Fieger v. FEC

On August 15, 2007, the U.S. District Court for the Eastern District of Michigan granted the Commission's motion for summary judgment and the Attorney General's motion to dismiss the suit by Geoffrey Fieger, Nancy Fisher and the law firm of Fieger, Fieger, Kenney & Johnson, P.C., holding that the Attorney General has authority to investigate a criminal violation of the Federal Election Campaign Act (the Act) without prior referral by the Commission.

Background

The plaintiffs filed a complaint with the District Court for the Eastern District of Michigan, alleging that the Commission must refer, by a vote of the majority of the Commission, a matter to the Attorney General prior to the Attorney General investigating or prosecuting a criminal violation of the Federal Election Campaign Act (the Act). Plaintiffs alleged that, since no such referral took place, the Attorney General's investigation of the plaintiffs for alleged violations of the Act should be declared illegal and that the Commission should be compelled to conduct the initial investigation into the plaintiffs' alleged activities.

Court Decision

The district court held that the Act does not limit the Attorney General's authority to investigate and prosecute criminal violations of the Act and that a Commission investigation is not a prerequisite to the Attorney General's actions.

Upon creating the Federal Election Commission, Congress gave the Commission exclusive jurisdiction over the civil enforcement of the Act. 2 U.S.C. §437c(b)(1). The Commission may refer a matter to the Attorney General if it determines that there is probable cause to believe that a "knowing and willful" violation occurred. 2 U.S.C. §437g(a)(5)(C).

The plaintiffs claimed that the Act grants the Commission exclusive jurisdiction over civil enforcement of the Act. Therefore, plaintiffs argued, all alleged violations of the Act must first be handled by the Commission, and the Attorney General may only become involved in the matter once the Commission has voted to refer the apparent violation. The court rejected the plaintiffs' argument for several reasons. The court found that the plain language of the Act does not grant exclusive criminal jurisdiction to the Commission nor does it infringe on the Attorney General's power to enforce criminal violations. Also, the legislative history of the Act and the amendments to the Act show that Congress had no intent to limit the authority of the Attorney General to prosecute criminal violations of the Act. Additionally, numerous prior court cases have held that criminal enforcement may either originate with the Attorney General or begin from a referral by the Commission to the Attorney General.

The court also rejected plaintiffs' request that the Commission be compelled to conduct its investigation in the first instance, because the Act does not require the Commission to conduct an investigation within a certain time period or in a certain manner. Additionally, while the Act permits persons who file an administrative complaint with the FEC to bring a civil action against the Commission regarding its failure to act on the complaint within a certain timeframe, Congress did not grant similar rights to persons against whom complaints are filed (administrative respondents), such as the plaintiffs. See 2 U.S.C. §437g(a)(8).

The district court granted the Commission's motion for summary judgment and the Attorney General's motion to dismiss with prejudice.

Fieger v. Gonzales, U.S. District Court for the Eastern District of Michigan, 2:07-cv-10533-LPZMKM