Fieger v. U.S. Attorney General, et. al.

On September 15, 2008, the U.S. Court of Appeals for the Sixth Circuit affirmed the decision of the U.S. District Court for the Eastern District of Michigan to dismiss Gregory N. Fieger and others' (Plantiffs) suit. The district court ruled that the Federal Election Campaign Act (the Act) permits the Attorney General of the United States to conduct investigations into suspected criminal violations of campaign finance law without a referral from the FEC, and that the Plaintiffs are not entitled to have a court compel the FEC to review the case.

Background

In February 2007, the Plaintiffs filed suit against then-Attorney General Alberto R. Gonzalez and then-FEC Chairman Michael E. Toner. See https://www.fec.gov/updates/beam-v-gonzales/. The Plaintiffs sought judgment that the defendants acted contrary to the plain language of the Act, which the Plaintiffs assert bars the Attorney General from conducting an investigation of alleged violations of the Act until the FEC has investigated the matter itself and referred the matter to the Attorney General by an affirmative vote of four of its members. The Plaintiffs also asserted that the FEC's failure to comply with the requirements of the Act violated the Administrative Procedure Act (APA), and sought an order from the district court compelling the FEC to perform its statutorily defined duties pursuant to the Act.

The Act established the FEC, which consists of six voting members, no more than three of whom may be affiliated with the same political party. If the FEC, through an affirmative vote of at least four of its members, determines that there is probable cause to believe there has been or is about to be a knowing and willful violation of the Act's criminal provisions, the Commission may refer the violation to the Attorney General without regard to the Act's conciliation provisions.

Analysis

The appeals court agreed with the analysis of the district court that the Act also does not limit in any way the Attorney General's "plenary power" to enforce such criminal provisions of the Act. The appeals court also concluded that the plaintiffs' insistence that the Act does not allow the Attorney General to prosecute violations of the Act without a referral from the FEC is without basis or merit, since Congress has vested in the Attorney General the power to conduct the criminal litigation of the U.S. Government. While Congress may delegate such authority to other executive agencies or offices, the Supreme Court has explained that this requires a "clear and unambiguous expression of the legislative will."

The Act states that the FEC has "exclusive jurisdiction with respect to the civil enforcement" of the provisions of the Act. The Act, however, is silent with respect to criminal jurisdiction. The court concluded that the fact that Congress chose to vest exclusive civil jurisdiction in the Commission while including no analogous provision regarding criminal jurisdiction suggests that Congress did not intend to supplant the traditional criminal enforcement powers of the Attorney General with respect to the Act. In examining the legislative history of the Act and its amendments, the court concluded that Congress expressly decided against granting exclusive criminal jurisdiction to the FEC.

In an analogous case, Bialek v. Mukasey, the Tenth Circuit Court of Appeals also examined a 1977 Memorandum of Understanding in which both the FEC and the Department of Justice acknowledged that the Attorney General "may investigate and prosecute knowing and willful violations [of the Act] without first exhausting FEC's investigative and conciliation procedures." The court in that case concluded that Congress intended to leave undisturbed the Justice Department's authority to prosecute criminally a narrow range of aggravated violations of the Act. See https://www.fec.gov/updates/bialek-v-mukasey/.

U.S. Court of Appeals for the Sixth Circuit, CV 07-2291.