CREW v. FEC: Regarding Failure to Enforce Election Law (Grover Norquist, Americans for Tax Reform,...

8/6/2019 CREW v. FEC: Regarding Failure to Enforce Election Law (Grover Norquist, Americans for Tax Reform, Bush-Cheney

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Melanie Sloan

D.C. Bar No. 434584Citizens for Responsibility

and Ethics in Washington11 Dupont Cir., N.W.

2nd

FloorWashington, 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. 107-

155 (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).


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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


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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.)( quotingHeckler

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, citingPublic 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).


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14. 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


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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, 3-

4 (August 31, 2004) (attached as Exhibit C).


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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.


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PLAINTIFFS CLAIMS FOR RELIEF

CLAIM ONE

(Wrongful Dismissal)

27. Plaintiff re-alleges and incorporates by reference all preceding paragraphs.

28. 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 andEthics in Washington

11 Dupont Cir., N.W.Washington, DC 20036

ne: (202) 588-5565Fax: (202) 588-5020

Attorney for Plaintiff

Dated: December __, 2004


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CREW v. FEC: Regarding Failure to Enforce Election Law (Grover Norquist, Americans for Tax Reform,...

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