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  • FEC Record: Litigation


February 1, 2007

On January 12, 2007, the U.S. Court of Appeals for the District of Columbia upheld the district court's summary judgment in favor of the FEC, finding that Citizens for Responsibility and Ethics in Washington (CREW) lacked standing to challenge the Commission's dismissal of its administrative complaint.


According to the administrative complaint CREW filed during the 2004 campaign, Grover Norquist, head of Americans for Tax Reform, provided Kenneth Mehlman, campaign manager for Bush-Cheney '04, a master list of conservative activists. The administrative complaint did not seek as relief information about the precise dollar value of the list. On October 19, 2004, the Commission voted to take no further action in this matter and to close the file. Although the FEC found the master list to be an unreported, in-kind prohibited corporate contribution, it appeared to be "limited in size and impact." The Office of General Counsel recommended that the Commission "exercise its prosecutorial discretion and take no further action" in the matter.

Court decision

On December 13, 2004, CREW filed suit to challenge the FEC's decision not to pursue further investigation. The FEC filed a motion for summary judgment on April 15, 2005, arguing that CREW lacked standing to pursue the action. The motion was granted by the district court on November 14, 2005.

In order to have standing, the plaintiff must satisfy three requirements: injury, redressability and causation. The injury standard is met when the plaintiff suffers an actual, not abstract, invasion of a concrete, legally protected interest. Redressability is proved when it is likely, not merely speculative, that a favorable court decision will redress the injury. Lastly, when the injury is fairly traceable to the defendant's action in question, the causation standard is satisfied.

CREW argued that the FEC should have required Bush-Cheney '04 to assign a precise monetary value to the master list and publicly disclose that figure to help CREW in its mission of "empowering citizens." In order to have standing, however, the plaintiff must prove it has suffered an injury in fact to its own interests, not simply assert that it would be unable to help others achieve abstract goals. CREW cannot vote, nor does it have any members who participate in the political process. As a result, the appeals court upheld the district court's conclusion that CREW could not have suffered from a lack of information in the voting process.Like the district court, the court of appeals also found that CREW was unable to prove standing based on the standards of redressability and causation. CREW complained that the FEC's failure to require Bush-Cheney '04 to publicly disclose and report the monetary value of the master list was a violation of the Act. However, the court noted that while the Act requires the FEC to negotiate a conciliation agreement after a "reason to believe" determination and "probable cause," the Act does not require that disclosure of information be part of the conciliation agreement. Therefore, the Commission is not legally bound to requiring, or the court granting, the disclosure of the information to redress the situation.To prove causation, the alleged harm must be fairly traceable to the defendant's action. The court inferred that the alleged harm suffered by CREW was based on the FEC's decision to dismiss the complaint in order to focus its resources on more pertinent matters. The court did not find that the FEC violated any legal principle when it dismissed the administrative complaint because the FEC retains prosecutorial discretion and is not expected to bring every administrative complaint to court.

In support of its ruling, the court cited Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997). Under circumstances similar to those in CREW's case, Common Cause was held not to have standing.

Appeal from the U.S. District Court for the District of Columbia, 04-2145.

  • Author 
    • Carrie Hoback