CREW v. FEC (16-2255)

On November 14, 2016, Citizens for Responsibility and Ethics in Washington (CREW) and its executive director Melanie Sloan (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the Commission''s dismissal of two administrative complaints. The complaints alleged that American Action Network (AAN) and Americans for Job Security (AJS) had violated the Federal Election Campaign Act (the Act) by failing to register as political committees and disclose required information with the Commission.

Background
The Act defines a "political committee" as any committee, club, association, or other group of persons which receives contributions or makes expenditures for the purpose of influencing federal elections in excess of $1,000 in a calendar year. 52 U.S.C. § 30101(4)(A) and 11 CFR 100.5(a). Any political committee that meets these thresholds must register with the Commission and file periodic disclosure reports on their receipts and disbursements. 52 U.S.C. § 30103(a) and 11 CFR 102.1, 104.3, 104.4. However, the Supreme Court has stated that only committees under the control of a federal candidate or whose "major purpose" is the election or defeat of federal candidates are required to register as political committees. See Buckley v. Valeo, 424 U.S. 1, at 79-80. An organization's major purpose may be demonstrated by its activities and a group that devotes a sufficiently extensive amount of its spending to campaign activity may be subjected to the Act's registration and reporting requirements. See Massachusetts Citizens for Life v. FEC.

American Action Network. AAN is a tax-exempt organization under section 501(c)(4) of the Internal Revenue Code which spent funds to distribute independent expenditures and electioneering communications in 2010. In June 2012, plaintiffs filed a complaint with the Commission that alleged that AAN's major purpose was the election or defeat of federal candidates, and as such, should have registered and reported as a political committee with the Commission. In June 2013, the Commission voted 3-3 on whether to find reason to believe that AAN had violated the Act. (An affirmative vote of at least 4 Commissioners is required for the agency to take action.) The plaintiffs then filed suit against the Commission challenging the dismissal of the administrative complaint as contrary to law.

On September 19, 2016, the district court granted the plaintiffs' motion for summary judgment and agreed that the Commission's dismissal of the complaint was contrary to law. The court reversed the dismissal and remanded the case for reconsideration within 30 days to be made in conformity with the court's declaration.

On October 19, 2016, the Commission notified the plaintiffs that it had considered the matter and there was an insufficient number of votes to find reason to believe that AAN had violated the Act and the Commission subsequently closed the file.

Americans for Job Security. AJS is a tax-exempt organization organized under section 501(c)(6) of the Internal Revenue Code which spent funds to distribute electioneering communications and independent expenditures in 2010. In March 2012, plaintiffs filed a complaint with the Commission against AJS, alleging violations of the Act, and that the major purpose of AJS was the election or defeat of federal candidates. As such, the plaintiffs maintained that AJS should have been required to register with the Commission and file disclosure reports as a political committee. In June 2014, however, the Commission failed by a vote of three to three to find reason to believe that AJS had violated the Act. The plaintiffs subsequently filed suit against the Commission in August 2014, alleging that the Commission had acted contrary to law in doing so.

The district court agreed with the plaintiffs and on September 19, 2016, in the same order that addressed the complaints against AAN, found that the Commission had acted contrary to law in dismissing the complaint against AJS. The court then reversed the dismissal of the plaintiffs' complaint against AJS and remanded the case to the Commission for reconsideration within thirty days, which expired on October 19, 2016. To date, plaintiffs maintain, the Commission has not informed the plaintiffs of any action it has taken on the AJS matter.

Request for relief
Plaintiffs ask the district court to declare that the Commission is in violation of its statutory responsibilities under the Act and acted arbitrarily and capriciously in dismissing on remand plaintiffs' complaint against AAN and by failing to act with respect to the complaint against AJS on remand. Plaintiffs request that the court order the Commission to conform with the decision within 30 days and award plaintiffs costs and reasonable attorneys' fees and to grant any further relief that the court may deem proper.

Resources:

• Related article: Appeals filed in CREW v. FEC (14-1419)
• FEC v. CREW (16-1225) ongoing litigation page