Melanie Sloan D.C. Bar No. 434584 Citizens for Responsibility and Ethics in Washington 11 Dupont Cir., N.W.

2nd Floor Washington, D.C. 20036 202-588-5565 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ CITIZENS FOR RESPONSIBILITY AND : ETHICS IN WASHINGTON : 11 Dupont Cir., N.W. : Washington, D.C. 20036 : : Plaintiff : : Case No.: ________________ v. : : FEDERAL ELECTION COMMISSION : 999 E Street, N.W. : Washington, D.C. 20463 : : Defendant : _________________________________________ : COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF INTRODUCTION 1. On February 4, 2004, Plaintiff Citizens for Responsibility and Ethics in

Washington (CREW), filed a complaint with the Federal Election Commission (FEC, or the Commission) seeking an FEC investigation and enforcement action against Grover Norquist, Americans for Tax Reform (ATR), Ken Mehlman and Bush-Cheney 04 (BC 04") for direct and serious violations of federal campaign finance law.

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On November 2, 2004, the FEC responded to CREWs complaint, stating that on

October 19, 2004, the Commission found: Reason to believe that Americans for Tax Reform, Inc. Violated 2 U.S.C. 441b(a); Reason to believe that Grover Norquist violated 2 U.S.C. 441b(a); Reason to believe that Bush-Cheney 04 and David Herndon, as treasurer, violated 2 U.S.C. 441b(a) and 434(b); and Reason to believe that Ken Mehlman violated 2 U.S.C. 441b(a). Letter from FEC Attorney Mark Allen to Melanie Sloan, November 2, 2004 (attached as Exhibit A). 3. The Commission further stated, however, that after considering the

circumstances of this matter, the Commission determined to take no further action in this matter, and closed the file in this matter on October 19, 2004. Id. 4. Because the FEC has failed to act to enforce 2 U.S.C. 441b(a) and 434(b) and

impose sanctions, Plaintiff is seeking an Order of this Court, pursuant to 2 U.S.C. 437g(a)(8), to compel the FEC to act. JURISDICTION AND VENUE 5. This action arises under the Federal Election Campaign Act, 2 U.S.C. 431 et

seq., (FECA) as amended by the Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107155 (BCRA); the Administrative Procedures Act, 5 U.S.C. 551-706, and the Declaratory Judgment Act, 2 U.S.C. 2201. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 2 U.S.C. 437g. This court also has jurisdiction over this action pursuant to 28 U.S.C. 1331. Venue lies in this district under 2 U.S.C. 437g(a)(8). 2

PARTIES 6. Plaintiff Citizens for Responsibility and Ethics in Washington is a non-profit

corporation, organized under section 501(c)(3) of the Internal Revenue code. CREW is committed to the protection of the right of citizens to be informed about the activities of government officials and to ensuring the integrity of government officials. CREW is dedicated to empowering citizens to have an influential voice in government decisions and in the governmental decision making process. CREW uses a combination of research, litigation, advocacy, and public education to advance its mission. 7. In furtherance of its mission, CREW seeks to expose unethical and illegal conduct

of those involved in government. One way CREW does this is by filing FEC complaints against contributors and recipients who, CREW believes, have violated federal campaign finance laws. By publicizing the results of its efforts, CREW attempts to educate citizens regarding the integrity of our system of government. 8. CREW is hindered in this programmatic activity when those who participate in

campaigns (the candidates and those who contribute money to candidates) do not disclose the information regarding contributions and donations as required by federal law. 9. In addition, CREWs resources have been drained by the denial of the

information. CREW has expended both time and money in attempting to learn the value of the list by filing and in pursuing its administrative complaint, when the value of the list should have been quickly available on Defendants website. 10. Defendant Federal Election Commission is a federal agency created pursuant to

FECA, 2 U.S.C. 437c, with its headquarters in Washington, D.C. The FECs purpose is to enforce federal election laws, including the requirement that expenditures for the purposes of 3

influencing a federal election be paid with funds subject to the prohibitions, limitations, and reporting requirements of the FECA. By law, the FEC is required to expeditiously investigate complaints alleging violations of the FECA by any person and to seek to impose sanctions for violations of the FECA. See 2 U.S.C. 437d(a)(9). STANDING 11. CREW has standing to bring this enforcement action pursuant to 2 U.S.C.

437g(a)(8)(C) because: 1) CREW first made a complaint to the FEC pursuant to 2 U.S.C. 437g(a)(1) alleging that there were violations of the FECAs disclosure requirements; and 2) the FEC dismissed the complaint. 12. Congress included a citizen enforcement provision in the FECA specifically

authorizing citizens to challenge the FECs failure to act. See Federal Election Commission v. Akins, 524 U.S. 11, 26, 118 S.Ct. 1777, 1787 (1998) ([T]he FEC argues that we should deny respondents standing because this case involves an agencys decision not to undertake an enforcement action an area generally not subject to judicial review . . . [T]his Court [previously] noted that agency enforcement decisions have traditionally been committed to agency discretion, and concluded that Congress did not intend to alter that tradition in enacting the APA . . . We deal here with a statute that explicitly indicates the contrary.)(quoting Heckler v. Chaney, 470 U.S. 821 (1985)). 13. The Supreme Court has specifically held that an injury in fact is suffered by a

plaintiff who cannot obtain information that is required by statute to be made public. Akins, 524 U.S. at 21, 118 S.Ct. at 1784, citing Public Citizen v. Department of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 2564 (1989). Here, BC 04 is required by the FECA to disclose information regarding contributions. 2 U.S.C. 434(b). 4

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In addition, Plaintiffs injury is fairly traceable to the FECs decision not to

require BC 04 to disclose the contribution, despite finding that the contributions should, in fact, have been disclosed. See Akins, 524 U.S. at 25, 118 S.Ct. at 1786. 15. For the same reason that the injury can be traced to the FECs decision not to

require BC 04 to disclose the report, the injury can be redressed by this action: the FEC can order BC 04 to include the master contact as a contribution on its disclosure form. FACTS GIVING RISE TO PLAINTIFFS CLAIMS FOR RELIEF 16. On February 4, 2004, Plaintiff filed an administrative complaint with the FEC

against Grover Norquist, Americans for Tax Reform, Ken Mehlman, and Bush-Cheney 04. Federal Election Commission Complaint filed by Citizens for Responsibility and Ethics in Washington, February 4, 2004 (attached as Exhibit B). 17. The administrative complaint, designated MUR 5409 by the FEC, alleged that

Mr. Norquist, the head of ATR, provided Ken Mehlman, the campaign manager of the BC 04 campaign, a master contact list of conservative activists. Id. This list included information regarding conservative leaders from across the country, hand-picked by Mr. Norquist, who would help organize the conservative base to support the Bush-Cheney re-election campaign. Id. 18. The administrative complaint further alleged that the master contact list included

conservative activists in 37 states and that Mr. Norquist had spent five years recruiting and training the activists, who themselves coordinated weekly meetings attended by hundreds of grass roots supporters. Id. 19. The administrative complaint alleged that the donation of the master contact list

by Mr. Norquist constituted a contribution as defined by federal law. Id.; see 2 U.S.C. 431(8) and 11 C.F.R. 100.52(d)(1). The complaint further alleged that the contribution was illegal 5

because, if made by Americans for Tax Reform, it constituted an illegal corporate contribution, if made by Mr. Norquist personally, it constituted an excessive contribution, and because the contribution was not reported to the FEC as required by federal law. Id.; see 2 U.S.C. 441b(a); 441a(a)(1)(A); 2 U.S.C. 441a(f); 2 U.S.C. 434(a); and 2 U.S.C. 434(b). 20. Approximately nine months later, on November 2, 2004, the Commission sent a

letter to CREW, informing CREW that based on its complaint, the Commission found: Reason to believe that Americans for Tax Reform, Inc. Violated 2 U.S.C. 441b(a); Reason to believe that Grover Norquist violated 2 U.S.C. 441b(a); Reason to believe that Bush-Cheney 04 and David Herndon, as treasurer, violated 2 U.S.C. 441b(a) and 434(b); Reason to believe that Ken Mehlman violated 2 U.S.C. 441b(a); No reason to believe that Grover Norquist violated 2 U.S.C. 441a(a)(1)(A); and No reason to believe that Bush-Cheney 04 and David Herndon, as treasurer, violated 2 U.S.C. 441a(f). Letter from FEC Attorney Mike Allen to Melanie Sloan. 21. Despite these findings, however, the Commission determined to take no further

action in this mater and closed the file in this matter on October 19, 2004. Id. 22. In the First General Counsels Report, the FECs counsel explained that

although the General Counsels Office believed that the materials provided by Mr. Norquist to BC 04 constituted a contribution, [b]ecause the contribution appears to be limited in size and impact, the Office recommended that the Commission exercise its prosecutorial discretion and take no further action and close the file in this matter. FEC, First General Counsels Report, 34 (August 31, 2004) (attached as Exhibit C). 6

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The General Counsel requested and received from BC 04 a copy of the materials

it had obtained from Mr. Norquist. The materials indicated that ATR, rather than Mr. Norquist personally, had collected the data. For example, the report indicates that meeting and attendee information appeared to have been provided to ATR by the various state coalitions in response to ATR requests. Id. at 5. 24. According to the Report, in response to plaintiffs administrative complaint, ATR

and BC 04 asserted that the materials were not a thing of value because they were not membership or mailing lists or proprietary, confidential lists but rather were readily available on ATRs website or otherwise publicly available or readily available. Id. at 8-9. 25. The General Counsel took issue with this assertion, finding that circumstances

surrounding some of the materials raise questions as to whether the materials were in fact publicly or readily available. Id. at 9. The General Counsels Report further found that it appeared that ATR utilized its resources to obtain and compile state Coalition meeting materials which were provided by Grover Norquist to [BC 04], and that these materials contain information that may be of value in connection with the 2004 presidential election. Id. at 10. 26. Despite these findings, the General Counsel found that the materials seemed to

constitute only a limited contribution to the Committee. Id. Without the benefit of an actual investigation, the General Counsel guessed that because the individuals named in the materials are already active in supporting causes, they were likely to be aware of and involved in the BC 04 election effort. As a result, he surmised, the impact of the materials may be limited. Id. at 11. He also found it was likely that the campaign already had some of the materials, and that if any of the materials were available on ATRs website, that might serve to limit the value of the contribution. Id. 7

PLAINTIFFS CLAIMS FOR RELIEF CLAIM ONE (Wrongful Dismissal) 27. 28. Plaintiff re-alleges and incorporates by reference all preceding paragraphs. The FECs dismissal of the administrative complaints allegations that the

donation of the master contact list constituted an in-kind contribution by ATR to BC 04, and that the failure to report the contribution violated federal law is arbitrary, capricious, an abuse of discretion, and contrary to law in violation of 2 U.S.C. 437g(a)(8)(A). 29. The FECs dismissal of the administrative complaints allegations that the

donation of the master contact list constituted an in-kind contribution by ATR to BC 04, and that the failure to report the contribution violated federal law was based on an impermissible interpretation of the Federal Election Campaign Act and was contrary to law in violation of 2 U.S.C. 437g(a)(8)(A). PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully request that this Court: (1) Declare that the FECs failure to require reporting and disclosure of the value of the master contact list and the FECs failure to find that ATR made and BC 04 accepted a corporate contribution was contrary to law; (2) Remand the matter to the FEC with an order to conform to the declaration within 30 days; (3) Award Plaintiff its reasonable attorney fees and litigation costs in this action, pursuant to 28 U.S.C. 2412(d)(1)(A); and

(4) Grant such other and further relief as the Court may deem just and proper. Respectfully submitted,

__________________________________ Melanie Sloan (D.C. Bar No. 434584) Citizens for Responsibility and Ethics in Washington 11 Dupont Cir., N.W. Washington, DC 20036 Phone: (202) 588-5565 Fax: (202) 588-5020 Attorney for Plaintiff Dated: December __, 2004