and HFP accepted, excessive in-kind contributions to Representative Hunter’s Presidential campaign, in the form of excessive payments for travel to early primary states by Representative Hunter. The report recommended taking no action, however, in regard to allegations that PTS PAC failed to report its expenditures for advertising. The Commission voted to approve these recommendations and commenced an investigation (MUR 5908).

The investigation found that PTS PAC spent a little over $10,000 for Representative Hunter’s travel expenses. The Second General Counsel’s report recommended that the Commission find that PTS PAC made, and HFP accepted, excessive in-kind contributions. In regard to the late filing of the Statement of Candidacy, because it was only three days late, the General Counsel recommended that the Commission not pursue a civil penalty. Finally, the General Counsel recommended that the Commission take no action in regard to the allegations about PTS PAC expenditures for advertising.

The Commission voted to dismiss MUR 5908 on June 29, 2010. In a Statement of Reasons for its dismissal, the Commission explained that because the amount of any potentially excessive contributions by PTS PAC to HFP was small, and the late filing of the Statement of Candidacy was de minimis, the Commission chose to exercise prosecutorial discretion and close the case regarding both allegations. Subsequently, the Commission notified CREW of its decision to close the file by letter dated July 23, 2010, and sent CREW its Statement of Reasons by letter dated August 24, 2010.

Section 437g(a)(8)(B) of the Act provides that the complainants may petition the court to review a Commission decision to dismiss an administrative complaint in an enforcement case within 60 days after that dismissal. On August 11, 2010, CREW filed a complaint (amended on October 28, 2010) with the District Court alleging that the Commission wrongfully dismissed MUR 5908, did not timely notify CREW of its dismissal and had an unlawful policy and practice of failing to provide enforcement case complainants with what plaintiffs claimed was the “‘statutorily mandated 60 days’ notice of dismissal and basis of dismissal.’” The FEC moved to dismiss the complaint on the grounds that CREW lacked standing and failed to state a claim.

District court decision

In its memorandum opinion, the District Court noted that CREW must establish its standing to pursue its claim. The court noted that, while CREW had the right to file an administrative complaint with the FEC, that right did not grant them standing to seek judicial review of the disposition of that complaint.

Thus, the court analyzed whether CREW had standing in the case. In its arguments, the Commission contended that CREW failed to establish standing to appeal the dismissal of MUR 5908 under prongs one and three of the test in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The court noted that under the first prong of the Lujan test, “the plaintiff “must have suffered an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not “conjectural” or “hypothetical[.]” The court also noted that under the third prong of the Lujan test, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”

The court’s review of the complaints, the General Counsel’s reports and the FEC’s Statement of Reasons led the court to find that CREW failed to suffer an “informational injury” as the amount spent on travel was publicly disclosed in FEC reports. Since the amended complaint filed by CREW demanded amended FEC filings regarding the previously disclosed expenditures, the court found that the Plaintiffs did not have standing to bring their claim for wrongful dismissal of MUR 5908.

Regarding the claim that the Commission failed to timely notify CREW of its dismissal of the case, the court noted that the Act requires that any court challenge be filed within 60 days of the agency’s dismissal, but it does not contain a timeframe in which a complainant must receive notice of the dismissal. In this case, the Commission voted to dismiss the case on June 29, 2010, notified CREW of its decision to close the file by letter dated July 23, 2010 and sent CREW its Statement of Reasons by letter dated August 24, 2010. Because the agency notified CREW of its decision to dismiss the administrative complaint within the 60-day timeframe, the district court found that CREW did not have standing to bring this claim.

The text of the court’s opinion is available at https://transition.fec.gov/law/litigation/crew101350_dc_memo_opinion.pdf.

United States District Court for the District of Columbia (No. 10-1350 (JEB)), August 1, 2011.

Resources:

• CREW v. FEC litigation page
• FEC enforcement - Enter 5908 into case number search field to see related documents