CREW v. FEC: Regarding Failure To Enforce Election Law (Grover Norquist, Americans For Tax Reform, Bush-Cheney '04) : 12/13/2004 - Joint Appendix

CONTENTS Page 1. 2. Docket Sheet . 1 CREWs court complaint, with attachments (Exh.
A: 11/2/04 letter from Mark Allen to Melanie Sloan, Exec. Dir., CREW; Exh. B: CREW's admin. complaint; Exh. C: First GCs Report (9/1/04) in MUR 5409)............................................... 5 FECs answer.........................................................................................................38 FECs Statement of Material Facts as to Which There Is No Genuine Issue........46 Plaintiffs Response to Defendant Federal Election Commissions State of Material Facts as to which There Is No Genuine Issue and Plaintiffs Statement of Material Facts as to which There Exists a Genuine Issue (5/11/05)......................52 D.D.C. order and memorandum opinion (11/14/05)..............................................58 CREWs Notice of Appeal.....................................................................................74 Laura Blumenfeld, Sowing the Seeds of GOP Domination: Conservative Norquist Cultivates Grass Roots Beyond the Beltway, Wash. Post, Jan. 12, 2004, at A01; 2004 (Exh. B to FECs Motion for S/J).................................................................75 Letter dated Feb. 11, 2004, from Jeff Jordan to David Herndon, Treasurer, BushCheney 04 (notifying Herndon of administrative complaint) (Exh. D to FECs Motion for S/J)...................................................................................................... 82 Letter dated 2/26/04 from Josefiak, counsel for Bush-Cheney 04, to Jeff Jordan (Exh. E to FECs Motion for S/J)..........................................................................84 Letter dated 2/26/04 from Cleta Mitchell, counsel for Americans for Tax Reform, to Jeff Jordan (Exh. F to FECs Motion for S/J)................................................... 85 Letter dated 5/24/04 from Josefiak to Mark Allen (cover letter for enclosed materials FEC requested; enclosed materials not included) (Exh. G to FECs Motion for S/J) ......................................................................................................87 Letter dated 5/24/04 from Cleta Mitchell, counsel for ATR and Norquist, to Mark Allen (2 pp.) (Exh. H to FECs Motion for S/J) .................................................. 89 Certification dated 10/20/04 of dispositional vote by FEC (10/19/04) in MUR 5409 (Exh. I to FECs Motion for S/J)................................................................ 90 Declaration dated 5/11/05 of Melanie Sloan (Exh. to CREW's Opp. to FEC's Motion for S/J).......................................................................................................92
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Admin. complaint in Common Cause (Exh. N to FEC's Reply ISO S/J
District of Columbia live database - Docket Report
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APPEAL, TYPE-C
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:04-cv-02145-JDB
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. FEDERAL ELECTION COMMISSION Assigned to: Judge John D. Bates Cause: 02:437 Federal Election Commission Plaintiff CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
Date Filed: 12/13/2004 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 Eye Street, NW Suite 450 Washington, DC 20005 (202) 408-5565 Ext. 108 Fax: (202) 588-5020 Email: aweismann@citizensforethics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Melanie Togman Sloan CITIZEN FOR RESPONSIBLITY & ETHICS 11 Dupont Circle, NW 2nd Floor Washington, DC 20036 (202) 588-5565 Fax: 202-588-5020 Email: msloan@citizensforethics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
V. Defendant FEDERAL ELECTION COMMISSION represented by David Brett Kolker FEDERAL ELECTION COMMISSION Litigation Division 999 E Street, NW Washington, DC 20463-0002 (202) 694-1650 Fax: (202) 219-0260 1
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Email: dkolker@fec.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Kai Richter FEDERAL ELECTION COMMISSION 999 E Street, NW Washington, DC 20463 (202) 694-1650 Email: krichter@fec.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Date Filed 12/13/2004
Docket Text 1 COMPLAINT against FEDERAL ELECTION COMMISSION (Filing fee $ 150) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON.(lc, ) Additional attachment(s) added on 12/15/2004 (lc, ). (Entered: 12/14/2004) 2 LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (lc, ) Additional attachment(s) added on 12/15/2004 (lc, ). (Entered: 12/14/2004) SUMMONS (3) Issued as to FEDERAL ELECTION COMMISSION, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 12/14/2004) 3 ANSWER to Complaint by FEDERAL ELECTION COMMISSION.(Kolker, David) (Entered: 02/11/2005) 4 ORDER. Parties shall confer and submit by not later than February 28, 2005 a proposed briefing schedule. Signed by Judge John D. Bates on 2/11/2005. (lcjdb1) (Entered: 02/11/2005) Set/Reset Deadlines: Proposed Briefing Schedule due by 2/28/2005. (tb, ) (Entered: 02/14/2005) 5 MEET AND CONFER STATEMENT. (Kolker, David) (Entered: 03/30/2005) 6 MOTION for Summary Judgment by FEDERAL ELECTION COMMISSION. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Statement of Material Facts# 13 Text of Proposed Order)(Richter, Kai) (Entered: 04/15/2005) MINUTE ORDER: Pursuant to 5 Joint Stipulated Briefing Schedule, it is hereby ORDERED Defendant shall file a motion for summary judgment on the ground that the Court lacks jurisdiction by not later than April 15, 2005, Plaintiff shall file its opposition by not later than May 4, 2005, and Defendant shall file its reply, if any, by not later than May 20, 2005. Signed by Judge John D. Bates on 4/22/2005. (lcjdb1) (Entered: 04/22/2005) 2
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Set/Reset Deadlines: Summary Judgment motions due by 4/15/2005. Response to Motion for Summary Judgment due by 5/4/2005. Reply to Motion for Summary Judgment due by 5/20/2005. (lcjdb1) (Entered: 04/22/2005) 7 MOTION for Extension of Time to File Response/Reply as to 6 MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Sloan, Melanie) (Entered: 05/03/2005) MINUTE ORDER: Upon consideration of 7 Motion for Extension of Time to File Response/Reply, it is hereby ORDERED the motion is GRANTED. It is further ORDERED plaintiff shall file its opposition to defendant's motion for summary judgment by not later than May 13, 2005 and defendant shall file its reply, if any, to plaintiff's opposition by not later than June 3, 2005. Signed by Judge John D. Bates on 5/4/2005. (lcjdb1) (Entered: 05/04/2005) Set/Reset Deadlines: Response to Motion for Summary Judgment due by 5/13/2005. Reply to Motion for Summary Judgment due by 6/3/2005. (lcjdb1) (Entered: 05/04/2005) 8 Memorandum in opposition to motion re 6 for summary judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit Exhibit Co ver Sheet# 2 Exhibit Declaration of Melanie Sloan# 3 Statement of Facts Response to Defendant's Statement of Material Facts# 4 Text of Proposed Order Proposed Order# 5 Certificate of Service)(Weismann, Anne) (Entered: 05/11/2005) 9 REPLY to opposition to motion re 6 filed by FEDERAL ELECTION COMMISSION. (Attachments: # 1 Exhibit FEC's Motion Exhibit L# 2 Exhibit FEC's Motion Exhibit M# 3 Exhibit FEC's Motion Exhibit N)(Richter, Kai) (Entered: 06/03/2005) Set/Reset Hearings: Motion Hearing set for 11/4/2005 10:00 AM before Judge John D. Bates. (lcjdb1) (Entered: 10/05/2005) MINUTE ORDER: Upon consideration of the entire record herein, it is hereby ORDERED that a motions hearing be held on 11/04/2005 at 10:00 am before the Honorable Judge John D. Bates. Signed by Judge John D. Bates on 10/05/2005.(lcjdb1) (Entered: 10/05/2005) 10 NOTICE of Appearance by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 11/04/2005) Minute Entry Motion Hearing held on 11/4/2005 re 6 MOTION for Summary Judgment filed by FEDERAL ELECTION COMMISSION before Judge John D. Bates : Motion heard and takened under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 11/04/2005) 11 ORDER granting 6 Motion for Summary Judgment. Signed by Judge John D. Bates on 11/14/2005.(lcjdb1) (Entered: 11/14/2005) 12 MEMORANDUM OPINION to accompany ORDER entered on this date, granting summary judgment in favor of defendant Federal Election Commission. Signed by Judge John D. Bates on 11/14/2005. (lcjdb1) (Entered: 3
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11/14/2005) 12/16/2005 13 TRANSCRIPT of Motions hearing Proceedings held on 11/4/05 before Judge John D. Bates. Court Reporter: Bryan A. Wayne. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (ks, ) (Entered: 12/19/2005) 14 NOTICE OF APPEAL as to 11 Order on Motion for Summary Judgment, 12 Memorandum & Opinion by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. Filing fee $ 255, receipt number 141209. (lc, ) (Entered: 01/10/2006) Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 14 Notice of Appeal (lc, ) (Entered: 01/10/2006) USCA Case Number 06-5014 for 14 Notice of Appeal filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,. (lc, ) (Entered: 01/27/2006)
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Case 1:04-cv-02145-JDB
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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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2.
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
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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
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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
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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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23.
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
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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
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(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 Fax: (202) 588-5020 Attorney for Plaintiff Dated: December __, 2004
Phone: (202) 588-5565
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) ____________________________________)
Case Number 1:04CV02145 (JDB) ANSWER
DEFENDANT FEDERAL ELECTION COMMISSIONS ANSWER Defendant Federal Election Commission (FEC or Commission), through its undersigned counsel, responds to the judicial Complaint filed on December 13, 2004 by Plaintiff Citizens for Responsibility and Ethics in Washington (Plaintiff or CREW) as follows: 1. In response to the allegations contained in Paragraph 1 of Plaintiffs judicial Complaint, the Commission ADMITS that CREW filed an administrative complaint with the Commission on February 4, 2004, which is attached as Exhibit B to its judicial Complaint. CREWs administrative complaint speaks for itself, and therefore no response is required to the remaining allegations in Paragraph 1, which simply characterize the document. 2. In response to the allegations contained in Paragraph 2 of Plaintiffs judicial Complaint, the Commission ADMITS that Mark Allen sent to CREW, on November 2, 2004, the letter attached as Exhibit A to Plaintiffs judicial Complaint. This letter speaks
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for itself, and therefore no response is required to the remaining allegations in Paragraph 2. To the extent that Paragraph 2 characterizes the Commissions actions on October 19, 2004, the Commission ADMITS that it found reason to believe as characterized in this Paragraph, but DENIES that such characterization is complete. 3. No response is required to the allegation in Paragraph 3 of Plaintiffs judicial Complaint, which simply quotes from a November 2, 2004 letter to CREW from Mark Allen, which speaks for itself. 4. In response to the allegations contained in Paragraph 4 of Plaintiffs judicial Complaint, the Commission ADMITS that it did not impose sanctions upon the respondents in CREWs administrative complaint, DENIES any implication that it has authority to unilaterally impose sanctions upon such respondents, and DENIES that it has failed to enforce the Federal Election Campaign Act (FECA). No response is required to the remaining allegations in Paragraph 4, as these allegations simply describe Plaintiffs judicial Complaint, which speaks for itself. 5. In response to the allegations contained in Paragraph 5 of Plaintiffs judicial Complaint, the Commission DENIES that the Court has jurisdiction over this action. No response is required to the remaining allegations in Paragraph 5, as these allegations simply describe Plaintiffs Complaint, which speaks for itself. 6. The Commission is without knowledge or information sufficient to form a belief regarding the allegations contained in Paragraph 6 of Plaintiffs judicial Complaint. 7. The Commission is without knowledge or information sufficient to form a belief regarding the allegations in Paragraph 7 of Plaintiffs judicial Complaint. The Commission DENIES any implication in Paragraph 7 that CREW filed any
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administrative complaints with the FEC concerning alleged violations of federal campaign finance laws prior to filing the administrative complaint that is the subject of this lawsuit. 8. The Commission lacks sufficient knowledge or information regarding CREWs programmatic activity to form a belief as to the general allegations contained in Paragraph 8 of Plaintiffs judicial Complaint. The Commission DENIES that any such programmatic activity has been hindered by the Commissions decision not to take further action in response to CREWs administrative complaint. 9. In response to the allegations contained in Paragraph 9 of Plaintiffs judicial Complaint, the Commission states that it is without knowledge or information sufficient to form a belief as to how much, if any, time and money CREW has spent to learn the value of the list and in pursuing its administrative complaint. The Commission DENIES the remaining allegations in Paragraph 9, including any allegation that it had an affirmative duty to disclose the value of the list on its website. 10. The Commission ADMITS the allegations contained in the first sentence of Paragraph 10 of Plaintiffs judicial Complaint. No response is required to the remaining allegations in Paragraph 10, which simply characterize the FECA, which speaks for itself. 11. The Commission ADMITS that CREW filed an administrative complaint with the FEC on February 4, 2004 alleging violations of FECAs reporting requirements, but DENIES any implication that such alleged reporting violations were the primary focus of CREWs administrative complaint. The Commission further ADMITS that the
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FEC dismissed CREWs administrative complaint. The Commission DENIES that CREW has standing to bring the present enforcement action. 12. No response is required to the allegation contained in Paragraph 12 of Plaintiffs judicial Complaint, which simply characterizes the FECA and quotes from a Supreme Court decision, which speak for themselves. 13. In response to the allegations contained in Paragraph 13 of Plaintiffs judicial Complaint, the Commission ADMITS that, as a general matter, administrative respondent Bush-Cheney 04 was required to disclose certain information regarding certain contributions to Bush-Cheney 04, as provided by the FECA. The remaining allegations in Paragraph 13 express legal conclusions and cite judicial decisions, to which no response is required. To the extent that Plaintiff alleges it has suffered an injury in fact as a result of the Commissions dismissal of its administrative complaint, the Commission DENIES this allegation. 14. The Commission DENIES the allegations contained in Paragraph 14 of Plaintiffs judicial Complaint. 15. The Commission DENIES the allegations contained in Paragraph 15 of Plaintiffs judicial Complaint. 16. The Commission ADMITS the allegations contained in Paragraph 16 of Plaintiffs judicial Complaint. 17. In response to the allegations contained in Paragraph 17 of Plaintiffs judicial Complaint, the Commission ADMITS that Plaintiffs administrative complaint was designated MUR 5409. No response is required to the remaining allegations in
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Paragraph 17, as these allegations simply characterize CREWs administrative complaint, which speaks for itself. 18. No response is required to the allegations in Paragraph 18 of Plaintiffs judicial Complaint, as these allegations simply characterize CREWs administrative complaint, which speaks for itself. 19. No response is required to the allegations in Paragraph 19 of Plaintiffs judicial Complaint, as these allegations simply characterize CREWs administrative complaint, which speaks for itself. 20. In response to the allegations contained in Paragraph 20 of Plaintiffs judicial Complaint, the Commission ADMITS that Mark Allen sent to CREW, on November 2, 2004, the letter attached as Exhibit A to Plaintiffs judicial Complaint. This letter speaks for itself, and therefore no response is required to the remaining allegations in Paragraph 20. To the extent that Paragraph 20 characterizes the Commissions actions on October 19, 2004, the Commission ADMITS that it made the findings as characterized in this paragraph, but DENIES that such characterization is complete. 21. No response is required to the allegations in Paragraph 21 of Plaintiffs judicial Complaint, as these allegations simply characterize Mark Allens November 2, 2004 letter to CREW, which speaks for itself. To the extent that Paragraph 21 characterizes the Commissions actions on October 19, 2004, the Commission ADMITS that the quoted language appears in the November 2 letter, but DENIES that such characterization is complete. 22. In response to the allegations contained in Paragraph 22 of Plaintiffs judicial Complaint, the Commission ADMITS that the FECs Office of General Counsel
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(General Counsel) submitted a report to the Commission concerning CREWs administrative complaint. No further response is required to the allegations in Paragraph 22, as these allegations simply characterize this report, which speaks for itself and is attached as Exhibit C to Plaintiffs judicial Complaint. 23. In response to the first sentence in Paragraph 23 of Plaintiffs judicial Complaint, the Commission ADMITS that its General Counsel requested and received certain materials from Bush-Cheney 04, but lacks sufficient knowledge or information to determine whether those materials are identical to the materials obtained by BushCheney 04 from Mr. Norquist. No further response is required to the second and third sentences in Paragraph 23, as these sentences simply characterize the General Counsels report, which speaks for itself. 24. No response is required to the allegations in Paragraph 24 of Plaintiffs judicial Complaint, as these allegations simply characterize the General Counsels report, which speaks for itself. 25. No response is required to the allegations in Paragraph 25 of Plaintiffs judicial Complaint, as these allegations simply characterize the General Counsels report, which speaks for itself. 26. No response is required to the allegations in Paragraph 26 of Plaintiffs judicial Complaint, as these allegations simply characterize the General Counsels report, which speaks for itself. 27. The Commission incorporates by reference its responses to Paragraphs 1 through 26 of Plaintiffs judicial Complaint, inclusive.
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28. The Commission DENIES the allegations contained in Paragraph 28 of Plaintiffs judicial Complaint. 29. The Commission DENIES the allegations contained in Paragraph 29 of Plaintiffs judicial Complaint. Plaintiffs requested remedies speak for themselves. To the extent that any response to them is required, the Commission DENIES that any relief is appropriate. Moreover, to the extent that any factual statement in any paragraph of Plaintiffs judicial Complaint has not been specifically answered, it is DENIED. AFFIRMATIVE DEFENSES 1. Plaintiffs judicial Complaint fails to state a claim, in whole or in part, upon
which relief may be granted. 2. This Court has no subject matter jurisdiction over this action. Respectfully submitted, _______/s/________________ Lawrence H. Norton General Counsel _______/s/_________________ Richard B. Bader Associate General Counsel (D.C. Bar # 911073) ______/s/__________________ David Kolker Assistant General Counsel (D.C. Bar #394558)
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_______/s/_________________ Kai Richter Attorney FOR THE DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street, N.W. Washington, D.C. 20463 (202) 694-1650 (202) 219-0260 (FAX) Date: February 11, 2005
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) Case Number 1:04CV02145 (JDB) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) ____________________________________) DEFENDANT FEDERAL ELECTION COMMISSIONS STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Fed. R. Civ. P. 56(c) and LCvR 7(h), the Federal Election Commission (FEC or Commission) presents the following statement of material facts as to which there is no genuine issue and which entitle the Commission to judgment as a matter of law: 1. The FEC is an independent agency of the United States government with
exclusive jurisdiction to administer, interpret, and civilly enforce the Federal Election Campaign Act (FECA or the Act), codified at 2 U.S.C. 431-455. See 2 U.S.C. 437c(b)(1), 437d(e) & 437(g). 2. Plaintiff Citizens for Responsibility and Ethics in Washington (CREW) is a
non-profit corporation organized under Section 501(c)(3) of the Internal Revenue Code. Complaint for Declaratory Judgment and Injunctive Relief (Complaint) 6. CREW is not affiliated with any candidate, political party, or political committee, and does not participate in or contribute to political campaigns in any way. See 26 C.F.R. 501(c)(3)-1.
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3.
CREW does not allege that it has any members. On its webpage, under the
header who we are, CREW lists three individuals (1) Melanie Sloan, its executive director and counsel in this action; (2) a deputy director; and (3) a staff attorney. FEC Ex. J, reprinted from http://www.citizensforethics.org/about/whoweare.php. 4. CREW alleges that it is dedicated to empowering citizens to have an influential
voice in government decisions and in the governmental decision making process, and that it is committed to the protection of the right of citizens to be informed about the activities of government officials and ensuring the integrity of government officials. Complaint 6. In furtherance of its mission, CREW alleges that it seeks to expose unethical and illegal conduct of those involved in government. Id. 7. 5. CREW alleges that it attempts to expose unethical and illegal conduct by filing
administrative complaints with the FEC against donors and recipients of federal campaign contributions who, CREW believes, have violated federal campaign finance laws. Id. CREW does not allege that it attempts to expose unethical and illegal conduct by any other means, and does not allege that it systematically collects or disseminates campaign finance data or literature. Nor has it identified any administrative complaints it even filed with the Commission prior to the one in this case. 6. On February 4, 2004, CREW filed an administrative complaint with the
Commission against Grover Norquist, Americans for Tax Reform (ATR), Bush-Cheney 04, and Ken Mehlman (collectively, the administrative respondents), on the basis of two articles published in Forbes and the Washington Post. Complaint 16 & Ex. B; FEC Exs. B-C. In its administrative complaint, CREW alleged that Norquist, the head of ATR, provided Mehlman, the campaign manager for Bush-Cheney 04, with a contact list of conservative activists in 37
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states, and that this list constituted an illegal in-kind contribution under the Act. Complaint 17-19 & Ex. B. 7. CREWs administrative complaint contained three counts. In count one, CREW
claimed that the alleged in-kind contribution violated the FECAs ban on corporate contributions to federal campaigns under 2 U.S.C. 441b(a) because Norquist made this alleged contribution on behalf of ATR, a non-profit corporation. Complaint, Ex. B at 4, 13. In count two, CREW claimed that if this alleged contribution was made by Norquist personally, and not on behalf of ATR, it exceeded the Acts $2,000 limit on individual contributions under 2 U.S.C. 441a(a)(1)(A). Id. at 14. In count three, CREW alleged that Norquist, ATR, and Bush-Cheney 04 violated 2 U.S.C. 434(a)-(b) by failing to report this alleged contribution to the Commission. Id. at 15. 8. In its prayer for administrative relief, CREW request[ed] that the Federal
Election Commission conduct an investigation into these allegations, declare the respondents have violated the federal campaign finance laws, impose sanctions appropriate to these violations and take such further action as may be appropriate. Complaint, Ex. B at 5. CREW did not request that the Commission seek to require the administrative respondents to disclose the value of the contact list as a contribution. Id. 9. In response to CREWs allegations, the administrative respondents denied that the
contact information provided to Bush-Cheney 04 constituted a contribution under the Act, and explained their view that the provision of this information had no value because it was already publicly available. FEC Exs. E-F. 10. The Commissions General Counsel conducted a review of the matter, and as part
of this process, asked the administrative respondents to forward the materials in question to the
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FEC voluntarily. At the General Counsels request, Bush-Cheney 04 and Mehlman, on the one hand, and ATR and Norquist, on the other, furnished the FEC with two sets of similar, but not identical materials, in late May of 2004. FEC Exs. G-H. 11. After reviewing these materials and the rest of the file, the General Counsel
submitted a report to the Commission on August 31, 2004. FEC Ex. A. In his report, the General Counsel categorized and described the materials that had been donated to Bush-Cheney 04, and noted that descriptions of so-called center-right coalition meetings and lists of attendees most closely resembled the contact list information referenced in CREWs administrative complaint. Id. at 4-5. 12. With respect to count one of CREWs administrative complaint, the General
Counsel recommended that the Commission find reason to believe that ATR made a prohibited in-kind corporate contribution, that Norquist consented to the contribution, and that BushCheney 04 and Ken Mehlman accepted the contribution, in violation of 2 U.S.C. 441b(a). Id. at 10, 12. With respect to count two, the General Counsel recommended that the Commission find no reason to believe that Norquist made, or that Bush-Cheney 04 accepted, an excessive individual contribution, because the materials in question appeared to have been donated by ATR, rather than by Norquist in his personal capacity. Id. With respect to count three, the General Counsel recommended that the Commission find reason to believe that Bush-Cheney 04 violated 2 U.S.C. 434 by failing to report the alleged contribution from ATR, but noted that ATR and Norquist had no corresponding reporting obligation under the Act. Id. at 11 (citing 2 U.S.C. 434). 13. As the basis for his reason to believe recommendations, the General Counsel
stated that the materials donated to Bush-Cheney 04 may have constituted something of
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value, but also stated that this value seemed to be limited. Id. at 10. Accordingly, the General Counsel recommended that the Commission dismiss the administrative complaint as a matter of prosecutorial discretion in order to devote the Commissions limited resources to more significant cases. Id. at 12. 14. On October 19, 2004, the Commission met to consider CREWs allegations. In
agreement with the General Counsels report, the Commission found: a. Reason to believe that ATA violated 2 U.S.C. 441b(a); b. Reason to believe that Grover Norquist violated 2 U.S.C. 441b(a); c. Reason to believe that Bush-Cheney 04 and David Herndon, as treasurer, violated 2 U.S.C. 441b(a) and 434(b); d. Reason to believe that Ken Mehlman violated 2 U.S.C. 441b(a); e. No reason to believe that Grover Norquist violated 2 U.S.C. 441a(a)(1)(A); and f. No reason to believe that Bush-Cheney 04 and David Herndon, as treasurer, violated 2 U.S.C. 441a(f). Complaint, Ex. A; FEC Ex. I. Following the General Counsels recommendation, the Commission also voted 5-1 to close the file and take no further action. Id. 15. After closing the administrative matter, the FEC posted materials from the
administrative record on its website, including many of the materials that the administrative respondents had provided to the Commission. (These materials can be retrieved online from the FECs enforcement query search engine, http://eqs.sdrdc.com/eqs/searcheqs, by typing in the matter under review (MUR) number, 5409, assigned to this matter below by the FEC).
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Respectfully submitted, ________/s/_______________ Lawrence H. Norton General Counsel _______/s/_________________ Richard B. Bader Associate General Counsel (D.C. Bar # 911073) _______/s/_________________ David Kolker Assistant General Counsel (D.C. Bar #394558) ______/s/__________________ Kai Richter Attorney FOR THE DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street, N.W. Washington, D.C. 20463 (202) 694-1650 (202) 219-0260 (FAX) Date: April 15, 2005
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________________ CITIZENS FOR RESPONSIBILITY AND : ETHICS IN WASHINGTON, : 11 Dupont Circle, N.W. : Washington, D.C. 20036 : : Plaintiff, : : v. : Case No. 1:04CV02145(JDB) : FEDERAL ELECTION COMMISSION : 999 E Street, N.W. : Washington, D.C. 20463 : : Defendant. : ______________________________________: PLAINTIFFS RESPONSE TO DEFENDANT FEDERAL ELECTION COMMISSIONS STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE AND PLAINTIFFS STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE Pursuant to LcvR 7(h), Plaintiff Citizens for Responsibility and Ethics in Washington (CREW) hereby responds to Defendant Federal Election Commissions (FEC) statement of material facts as to which it contends there is no genuine issue and sets forth Plaintiffs Statement of Material Facts as follows: 1. Plaintiff admits that the FEC is an independent agency of the United States government. The remaining statements in this paragraph are characterizations of statutes and conclusions of law to which the Court is respectfully referred for full and complete statements of their contents. 2. Plaintiff admits the first sentence and respectfully refers the Court to the Complaint in this action for a full and complete statement regarding CREW. The second sentence contains conclusions of law, not statements of material fact. To the extent the second sentence contains
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statements of fact, CREW denies that they are material. 3. The first sentence of this paragraph is a characterization of this lawsuit. CREW admits that its website contains the information listed in the second sentence, but denies that this information is material. 4. This paragraph is a characterization of Plaintiffs complaint, the contents of which speak for themselves. CREW admits that it is dedicated to empowering citizens to have an influential voice in government decisions and in the government decision-making process. CREW further admits that, in furtherance of its mission, CREW seeks to expose unethical and illegal conduct of those involved in government. CREW avers that in advancing its mission, the most effective tool it has is the dissemination of information CREW gains from its research, litigation, advocacy and public education efforts. Declaration of Melanie Sloan (Sloan Decl.), 2. 5. This paragraph is a characterization of Plaintiffs complaint, the contents of which speak for themselves. CREW denies that its attempts to expose unethical and illegal conduct are limited to the filing of administrative complaints with the FEC. See Sloan Decl., 2, 3, 7. CREW also denies that it does not systematically collect or disseminate campaign finance data or literature. Id. at 7. CREW avers that the value of the master contact list is precisely the kind of information that CREW seeks and disseminates to the public in advancement of its programmatic mission. Sloan Decl., 7. For example, CREW recently published a report, Addicted to Porn: How Members of Congress Benefit from Pornography, that it disseminated publicly. This report details the campaign contributions received by members of Congress from corporations involved in pornography. CREW also disseminates information through the
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internet, such as a link currently found on its web site www.citizensforethics.org www.jackinthehouse.org that was prepared and maintained by CREW and that details the many activities of Jack Abramoff, and the many powerful individuals linked to Abramoff through such things as campaign contributions. Id. The last sentence is denied. CREW avers that the FECs own website, www.fec.gov, lists at least three closed enforcement matters in which the complaint was brought by CREW: MUR 5475 (In the matter of : Clarissa Peterson, Treasurer, Nader for President 2004, Theresa Amato, Citizen Works); MUR 5448 (In the matter of: Martinez for Senate, U.S.-Cuba Democracy PAC); and MUR 5439 (In the matter of: Bacardi U.S.A., Inc., Political Action Committee and Robert H. Higdon, Treasurer). Other complaints brought by CREW include MUR 5489 (Nader) and MUR 5568 (Keyes for Senate). Sloan Decl., 10. 6. CREW admits that on February 4, 20004, it filed an administrative complaint with the FEC against Grover Norquist, Americans for Tax Reform (ATR), Bush Cheney 04, and Ken Mehlman and further that it included with its administrative complain two articles published in Forbes and The Washington Post. The second sentence is a characterization of CREWs administrative complaint, the contents of which speak for themselves, and the Court is respectfully referred to the administrative complaint for a full and complete statement of its contents. 7. The first sentence of this paragraph is admitted. The remaining sentences of this paragraph are a characterization of CREWs administrative complaint, the contents of which speak for themselves, and the Court is respectfully referred to the administrative complaint for a full and complete statement of its contents.
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8. The first sentence of this paragraph is a characterization of the relief requested in CREWs administrative complaint, the contents of which speak for themselves, and the Court is respectfully referred to the administrative complaint for a full and complete statement of its contents. CREW denies the second sentence, and avers that encompassed within CREWs request that the FEC take such further action as may be appropriate, is relief that includes an order, based on a finding by the Commission that the administrative respondents had violated the reporting and disclosure requirements of the Federal Election Campaign Act, that they comply with the Act and report and disclose the value of the contact list as a contribution. See, e.g., Buchanon v. FEC, 112 F.Supp. 58, 67 (D.D.C. 2000) (court upheld sufficiency of pleadings to establish plaintiffs standing because if the FEC had agreed with the plaintiff that the organization in question was a political committee under FECA that had failed to satisfy the Acts reporting requirements, any order correcting that illegal act presumably would require it [the committee] to register and report:). 9. CREW admits that the administrative respondents denied that the master contact list provided to BC 04 was a contribution under FECA. The remainder of this paragraph is a characterization of the arguments made by the administrative respondents, the contents of which speak for themselves. 10. The first sentence is denied, except to admit that the FECs General Counsel purported to conduct some type of review of the matter and, as part of this process, asked the administrative respondents to forward the materials in question to the FEC voluntarily. The second sentence is admitted, except to aver that there is no way to determine whether any of the materials furnished by BC 04 and Mr. Mehlman on the one hand, and ATR and Grover Norquist
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on the other, were the same as the master contact list donated by ATR and Norquist to BC 04. See Complaint, Exhibit C, p. 3 n.2 (Counsel for ATR and Mr. Norquist claimed that they did not keep a copy of the donated materials in the same form in which [they were] furnished to Mr. Mehlman, and furnished copies of documents that they believe were included.). 11. The first sentence is denied, except to admit that the General Counsel submitted a report to the Commission on August 31, 2004, the contents and basis of which speak for themselves. The second sentence is a characterization of that report, the contents of which speak for themselves, and the Court is respectfully referred to the General Counsels report for a full and complete statement of its contents. 12. CREW admits that this paragraph includes recommendations made by the General Counsel and respectfully refers the Court to the report for a full and complete statement of its contents. 13. This paragraph is a characterization of the General Counsels report, the contents of which speak for themselves, and the Court is respectfully referred to the report for a full and complete statement of its contents. CREW admits that the General Counsels recommendations included a recommendation that the Commission dismiss the administrative complaint. 14. Admitted. 15. Denied, except to admit that after closing the administrative matter at some unidentified point in time the FEC posted at least some, but not all, of the materials from the administrative record on its website, and that materials can be retrieved in the manner identified by the FEC in paragraph 15. CREW denies that the FEC has made public sufficient materials from which the value of the master contact list can be determined. Sloan Decl., 6. If the FEC
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had required BC 04 to report the value of its list, CREW would have the necessary information for public dissemination. Id. Respectfully submitted,
/s/__________________________ ANNE L. WEISMANN D.C. Bar No. 298190 Melanie Sloan D.C. Bar No. 434584 Citizens for Responsibility and Ethics in Washington 11 Dupont Circle, N.W. Washington, D.C. 20036 (202) 588-5565 Attorneys for Plaintiff May 11, 2005
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant. Civil Action No. 04-2145 (JDB)
ORDER Upon consideration of the defendant Federal Election Commission's motion for summary judgment, the reply of plaintiff Citizens for Responsibility and Ethics in Washington, the hearing held on November 4, 2005, and the entire record herein, and for the reasons stated in the Memorandum Opinion issued on this date, it is this 14th day of November, 2005 hereby ORDERED that the motion for summary judgment is GRANTED, and this action is dismissed for lack of standing.
/s/ John D. Bates JOHN D. BATES United States District Judge
Dated: Copies to:
November 14, 2005
Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON -1-
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11 Dupont Circle, NW Second Floor Washington, DC 20036 (202) 588-5565 Fax: (301) 913-9150 Email: aweismann@citizensforethics.org Melanie Togman Sloan CITIZEN FOR RESPONSIBLITY & ETHICS 11 Dupont Circle, NW 2nd Floor Washington, DC 20036 (202) 588-5565 Fax: 202-588-5020 Email: msloan@citizensforethics.org Counsel for plaintiff David Brett Kolker FEDERAL ELECTION COMMISSION Litigation Division 999 E Street, NW Washington, DC 20463-0002 (202) 694-1650 Fax: (202) 219-0260 Email: dkolker@fec.gov Kai Richter FEDERAL ELECTION COMMISSION 999 E Street, NW Washington, DC 20463 (202) 694-1650 Email: krichter@fec.gov Counsel for defendant
-2-
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant. Civil Action No. 04-2145 (JDB)
MEMORANDUM OPINION Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") filed this action under the Federal Election Campaigns Act ("FECA"), 2 U.S.C. 431 et seq. CREW seeks judicial review, as a party "aggrieved" under 2 U.S.C. 437(g)(a)(8)(A), of defendant Federal Election Commission's ("FEC") decision to dismiss CREW's administrative complaint. Presently before the Court is the FEC's motion for summary judgment. For the reasons discussed below, the Court will grant the FEC's motion. BACKGROUND CREW is a non-partisan, non-profit watchdog entity organized under 26 U.S.C. 501(c)(3) of the Internal Revenue Code. Sloan Decl. at 2; Def.'s Statement of Material Facts as to Which There is No Genuine Issue ("Def.'s Statement") at 1 2. CREW is not comprised of members who are eligible to vote, does not participate in political campaigns, does not contribute to political campaigns, and is legally foreclosed from doing so because of its status as a 501(c)(3) entity. Def.'s Statement at 1 2. CREW describes its core mission as protecting the 1
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citizenry's right to be informed of the activities of government officials and "ensuring the integrity of government officials." Pl.'s Mem. Opp'n to Def.'s Mot. Summ. J. ("Pl.'s Mem. Opp'n") at 5; see also Sloan Decl. at 2. To achieve this goal, CREW utilizes a number of tools designed to "empower citizens to have an influential voice in government decisions and in the government decision-making process," the most significant of which is the "dissemination of information" to the voting public. Pl.'s Mem. Opp'n at 5; see also Sloan Decl. at 2. As part of its mission, CREW seeks "to expose unethical and illegal conduct of government officials" and files complaints with the FEC against alleged violators of federal campaign finance laws. Pl.'s Mem. Opp'n at 5; Sloan Decl. at 3. On February 4, 2004, CREW filed such a complaint against President George W. Bush's 2004 presidential campaign ("BushCheney <04") as well as the campaign's manager and treasurer, Kenneth Mehlman and David Herndon, respectively. See Def.'s Exh. A at 1-2; Def.'s Statement at 6. The complaint also named Americans for Tax Reform ("ATR") and the organization's president, Grover Norquist. Def.'s Exh. A; see also Def.'s Statement at 6; Sloan Decl. at 4. Specifically, CREW alleged that a master contact list, containing the names and contact information of conservative activists, had been provided by Norquist to Mehlman, who then passed it on to Bush-Cheney <04. Def.'s Exh. A at 1-2. CREW asserted that this master contact list constituted an in-kind contribution under FECA. Id. at 2. The complaint was entirely based on a Washington Post article that was written by a journalist who had witnessed the exchange. See Laura Blumenfeld, Sowing the Seeds of GOP Domination: Conservative Norquist Cultivates Grass Roots Beyond the Beltway, WASH . POST , Jan. 12, 2004, at A01 ("Def.'s Exh. B"). CREW challenged the legality of the in-kind contribution on several fronts: (1) if the list 2
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was actually provided by ATR, with Norquist only acting as a messenger, then it constituted an illegal corporate contribution under 2 U.S.C. 441b(a); (2) if, on the other hand, Norquist contributed the list personally, then it constituted an excessive contribution by an individual under 2 U.S.C. 441a(a)(1)(A); and (3) regardless of the identity of the actual contributor, BushCheney <04, Mehlman, and Herndon violated FECA by not reporting the in-kind contribution as required by 2 U.S.C. 434 (a)-(b). Def.'s Exh. A at 2. After an investigation, the FEC agreed that the contact list constituted an in-kind contribution under FECA, id., and ultimately found reason to believe that Bush-Cheney <04, Mehlman, Herndon, and ATR violated 441b(a), id. at 10, and that Bush-Cheney <04 and Herndon violated 434(b), id. at 11. However, the FEC utilized its prosecutorial discretion to close the investigation and dismiss CREW's complaint because the value of the list "appear[ed] to be limited in size and impact." Id. at 3-4. Because the individuals named on the list were already active supporters of conservative causes, the FEC surmised that they were probably already aware of and involved in Bush-Cheney <04's efforts. Id. at 10-11. Furthermore, the FEC found that Bush-Cheney <04 probably already possessed some of the materials, and that if any of the materials were available through public media -- like ATR's website -- then the already negligible value of the list would be further reduced. Id. On December 13, 2004, CREW filed a judicial complaint with the Court under FECA, arguing that it is a party "aggrieved" under 2 U.S.C. 437(g)(a)(8)(A) and challenging the FEC's decision not to pursue further investigation. Compl. at 4 11. The FEC filed a motion for summary judgment on April 15, 2005, arguing that CREW lacks standing to pursue this action in an Article III court. Def.'s Mem. Supp. at 3. CREW wants the FEC to require the administrative defendants to assign a monetary value to the list, and to disclose publicly that dollar figure, -3-
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because CREW claims that without this information, it is unable to accomplish its core mission of public education and voter empowerment through the dissemination of information. Pl.'s Mem. Opp'n at 15-17, 21; see also Sloan Decl. at 5-8. CREW submits that FECA confers a statutory entitlement to the value of the list because, under FEC v. Akins, 524 U.S. 11 (1998), and Kean for Congress Committee v. FEC, Civil Action No. 04-0007 (D.D.C. Jan. 25, 2005) (memorandum opinion) ("Kean Mem. Op."), this information is helpful for voting purposes. See Pl.'s Mem. Opp'n at 18; see also id. at 24-25. The deprivation of knowledge as to the precise value of the list, CREW claims, has prevented CREW from "receiv[ing] all that it is due from the administrative process." Id. at 23. CREW asserts that this, in turn, constitutes an injury in fact that is sufficient to support informational standing, and that its resources have been drained as a result of its efforts to obtain the value of the list. Id. at 16; see also Sloan Decl. at 9. The FEC, in contrast, believes that CREW seeks only the enforcement of the law, Def.'s Mem. Supp. at 16, and that CREW has not suffered any injury in fact, id. at 12-15. Rather, the FEC characterizes any alleged harm as "abstract," Def.'s Reply at 1; "generalized," id. at 3, and "speculati[ve]," id. at 4. According to the FEC, CREW has fallen well short of establishing that it has suffered the requisite programmatic harm to invoke the informational standing doctrine under Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997), because CREW has identified no specific use to which it would put the sought-after information. Def.'s Mem. Supp. at 13-14; Def.'s Reply at 7, 10-12. Instead, the FEC claims that CREW has only identified generic interests in public education and voter empowerment, both of which boil down to a broad interest in having the law enforced and "get[ting] the bad guys." Def.'s Reply at 13 (citing Common Cause, 108 F.3d at 418); see also Def.'s Mem. Supp. at 22-23. The FEC argues that CREW -4-
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really seeks validation of its own estimated value of the list: because CREW thinks the value of the list is significant, rather than de minimus, it seeks to have the FEC pursue the investigation further. See Def.'s Mem. Supp. at 23. The FEC further argues that the dollar value of the list is not useful for voting purposes because CREW cannot vote, it has no members who can vote, the 2004 presidential election is complete, President Bush is constitutionally foreclosed from seeking another term, and Vice President Cheney has repeatedly confirmed that he will not run for president. Def.'s Mem. Supp. at 18-21. Any information that is useful in voting, the FEC submits, is already available to CREW -- namely: (1) the knowledge that the FEC found reasonable cause to believe FECA was violated; (2) the knowledge of which FECA provisions were violated; (3) the knowledge of the nature of the illegal contribution; (4) the knowledge that both the FEC and the administrative defendants assessed the list's value as de minimus; and (5) the identity of the organizations and individuals involved. Def.'s Mem. Supp. at 23-24; see also Def.'s Mem. Supp. at 18. Thus, the FEC argues that the specific value of the list is not pertinent to voter education or voter choice, and also notes that the list does not lend itself to precise valuation. Def.'s Reply at 4, 8-9. LEGAL STANDARD Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating that no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the -5-
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pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)). To determine whether there is a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-moving party's statements as true, and accept all evidence and make all inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, a non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its position, id. at 252, although the moving party need only point to the absence of evidence proffered by the non-moving party, Celotex, 477 U.S. at 322. Summary judgment is appropriate if the non-moving party fails to offer "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999). A motion for summary judgment based on lack of subject matter jurisdiction should not be granted "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Kean Mem. Op. at 8-9. Although the plaintiff is given the benefit of all favorable inferences that may be drawn from the facts alleged, the Court "<has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority,' and [the] plaintiff bears the burden of pleading a claim within the Court's subject matter jurisdiction." Kean Mem. Op. at 9 (citing Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d 9, 13 (D.D.C. 2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998)). "If the evidence is merely colorable, or is not significantly probative, [then] summary judgment may be granted." -6-
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Anderson, 477 U.S. at 249-50 (internal citations omitted). ANALYSIS Under Article III of the Constitution, the federal courts only have jurisdiction to hear "[c]ases" and "[c]ontroversies." U.S. Const., art. III, 2; Flast v. Cohen, 392 U.S. 83, 94 (1968). One component of this "case or controversy" requirement is that in order to bring a lawsuit in federal court, a plaintiff must have standing to sue. See Kean Mem. Op. at 10. The standing inquiry examines whether the particular plaintiff before the Court is the proper party to legally challenge the defendant's conduct. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990); Kean Mem. Op. at 10. The federal courts are constitutionally mandated to refrain from rendering advisory opinions; thus, federal courts must, as a threshold matter, examine their own jurisdiction. See, e.g., Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting). Simply put, "<the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Kean Mem. Op. at 10 (quoting Allen v. Wright, 468 U.S. 737, 750-751 (1984)). There are three elements to the standing inquiry, which "together constitute the <irreducible constitutional minimum' . . . [that] is an <essential and unchanging part'" of the case or controversy requirement under Article III, Kean Mem. Op. at 11 (quoting Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000)): First, the plaintiff must have suffered an injury in fact -- an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of -- the injury must be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely
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speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotation marks omitted). The injury in fact component of the standing inquiry is often difficult for organizational plaintiffs like CREW to satisfy. To vindicate its own rights or entitlements, as opposed to those of its members, an organizational plaintiff must establish that its "discrete programmatic concerns are being directly and adversely affected by the challenged action." Common Cause, 108 F.3d at 417 (citing Nat'l Taxpayers Union, Inc v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). This standard may only be satisfied by a showing that CREW has suffered a "concrete and demonstrable injury" to its organizational activities, in conjunction with a depletion of resources, that constitutes more than a simple inconvenience to "abstract social interests." Id. (citing Nat'l Taxpayers Union, 68 F.3d at 1433). Congress may, by statute, create certain rights and entitlements. Akins v. FEC,101 F.3d 731, 736 (D.C. Cir. 1996) (en banc), aff'd in relevant part and vacated in part on other grounds, 524 U.S. 11 (1998). If a party is deprived of such a statutory right or entitlement, then it has suffered an injury in fact under Article III. See Kean Mem. Op. at 17 (citing Warth v. Seldin, 422 U.S. 499, 514 (1975)). In this way, a party that has been deprived of information to which it is statutorily entitled may have "informational standing." Common Cause, 108 F.3d at 417; see Akins, 524 U.S. at 21. Here, CREW asserts that FECA creates a statutory entitlement to the value of the master contact list, and that it therefore has informational standing. The character of the information sought weighs heavily on the informational standing analysis. Common Cause,
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108 F.3d at 417. Hence, the key inquiry is whether FECA requires public disclosure of the precise dollar value of the master contact list. See Akins, 524 U.S. at 21 (citing Public Citizen v. Dep't of Justice, 491 U.S. 440 (1989)). If the information is "useful in voting," Common Cause, 108 F.3d at 418, then FECA requires its public disclosure, see Akins, 524 U.S. at 20-21. FECA does not require that the information sought actually be used in a way that furthers the act's purpose, Kean Mem. Op. at 15, but the information must at least be capable of being used in a way that furthers FECA's purpose, see Akins, 524 U.S. at 21. This case is distinguishable from Kean for Congress Committee and Akins because there are a multitude of "<reason[s] to doubt' the asserted justification" for the information sought. Kean Mem. Op. at 14. To begin with, the information cannot be useful to CREW in voting. In Akins, the Supreme Court added voters to a list of parties protected under FECA, which included "political parties, candidates, or their committees." Akins, 524 U.S. at 20; see also Kean Mem. Op. at 20 (reaffirming that political candidate committees are protected by FECA). The common thread is that all of these parties are participants in the political election and campaign process. CREW is not. It is a 501(c)(3) non-profit, tax-exempt organization that cannot vote and is legally foreclosed from contributing to or participating in the political process. Nor does it have any members who participate in the political process. CREW is really asserting a derivative harm -- an alleged inability to help others (participants in the political process) realize that they may have been deprived of information. But to withstand the rigors of Article III, an injury in fact must be suffered by the plaintiff or the plaintiff's members; one cannot piggyback on the injuries of wholly unaffiliated parties. In sum, CREW is simply the wrong party to seek redress
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for the injury that has allegedly been suffered.1 Moreover, the Court is not convinced that the precise dollar value of the list is "useful in voting" at all, even to the participants in the political process. Whether the list is worth one hundred dollars or one thousand, for example, is of no moment because the public already knows: (1) that an illegal in-kind contribution took place; (2) that the in-kind contribution was a master contact list containing the names and contact information of conservative activists; (3) that the list's monetary value is negligible; and (4) the identities of the individuals and campaign involved in the illegal transaction. This readily available information, rather than the precise value that CREW seeks, is what appears to be "useful in voting." Even assuming for the moment that CREW is correct in claiming that it is entitled to have the FEC obtain a monetary value of the list from the administrative defendants, this has already been done. The administrative defendants have stated that the list has a dollar value of zero. CREW may not agree with this value, but that does not change the fact that CREW has already
The briefs filed by the parties also discuss whether CREW has "prudential" standing to challenge the FEC's action. The Court need not address this issue because Akins suggests that Congress intended to authorize standing to the full limits of Article III when it enacted FECA. See 524 U.S. at 19-21 (using identical analyses for the "zone of interests" component of prudential standing and the "injury in fact" component of Article III standing, and stating that "[h]istory associates the word <aggrieved' with a congressional intent to cast the standing net broadly--beyond the common-law interests and substantive statutory rights upon which <prudential' standing traditionally rested.") (citations omitted); cf. Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (finding that the court need not address "prudential" standing because Congress intended to authorize standing to the full extent of Article III when it passed the Fair Housing Act). Prudential standing requirements may only serve to narrow, not broaden, the class of parties that otherwise would have standing under Article III. In any event, for the reasons discussed in this paragraph, it is doubtful that CREW would fall within the zone of interests that Congress intended to protect when it enacted FECA and, accordingly, CREW would not be able to satisfy the requirements of prudential standing. -10-
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received that to which it is entitled under the administrative process.2 The Court will not require the FEC to go through the motions of a process that has already been completed when doing so would yield no new or useful information. See Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001) (stating that informational injury will not be found if plaintiff cannot show that the legal ruling sought "might lead to additional factual information"); see also Alliance for Democracy v. FEC, 335 F. Supp. 2d 39, 48 (D.D.C. 2004) (stating that "since the process has progressed as specified in the statute, it seems that [the] plaintiff[] ha[s] received everything [it] is entitled to under the FECA"). Tellingly, CREW's counsel conceded at the summary judgment hearing that CREW would still have filed this lawsuit even if the FEC had provided a ballpark dollar figure for the list's value. This is consistent with CREW's approach at the administrative level, as CREW's administrative complaint never requested the release of the information for which it now claims an urgent need. See Pl.'s Exh. B. The facts of this case are, at bottom, as follows: (1) the FEC, in its prosecutorial discretion, determined that the value of the list was too low to justify the expenditure of resources associated with further investigation; (2) based on this determination, the FEC dismissed CREW's complaint; (3) CREW is unhappy with that decision; and (4) CREW disagrees with the FEC's determination that the list has "limited" value. But this mere difference of opinion is insufficient, without more, to confer standing under Article III. It is axiomatic that standing cannot rest on a plaintiff's alleged interest in having the law
2
The Court is convinced that CREW has received all or more than it is due under FECA. In addition to the administrative defendants' valuation of the list, CREW also knows the FEC's assessment of the list's value. FECA does not require the FEC to value an in-kind contribution in the form of a contact list. Alliance for Democracy v. FEC, Civil Action No. 04-00127 (D.D.C. Mar. 4, 2005). -11-
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enforced, Common Cause, 108 F.3d at 418, because such an injury is too generalized and ideological, see Lujan, 504 U.S. at 573; see also Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 47 (D.D.C. 2003). CREW seeks a reversal of the FEC's decision to dismiss the administrative complaint, and a remand to the FEC so that it may reconsider (and, CREW hopes, reverse) its decision not to pursue further investigation. See Compl. at 8 (identifying Count One of the Complaint as a wrongful dismissal claim). CREW did not seek to know the precise dollar value of the list. Rather, it wants the FEC to hold the administrative defendants accountable for the illegal receipt and nondisclosure of the master contact list.3 Hence, CREW stands in the shoes of the Common Cause plaintiff -- it desires to do no more than "get the bad guys." See Common Cause, 108 F.3d at 418. Such an endeavor is tantamount to seeking enforcement of the law. Although "<Congress can create a legal right . . . the interference with which will create an Article III injury,' Congress cannot, consistent with Article III, create standing by conferring <upon all persons . . . an abstract, self-contained, noninstrumental <right' to have the Executive observe the procedures required by law.'" See Common Cause, 108 F.3d at 419 (internal citations omitted); see also Lujan, 504 U.S. at 573. Finally, under Common Cause, CREW was required to identify exactly how its alleged lack of access to the precise value of the contact list has impeded its programmatic activities. CREW has not done so. It has never specified any programmatic concerns that have been concretely and directly impacted adversely by the FEC's actions. No particular plan is ever
3
The statements made by CREW's counsel at the summary judgment hearing support the Court's conclusion. Specifically, CREW's counsel stated that CREW is "seeking compliance with the law," and framed the issue before the Court as whether CREW has standing to challenge the FEC's failure to require Bush-Cheney <04 to comply fully with the reporting and disclosure requirements of FECA. -12-
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identified for the use of the information -- for example, CREW never articulates a report that it intends to produce or a press conference that it wishes to hold. The Court realizes that it may be difficult to detail how information will be used when a plaintiff does not yet possess that information, but such hardship is not implicated here: CREW is already privy to the information that it seeks, plus a great deal more. Yet no demonstrable injury is alleged with respect to any programmatic activity. Essentially, CREW has only articulated a "setback to [its] . . . abstract social interests [involving public education and outreach]." Common Cause, 108 F.3d at 417. CREW's allegation that its resources have been drained because it has pursued the value of the contact list by filing this action is also legally infirm -- bootstrapped harms do not suffice to establish standing. See id. at 419; Nat'l Taxpayers Union, 68 F.3d at 1434 (stating that "[a]n organization cannot . . . manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit") (quoting Spann, 899 F.2d at 27). In order to satisfy the informational standing doctrine, an organizational plaintiff must show a more targeted, concrete injury than that suffered by CREW. See Common Cause, 108 F.3d at 419. CONCLUSION CREW has failed to carry its burden of establishing that it has standing to pursue this action under Article III. Accordingly, the Court will grant FEC's motion for summary judgment and dismiss this action. A separate order will be issued on this date. /s/ John D. Bates JOHN D. BATES United States District Judge
Dated:
November 14, 2005
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Copies to: Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 11 Dupont Circle, NW Second Floor Washington, DC 20036 (202) 588-5565 Fax: (301) 913-9150 Email: aweismann@citizensforethics.org Melanie Togman Sloan CITIZEN FOR RESPONSIBLITY & ETHICS 11 Dupont Circle, NW 2nd Floor Washington, DC 20036 (202) 588-5565 Fax: 202-588-5020 Email: msloan@citizensforethics.org Counsel for plaintiff David Brett Kolker FEDERAL ELECTION COMMISSION Litigation Division 999 E Street, NW Washington, DC 20463-0002 (202) 694-1650 Fax: (202) 219-0260 Email: dkolker@fec.gov Kai Richter FEDERAL ELECTION COMMISSION 999 E Street, NW Washington, DC 20463 (202) 694-1650 Email: krichter@fec.gov Counsel for defendant
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________________ CITIZENS FOR RESPONSIBILITY AND : ETHICS IN WASHINGTON, : 11 Dupont Circle, N.W. : Washington, D.C. 20036 : : Plaintiff, : : v. : Case No. 1:04CV02145 (JDB) : FEDERAL ELECTION COMMISSION : 999 E Street, N.W. : Washington, D.C. 20463 : : Defendant. : ______________________________________: NOTICE OF APPEAL Notice is hereby given that Citizens for Responsibility and Ethics in Washington, plaintiff in the above-captioned case, hereby appeals to the United States Court of Appeals for the D.C. Circuit from the order granting summary judgment in favor of defendant Federal Election Commission entered in this action on the 11th day of November, 2005. Respectfully submitted, __________________________ ANNE L. WEISMANN D.C. Bar No. 298190 Melanie Sloan D.C. Bar No. 434584 Citizens for Responsibility and Ethics in Washington 11 Dupont Circle, N.W. Attorneys for Citizens for Responsibility and Ethics in Washington
Dated: January 9, 2006
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CREW v. FEC: Regarding Failure To Enforce Election Law (Grover Norquist, Americans For Tax Reform, Bush-Cheney '04) : 12/13/2004 - Joint Appendix

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CONTENTS Page 1. 2. Docket Sheet . 1 CREWs court complaint, with attachments (Exh.

Admin. complaint in Common Cause (Exh. N to FEC's Reply ISO S/J

District of Columbia live database - Docket Report

District of Columbia live database - Docket Report

Date Filed 12/13/2004

12/13/2004 02/11/2005 02/11/2005

02/14/2005 03/30/2005 04/15/2005

District of Columbia live database - Docket Report

District of Columbia live database - Docket Report

PACER Service Center

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

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

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

Phone: (202) 588-5565

Case Number 1:04CV02145 (JDB) ANSWER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

/s/ John D. Bates JOHN D. BATES United States District Judge

Dated: Copies to:

November 14, 2005

Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON -1-

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

November 14, 2005

Dated: January 9, 2006

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