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  • FEC Record: Litigation

District court upholds Commission’s disclosure policy in Doe, et al. v. FEC

April 9, 2018

On March 23, 2018, the U.S. District Court for the District of Columbia upheld the Commission’s disclosure policy as constitutional and a reasonable exercise of the agency’s administrative authority. The policy had been challenged in a suit John Doe 1 and John Doe 2 (“Plaintiffs”) filed in December 2017 to prevent the FEC from disclosing their identities in documents contained in an investigative file in a closed FEC enforcement matter. The plaintiffs have requested that the Court stay its decision rejecting their challenge pending appeal. 


The Federal Election Campaign Act (the Act) requires the disclosure of any “conciliation agreement” signed by the Commission and a respondent in an enforcement matter as well as any “determination that a person has not violated [the] Act.” The Commission’s implementing regulation provides, “[i]f the Commission makes a finding of no reason to believe or no probable cause to believe or otherwise terminates its proceedings, it shall make public such action and the basis therefor…. If a conciliation agreement is finalized, the Commission shall make public such conciliation agreement forthwith.”

In 2016, the Commission revised its disclosure policy—in part to account for the D.C. Circuit Court of Appeals’ decision in AFL-CIO v. FEC—and narrowed the scope of the information that would be made public in closed investigations to “documents integral to its decisionmaking process… as well as documents integral to its administrative functions.” These documents include administrative complaints and responses to complaints; certain General Counsel’s Reports; statements of reasons issued by one or more Commissioners; conciliation agreements; certain memoranda and reports prepared by the General Counsel’s Office for the Commission in connection with specific pending investigations.


In February 2015, Citizens for Responsibility and Ethics in Washington and Anne Weismann filed an administrative complaint alleging that an “unknown respondent” made a contribution to Now or Never PAC that violated the Act’s prohibition on contributions in the name of another. The Commission’s investigation identified Government Integrity LLC (GI LLC) as an “unknown respondent.” The investigation led the FEC’s Office of General Counsel to conclude that a trust, “John Doe 2,” provided the funds for the contribution at issue. In September 2017, the FEC’s Office of General Counsel recommended that the Commission find reason to believe that Plaintiffs violated the Act’s prohibition on contributions in the name of another and authorize commencement of a civil suit to enforce a subpoena issued to Plaintiffs. Two Commissioners approved the recommendations and three opposed. All five Commissioners then approved taking no action for an interim period of time.

In October 2017, the Commission approved a conciliation agreement with GI LLC, American Conservative Union, Now or Never PAC and James Thomas, Now or Never PAC’s treasurer. The Commission notified the parties that the matter was closed and that documents related to the case would be placed on the public record under 52 U.S.C. § 30109(a)(4)(B) and 11 CFR 111.20(a).

Though not formally designated by the Commission as respondents in the matter, John Doe 1 and John Doe 2 are identified in the FEC’s investigation and deliberations on the administrative complaint.

On December 15, 2017, John Doe 1 and John Doe 2 filed a complaint in the U.S. District Court of for the District of Columbia seeking preliminary and permanent injunctions against the Commission from any release of their identities. They claimed that, since they were not respondents in the Commission’s investigation or parties to the conciliation agreement, their identities should not be released as part of the public administrative case file. They argued that release of their identities is contrary to law, an invasion of privacy and could be read to implicate them in illegal conduct. They also alleged that a release would have a chilling effect on their speech.

Court decision

The court analyzed whether disclosing plaintiffs’ identities in accordance with the Commission’s disclosure policy would violate the Constitution or otherwise be improper. The court concluded that the Commission’s disclosure policy is “carefully tailored to minimize the burdens on constitutional rights while providing for sufficient disclosure to advancing legitimate concerns of deterring future violations and promoting Commission accountability.” The court determined that the documents that the Commission would disclose (including those identifying the plaintiffs) were “central to its handling and decision making in reaching the conciliation agreement.”

The court held the Commission’s disclosure policy is a reasonable interpretation of the Act and determined that the release of the plaintiffs’ names is consistent with FOIA. Though the plaintiffs were not named as respondents in the investigation, the court found that the facts of the case fell within the language of the policy requiring disclosure. “The agency’s salutary interest in exposing its decision making to public scrutiny outweighs plaintiffs’ insubstantial privacy concerns.” The court deferred to the Commission’s “reasonable interpretation of the statutory disclosure requirements” and refused to enjoin the Commission’s disclosure of the plaintiffs’ identities as part of the regular release of the investigative file.

Editor's note: On April 11, plaintiffs filed a notice of appeal in the United States District Court for the District of Columbia.