RUDOLPH CONTRERAS, United States District Judge.
This case concerns the degree to which the Federal Election Commission ("FEC")
Pending before the Court are the parties' ripe cross-motions for summary judgment. The FEC argues, relying heavily on a recent D.C. Circuit decision, that because the Commissioners exercised prosecutorial discretion to dismiss Plaintiffs' administrative complaint, this Court is barred from reviewing any portion of that dismissal. Plaintiffs resist the application of that "magic words" standard, and the Court is sympathetic to Plaintiffs' concerns. However, having reviewed the relevant case law and the parties' briefing, the Court concludes that, at least in this case, it cannot review the FEC's invocation of its unreviewable discretion. Thus, for the reasons stated more fully below, the FEC's motion for summary judgment is granted and Plaintiffs' motion for summary judgment is denied.
Congress enacted FECA, 52 U.S.C. §§ 30101-30126, to prevent money from corrupting or appearing to corrupt the positions taken by candidates for federal office, and those candidates' actions while in office. See generally Citizens United v. FEC, 558 U.S. 310, 370-71, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). In pursuit of this goal, FECA limits the amount of money that individual donors may contribute to particular types of election-related causes. See, e.g., 52 U.S.C. § 30116(a)(1)(A) (stating that "no person shall make contributions... to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $ 2,000."). FECA also requires that certain categories of politically-inclined organizations disclose to the public how they spend their money and—more importantly—where that money comes from. See id. § 30104.
This case concerns FECA's disclosure requirements for a specific type of organization: a "political committee." FECA defines a "political committee" as "any committee, club, association, or other group of persons" that receives "contributions" or makes "expenditures" "aggregating in excess of $ 1,000 during a calendar year." id. § 30101(4)(A). "Contributions" and "expenditures" are in turn defined as payments made with a purpose to "influenc[e] any election for Federal office." See id. § 30101(8)(A), (9)(A). The Supreme Court has further narrowed the scope of FECA's rules governing political committees, holding that they cover only "organizations that are under the control of a
Classification as a political committee has significant practical consequences. FECA requires political committees to register with the FEC, hire a treasurer, and keep records of the names and addresses of contributors. See 52 U.S.C. §§ 30102-03. Political committees must also file detailed monthly reports identifying, among other information, the amount of money contributed to the reporting committee by individuals and other political committees, the identities of those individuals and political committees, the amount of money contributed by the reporting committee to other political committees, and the identities of those political committees. See id. § 30104(b). And once an organization becomes a political committee, it may only terminate its status if it "will no longer receive any contributions or make any disbursements" and "has no out-standing debts or obligations," id. § 30103(d)(1), or with the Commission's permission under certain circumstances, see 11 C.F.R. § 102.4. "In sum, regulatory obligations, prohibitions, and First Amendment impingements associated with political-committee status are weighty and extensive." Administrative Record at 99 ("AR099"), ECF No. 21.
The FEC (or the "Commission") protects voters' access to "information `as to where political campaign money comes from and how it is spent by the candidate.'" Buckley, 424 U.S. at 66-67, 96 S.Ct. 612 (quoting H.R. Rep. No. 92-564 at 4 (1971)). More specifically, the Commission has the power to "administer, seek to obtain compliance with, and formulate policy with respect to" FECA, and its disclosure requirements. 52 U.S.C. § 30106(b)(1). The Commission is also charged with preventing, investigating, and correcting FECA violations. See id. 30109(a). FECA provides the Commission with broad investigatory powers in service of that mission, including subpoena power and the power to bring civil actions. See id. § 30107. The Commission is structurally bipartisan: of the six members, no more than three may be from the same political party. Id. § 30106(a)(1).
FECA provides the framework by which the Commission must investigate and address FECA violations. First, as happened here, an individual or organization may file a sworn administrative complaint with the Commission asserting that a FECA violation has occurred. See id. § 30109(a)(1);
Congress did not stop there, however. It built into FECA a mechanism for citizens to ensure that the Commission upholds its obligation to safeguard electoral integrity. In a somewhat uncommon legislative step, Congress provided for judicial review of Commission decisions not to enforce FECA.
The review mechanism works as follows. If the Commissioners deadlock on a "reason to believe" vote, they may vote to dismiss the administrative complaint that prompted the vote. See id. § 30106(c) ("[T]he affirmative vote of [four] members of the Commission shall be required in order for the Commission to take any [enforcement or other authoritative] action."); id. § 30109(a)(1) (noting that the Commission may "vote to dismiss" an administrative complaint). At that point, as happened here, the Commissioners who voted not to proceed with the matter (the "Controlling Commissioners") must issue a statement explaining their reasons. See CREW v. FEC ("CREW/CHGO"), 892 F.3d 434, 437 (D.C. Cir. 2018), petition for reh'g en banc filed, No. 17-5049 (D.C. Cir. July 27, 2018); FEC v. Nat'l Republican Senatorial Comm. ("NRSC"), 966 F.2d 1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC, 842 F.2d 436, 448-49 (D.C. Cir. 1988); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.5 (D.C. Cir. 1987). Any "party aggrieved" by the dismissal "may file a petition" for review by a court in this district. 52 U.S.C. § 30109(a)(8)(A). If the reviewing court determines that the Controlling Commissioners acted "contrary to law" in dismissing the complaint, the court must explain that conclusion and direct the Commission to "conform with such declaration within [thirty] days." See id. § 30109(a)(8)(C). Finally, if the Commission fails to conform to the court's order within thirty days, the complainant may file a civil action in its own name, in federal court, to remedy the claimed violation. See id.
New Models was incorporated in 2000 as a non-profit organization with the purpose of "research[ing] national issues" and "participat[ing] in issue advocacy when appropriate." AR094. It "conducted polls, maintained a website that published information about public policy, sponsored and made available polling results and research papers, and made grants to other organizations." AR095. The Controlling Commissioners determined that from 2002 through 2015, New Models spent approximately $ 17.2 million. See AR095-96. While the specific uses of most of those funds are unclear, the parties agree that in 2012, New Models contributed approximately $ 3.1 million to registered political committees, nearly 70% of its spending that year. See id. Other than a $ 265,000 contribution in 2010, see AR095, the record does not indicate that New Models ever donated money to political committees outside of its 2012 spending. The Controlling Commissioners also concluded that New Models "never made any independent expenditures" or "ever funded any electioneering communications" directly.
While New Models contributed millions of dollars in 2012 to political committees, the organization itself never registered with the FEC as a political committee. This prompted Plaintiffs to file an administrative complaint in 2014, alleging that New Models's predominantly campaign-related spending in 2012 made it an unregistered political committee.
As required, the Controlling Commissioners —the two Commissioners who voted to halt the investigation—issued a statement of reasons explaining their conclusion that there was no "reason to believe"
First, the Controlling Commissioners concluded that New Models fell outside the statutory definition of a political committee; it "was a contributor, not a political committee." AR110. More specifically, the Controlling Commissioners determined that New Models did not receive "contributions" or make "expenditures" of more than $ 1,000. See AR108-10. The Controlling Commissioners grounded this determination on the Supreme Court's reasoning in Buckley. They stated that the Court in Buckley "circumscribed" the statutory definition of "expenditure" to reach "spending that is unambiguously related to the campaign of a particular federal candidate." AR109 (quoting Buckley, 424 U.S. at 80, 96 S.Ct. 612). And New Models did not make "any independent expenditures of its own expressly advocating the election or defeat of a clearly identified candidate." Id. It only donated money to other political committees, which "made expenditures independent of candidates and political parties." AR110. In other words, the Controlling Commissioners concluded that because New Models itself did not advocate for the election of any candidate or earmark money for particular campaigns, it did not make expenditures under FECA. And because New Models did not make expenditures it could not receive contributions, which the Controlling Commissioners interpreted, under FECA and Buckley, to be donations "earmarked for political purposes." AR109 (quoting Buckley, 424 U.S. at 23 n.24, 78, 96 S.Ct. 612).
Second, the Controlling Commissioners concluded that New Models's major purpose was not the nomination or election of candidates for federal elections, as Buckley requires for political committee status. See AR121. In reaching this conclusion, the Controlling Commissioners "compare[d] New Models's isolated contributions [in 2012] with other activities both in 2012 and during its lifetime." AR111. The Controlling Commissioners acknowledged that a substantial portion of New Models's spending in 2012 consisted of donations to other political committees, indicating that "nominating or defeating a federal candidate may have been a purpose of the organization in 2012." AR117 (emphasis in original). The Controlling Commissioners noted, however, that New Models spent little to no money on political committees in any other year, both before and after 2012. See AR095-96; AR116-18. They also surveyed New Models's public statements, organizational documents, and tax filings made over its lifetime, and could not find evidence to suggest that the organization ever advocated the election or defeat of a candidate for federal office. See AR111-114. The Controlling Commissioners acknowledged the possibility that New Models's purpose could have shifted in 2012, from an issues focus to a campaign focus, see AR117 & n.123, but they discounted that possibility given the organization's messaging and spending practices after 2012, id. Thus, the Controlling Commissioners concluded that New Models was an "issue discussion organization, not a political committee having the major purpose of nominating or electing candidates." AR121.
Third, the Controlling Commissioners concluded that "proceeding further would not be an appropriate use of Commission resources." AR121 n.139. They noted that
Following the Commission's dismissal of their administrative complaint, Plaintiffs filed suit in this Court alleging that the decision was contrary to law. See generally Compl., ECF No. 1. Plaintiffs seek a declaration that "the FEC is in violation of its statutory responsibilities under 52 U.S.C. § 30109(a)(8)" and that it acted contrary to law in dismissing Plaintiffs' administrative complaint. Id. ¶ 38. The parties have now cross-moved for summary judgment, and those motions are ripe for the Court's review. See generally Pl.'s Mot. Summ. J., ECF No. 12; FEC's Mot. Summ. J., ECF No. 13.
To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Under these circumstances, where summary judgment is sought regarding... the FEC's dismissal decision[ ], this Court will grant summary judgment to the challenger only if the agency's decisions are `contrary to law.'" CREW v. FEC ("CREW I"), 209 F.Supp.3d 77, 85 (D.D.C. 2016) (quoting 52 U.S.C. § 30109(a)(8)(C)); see also Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). "The FEC's decision is `contrary to law' if (1) the FEC dismissed the complaint as a result of an impermissible interpretation of the Act, or (2) if the FEC's dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion." Orloski, 795 F.2d at 161 (citing FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981); In re Carter-Mondale Reelection Comm., 642 F.2d 538, 542 (D.C. Cir. 1980)). Under this standard, a court's task is "not to interpret the statute as it [thinks] best[,] but rather the narrower inquiry into whether the Commission's construction was `sufficiently reasonable.'" Democratic Senatorial Campaign Comm., 454 U.S. at 39, 102 S.Ct. 38 (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978); Train v. Nat. Res. Def. Council, 421 U.S. 60, 75, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975)). "Whether the FEC's decision is unanimous or deadlocks in an evenly divided vote, the same standard for judicial review applies." CREW v. FEC ("CREW II"), 316 F.Supp.3d 349, 366 (D.D.C. 2018) (citing In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000); NRSC, 966 F.2d at 1476).
Plaintiffs argue that the Commission acted contrary to law in two ways. First, Plaintiffs fault the Controlling Commissioners for applying an exceedingly narrow definition of "expenditure," such that only expenditures on "express[ ] advoca[cy]" —and not donations to political committees—were deemed relevant to whether New Models met the statutory definition of a political committee. See Pls.' Mem. Supp. Mot. ("Pls.' Mem.") at 29, ECF No. 12. Second, Plaintiffs characterize the Controlling Commissioners' statement of reasons as applying a "lifetime-focused
The FEC contests Plaintiffs' arguments on their merits, but it first raises a threshold challenge to this Court's review. It notes that the Controlling Commissioners expressly relied on prosecutorial discretion as "an independent basis" for dismissing Plaintiffs' administrative complaint. FEC's Mem. Supp. Mot. ("FEC's Mem.") at 15, ECF No. 13-1. And it argues that a recent D.C. Circuit opinion—CREW v. FEC ("CREW/CHGO"), 892 F.3d 434 (D.C. Cir. 2018), petition for reh'g en banc filed, No. 17-5049 (D.C. Cir. July 27, 2018)—holds that "dismissal decisions based in whole or in part on prosecutorial discretion are presumptively unreviewable." Id. Thus, according to the FEC, binding Circuit precedent dictates that this Court must dismiss Plaintiffs' complaint. See id. at 15-18. Plaintiffs raise valid reasons why CREW/CHGO may "allow the FEC to avoid judicial review of its actions," Pls.' Reply at 28, ECF No. 17, but they fail to demonstrate that the Circuit's decision should not govern the result here. Thus, this case begins and ends with the Controlling Commissioners' prosecutorial discretion.
CREW/CHGO, like this case, involved a challenge to the FEC's dismissal of an administrative complaint.
In challenging that determination, the CREW/CHGO plaintiff raised for the Circuit the same question faced by this Court here: how closely may a court scrutinize the FEC's exercise of prosecutorial discretion in dismissing an administrative complaint? The Circuit's answer: not at all. See id. at 440. Reaching this answer, the Circuit began with the well-established presumption that "an agency's exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny." Id. at 439 (citing Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649 84 L.Ed.2d 714 (1985)). The Circuit noted, however, that Heckler
The Circuit concluded that neither Heckler caveat applied to the Commission's non-prosecution decision before it. FECA "imposes no constraints on the Commission's judgment about whether, in a particular matter, it should bring an enforcement action." Id. at 439. And the CREW/CHGO record "show[ed] that the Commission routinely enforce[d] the election law violations alleged in [the plaintiff's] administrative complaint." Id. at 440 n.9. Thus, the Circuit held that the Controlling Commissioners' exercise of prosecutorial discretion was not subject to judicial review, and that the plaintiff's suit was properly dismissed. Id. at 440.
CREW/CHGO is directly on point here. In both CREW/CHGO and this case, the FEC was "called upon to determine whether [an organization] ... failed to register and report as a `political committee' under the [FECA]." AR091; see also CREW/CHGO, 892 F.3d at 441. In each case, less than four Commissioners voted to "find[ ] reason to believe that [the organization] violated the Act" in the manner asserted. AR092; see also CREW/CHGO, 892 F.3d at 438, 443 (Pillard, J. dissenting). And in each case, the FEC dismissed the administrative complaint, prompting a lawsuit. See CREW/CHGO, 892 F.3d at 436-47; AR121. In reaching the decision at issue in CREW/CHGO, the Controlling Commissioners "placed their judgment squarely on the ground of prosecutorial discretion." Id. at 439. Likewise here, the Controlling Commissioners argued that dismissal was appropriate, in part, "in exercise of [their] prosecutorial discretion." AR121. They concluded that "[g]iven the age of the activity"—the expenditures at issue occurred in 2012, the administrative complaint was filed in late-2014, and the Commission dismissed the complaint in late-2017—"and the fact that the organization appears no longer active"—IRS records indicated that New Models ceased operations in 2015—"proceeding further would not be an appropriate use of Commission resources." AR097 & n.32; AR121 & n.139. Under binding Circuit law, that conclusion is not subject to judicial review. See CREW/CHGO, 892 F.3d at 440.
A perceptive reader may, at this point, be contemplating what appears to be a key difference between CREW/CHGO and this case: the Controlling Commissioners' decision at issue in CREW/CHGO was primarily, if not solely, an exercise of prosecutorial discretion, see id. at 439, while the Controlling Commissioners' decision at issue here involved a robust interpretation of statutory text and case law, with a brief
Plaintiffs strain, unsuccessfully, to extricate this case from CREW/CHGO's holding. They argue that the Controlling Commissioners' "`terse' invocation of discretion... does not meet the agency's obligations [to] adequately explain its justifications to enable judicial review." Pls.' Mem. at 26 (citations omitted). In other words, Plaintiffs ask this Court to review, and reject, the Controlling Commissioners' reasons for exercising their prosecutorial discretion. But again, CREW/CHGO dictates the Court's response. The Circuit's opinion addressed the seeming contradiction raised by Plaintiffs' argument: "an agency has `absolute discretion' when it comes to enforcement decisions," yet Plaintiffs claim that "it is up to the court to decide whether the agency abused [that] absolute discretion" in deciding not to pursue enforcement. 892 F.3d at 440-41. The Circuit rejected that contradiction, holding that "agency enforcement decisions, to the extent they are committed to agency discretion, are not subject to judicial review for abuse of discretion." Id. at 441. This Court cannot evaluate, then, the "individual considerations the [C]ontrolling Commissioners gave" in invoking prosecutorial discretion here, terse as they may be. Id.
Plaintiffs also see a glimmer of hope in CREW/CHGO's statement, made in a footnote, that "[t]he interpretation an agency gives to a statute is not committed to the agency's unreviewable discretion." 892 F.3d at 441 n.11 (citing Heckler, 470 U.S. at 833 n.4, 105 S.Ct. 1649). Plaintiffs argue that the Controlling Commissioners here "definitively resolved New Models's
Resigning themselves to CREW/CHGO's binding effect, Plaintiffs next argue that the Controlling Commissioners' decision here falls outside Heckler's presumption of non-reviewability. Plaintiffs contend that the Controlling Commissioners' decision reflects a reviewable "abdication of [their] statutory responsibilities." Pls.' Reply at 29 (quoting CREW/CHGO, 892 F.3d at 440 n.9). Plaintiffs' theory appears to be two-pronged: either (1) in dismissing Plaintiffs' complaint the Controlling Commissioners adopted a bright-line rule "refus[ing] to apply the FECA's political committee laws to any group that qualifies under the statute as a result of its contributions to other political committees, or as the result of an analysis of less than its lifetime of spending"; or (2) the Commission has "`consciously and expressly adopted a general policy' of nonenforcement" of FECA. Pls.' Reply at 29. Neither prong holds up under scrutiny.
First, the administrative record does not support Plaintiffs' assertion that the Controlling Commissioners adopted bright line rules here. The Controlling
Second, Plaintiffs fail to show that the Commission has adopted a policy of FECA nonenforcement. Plaintiffs claim that this alleged policy is "reflected in years of complaints against groups who failed to register as political committees being dismissed by these [C]ontrolling [C]ommissioners, even where the FEC's staff recognizes the complaints are meritorious." Pls.' Reply at 29. And they put forth a chart purporting to show that the Commission consistently declines to find reason to believe that an organization acted as an unregistered political committee. See Decl. Stuart C. McPhail Ex. 2, ECF No. 17-3.
This evidence indicates that the Commission may be less zealous in enforcing FECA than Plaintiffs would like, but it does not rise to the level of showing that the Commission has consciously or expressly adopted a policy of refusing to pursue complaints against alleged unregistered
Without stronger record evidence indicating that the FEC has adopted a general non-enforcement policy, the Court must assume that the Commission made each decision listed in Plaintiffs' chart on a case-by-case basis. See 72 Fed. Reg. at 5601; CLC, 312 F.Supp.3d at 164 n.6 (rejecting the plaintiff's argument that the FEC abdicated its statutory responsibilities when "a three-Commissioner bloc ... increasingly voted in lockstep to thwart enforcement of campaign finance law," because the "fact that these deadlocks occur is evidence of the Congressional scheme working, not malfunctioning"); cf. Latif v. Obama, 666 F.3d 746, 748 (D.C. Cir. 2011) ("The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007))). The Commission fulfilled its statutory responsibility to investigate New Models, see 52 U.S.C. § 30109(a), it simply reached a different conclusion than Plaintiffs preferred. That is not the "abdication" of responsibilities contemplated by Heckler.
FECA expressly authorizes judicial review of the Commission's enforcement and non-enforcement decisions. See 52 U.S.C. § 30109(a)(8). In conducting this review, courts must balance, on the one hand, the Commission's non-reviewable judgment of how to best allocate its resources to pursue FECA violations, and on the other hand, the courts' role as "a necessary check against arbitrariness" when the "Commission is unable or unwilling to
For the foregoing reasons, the FEC's Motion for Summary Judgment (ECF No. 13) is
