Court grants Commission’s motion for summary judgment in FEC v. Rivera

On February 23, 2021, the United States District Court for the Southern District of Florida (the court) granted the Commission’s motion for summary judgment against former Representative David Rivera. The Commission had alleged that Rivera violated the ban on contributions in the name of another, 52 U.S.C. § 30122, by engaging in a scheme to secretly provide nearly $76,000 in in-kind contributions to a federal candidate.

Background

The court dismissed the FEC’s original complaint against Rivera on September 27, 2018 citing the order of the United States District Court for the District of Utah in FEC v. Jeremy Johnson and John Swallow ordering 11 CFR 110.4(b)(1)(iii) stricken from the Code of Federal Regulations. The court construed the Commission’s original complaint as alleging all violations under the now-stricken regulation. On August 15, 2019, the Commission filed an amended complaint against Rivera that included assertions that he had violated 11 CFR 110.4(b)(1)(i).

Analysis

The FEC moved for summary judgment, stating that the documentary evidence and corroborating witness testimony establishes that Rivera made illegal in-kind contributions and that Rivera’s own statements further establish his liability. Rivera responded to the Commission’s motion arguing that one of the corroborating witnesses, an associate of Rivera, had repudiated her testimony and that the witness had not been available for deposition. Rivera further argued that the witness’s testimony consists of “blatant hearsay statements and would not be admissible at trial without the declarant being available for cross-examination.” The court rejected these arguments, stating that the evidence shows that Rivera engaged in the alleged scheme and that his opposition brief “fails to rebut or even address much of that evidence.” Accordingly, the court granted the Commission’s motion for summary judgment.

Having granted the motion for summary judgment, the court then considered the Commission’s request for penalties. The Commission requested that the court enter a civil penalty of $456,000 against Rivera because he “knowingly and willfully made $75,927.31 in contributions in the name of another” in violation of 52 U.S.C. § 30122. The Commission also requested that the court declare that Rivera violated 52 U.S.C. § 30122 and permanently enjoin him from violating that provision of the Federal Election Campaign Act again. The court found that Rivera had knowingly and willfully violated the Act, that his conduct had injured the public, and that Rivera had the ability to pay the fine. Thus, the court will issue a civil penalty against Rivera in the amount of $456,000. The court also found that while an injunction against committing future violations of the law seems unnecessary, Rivera’s refusal to take responsibility for his illegal conduct and his continued candidacies for office make such an injunction appropriate. Accordingly, the court will enter a permanent injunction against Rivera prohibiting him from making campaign contributions in the name of another.

Resources

• FEC v. Rivera litigation page