Selected

Court Case 

Abstracts

1976 – March 2004

Federal Election Commission

Nineteenth Edition

Selected Court Case Abstracts

1976 – March 2004

Federal Election Commission

Washington, DC 20463

June 2004

Introduction

This collection of abstracts, prepared by the FEC’s Information Division, includes court cases 

pertinent to the Federal Election Campaign Act of 1971, as amended. Most of the abstracts 

originally appeared in the Commission’s monthly newsletter, the Record. This edition includes 

Record summaries through the March 2004 issue. summaries through the March 2004 issue. 

The Information Division updates this collection annually.

Table of Contents

Alphabetical List of Cases .................................................... v

Case Summaries ................................................................... 1

Subject Index .................................................................... 301

iii

Selected Court Case Abstracts

Cases Through March 2004 v

Alphabetical List of Cases

AFL-CIO: FEC v. .............................................................................................................. 80

AFL-CIO and DNC Services Corp./DNC v. FEC (01-1522 and 02-5069) ............................ 1

AFSCME: FEC v. ............................................................................................................. 81

AFSCME-PQ: FEC v. ...................................................................................................... 82

Akins v. FEC (91-2831) ......................................................................................................... 3

Akins v. FEC (92-1864) ......................................................................................................... 4

Alliance for Democracy v. FEC (1:02CV00527) .................................................................... 2

Alliance for Democracy v. FEC (1:04CV00127) .................................................................... 2

Albanese v. FEC ................................................................................................................... 5

America’s PAC: FEC v. ...................................................................................................... 83

American International Demographic Services: FEC v. .................................................... 82

American Medical Association

See: Chamber of Commerce v. FEC ............................................................................... 34

Americans for Change: FEC v. ........................................................................................... 56

Anderson v. FEC (80-0272) .................................................................................................. 6

Anderson v. FEC (80-1911) .................................................................................................. 7

Anderson for Senator: FEC v. ........................................................................................... 84

Antosh v. FEC (84-1552 and 84-2737) .................................................................................. 7

Antosh v. FEC (84-3048) ...................................................................................................... 9

Antosh v. FEC (85-1410), 

Citizens for Percy ’84 v. FEC (85-0763),

Common Cause v. FEC (85-0968),

Golar v. FEC ................................................................................................................... 10

Antosh v. FEC (85-2036) .................................................................................................... 11

Antosh v. FEC (86-0179) .................................................................................................... 11

Athens Lumber Co. v. FEC ................................................................................................ 12

Austin v. Michigan State Chamber of Commerce .............................................................. 13

Baker v. FEC ..................................................................................................................... 15

Bank One: FEC v. .............................................................................................................. 84

Barnstead for Congress Committee v. FEC ........................................................................ 15

Batts, Committee to Elect Bennie: FEC v. .......................................................................... 85

Beatty for Congress: FEC v. .............................................................................................. 86

Beaumont v. FEC .............................................................................................................. 16

Becker v. FEC,

Nader v. FEC .................................................................................................................. 19

Bell, Jeffrey : FEC v. ........................................................................................................... 87

Bell, Marjorie: FEC v. ........................................................................................................ 87

Alphabetical List of Cases

NOTE: Cases are listed alphabetically by non-FEC litigant.
Selected Court Case Abstracts

vi Cases Through March 2004

Alphabetical List of Cases

Bookman & Associates: FEC v. ......................................................................................... 87

Boulter v. FEC .................................................................................................................... 20

Branstool v. FEC ................................................................................................................ 20

Bread PAC v. FEC .............................................................................................................. 21

Brown v. FEC ..................................................................................................................... 23

Bryant Campaign Committee: FEC v. ............................................................................... 88

Buchanan v. FEC ................................................................................................................ 23

Buchanan v. FEC (00-1775) ............................................................................................... 23

Buckley v. Valeo .................................................................................................................. 24

Bull for Congress: FEC v. .................................................................................................. 88

Bush-Quayle ’92 Primary Committee v. FEC ...................................................................... 27

California Democratic Party: FEC v. ................................................................................. 88

California Democratic Party (02CV00875): FEC v. ........................................................... 90

California Medical Association v. FEC ............................................................................... 29

Californians for a Strong America (88-1554): FEC v. ......................................................... 91

Californians for a Strong America (88-6449): FEC v. ......................................................... 91

Californians for Democratic Representation: FEC v. ......................................................... 92

Campaign Resource Technologies: FEC v. ........................................................................ 92

Cannon v. FEC .................................................................................................................. 31

Carter, Committee for Jimmy: v. FEC ................................................................................. 31

Carter Committee for a Greater America: FEC v. .............................................................. 93

Carter/Mondale Presidential Committee v. FEC (82-1754) ................................................. 32

Carter/Mondale Presidential Committee v. FEC (84-1393) ................................................. 32

Carter/Mondale Reelection Committee and DNC v. FEC .................................................. 33

Caulder: FEC v. ................................................................................................................. 93

Center for Responsive Politics v. FEC (93-2250) ................................................................. 34

Center for Responsive Politics v. FEC (95-1464) ................................................................. 34

Central Long Island Tax Reform Immediately Committee: FEC v. ................................... 93

Chamber of Commerce v. FEC .......................................................................................... 34

Chamberlain v. Thomson .................................................................................................. 251

Christian Action Network: FEC v. ..................................................................................... 94

Christian Coalition: FEC v. ............................................................................................... 95

Cincinnati v. Kruse,

Burris v. Russell ............................................................................................................... 36

Citizens for Democratic Alternatives in 1980: FEC v. , 

Kennedy, Florida for : FEC v. , 

Machinists Non-Partisan Political League: FEC v. ,

Wisconsin Democrats for Change in 1980: FEC v. ......................................................... 99

Citizens for the Republic: FEC v. ..................................................................................... 101

Citizens Party (86-3113): FEC v. ...................................................................................... 101

Citizens Party (87-1577): FEC v. ...................................................................................... 102

Clark v. FEC and the Commission on Presidential Debates ................................................ 38

Clark v. Valeo ..................................................................................................................... 39
Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

vii

Clark: FEC v. .................................................................................................................. 102

Clifton v. FEC .................................................................................................................... 39

Colorado Republican Federal Campaign Committee: FEC v. ......................................... 102

Committee for a Unifi ed Independent Party, Inc. v. FEC ................................................... 42

Committee of 100 Democrats: FEC v. ............................................................................. 106

Common Cause v. FEC (78-2135) ....................................................................................... 42

Common Cause v. FEC (83-0720) ....................................................................................... 43

Common Cause v. FEC (83-2199) ....................................................................................... 44

Common Cause v. FEC (85-0968) ..................................................................................10, 46

Common Cause v. FEC (85-1130) ....................................................................................... 48

Common Cause v. FEC (86-1838) ....................................................................................... 49

Common Cause v. FEC (87-2224) ....................................................................................... 50

Common Cause v. FEC (89-0524), 

FEC v. National Republican Senatorial Committee (90-2055) ........................................ 51

Common Cause v. FEC (91-2914) ....................................................................................... 53

Common Cause v. FEC (92-0249) ....................................................................................... 53

Common Cause v. FEC (92-2538) ....................................................................................... 53

Common Cause v. FEC (94-02104) ..................................................................................... 54

Common Cause v. Schmitt,

FEC v. Americans for Change ......................................................................................... 56

Common Cause and Democracy 21 v. FEC ........................................................................ 57

Condon v. USA .................................................................................................................. 58

Correa, Luis M., v. FEC (03-1208) ...................................................................................... 59

Cox for U.S. Senate v. FEC (03-3715) ................................................................................. 59

Cunningham v. FEC (01-0897) ........................................................................................... 62

Dear for Congress (03CV2897): FEC v. ........................................................................... 107

Democratic Congressional Campaign Committee v. FEC (84-3352) ................................... 63

Democratic Congressional Campaign Committee v. FEC (86-2075) ................................... 64

Democratic Congressional Campaign Committee v. FEC (96-0764) ................................... 65

Democratic Party of New Mexico (02-0372): FEC v. ....................................................... 108

Democratic Senatorial Campaign Committee v. FEC (80-2074),

National Republican Senatorial Committee v. 

Democratic Senatorial Campaign Committee ................................................................. 66

Democratic Senatorial Campaign Committee v. FEC (90-1504) ......................................... 67

Democratic Senatorial Campaign Committee v. FEC (93-1321) ......................................... 68

Democratic Senatorial Campaign Committee v. FEC(95-0349) .......................................... 69

Democratic Senatorial Campaign Committee v. FEC (96-2109) ......................................... 70

Democratic Senatorial Campaign Committee v. FEC

(96-2184, 97-5160 and 97-5161) ....................................................................................... 71

Democratic Senatorial Campaign Committee v. 

National Republican Senatorial Committee .................................................................... 73

Democratic Senatorial Campaign Committee (95-2881): FEC v. ..................................... 109

DNC v. FEC (96-2506) ....................................................................................................... 74
Selected Court Case Abstracts

viii Cases Through March 2004

Alphabetical List of Cases

DNC v. FEC (97-676) ......................................................................................................... 74

Dolan v. FEC..................................................................................................................... 74

Dolbeare v. FEC ................................................................................................................. 75

Dole v. FEC ..................................................................................................................... 76

Dole v. International Association Managers ....................................................................... 76

Dominelli: FEC v. ............................................................................................................ 121

Dramesi for Congress: FEC v. ......................................................................................... 110

Dukakis v. FEC,

Simon v. FEC .................................................................................................................. 76

Durkin for U.S. Senate v. FEC ............................................................................................ 77

Epstein v. FEC .................................................................................................................... 78

Evans, Friends of Lane (04CV4003): FEC v. ................................................................... 112

Fasi, Friends for: FEC v. .................................................................................................. 113

Faucher v. FEC .................................................................................................................. 78

Fireman, Simon C. v. USA .............................................................................................. 192

First National Bank of Boston v. Bellotti ......................................................................... 193

Fletcher, Friends of Isaiah: FEC v. .................................................................................. 114

Forbes: FEC v. ................................................................................................................. 115

Franklin: FEC v. .............................................................................................................. 115

Free the Eagle: FEC v.,

RUFFPAC: FEC v. ...................................................................................................... 117

Freedom Republicans v. FEC ........................................................................................... 194

Freedom’s Heritage Forum: FEC v. ................................................................................ 117

Froelich v. FEC ................................................................................................................. 196

Fulani v. FEC (94-1593) ................................................................................................... 196

Fulani v. FEC (94-4461) ................................................................................................... 196

Fulani v. FEC (97-1466) ................................................................................................... 197

Fulani, Lenora B. v. FEC (00-1018) .................................................................................. 198

Fund for a Conservative Majority: FEC v. ....................................................................... 120

Fund for a Conservative Majority v. FEC (80-1609) ......................................................... 198

See also: NCPAC: FEC v. (83-2823) .............................................................................. 153

Fund for a Conservative Majority v. FEC (84-1342) ......................................................... 200

Furgatch: FEC v.,

Dominelli: FEC v. ........................................................................................................ 121

Gentry, Dave for Congress Committee: FEC v. ................................................................ 124

GOPAC: FEC v. ............................................................................................................... 124

Galliano v. United States Postal Service ............................................................................ 201

Gelman v. FEC (80-1646) ................................................................................................. 202

Gelman v. FEC (80-2471) ................................................................................................. 203

Glenn Presidential Committee v. FEC .............................................................................. 203
Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

ix

Goland v. United States,

United States v. Goland ................................................................................................ 204

Golar v. FEC ...................................................................................................................... 10

Gottlieb v. FEC ................................................................................................................ 205

Graham v. FEC (01-CV-00635) ......................................................................................... 206

Gramm v. FEC ................................................................................................................. 206

Gramm, Americans for Phil in ‘84

See: Galliano v. United States Postal Service ................................................................. 201

Greenwood for Congress v. FEC (03-0307) ....................................................................... 207

Grover v. FEC .................................................................................................................. 208

Haley Congressional Committee: FEC v. ......................................................................... 125

Hall-Tyner Election Campaign: FEC v. ........................................................................... 127

Harman, Friends of Jane: FEC v. .................................................................................... 128

Hawaii Right to Life, Inc. v. FEC (1:02CV02313) ............................................................. 209

Hettinga v. FEC ............................................................................................................... 210

See also: National Right to Work Committee v. FEC (84-2955) .................................... 251

Hollenbeck v. FEC ............................................................................................................ 210

Hollenbeck, Re-Elect to Congress: FEC v. ...................................................................... 129

Hooker v. All Campaign Contributors .............................................................................. 211

Hooker v. FEC ................................................................................................................. 211

Hooker v. FEC (3-99-0794) ............................................................................................... 212

Hopfmann v. FEC ............................................................................................................ 212

Houghton: Friends for v. FEC (01-6444) .......................................................................... 213

International Association of Machinists and Aerospace Workers v. FEC ......................... 214

International Funding Institute: FEC v. .......................................................................... 130

Jackson, Americans for Jesse: FEC v. ............................................................................... 132

Jefferson Marketing

See: National Congressional Club v. FEC ..................................................................... 249

Jones v. FEC ................................................................................................................... 216

Jones v. FEC ..................................................................................................................... 230

Jordan v. FEC ................................................................................................................... 217

Judd v. FEC ................................................................................................................... 218

Judicial Watch, Inc. v. FEC ............................................................................................... 218

Judicial Watch, Inc. v. FEC (1:01CV01747) ...................................................................... 219

Judical Watch, Inc. and Peter F. Paul v. FEC (1:01CV02527) ........................................... 220

Kalogianis: FEC v. ........................................................................................................... 132

Kay v. FEC ................................................................................................................... 221

Kean for Congress v. FEC ................................................................................................ 222

Kean for Congress Committee v. FEC (1:04CV00007) ...................................................... 222
Selected Court Case Abstracts

x Cases Through March 2004

Alphabetical List of Cases

Kennedy, Florida for : FEC v. ............................................................................................ 99

Kennedy for President v. FEC (81-2552) ........................................................................... 223

Kennedy for President v. FEC (83-1521) ........................................................................... 224

Khachaturian v. FEC ........................................................................................................ 225

Kieffer v. FEC ................................................................................................................... 225

Koczak v. FEC .................................................................................................................. 226

Kripke v. FEC ................................................................................................................... 226

Lance: FEC v. .................................................................................................................. 133

LaRouche: Citizens for v. FEC,

FEC v. LaRouche .......................................................................................................... 229

LaRouche, Citizens for: FEC v. ........................................................................................ 135

See also: Dolbeare v. FEC ............................................................................................... 75

Gelman v. FEC (80-1646) ............................................................................... 202

Gelman v. FEC (80-2471) ............................................................................... 203

LaRouche: Committee to Elect Lyndon v. FEC,

FEC v. Committee to Elect Lyndon LaRouche,

Jones v. FEC ................................................................................................................. 230

LaRouche v. FEC (92-1100) .............................................................................................. 226

LaRouche v. FEC (92-1555) .............................................................................................. 227

See also: Spannaus v. FEC (85-0404) ............................................................................. 279

Spannaus v. FEC (91-0681) ............................................................................ 279

LaRouche: FEC v. ............................................................................................................ 229

LaRouche: FEC v. (94-0658) ............................................................................................. 134

LaRouche v. State Board of Elections ............................................................................... 228

Lawson: FEC v. ............................................................................................................... 136

League of Women Voters v. FEC ...................................................................................... 231

Lee: FEC v. ................................................................................................................... 136

Legi-Tech: FEC v. ............................................................................................................ 136

Liberal Party Federal Campaign Committee: FEC v. ...................................................... 138

Life Amendment PAC: FEC v. (88-0860 and 89-1429) ..................................................... 139

Lovely v. FEC ................................................................................................................... 232

Lytle v. FEC ................................................................................................................... 233

Machinists Non-Partisan Political League: FEC v. ............................................................ 99

Maggin for Congress Committee: FEC v. ........................................................................ 140

Maine Right to Life Committee v. FEC ............................................................................ 234

See also: Faucher v. FEC ................................................................................................ 78

Mann for Congress: FEC v. ............................................................................................ 140

Mariani: Renato P. v. USA ................................................................................................ 235

Martin Tractor Co. v. FEC ............................................................................................... 236

Massachusetts Citizens for Life: FEC v. ........................................................................... 141

Mastorelli Campaign Fund: FEC v. ................................................................................. 145

McCallum: FEC v. ........................................................................................................... 145
Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

xi

McCarthy ’76, Committee for a Constitutional Presidency—: FEC v. ............................. 146

McConnell v. FEC ........................................................................................................... 237

McDonald v. FEC ............................................................................................................ 240

McIntyre v. Ohio .............................................................................................................. 241

Michigan Republican State Committee: FEC v. ............................................................... 146

Mid-America Conservative PAC: FEC v. ......................................................................... 147

Miles for Senate v. FEC .................................................................................................... 242

Miller: FEC v. .................................................................................................................. 147

Miller v. FEC ................................................................................................................... 243

Minchew: FEC v. ............................................................................................................. 147

Minnesota Citizens Concerned for Life v. FEC ................................................................ 243

Missouri Republican Party v. Charles F. Lamb ................................................................ 245

Mott v. FEC ................................................................................................................... 245

Murray, John J. for Congress Committee: FEC v. ............................................................ 148

Nader v. FEC ...................................................................................................................... 19

National Chamber Alliance for Politics v. FEC ................................................................ 246

National Committee of the Reform Party v. FEC ............................................................. 248

National Congressional Club: FEC v. .............................................................................. 148

National Congressional Club v. FEC ................................................................................ 249

National Medical Political Action Committee: FEC v. .................................................... 149

National Republican Congressional Committee v. FEC (96-2295) .................................... 250

National Republican Senatorial Committee v. 

Democratic Senatorial Campaign Committee ................................................................. 66

National Republican Senatorial Committee: FEC v. (90-2055) ........................................... 51

National Republican Senatorial Committee: FEC v. (93-1612) ........................................ 149

National Republican Senatorial Committee v. FEC (94-0332) ......................................... 250

National Right to Work Committee: FEC v. (77-7125),

National Right to Work Committee v. FEC (78-0315) .................................................. 150

National Right to Work Committee: FEC v. (90-0571) ..................................................... 152

National Right to Work Committee v. FEC (84-2955) ...................................................... 251

National Right to Work Committee v. Thomson,

Chamberlain v. Thomson .............................................................................................. 251

Natural Law Party of the United States of America v. FEC ............................................. 252

NCPAC: FEC v. (83-2823) ................................................................................................ 153

NCPAC: FEC v. (84-0866) ................................................................................................ 154

NCPAC: FEC v. (85-2898) ................................................................................................ 155

NCPAC v. FEC ................................................................................................................. 252

NEA: FEC v. ................................................................................................................... 156

New Republican Victory Fund: FEC v. ............................................................................ 157

New York State Conservative Party State Committee/

1984 Victory Fund: FEC v. (87-3309) ........................................................................... 157

Nixon v. Shrink PAC ......................................................................................................... 253

NOW: FEC v. ................................................................................................................... 158
Selected Court Case Abstracts

xii Cases Through March 2004

Alphabetical List of Cases

NRA: FEC v. (81-1218) ................................................................................................... 159

NRA: FEC v. (85-1018) ................................................................................................... 159

NRA v. FEC (84-1878 and 86-2285) ................................................................................. 254

NRA v. FEC (87-5373) ..................................................................................................... 255

NRA v. FEC (89-3011) ..................................................................................................... 256

NRA Political Victory Fund: FEC v. ............................................................................... 161

Ohio Democratic Party v. FEC (98-0991),

RNC v. FEC (98-1207 and 98-5263) .............................................................................. 257

Orloski v. FEC .................................................................................................................. 259

Orton: FEC v. .................................................................................................................. 164

Parisi: FEC v. ................................................................................................................... 164

Percy ’84, Citizens for v. FEC (84-2653) ............................................................................ 260

Percy ’84, Citizens for v. FEC (85-0763) .............................................................................. 10

Perot ’96 and Natural Law Party v. 

FEC and the Commission on Presidential Debates ....................................................... 261

Perot ’96 v. FEC (98-1022) ................................................................................................ 263

Phillips Publishing: FEC v. ............................................................................................. 165

Political Contributions Data: FEC v. ............................................................................... 166

Populist Party: FEC v. (88-0127) ...................................................................................... 168

Populist Party: FEC v. (90-0229 and 90-7169) .................................................................. 169

Populist Party: FEC v. (92-0674) ...................................................................................... 169

Public Citizen, Inc.: FEC v. .............................................................................................. 170

Reader’s Digest Association v. FEC .................................................................................. 264

Reagan-Bush Committee v. FEC ...................................................................................... 265

Reform Party of the USA v. John J. Gargan ..................................................................... 266

Reform Party of the United States v. John Hagelin,

Reform Party of the United States v. Gerald M. Moan ................................................. 266

Rhoads for Congress: FEC v. ........................................................................................... 172

Reilly v. FEC ................................................................................................................... 267

Republican Party of Kentucky v. FEC .............................................................................. 267

Richards for President: FEC v. (88-2832) ......................................................................... 172

Richards for President: FEC v. (89-0254) ......................................................................... 173

Right to Life of Dutchess County, Inc. v. FEC ................................................................. 267

RNC v. DNC and FEC ..................................................................................................... 268

RNC v. FEC (78-2783) ..................................................................................................... 269

RNC v. FEC (94-1017) ..................................................................................................... 270

RNC v. FEC (97-1552) ..................................................................................................... 272

RNC v. FEC (98-1207 and 98-5263) ................................................................................. 257

Robertson v. FEC ............................................................................................................. 272

Rodriguez: FEC v. ........................................................................................................... 173
Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

xiii

Rose: FEC v.,

Rose v. FEC .................................................................................................................. 174

Rove v. Thornburgh .......................................................................................................... 273

RUFFPAC: FEC v. .......................................................................................................... 117

Sailors’ Union of the Pacifi c Political Fund: FEC v. ........................................................ 176

Salvi, Al for Senate: FEC v. (98c-4933) ............................................................................. 177

Satellite Business Systems v. FEC ..................................................................................... 274

Savage for Congress ’82: FEC v. ...................................................................................... 177

Segerblom v. FEC ............................................................................................................. 275

Schaefer v. FEC (02-1255) ................................................................................................ 275

Schaefer, Friends of: FEC v.,

Schaefer v. FEC ............................................................................................................. 178

Shays and Meehan v. FEC (1:02CV01984) ....................................................................... 276

Sierra Club v. FEC ............................................................................................................ 277

Simon v. FEC................................................................................................................... 76

Socialist Workers Party v. FEC ......................................................................................... 278

Spannaus v. FEC (85-0404) ............................................................................................... 279

Spannaus v. FEC (91-0681) ............................................................................................... 279

Specter ’96, Arlen: FEC v. (00CV3167) ............................................................................ 179

Speelman: FEC v. ............................................................................................................ 179

Staebler v. Carter .............................................................................................................. 280

Stark v. FEC ................................................................................................................... 281

Stern v. FEC ................................................................................................................... 283

Stern v. General Electric Co. ............................................................................................. 284

Stevens v. FEC (02c3291) .................................................................................................. 285

Stockman v. FEC .............................................................................................................. 286

Survival Education Fund: FEC v. .................................................................................... 180

Taylor Congressional Committee: FEC v. ........................................................................ 181

Thornton Township Regular Democratic Organization: FEC v. ...................................... 182

Toledano: FEC v. (01-56762) ........................................................................................... 182

Triad Management Services: FEC v. (02CV1237) ............................................................ 183

Trinsey v. FEC .................................................................................................................. 286

United States v. Goland .................................................................................................... 204

United States v. International Union of Operating Engineers ........................................... 288

United States Defense Committee v. FEC ......................................................................... 287

USA v. Hsia ................................................................................................................... 289

USA v. Kanchanalak, Et Al. ............................................................................................. 290

Virginia Society for Human Life, Inc. v. FEC ................................................................... 291
Selected Court Case Abstracts

xiv Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

Walsh for Congress: FEC v. ............................................................................................ 184

Walther v. FEC ................................................................................................................. 293

Webb for Congress: FEC v. .............................................................................................. 185

Weber v. Heaney ............................................................................................................... 294

Weinberg: FEC v. ............................................................................................................. 186

Weinsten: FEC v. ............................................................................................................ 186

Wertheimer v. FEC (00-5371) ............................................................................................ 295

West Virginia Republican State Executive Committee: FEC v. ......................................... 187

White v. FEC ................................................................................................................... 296

White v. FEC ................................................................................................................... 296

Whitmore v. FEC ............................................................................................................. 296

Wilkinson v. FEC ............................................................................................................ 297

Wilson v. USA .................................................................................................................. 298

Wisconsin Democrats for Change in 1980: FEC v. ............................................................. 99

Wofford: Citizens for v. FEC ............................................................................................. 298

Williams: FEC v. .............................................................................................................. 187

Wofford: FEC v. ............................................................................................................... 189

Wolfson: FEC v. ............................................................................................................... 189

Woods, Charles for U.S. Senate: FEC v. ........................................................................... 190

Working Names: FEC v. ................................................................................................. 190

Wright: FEC v. ................................................................................................................. 191

Xerox Corp. v. Americans With Hart,

Kroll v. Americans With Hart ....................................................................................... 299
Cases Through March 2004

Alphabetical List of Cases

Selected Court Case Abstracts

1

A AFL-CIO and DNC SERVICES CORP./DNC v. FEC 

(01-1522 and 02-5069)

On June 20, 2003, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. District Court 

for the District of Columbia’s decision in this case. The appeals court found that the FEC’s practice of disclosing 

documents obtained during an investigation was based on a regulation that, “while not contrary to the plain language 

of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests 

implicated in releasing political groups’ strategic documents and other internal materials.”

Background

On June 17, 1997, the Commission found reason to believe that the plaintiffs had violated the Federal Election 

Campaign Act (the Act) during the 1995-96 election cycle (MURs 4291, et al.). At the conclusion of its investigation, 

the Commission voted to take no further action on MURs 4291, et al., and to close the fi les. In keeping with its longstanding practice of disclosing the investigatory record once a MUR is closed, the Commission planned to make 

public a portion of the investigatory fi le.

The plaintiffs claimed that public disclosure of the fi les would cause irreparable injury by revealing confi dential 

information and by chilling the plaintiffs’ future efforts to engage in political activities. The plaintiffs asked the 

Commission not to make the documents public; however, the Commission denied their requests on the grounds that 

the Commission’s regulations under the Act and the Freedom of Information Act (FOIA) required disclosure of 

the MUR fi les.

District Court Decision

The plaintiffs had requested summary judgment from the district court, arguing, among other things, that disclosure 

of the documents would violate the confi dentiality provision of the Act, which states that:

“Any notifi cation or investigation made under [the enforcement] section shall not be made public by the Commission 

or by any person without the written consent of the person receiving such notifi cation or the person with respect to 

whom such investigation is made.” 2 U.S.C. §437g(a)(12)(A).

The Commission had argued that the Act only protects the confi dentiality of ongoing investigations. Once a 

MUR is closed, the Act requires the Commission to make public the conciliation agreement or the Commission’s 

determination that the Act has not been violated. 2 U.S.C. §437g(a)(4)(B)(ii). The Commission asserted that the Act’s 

confi dentiality provision was intended to protect a MUR respondent from disclosure of the fact that the respondent 

was under investigation. When the Commission made public its MUR determination, it would also reveal the fact 

that the respondent had been investigated, leaving nothing to be protected by the confi dentiality provision. 2 U.S.C. 

§437g(a)(12)(A).

The district court, however, concluded that the plain language of the Act barred the Commission from publicizing 

investigative materials and, thus, that the Commission’s interpretation of the statute ran counter to Congressional 

intent. 2 U.S.C. §437g(a)(12)(A). The court found that the Act’s provision requiring that MUR determinations be 

made public was a limited exception to the Act’s confi dentiality provision, not a directive to end the protection of that 

provision. Moreover, the court concluded that publication of the materials would violate 11 CFR 111.21(a), which 

implements the Act’s confi dentiality provision. See the February 2002, Record, page 3. , page 3.

Appeals Court Decision

The appeals court carried out its deliberations under the framework developed by the U.S. Supreme Court in Chevron 

U.S.A., Inc. v. Natural Resources Defense Council U.S.A., Inc. v. Natural Resources Defense Council 467 U.S. 837 (1984). In the 467 U.S. 837 (1984). In the Chevron framework, when a court 

reviews an agency’s interpretation of the statute which it administers, the court must address two questions:

• Whether Congress has directly spoken on the question at issue; and

• In a case where the statute is silent or ambiguous with respect to the specifi c issue, whether the agency’s 

approach is based on a permissible construction of statute.

The fi rst question in this case was whether the Act provides a clear indication of Congressional intent regarding the 

disclosure of investigatory materials from closed investigations. The Commission argued that 2 U.S.C. §437g(a)(12)(A) 

was silent on whether materials from closed investigations could be released. The plaintiffs argued that this 

provision requires the Commission to keep investigatory fi les confi dential even after the closing of an investigation. 

According to them, the permissible disclosures are limited to those set out in a separate section of the Act (2 U.S.C. 

§437g(a)(4)(B)(ii)) that requires the Commission’s disclosure of signed conciliation agreements and its fi ndings that a 

violation has not occurred.
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2 Cases Through March 2004

A The court determined that since the statute itself appears to support two plausible interpretations, it is ambiguous 

enough to proceed to the second stage of the Chevron analysis.

In examining whether, in the absence of Congressional intent, the Commission’s disclosure policy represents a 

reasonable construction of the statute, the court noted that “[C]ourts . . . balance the burdens imposed on individuals 

and associations against the signifi cance of the governmental interest in disclosure and consider the degree to which 

the government has tailored the disclosure requirement to serve its interests.”

As mentioned above, the plaintiffs argued that the disclosure of the fi les would cause them irreparable injury by 

revealing confi dential information and by chilling their future efforts to engage in political activities. The Commission 

argued that its disclosure regulation at 11 CFR 5.4(a)(4) was justifi ed by deterring future violations of the Act, and 

by providing public accountability for the Commission’s actions. Additionally, the Commission argued that it was 

entitled to deference, as its disclosure policy represented a long-standing practice.

However, the court found that the regulation’s requirement that all investigatory materials not already exempted by 

FOIA be disclosed was not suffi ciently tailored “to avoid unnecessarily burdening the First Amendment rights of the 

political organizations it investigates,” like the plaintiffs.

Sources: FEC Record, February 2002, p. 3; and March 2002, p.5; FEC , February 2002, p. 3; and March 2002, p.5; FEC Record, August 2003, p. 1. , August 2003, p. 1. 

177 F. Suppp.2d. 48

ALLIANCE FOR DEMOCRACY v. FEC (1:02CV00527)

On March 19, 2002, Alliance for Democracy, a non-profi t, nonpartisan advocacy group, Hedy Epstein and Ben 

Kjelshus (collectively the Plaintiffs) fi led a complaint in the U.S. District Court for the District of Columbia alleging 

that the Commission acted contrary to law by failing to act on an administrative complaint fi led by the Plaintiffs. 

The administrative complaint, fi led March 8, 2001, alleged that the Spirit of America PAC contributed a fundraising 

list of 100,000 donors to Ashcroft 2000, the principal campaign committee for John Ashcroft’s 2000 Missouri Senate 

campaign. The administrative complaint alleged that the list was a contribution by the Spirit of America PAC 

to Ashcroft 2000 and that neither committee reported the contribution to the Commission. See 2 U.S.C. §431(8) 

and 11 CFR 100.7.

The Plaintiffs claim that, because the alleged contribution was unreported, they were denied, and continued to be 

denied, access to information that would assist them in evaluating candidates for the 2000 Missouri Senate election, 

as well as candidates for future elections. They contend that because the administrative complaint “was brought 

against the Attorney General of the United States, the nation’s highest law enforcement offi cer, it is a matter whose 

resolution is particularly in the public interest and the FEC should rule on the complaint without continued delay.” 

The Plaintiffs ask that the court:

• Find the Commission’s failure to act on the administrative complaint contrary to law; and

• Compel the Commission to rule on the merits of the administrative complaint within 30 days. 2 U.S.C. 

§437g(a)(8)(C) and (3).

Source: FEC Record, May 2002, p. 3. , May 2002, p. 3. 

ALLIANCE FOR DEMOCRACY v. FEC (1:04CV00127)

On January 26, 2004, the Alliance for Democracy, a non-profi t, non-partisan advocacy group, Hedy Epstein and Ben 

Kjelshus (collectively the plaintiffs) fi led a complaint in the U.S. District Court for the District of Columbia alleging 

that the Commission wrongfully dismissed the central allegations of the plaintiffs’ administrative complaint against 

the Spirit of America PAC (SOA) and Ashcroft 2000.

Background

SOA was established in 1996 and John Ashcroft served as its chairman. In March 2001, the plaintiffs fi led an 

administrative complaint with the Commission, designated MUR 5181, alleging that SOA unlawfully donated a 

fundraising list of approximately 100,000 donors to Ashcroft 2000, Mr. Ashcroft’s 2000 Senate campaign committee, 

and that the two committees failed to disclose the donation of the list or its value. According to the administrative 
Selected Court Case Abstracts

Cases Through March 2004 3

A complaint, the donation of the fundraising list constituted a contribution under the Federal Election Campaign Act 

(the Act) and exceeded the Act’s contribution limits. 2 U.S.C. §431(8). The administrative complaint further alleged 

that SOA and Ashcroft 2000 violated the Act by failing to report the contribution of the fundraising list in their FEC 

reports.1 See 2 U.S.C. §§441a(a)(2)(a), 441a(f) and 434(b). On December 11, 2003, the FEC closed the investigation 

of the administrative complaint with a conciliation agreement that includes a $37,000 civil penalty for violations 

stemming from the transfer of list rental income.2 The plaintiffs’ new lawsuit claims that the FEC’s investigation of 

MUR 5181 revealed that SOA developed the fundraising list at a cost of over $1.7 million and confi rmed that the 

SOA illegally donated the list to Ashcroft 2000.

Court complaint

The complaint alleges that the Commission failed to fi nd probable cause to believe that the transfer of the mailing list 

constituted an in-kind contribution, or that the value of the list had to be reported as a contribution. The Commission 

also did not fi nd probable cause as to Ashcroft 2000’s use of the list or Ashcroft 2000’s receipt of list rental income 

from its own rental of the list. The plaintiffs also allege that the list’s value far exceeds the $112,962 in excessive 

contributions found by the Commission.

The plaintiffs allege in their court complaint that the FEC’s “dismissal of the central allegations of the administrative 

complaint, and its approval of the transfer of the funding list from the Spirit of America PAC to Ashcroft 2000 and 

the non-reporting of the transfer, are arbitrary and capricious, contrary to law and a clear abuse of the agency’s 

discretion.” The plaintiffs also allege that the Commission’s failure to fi nd excessive contributions and reporting 

violations based on the illegal donation of the fundraising list is based on an impermissible interpretation of the 

Act. See 2 U.S.C. §§431(8)(A)(i), 432(b), 434(b) 441a(a)(2)(A) and 441a(f). They assert that if the court enters a 

judgment fi nding that the FEC’s actions in this matter were contrary to law, the Commission will, upon remand, have 

the authority to:

• Ascertain the value of the mailing list;

• Require reporting and disclosure of the alleged contribution resulting from the list transaction; and

• Seek further penalties and/or injunctive or declaratory relief against SOA, Ashcroft 2000 and their principals.

The plaintiffs ask the court to:

• Declare that the FEC’s dismissal of key allegations of the administrative complaint were contrary to law;

• Remand the matter to the FEC with an order to conform to the court’s declaration within 30 days; and

• Grant such other relief as may be appropriate.

Source: FEC Record, March 2004, p. 8. , March 2004, p. 8. 1

 The plaintiffs also fi led a complaint with the court in March 2002, asking the court to fi nd that the Commission acted contrary to law 

by failing to act on this administrative complaint. This case is still pending. See Alliance for Democracy v. FEC (02CV00527). 2

 The conciliation agreement and supporting documents are available through the FEC’s Enforcement Query System on the FEC web 

site at www.fec.gov.

AKINS v. FEC (91-2831)

On June 9, 1992, the U.S. Court of Appeals for the District of Columbia Circuit, in a per curiam order, directed the 

district court to clarify its order of January 21, 1992. (Civil Action No. 92-5124.) In that order, the district court had 

required the FEC to “issue a fi nal decision on the merits of the Plaintiffs’ administrative complaint forthwith, and in 

no event later than 4 p.m. on May 29, 1992.”

The court of appeals stated that it found the above language confusing: “While it could be interpreted, as the FEC 

has suggested, as a direction to the agency to take fi nal action by May 29, we question this interpretation because the 

district court has not found that the FEC’s failure to act on appellees’ administrative complaint was ‘contrary to law’ 

as required by 2 U.S.C. §437g(a)(8)(C).”

The court further stated: “We would have serious doubts about the propriety of an order compelling the FEC to take 

fi nal action absent a fi nding by the district court that the agency’s failure to act was ‘contrary to law.’ Upon clarifi cation, 

the district court should allow the FEC suffi cient time for any action the clarifi ed order may contemplate.”

(The FEC had interpreted the order as a mandatory deadline for fi nal action and had asked the district court to 

clarify the order by deleting that language. When the court refused, the agency fi led an appeal.)
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4 Cases Through March 2004

A In response to the directions from the court of appeals, the district court issued a new order on June 26, 1992. 

Stating that its previous order “was not intended as an injunction,” the district court reopened the case to decide the 

“contrary to law” issue. However, shortly thereafter, on July 7, 1992, the court dismissed the case as moot since the 

FEC had completed action on the administrative complaint (MUR 2804). Civil Action No. 91-2831 (CRR).

Source: FEC Record, August 1992, p. 11. , August 1992, p. 11. 

Akins v. FEC, No. 91-2831 (D.D.C. Jan. 20, 1992); on remand, No. 92-5124 , No. 92-5124 

(D.C. Cir. June 9, 1992); on remand on remand (D.D.C. June 26, 1992). (D.D.C. June 26, 1992).

AKINS v. FEC (92-1864)

On September 29, 1995, the U.S. Court of Appeals for the District of Columbia ruled that the FEC’s use of a 

“major purpose test” to narrow the defi nition of “political committee” was valid, that its application of the “major 

purpose test” in this case was reasonable, and that its investigation into the matters raised by appellants was adequate. 

The court therefore affi rmed the district court’s ruling dismissing appellants’ complaint that the FEC’s actions were 

contrary to law.

On December 6, 1996, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed the 

district court’s decision. 

On June 1, 1998, the U.S. Supreme Court ruled that Mr. James E. Akins and several other former government offi cials 

had standing to challenge in federal court the Commission’s dismissal of an administrative complaint they fi led in 

1989 against the American Israel Public Affairs Committee (AIPAC). The Supreme Court also referred questions 

about the membership status of AIPAC members to the Commission.

Administrative Complaint

On January 9, 1989, Mr. Akins and his associates fi led an administrative complaint with the FEC alleging that AIPAC, 

an organization that lobbies public offi cials and disseminates information about federal candidates and offi ceholders, 

failed to register and report as a political committee, after it had made contributions to and expenditures on behalf 

of federal candidates in excess of $1,000.

The Federal Election Campaign Act (the Act) defi nes a political committee as any committee, association or other 

group that receives contributions or makes expenditures to infl uence federal elections in excess of $1,000 during a 

calendar year. 2 U.S.C. §431(4)(A). However, a statutory exception to the defi nition of expenditure allows membership 

organizations to make disbursements of more than $1,000 for campaign-related communications to their members, 

without their counting as contributions or expenditures.

AIPAC claimed that its communications to its members fell within this exception and, therefore, that it did not have 

to register as a political committee or disclose any of its fi nancial activities to the FEC.

The FEC did not agree. In its view, AIPAC’s disbursements did qualify as expenditures because its members did 

not qualify as members under the Act. The Commission, nonetheless, concluded AIPAC was not subject to the 

registration and disclosure rules applicable to political committees. The Commission believed that, because AIPAC’s 

major purpose was not infl uencing federal elections, it did not qualify as a political committee even though it had 

made expenditures in excess of $1,000. The Commission dismissed the complaint.

District and Appellate Courts Decisions

Mr. Akins and the other plaintiffs fi led suit in U.S. District Court for the District of Columbia charging that the 

FEC failed to proceed on the administrative complaint and challenging the Commission’s interpretation of what 

constitutes a political committee. The district court ruled in favor of the FEC, agreeing with the “major purpose” 

test—that an organization that receives contributions or makes expenditures of more than $1,000 becomes a political 

committee only if its major purpose is the infl uencing of federal elections.

The U.S. Court of Appeals for the District of Columbia Circuit affi rmed the lower court ruling, but an en banc panel 

of the same appellate court reversed the district court decision. The en banc panel, referencing both Buckey v. Valeo

and FEC v. Massachusetts Citizens for Life, Inc., found that the major purpose test can only be applied to organizations 

that make independent expenditures, not contributions, which is what was in question in the administrative complaint 

against AIPAC. The court also rejected the Commission’s argument that the appellants lacked standing to bring their 

claim to federal court. On behalf of the FEC, the solicitor general appealed the decision to the Supreme Court.
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Cases Through March 2004 5

A Supreme Court Decision

The Supreme Court focused its opinion on the three-pronged test of standing—which a plaintiff must demonstrate 

to show there is a “case” or “controversy” under Article III of the U.S. Constitution—injury in fact, causation and 

redressability. The high court also found that the plaintiffs’ inability to obtain information about AIPAC’s campaignrelated fi nances satisfi ed prudential standing because it was the kind of injury that the Act seeks to address.

Injury in Fact. The Supreme Court found that the injury in fact in this case was that the plaintiffs were prevented 

from obtaining information about AIPAC’s donors and the organization’s campaign-related contributions and 

expenditures. It said that there is no reason to doubt that this information would have helped the plaintiffs evaluate 

candidates for public offi ce, especially those candidates who received assistance from AIPAC. Thus, the court said, the 

injury in this case is both “concrete” and “particular.” The FEC argued that the lawsuit involved only a “generalized 

grievance” shared by many (a kind of grievance for which standing usually is not conferred); the Supreme Court 

disagreed. In such cases of “generalized grievance,” the court said, the harm is usually “of an abstract and indefi nite 

nature”—not the kind of concrete harm that the court found here.

The court concluded that, “[T]he informational injury at issue here, directly related to voting, the most basic of 

political rights, is suffi ciently concrete and specifi c such that the fact that it is widely shared does not deprive Congress 

of constitutional power to authorize its vindication in the federal courts.”

Causation and Redressability. The high court also found that the harm asserted by the plaintiffs was “fairly 

traceable” to the FEC’s decision to dismiss its administrative complaint, and that the courts have the power to 

redress this harm.

The Supreme Court also rejected the FEC’s argument that, because the agency’s decision not to undertake 

an enforcement action is generally an area not subject to judicial review, 2 U.S.C. § 437g(a)(8) should 

be interpreted narrowly.

“Major Purpose” Test

With regard to the “major purpose” test, the Supreme Court referred the matter back to the FEC because of the 

uncertainty of the “membership” issue as applied to AIPAC.

Source: FEC Record, May 1994, p. 4; December 1995, p. 1; February 1997, p. 1; and July 1998, p. 1. , May 1994, p. 4; December 1995, p. 1; February 1997, p. 1; and July 1998, p. 1.

Akins v. FEC, No. 92-1864 (JLG) (D.D.C. Aug. 11, 1993) (on motion for amended complaint); (D.D.C. Dec. 8, 1993); (D.D.C. Mar. 

30, 1994) (opinion); 66 F.3d 348 (D.C. Cir. 1995), rev’d, 101 F.3d 731 (D.C. Cir. 1996) , 101 F.3d 731 (D.C. Cir. 1996) (en banc), vacated and remanded, 118 S. Ct. 1777 , 118 S. Ct. 1777 

(1998).

 ALBANESE v. FEC

On March 12, 1996, the U.S. Court of Appeals for the Second Circuit affi rmed the district court’s decision to dismiss 

this case for lack of standing.

Background

This suit was brought by Sal Albanese, who chose not to challenge Representative Susan Molinari in 1994 after his 

unsuccessful attempt to unseat her in 1992, and on behalf of a number of his supporters.

In their original suit, plaintiffs challenged the constitutionality of the federal electoral system on the grounds that it 

fi nancially handicapped campaigns to unseat an incumbent, thus discouraging potential candidacies. In an amended 

complaint, they specifi cally challenged the constitutionality of the Federal Election Campaign Act (the Act)—alleging 

that it authorizes the use of private monies in federal elections—and the franking privileges enjoyed by incumbents.

District Court Ruling

In determining that plaintiffs lacked standing to bring this suit, the court applied the three-part test for standing; this 

test requires plaintiffs to identify (1) an actual injury that (2) is caused by the challenged act and (3) is likely to be 

redressed by the relief requested. The court found that plaintiffs in this case failed all three parts of this test.

Plaintiffs failed the fi rst part because plaintiffs represented a potential candidate and supporters of his would-be 

campaign, rendering their alleged injury “abstract and conjectural.” For instance, their alleged injury that large 

contributors diminish the infl uence of those who cannot give as much was “abstract and remote” in this case since the 

campaign that plaintiffs wished to support did not exist.
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6 Cases Through March 2004

A Plaintiffs failed the second part because, since their alleged injury was theoretical, they could not provide tangible 

evidence that the injury was caused by the Act. The court noted, “We will never know how much money might have 

been contributed to [Albanese’s campaign] and how successful he might have been at the polls . . . .” The court further 

stated that, “Albanese opted not to participate in the election process; he was not prevented from doing so.” The 

alleged injuries, therefore, were not traceable to the Act.

Lastly, plaintiffs failed the third part because their suggested remedy—to declare the Act unconstitutional—would 

not redress the injury. The court stated, “[If] plaintiffs’ goal is to eliminate the contribution of private funds to 

politicians and thereby level the electoral playing fi eld, declaring the [Act]—a statute which limits such contributions—

unconstitutional cannot be said to redress plaintiffs’ injury.”

Additionally, the court cited Buckey v. Valeo as a legal precedent upholding the constitutionality of the Act, and 

several other court decisions similarly upholding the constitutionality of the franking statute.

In closing, the court declared that it was outside its jurisdiction to address the plaintiffs’ grievance, and that plaintiffs 

had to seek relief through the legislative and executive branches of government: “To the extent that the plaintiffs 

believe that a modifi cation of the process would enhance its integrity, they must make the case for the validity of that 

belief with the political branches of our government. For just as fundamental to the political order of this democracy 

is the doctrine of separation of powers and the limited jurisdiction conferred upon the federal judiciary within that 

political order.”

Source: FEC Record, July 1995, p. 8; and May 1996, p. 4. , July 1995, p. 8; and May 1996, p. 4.

Albanese v. FEC, 884 F. Supp. 685 (E.D.N.Y. 1995), aff’d, 78 F.3d 66 (2d Cir. 1996). , 78 F.3d 66 (2d Cir. 1996).

ANDERSON v. FEC (80-0272)

On April 10, 1981, the U.S. District Court for the District of Maine dismissed John B. Anderson v. FEC John B. Anderson v. FEC (Civil Action (Civil Action

No. 80-0272P) in response to a motion to dismiss the suit fi led by plaintiffs on the same day. The suit had been 

remanded to the district court after certifi cation of constitutional questions to the U.S. Court of Appeals for the 

First Circuit. Several plaintiffs—John B. Anderson, a candidate in the 1980 Presidential elections, the National Unity 

Campaign 441a(d) Committee and three individual plaintiffs—had brought suit on September 8, 1980, asking the 

district court to certify the following constitutional questions to the appeals court:

• Does Section 441a(a)(1)(B), which entitles a national party committee to receive contributions of up to 

$20,000 per year from individuals, infringe on plaintiff’s First and Fifth Amendment rights; and 

• Does Section 441a(d), which permits a national party committee to make special “coordinated 

party expenditures” on behalf of its Presidential candidate, infringe on plaintiffs’ First and Fifth 

Amendment rights?

Plaintiffs had also sought a preliminary injunction from the district court, directing the Commission to permit the 

application of Sections 441a(a)(1)(B) and 441a(d) to the National Unity Campaign 441a(d) Committee, which had 

registered as a political committee the day before plaintiffs fi led suit. 

District Court Ruling

On October 14, 1980, the district court certifi ed plaintiffs’ constitutional questions to the appeals court but denied 

plaintiffs’ motion for a preliminary injunction. The court held that plaintiffs had not exhausted the administrative 

relief available to them under the election law. Moreover, the court noted that any injunction granted would have been 

permanent, rather than temporary, since the election would be held within two and one-half weeks of its ruling. 

Appeals Court Ruling

On October 30, 1980, the appeals court granted the FEC’s motion to remand the case to the district court for further 

fact fi nding. The court noted that, if plaintiffs had sought an advisory opinion from the FEC before fi ling suit, the 

court “...would likely have had more facts before us than we do presently and would have been better able to evaluate 

plaintiffs’ constitutional claims.”
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Cases Through March 2004 7

A Plaintiffs Seek Administrative Relief From FEC

On November 4, 1980, prior to seeking dismissal of their suit, plaintiffs requested an advisory opinion from the 

Federal Election Commission on the status of the National Unity Campaign and the National Unity Campaign 

441a(d) Committee as national party committees operating on Mr. Anderson’s behalf. In AO 1980-131, issued on 

November 20, 1980, the Commission determined that neither committee qualifi ed as the national committee of a 

political party and, therefore, that neither committee was entitled to receive up to $20,000 in contributions from 

individuals or to make coordinated party expenditures. 

Source: FEC Record, July 1981, p. 6. , July 1981, p. 6. 

Anderson v. FEC, 634 F.2d 3 (1st Cir. 1980) (en banc). 

ANDERSON v. FEC (80-1911)

On September 9, 1980, the U.S. District Court for the District of Columbia dismissed the suit, John B. Anderson v. 

FEC (Civil Action No. 80-1911). The court determined that there was no longer a need for a decision either on the 

FEC’s motion to dismiss the suit or on the substantive issues raised in the suit. 

In the suit, plaintiffs had sought an expedited ruling by the court that John B. Anderson would be eligible as an 

independent candidate for the same post-election public funding as that provided Presidential candidates of “new 

parties,” if he received fi ve percent or more of all popular votes cast in the 1980 Presidential general election and met 

other requirements of the Act. Such a ruling, plaintiffs told the court, would immediately make large bank loans 

available to the Anderson campaign. 

The FEC had consistently argued that plaintiffs should have requested an advisory opinion from the FEC on the 

application of the Act and the Commission’s new regulations to the Anderson campaign before seeking a court 

ruling. On August 13, plaintiffs did fi le an advisory opinion request (AOR 1980-96) with the FEC, and on September 

4 the Commission issued an opinion declaring Mr. Anderson eligible for post-election public funding as the candidate 

of a new political party. 

After issuing the Anderson opinion, the FEC fi led a supplement to its motion to dismiss the suit, submitting the 

opinion and arguing that it fully supported its consistent position that the case should be dismissed. Plaintiffs, who 

had opposed the FEC’s motion to dismiss, also fi led their own motion to dismiss the case as moot. 

Source: FEC Record, October 1980, p. 6. , October 1980, p. 6.

ANTOSH v. FEC (84-1552 and 84-2737)

On August 30, 1984, the U.S. District Court for the District of Columbia issued an order granting the FEC’s motion to 

dismiss Antosh v. FEC Antosh v. FEC (Civil Action No. 84-1552) and denying the plaintiff’s motion to fi le a supplemental complaint. (Civil Action No. 84-1552) and denying the plaintiff’s motion to file a supplemental complaint. 

On September 13, 1984, the court issued an opinion explaining the ruling. Following the court’s order, Mr. James E. 

Antosh fi led a second suit with the court on September 6, 1984 (Civil Action No. 84-2737). The second suit included 

a request by the plaintiff that the district court certify two constitutional claims to the U.S. Court of Appeals. 

On January 5, 1988, the court ruled that Mr. Antosh lacked standing in his second suit to seek the court’s certifi cation 

of his constitutional questions to the appeals court. The court granted a motion by the FEC to dismiss the counts of 

his complaint which included the constitutional questions. 

On March 24, 1988, the district court issued an order granting a further motion by the FEC for a summary judgment 

in the second suit. The court’s order dismissed the remaining two counts of Mr. Antosh’s complaint.

First Suit

Mr. Antosh, a registered voter in Oklahoma, is president of Shawnee Garment Manufacturing, Inc. On December 

2, 1983, he fi led an administrative complaint with the FEC alleging that the separate segregated funds of three 

international unions were affi liated with the AFL-CIO’s political action committee (PAC)1 within the meaning of 2 U.

S.C. §441a(a)(5). Mr. Antosh claimed that the four political committees had failed to disclose their affi liation in their 

respective Statements of Organization and, in making contributions to several political committees, had exceeded 

their single $5,000 contribution ceiling. (See 2 U.S.C. §§433(b)(2) and 441a(a)(2)(A).)
Selected Court Case Abstracts

8 Cases Through March 2004

A Furthermore, his complaint claimed that the election law and FEC Regulations recognized automatic affi liation 

between business federations and their members, on the one hand, while only a discretionary affi liation between a 

labor federation and its members, on the other. The plaintiff had alleged that this was discriminatory treatment in 

violation of the First and Fifth Amendments. 

Pursuant to 2 U.S.C. §437g(a)(8), Mr. Antosh fi led his fi rst suit against the FEC in the district court on May 17, 1984. 

The plaintiff asked the court to declare that the FEC’s failure to act on his administrative complaint within 120 days 

was contrary to law and to issue an order directing the FEC to proceed with an investigation into the complaint 

within 30 days. 

On July 10, 1984, the Commission dismissed Mr. Antosh’s administrative complaint, fi nding no reason to believe that 

violations of the election law had occurred. On the same day, the Commission also fi led a motion with the court to 

dismiss Mr. Antosh’s suit as moot. On July 23, 1984, Mr. Antosh requested that the court deny the FEC’s motion to 

dismiss his case and grant his motion to fi le a supplemental complaint. In his proposed supplemental complaint, Mr. 

Antosh requested the court to declare that the FEC’s dismissal of his administrative complaint was contrary to law, 

and to certify his constitutional questions to the appeals court. The court found, however, that Mr. Antosh’s July 23 

request did not constitute a supplement to his original suit because, unlike the original request, the motion did not 

deal with delays in processing his administrative complaint, but rather it dealt with the merits of the FEC’s decision 

to dismiss the complaint. The court therefore decided that, under procedural rules, Mr. Antosh had to fi le a separate 

suit with the court. 

Second Suit

On September 6, 1984, Mr. Antosh fi led a second suit with the district court to challenge the Commission’s dismissal 

of his complaint. On December 3, 1984, pursuant to 2 U.S.C. §437h(a), he asked the district court to certify two 

constitutional claims to the appeals court. Specifi cally, he alleged that several provisions of the Federal Election 

Campaign Act and FEC regulations provided preferential treatment to labor organization PACs over trade association 

PACs. Mr. Antosh claimed that these distinctions violated the First and Fifth Amendments. Furthermore, Mr. Antosh 

asked the court to declare that the FEC’s dismissal of his administrative complaint was contrary to law and that both 

the FEC and former Commissioner Thomas E. Harris had violated his rights to due process in refusing to disqualify 

Commissioner Harris from the agency’s consideration of his administrative complaint.2 (Prior to his appointment 

to the Commission in 1975, Commissioner Harris had served as counsel for the AFL-CIO. Mr. Antosh claimed 

that Mr. Harris had signed a factual stipulation on behalf of the AFL-CIO in a 1973 case that was germane to 

Mr. Antosh’s suit.)

The FEC fi led an opposition to Mr. Antosh’s motion for certifi cation of his constitutional claims and fi led an 

additional motion to dismiss them. The agency argued that Mr. Antosh lacked standing to raise the constitutional 

questions and that federal courts had already substantially settled the questions he raised. 

In January 1988, the court granted the FEC’s motions and dismissed Mr. Antosh’s constitutional claims. The court 

found that, although the plaintiff had standing to raise his questions under the election law, he lacked standing 

under Article III of the Constitution. The court concluded that Mr. Antosh failed to demonstrate the kind of 

injury required by Article III, that is, “some actual or threatened injury which is traceable to illegal conduct by the 

defendant” and which “is likely to be redressed by a favorable ruling.” The court fi rst rejected Mr. Antosh’s claim 

that, as a businessman who might contribute to trade association political action committees, his voice had been 

diminished in the political process by the law’s alleged discrimination against such committees, thereby violating his 

rights under the free speech provision of the First Amendment. The court then rejected Mr. Antosh’s claim that he 

had a personal stake in the law’s alleged discrimination against corporate political action committees by virtue of his 

position as president of a corporation that was a member of trade associations, thereby violating his rights under the 

First Amendment and under the due process clause of the Fifth Amendment. 

In March 1988 the district court ruled on the rest of the counts in Mr. Antosh’s suit. With regard to Mr. Antosh’s 

allegation that the FEC’s dismissal of his administrative complaint was contrary to law, the court held that the FEC 

had “reasonably interpreted” the provision of the election law governing possible affi liation between the political 

committees named in the complaint. Consequently, the agency’s dismissal of the complaint was not contrary to law. 

The FEC had argued that the legislative history of Section 441a(a)(5) demonstrated that Congress had not intended 

to impose a single contribution limit on the AFL-CIO’s PAC and the PACs of international unions affi liated with the 

AFL-CIO. The agency noted that it had consistently interpreted the provision this way. 
Selected Court Case Abstracts

Cases Through March 2004 9

A The district court supported the FEC’s view, noting comments made in 1976 by Congressman Wayne Hays, then 

Chairman of the House Ways and Means Committee and a sponsor of the 1976 amendments to the Act, saying that 

the membership of international unions in the AFL-CIO did not mean that the unions and the federation were to be 

treated as a single entity for the purposes of the 1976 amendments.

With regard to Mr. Antosh’s claim that Commissioner Harris should have recused himself from the case, the court 

concluded that “the intervention of signifi cant numbers of years [nine] certainly is suffi cient to remove any taint.” The 

court added that it “refuse[d] to fi nd that an attorney, at the very least nine years later, cannot consider cases involving 

a former client, especially after the Commission has made a determination that he or she is capable of impartially 

addressing the individual facts of a case.” 

Source: FEC Record, November 1984, p. 5; March 1988, p. 10; and June 1988, p. 8. , November 1984, p. 5; March 1988, p. 10; and June 1988, p. 8. 

Antosh v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9260 (D.D.C. Jan. 5, 1988), (D.D.C. Mar. 24, 1988) (unpublished opinion). 1 The full title of the AFL-CIO’s PAC is “American Federation of Labor Congress of Industrial Organizations, Committee on Political 

Education Political Contributions Committee (AFL-CIO COPE-PCC).”

2 Commissioner Harris’s third term on the Commission expired in April 1985. He continued to serve on the Commission, however, until 

autumn 1986, when he was replaced on the Commission by Scott E. Thomas.

ANTOSH v. FEC (84-3048)

On December 21, 1984, the U.S. District Court for the District of Columbia issued an order granting plaintiff’s motion 

for summary judgment in James Antosh v. FEC James Antosh v. FEC (Civil Action No. 84-3048). The court found that the Commission’s (Civil Action No. 84-3048). The court found that the Commission’s

dismissal of an administrative complaint Mr. Antosh had fi led with the FEC was contrary to law. On the same 

day, therefore, the court issued an order requiring the Commission to vacate its determination in the administrative 

complaint and to “reopen [the complaint] for further proceedings consistent with the court’s opinion.”

On July 1, 1987, the court denied Mr. Antosh’s petition for award of attorneys’ fees and costs incurred by him in 

the same suit.

Background

In fi ling his complaint with the FEC in May 1984, Mr. Antosh had alleged that:

• Engineers Political Education Committee/International Union of Operating Engineers (EPEC/IUOE) and 

Supporters of Engineers Local 3 Federal Endorsed Candidates (SELFEC), the separate segregated funds of 

the International Union of Operating Engineers and Engineers Local 3, had violated 2 U.S.C §441(a)(2)(A) by 

making contributions in excess of $5,000 to the 1982 primary campaign of Thomas P. Lantos, a Congressional 

candidate, and Mr. Lantos’ principal campaign committee;

• Mr. Lantos and his principal campaign committee had, in turn, violated 2 U.S.C. §441a(f) by knowingly 

accepting the excessive contributions (totaling $3,600); and 

• Mr. Lantos, his campaign treasurer and his principal campaign committee had violated Commission 

regulations by failing to report the excessive contributions accurately. See 11 CFR 104.14(d).

In a report submitted to the FEC in July 1984, the General Counsel noted, however, that based on an affi davit and 

a letter submitted by the respondents, of the $3,600 alleged to be excess contributions to the 1982 primary, $3,100 

had in fact been designated for retiring debts of Mr. Lantos’ 1980 general election campaign. The General Counsel 

therefore concluded that the two union PACs had made excessive contributions of $500 to Mr. Lantos’ 1982 primary 

campaign rather than $3,600. Accordingly, the General Counsel recommended that “due to the small amount in 

question” (i.e., excessive contributions of $500), the Commission should fi nd reason to believe that the respondents 

had violated the Act, but take no further action. The Commission followed the General Counsel’s recommendations 

and closed the fi le on MUR 1719. 

In October 1984 Mr. Antosh petitioned the district court to take action against the FEC for dismissing 

his administrative complaint.

The District Court’s Ruling

The court noted that in determining whether an agency’s determinations were “arbitrary and capricious,” the court’s 

standard of review had to be “a highly deferential one...which presumes the agency’s action to be valid.” In the case 

of Mr. Antosh’s complaint, however, the court found a “problem in the Commission’s treatment of this matter.” 

Specifi cally, although EPEC/IUOE had designated $3,100 for retiring the Lantos committee’s 1980 general election 

debt, committee reports indicated the contributions had been made during May and June 1981, several weeks after 

the committee had apparently extinguished the 1980 debt in mid-April 1981. 
Selected Court Case Abstracts

10 Cases Through March 2004

A The court concluded that “the Commission dismissed MUR 1719 because it only involved violations of $500.... The 

violations in fact appear to involve considerably more money, and are thus more egregious than the Commission 

realized. For these reasons, the Commission’s dismissal of MUR 1719 was arbitrary and capricious and, thus, 

contrary to law.” See 2 U.S.C. §437g(a)(8). 

Attorneys’ Fees and Costs

The Equal Access to Justice Act states that only those courts which have jurisdiction over the underlying civil action 

may consider whether to award attorney’s fees and costs to a prevailing party. Upon examination of its jurisdiction over 

the original suit, the district court concluded that, in fact, Mr. Antosh did not have standing to bring it. Consequently, 

the court could not grant plaintiff’s petition for award of costs and attorneys’ fees. 

Under Article III of the Constitution, in order to have standing to sue, an aggrieved party must “show that he 

personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the respondent...” 

(i.e., the Lantos campaign). Since Mr. Antosh was an Oklahoma resident, the court concluded that he would not 

be injured by a California candidate’s acceptance of excessive contributions. “Plaintiff’s interest in the California 

election is no different from the interest of any citizen who wishes to ensure that candidates abide by the rules that 

govern elections,” the court said. The court noted that this conclusion was the same as that reached by the court in 

July 1986 in a “virtually identical” suit brought by Mr. Antosh against the FEC. (Antosh v. FEC, Civil Action No. 

86-0179.) 

Source: FEC Record, February 1985, p. 4; and January 1988, p. 8. , February 1985, p. 4; and January 1988, p. 8. 

Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984), 664 F. Supp. 5 (D.D.C 1987) (ruling on att’y fees). 

ANTOSH v. FEC (85-1410)

CITIZENS FOR PERCY ’84 v. FEC (85-0763),

COMMON CAUSE v. FEC (85-0968) 

GOLAR v. FEC

On October 23, 1985, the U.S. District Court for the District of Columbia ruled on Common Cause v. FEC.1 (Civil 

Action No. 85-968), Golar v. FEC Golar v. FEC (Civil Action No. 85-225) and (Civil Action No. 85-225) and Citizens for Percy v. FEC Citizens for Percy v. FEC (Civil Action No. 85-763), (Civil Action No. 85-763), 

three suits which had challenged the FEC’s dismissal of administrative complaints. 

Under the election law, a suit challenging the dismissal of an administrative complaint must be fi led with a district 

court within 60 days after it is dismissed by the FEC. 2 U.S.C. §437g(a)(8)(B). The FEC had argued that the 60-

day period begins at the time the Commission votes to dismiss an administrative complaint. The court, however, 

concluded that the 60-day period begins when a complainant actually receives the notice of dismissal. 

Based on this ruling, the court dismissed Citizens for Percy v. FEC Citizens for Percy v. FEC because the Committee had fi led its suit more than because the Committee had filed its suit more than

60 days after both the Commission’s decision to dismiss the Committee’s administrative complaint and its receipt of 

the FEC’s notice of dismissal. On the other hand, the court decided not to dismiss the suits brought by Common 

Cause and Mr. Golar because plaintiffs had fi led their respective challenges within 60 days of FEC notifi cation. 

In Antosh v. FEC Antosh v. FEC (Civil Action No. 85-1410), (Civil Action No. 85-1410),

2

 another district court reached a different conclusion on June 7, 1985. In 

a suit to review conciliations agreements entered into by the Commission, the court concluded that the 60-day period 

for fi ling suit began on “the date the Commission approved the conciliation agreements and they became effective.” 

Finding that the matter had been fi led within 60 days of that date, the court agreed to hear the case. 

Source: FEC Record, December 1985, p. 7; and Annual Report 1985, p. 15. , December 1985, p. 7; and Annual Report 1985, p. 15. 

Antosh v. FEC, 613 F. Supp. 729 (D.D.C. 1985). 

Citizens for Percy ’84 v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9229 (D.D.C. 1985). 1 The district court decision in Common Cause v. FEC Common Cause v. FEC (85-0968) appears in alphabetical order, inserted with other Common Cause suits. (85-0968) appears in alphabetical order, inserted with other Common Cause suits. 2 For the district court decision in Antosh v. FEC (85-1410), see Antosh v. FEC (86-0179). 
Selected Court Case Abstracts

Cases Through March 2004 11

ANTOSH v. FEC (85-2036) A

On April 4, 1986, the U.S. District Court for the District of Columbia issued an order which granted the FEC’s 

motion for summary judgment in Antosh v. FEC Antosh v. FEC and which dismissed with prejudice plaintiff Edward Antosh’s and which dismissed with prejudice plaintiff Edward Antosh’s

complaint. (Civil Action No. 85-2036.) The court held that, under Article III of the Constitution, Mr. Antosh lacked 

standing to seek judicial review of the FEC’s dismissal of his administrative complaint.

Background

A resident of Oklahoma, Mr. Antosh had fi led his administrative complaint with the FEC in April 1984. In the 

complaint, he alleged that: (1) the Engineers Political Education Committee (EPEC), the separate segregated fund of 

the International Union of Operating Engineers, had violated the election law by making excessive contributions to 

Arizona Senator Dennis DeConcini’s 1982 primary campaign (the campaign); and (2) the campaign had violated the 

election law by accepting the excessive contributions. The Commission determined that there was reason to believe 

EPEC had violated the election law by making excessive contributions to Senator DeConcini’s reelection campaign. 

However, in a tie vote, the agency failed to fi nd reason to believe that the campaign had violated the law. 

On June 21, 1985, Mr. Antosh fi led suit with the district court. He claimed that the FEC’s determination that the 

campaign had not violated the law was arbitrary and capricious. In cross motions for summary judgment, Mr. Antosh 

claimed that he had standing to bring suit because, under the election law, “[a]ny party aggrieved by an order of 

the Commission dismissing a complaint fi led by such party...may fi le a petition with the U.S. District Court for the 

District of Columbia.” 2 U.S.C. §437g(a)(8)(A).

District Court’s Ruling

In ruling that Mr. Antosh lacked standing to seek judicial review of the FEC’s determination, the court referred to 

the requirement that an aggrieved party must “show that he personally has suffered some actual or threatened injury 

as a result of the putatively illegal conduct of the defendant....” to establish standing under Article III. 

The court held that Mr. Antosh failed to meet this requirement. As a citizen of and a registered voter in Oklahoma, 

Mr. Antosh had “suffered no greater injury, nor likely will he in the future, as a result of the Commission’s failure 

to order a refund, than any other U.S. citizen who is neither a resident of nor with franchise in Arizona.” The court 

concluded that “plaintiff has no interest save his own, which is, at the moment, only that of a public-spirited spectator 

of Arizona elections.”

Finally, the court noted that the standard for qualifying as an “aggrieved party” (eligible to seek judicial review for an 

administrative agency’s determination) was higher than the standard for fi ling an administrative complaint with an 

agency. “Congress can permit anyone to engage in proceedings before them [administrative agencies]. But it cannot 

confer upon a participant at the administrative level the right to maintain a suit to review the agency’s decision in 

federal court, no matter how grievously he may be offended by it.... ”

The court did not address issues related to the merits of the FEC’s administrative determinations or its own jurisdiction 

to review those determinations.

Appeals Court’s Ruling

On August 13, 1986, the U.S. Court of Appeals for the District of Columbia Circuit granted Mr. James E. Antosh’s 

motion to dismiss his appeal of the April 1986 decision handed down by the U.S. District Court. 

Source: FEC Record, June 1986, p. 8; and October 1986, p. 7. , June 1986, p. 8; and October 1986, p. 7. 

Antosh v. FEC, 631 F. Supp. 596 (D.D.C. 1986). 

ANTOSH v. FEC (86-0179)

On July 15, 1986, the U.S. District Court for the District of Columbia issued an order which granted the FEC’s 

motion for summary judgment in Antosh v. FEC Antosh v. FEC and which dismissed with prejudice plaintiff Edward Antosh’s and which dismissed with prejudice plaintiff Edward Antosh’s

complaint. (Civil Action No. 86-0179.) The court held that, under Article III of the Constitution, Mr. Antosh lacked 

standing to seek judicial review of the FEC’s dismissal of his administrative complaint.

Background

Mr. Antosh fi led suit against the FEC on grounds that, in two complaints, the agency’s failure to order refunds 

of respondents’ excessive contributions was contrary to law. The administrative complaints concerned excessive 
Selected Court Case Abstracts

12 Cases Through March 2004

A contributions made respectively by two labor organizations to Senators Edward Kennedy (MUR 1637) and Paul 

Sarbanes (MUR 1696) in 1984. The contributing committees were the Engineers Political Education Committee 

(EPEC), the Sheet Metal Workers International Association Political Action League (SMWIA) and the American 

Federation of Government Employees’ Political Action Committee (AFGE). Having found that the respondents 

violated the law, the Commission required the labor organizations to pay civil penalties for their violations. Refunds 

by the candidates, however, were not required. 

District Court Ruling

In ruling that Mr. Antosh lacked standing to seek judicial review of the FEC’s determination, the court referred to 

recent decisions in two “virtually identical” suits fi led by Mr. Antosh (Antosh v. FEC, Civil Action Nos. 85-1410 and 

85-2036). In those rulings, the court held that Mr. Antosh had failed to meet the eligibility requirement for standing 

under Article III of the Constitution. Under this requirement, an aggrieved party must “‘show that he personally 

has suffered some actual or threatened injury as a result of the putatively illegal conduct of the respondent.... ’” 

Noting that the excessive contribution alleged in Mr. Antosh’s suit had been made to Senatorial candidates in 

Massachusetts and Maryland, the court concluded that “plaintiff thus fails to satisfy the constitutional requisite of 

‘injury-in-fact.’”

Nor was the court persuaded by plaintiff’s claim that he had suffered “injury-in-fact” in making contributions to 

nonconnected political committees which had, in turn, made expenditures in connection with the Sarbanes and 

Kennedy reelection campaigns “because he is not eligible to vote in either Massachusetts or Maryland.” 

Source: FEC Record, September l986, p. 5. , September l986, p. 5. 

Antosh v. FEC, No. 86-179, (D.D.C. July 18, 1986). 

ATHENS LUMBER CO. v. FEC

On October 24, 1983, the U.S. Court of Appeals for the Eleventh Circuit issued an en banc opinion in Athens Lumber 

Company v. FEC Company v. FEC upholding the constitutionality of 2 U.S.C. §441b(a) of the Federal Election Campaign Act (the upholding the constitutionality of 2 U.S.C. §441b(a) of the Federal Election Campaign Act (the 

Act). (Civil Action No. 82-8102.) The court’s decision also reversed an earlier order by the U.S. District Court for the 

Middle District of Georgia which had dismissed the case on grounds that: (1) plaintiffs lacked standing to bring suit 

under the Act; and (2) plaintiffs failed to present a justiciable controversy for the federal courts’ consideration. The 

appeals court remanded the case to the district court for entry of a judgment in favor of the FEC. 

Plaintiffs’ Claims

The Athens Lumber Company and its President John P. Bondurant fi led the suit with the Georgia district court on 

July 27, 1981. Pursuant to Section 437h(a) of the Act,1 plaintiffs asked the district court to certify their questions 

concerning the constitutionality of 2 U.S.C. §441b(a) to the en banc appeals court for the Eleventh Circuit. 

Plaintiffs claimed that this provision of the election law abridged First and Fifth Amendment rights by prohibiting 

corporations, labor organizations and national banks from making contributions and expenditures in connection 

with federal elections. 

Plaintiffs further asked that the FEC be enjoined from initiating enforcement proceedings against them if the Athens 

Lumber Company participated in federal elections. At the same time, however, plaintiffs said that the company 

would not make expenditures or contributions in connection with federal elections until either: (1) 2 U.S.C. §441b 

was repealed or declared unconstitutional; or (2) the company obtained an opinion of counsel from the Commission 

stating that the proposed expenditures did not violate any federal or state law or regulation. Plaintiffs further argued 

that their uncertainty about a possible violation of the election law had deterred them from exercising their First and 

Fifth Amendments rights, thereby causing them irreparable harm. 

District Court Decision

In an opinion issued on February 9, 1982, the Georgia district court dismissed the suit. (Civil Action No. 81-79-ATH.) 

The court held that, under Section 437h(a) of the election law, only the following types of plaintiffs had standing to 

bring suit: the national committee of a political party, individuals eligible to vote in Presidential elections and the 

FEC. Consequently, the court found that the Athens Lumber Company lacked standing to bring suit. While the court 

recognized that Mr. Bondurant was an eligible voter, he too lacked standing to bring suit since the corporation—not 

Mr. Bondurant—planned to make the expenditures. 
Selected Court Case Abstracts

Cases Through March 2004 13

A Moreover, the district court held that plaintiffs had not presented a justiciable case or controversy ripe for the 

court’s consideration. The court concluded that “it is obvious that the statute under attack in no way interferes 

with the way that the plaintiff corporation through its plaintiff president conducts its corporate affairs....” Similarly, 

the court found that Mr. Bondurant had not presented a justiciable claim because he was “free to independently 

expend his personal funds [in federal elections], including dividends from the corporate plaintiff without limitation.” 

Moreover, the court found that Athens Lumber Company was only seeking an advisory opinion because the 

shareholders had not voted to spend any corporate funds in connection with federal elections as long as Section 441b 

remained in force.

Appeals Court Decision

On October 22, 1982, a three-judge panel of the Eleventh Circuit court of appeals reversed the judgment of the 

district court, fi nding that Mr. Bondurant did have standing to bring suit and to raise those issues pertaining to 

Athens Lumber Company’s participation in federal elections. Moreover, the court found that the suit raised justiciable 

claims because, if Athens Lumber Company were to make contributions and expenditures in connection with federal 

elections, both Mr. Bondurant and the corporation would be subject to civil and criminal prosecution. The panel then 

certifi ed to the en banc Eleventh Circuit eight constitutional questions adopted from appellants’ complaint. 

In upholding the constitutionality of Section 441b, the en banc Eleventh Circuit court of appeals stated: “Viewing the 

substantive constitutional issues as being controlled by the Court’s unanimous opinion in Federal Election Commission 

v. National Right to Work Committee, 459 U.S. 197 (1982), and for the reasons there stated, we fi nd the limitations and 

prohibitions of which appellants complain to be constitutional.”

Supreme Court Action

On March 19, 1984, the Supreme Court dismissed an appeal brought by plaintiffs in Athens Lumber Company v. FEC. 

Citing a lack of jurisdiction over the appeal, the Court treated it as a request for discretionary review (i.e., a petition 

for a writ of certiorari) and declined the request. (U.S. Supreme Court No. 83-1190) The high Court’s action left 

standing the earlier, en banc opinion of the U.S. Court of Appeals for the Eleventh Circuit. 

Source: FEC Record, January 1984, p. 10; and May 1984, p. 7. , January 1984, p. 10; and May 1984, p. 7. 

Athens Lumber Company, Inc. v. FEC, 531 F. Supp. 756 (M.D. Ga. 1982), rev’d, 689 F.2d 1006 (11th Cir. 1982), 718 F.2d 363 (11th Cir. , 689 F.2d 1006 (11th Cir. 1982), 718 F.2d 363 (11th Cir. 

1983) (en banc), appeal dism’d, cert. denied, 465 U.S. 1092 (1984). , 465 U.S. 1092 (1984). 1 Section 437h, which provides for an expedited judicial review procedure, notes that certain designated parties “may institute such 

actions in the appropriate district court of the United States...to construe the constitutionality” of the Act. The district court is then 

directed to certify appropriate constitutional questions to the court of appeals sitting en banc. 

AUSTIN v. MICHIGAN STATE CHAMBER OF COMMERCE 

On March 27, 1990, the Supreme Court ruled that a Michigan state law prohibiting independent expenditures by 

corporations was constitutional. Reversing a Sixth Circuit U.S. Court of Appeals decision in Austin v. Michigan State 

Chamber of Commerce, the Court said that the state could prohibit corporations from using their treasury funds to 

make independent expenditures in connection with state elections.

Background

The suit originated in a 1985 district court complaint fi led by the Michigan State Chamber of Commerce. The 

Chamber is a nonstock, nonprofi t incorporated membership organization funded by dues. Three quarters of its 

members are for-profi t corporations. 

The Chamber sought to make an independent expenditure for a newspaper advertisement supporting a candidate for 

the state legislature. Although the Chamber had established a separate segregated fund for political purposes (which 

could lawfully have been used to make the expenditure), the organization wanted to purchase the ad with its general 

treasury funds. Finding that section 54(1) of the Michigan Campaign Finance Act appeared to prohibit independent 

expenditures made with corporate treasury funds, the Chamber fi led suit against Richard Austin, Michigan’s Secretary 

of State, challenging the constitutionality of the state law.

The law was upheld by the district court; the appeals court overturned the lower court’s decision, fi nding the 

prohibition unconstitutional as applied to the Chamber.
Selected Court Case Abstracts

14 Cases Through March 2004

A Supreme Court Decision

First Amendment Issue 

The Court held that the Michigan law, which permitted corporations to set up segregated political funds, was narrowly 

tailored to serve the compelling state interest of preventing the distortions in the political process that might result 

from allowing corporations to spend their general treasury funds to express their political views. “This potential for 

distortion,” the Court said, “justifi es §54(1)’s general applicability to all corporations”—regardless of their size or 

earnings—because all corporations “receive from the state the special benefi ts conferred by the corporate structure.” 

Thus, the burden imposed on free speech by section 54(1) was permissible.

The Court further held that the Chamber did not qualify for the constitutional exemption to the ban on corporate 

spending set forth in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986). In that decision, 

the Court addressed the federal election law’s prohibition against corporate independent expenditures and found 

that the law was unconstitutional as applied to MCFL, a small, nonprofi t corporation. The Court found that three 

characteristics of MCFL qualifi ed the organization for an exception (based on the First Amendment) from the federal 

law’s general ban on corporate spending because they negated the government’s interest in preventing the threat or 

appearance of corruption. 

The three features of MCFL that exempted it from the ban on corporate spending were that MCFL:

• Was a nonprofi t corporation established to promote political ideas and not to engage in business activities; 

• Had no shareholders or other persons with a claim on its assets or earnings; and 

• Was not set up by a corporation and had an established policy not to accept donations from corporations or 

labor organizations.

With regard to the fi rst characteristic, the Court observed that, unlike MCFL, the Chamber’s activities were not 

limited to political and public educational purposes. The Chamber’s bylaws set forth several purposes beyond politics, 

including, for example, the promotion of ethical business practices, the provision of group insurance for members and 

litigation on behalf of the Michigan business community. 

The Chamber also failed to meet the second of the MCFL criteria. The Court concluded, “[W]e are persuaded that 

the Chamber’s members are more similar to the shareholders of a business corporation than to the members of 

MCFL.” Because the Chamber provided its members with several nonpolitical benefi ts and services, members had 

an economic disincentive to withdraw support from the organization even if they disagreed with its political views. In 

the MCFL case, the Court had stressed that the MCFL’s lack of shareholders or other fi nancially affi liated persons 

meant that members had no disincentive to disassociate from the group. 

With respect to the third MCFL feature, the Court noted that here “the Chamber differs most greatly from the 

Massachusetts organization.” While “MCFL was not established by, and had a policy of not accepting contributions 

from, business corporations,” three fourths of the Chamber’s members were business corporations, and the 

organization’s treasury contained corporate funds in the form of membership dues. “Because the Chamber accepts 

money from for-profi t corporations, it could, absent application of §54(1), serve as a conduit for corporate political 

spending,” the Court concluded.

Finally, the Court rejected the Chamber’s claim that, because the Michigan law did not include a similar ban on political 

expenditures by labor organizations, it was underinclusive. The Court noted that although unincorporated labor 

organizations had power to accumulate wealth, they did not have the special legal privileges enjoyed by incorporated 

organizations, such as limited liability and perpetual life. The Court further distinguished unions from corporations 

like the Chamber by pointing out that the Constitution precludes unions from having the power to compel members 

to support their political activities. “[T]he funds available for a union’s political activities more accurately refl ect 

members’ support for the organization’s views than does a corporation’s general treasury,” the Court said. 

Fourteenth Amendment Issue 

The Chamber claimed that section 54(1) violated the Equal Protection Clause of the Fourteenth Amendment because 

it did not apply the restrictions to unincorporated associations having the ability to raise large amounts of money or 

to corporations in the news media.

Having clarifi ed that a compelling state interest in preventing corruption justifi ed the restrictions on political activity 

by corporations, the Court rejected the Chamber’s arguments with respect to the application of the prohibition to 

unincorporated entities. Corporate status, the Court said, was a state-granted privilege that facilitated the amassing 

of wealth, the source of the threat of corruption. 
Selected Court Case Abstracts

Cases Through March 2004 15

B

The Court also affi rmed that the limited “media exception” in the state law for news stories and editorials 

disseminated by corporations operating in any of the news media did not constitute a breach of equal protection 

because of the unique public informational and educational role that such organizations play. “The media exception 

ensures that the Act does not hinder or prevent the institutional press from reporting on and publishing editorials 

about newsworthy events.”

Source: FEC Record, May 1990, p. 5. , May 1990, p. 5.

Austin v. Michigan State Chamber of Commerce, 856 F.2d 783 (6th Cir. 1988), rev’d, 494 U.S. 652, 110 S. Ct. 1391 (1990). , 494 U.S. 652, 110 S. Ct. 1391 (1990).

BAKER v. FEC 

On October 19, 2001, Dennis C. Baker, the treasurer for the Committee to Elect Jim Rooker to United States 

Congress (the Committee), fi led a complaint in the U.S. District Court for the Western District of Pennsylvania. 

The complaint appeals a civil money penalty the Commission imposed on the Committee and Mr. Baker for failure 

to fi le the Committee’s 2000 October Quarterly Report.1 The Commission found that the Committee and Mr. Baker 

had violated 2 U.S.C. §434(a), which requires the timely fi ling of reports by political committees. Mr. Baker alleges 

that the Committee had been “offi cially dissolved” at the time the report was due. In his court complaint, Mr. Baker 

asks that the court review the Commission’s September 21, 2001, fi nal determination and modify or set aside that 

determination.

Source: FEC Record, April 2002, p. 3. , April 2002, p. 3. 1

 The Commission’s assessment of the $900 civil penalty was published in the January 2002 Record, page 13. , page 13. 

BARNSTEAD FOR CONGRESS COMMITTEE v. FEC

On June 5, 1979, the U.S. District Court for the District of Columbia granted summary judgment to the FEC and 

dismissed a complaint which had been fi led by the Barnstead Committee (the Committee) against the FEC, WGBH 

Educational Foundation (Public Broadcasting TV, Channel 2), the Corporation for Public Broadcasting and the 

Quaker Oats Corporation. The Committee had fi led suit on January 1, 1979, disputing the Commission’s dismissal of 

a complaint which the Committee had fi led with the Commission on November 2, 1978. The Committee requested 

that the court reverse the Commission’s determination. 

The Committee had alleged in its complaint, and repeated in its suit, that the corporate sponsorship of and payment 

for production and promotional costs of a televised fi lm about House Speaker Tip O’Neill (Mr. Barnstead’s opponent 

for a House seat) was in violation of 2 U.S.C. §441b. The Committee contended that, since Congressman O’Neill 

was offi cially a candidate at the time the fi lm was broadcast, the fi lm was “...in essence a campaign fi lm, which 

enhanced the political standing of one candidate over another.” Costs incurred in producing and broadcasting the 

fi lm, therefore, were expenditures in connection with a federal election. The FEC, on the other hand, maintained 

that the costs incurred by WGBH Educational Foundation, the Corporation for Public Broadcasting and the Quaker 

Oats Corporation, in sponsoring the fi lm, were exempt communication costs. Under Section 431(f)(4)(A), the Act 

exempts from the defi nition of expenditure certain communication costs, which include “any news story, commentary 

or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical 

publication, unless such facilities are owned or controlled by any political party, political committee or candidate.” 

In dismissing the suit, the court upheld the Commission’s determination that the costs involved in sponsoring the 

broadcast were, in fact, communication costs and not expenditures under the Act. 

Source: FEC Record, January 1980, p. 5. , January 1980, p. 5.
Selected Court Case Abstracts

16 Cases Through March 2004

B

BEAUMONT v. FEC 

On June 16, 2003, the U.S. Supreme Court, overruling the U.S. Court of Appeals for the 4th Circuit, held that 

the prohibition on contributions by corporations is constitutional as applied to nonprofi t MCFL-type advocacy 

corporations, such as North Carolina Right to Life, Inc. 

On October 3, 2000, the U.S. District Court for the Eastern District of North Carolina, Northern Division, found 

that the prohibitions of the Federal Election Campaign Act (the Act) and Commission regulations against corporate 

independent expenditures and contributions on behalf of federal candidates violated the plaintiffs’ First Amendment 

rights. The court granted the plaintiffs’ motion for summary judgment and denied the FEC’s motions for partial 

summary judgment and denied the FEC’s motions for partial summary judgment and partial dismissal. The court 

stayed the effect of this ruling until a fi nal order is issued. 

On October 26, 2000, the court also imposed a preliminary injunction barring the FEC from enforcing the statutory 

and regulatory provisions against the plaintiffs. 

On December 21, 2000, the Federal Election Commission appealed this case to the United States Court of Appeals 

for the Fourth Circuit.

Background

North Carolina Right to Life, Inc. (NCRL), members of its board of directors and an unaffi liated individual asserted 

that Section 441b of the Act, which prohibits corporations from making contributions or expenditures in connection 

with a federal election, is unconstitutional because it makes no exception for nonprofi t, ideological corporations. The 

lawsuit also challenged the constitutionality of two FEC regulations: one that prohibits corporations from making 

contributions (11 CFR 114.2(b)) and another that creates an exemption from the ban on corporate expenditures for 

certain nonprofi t corporations, pursuant to the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life 

(MCFL). 479 U.S. 238 (1986) (11 CFR 114.10).

Commission regulations at 11 CFR 114.10 provide that certain “qualifi ed nonprofi t corporations” may be exempt 

from the prohibition on corporate independent expenditures. To be considered a “qualifi ed nonprofi t corporation,” a 

corporation must meet the following criteria:

• Its only express purpose is the promotion of political ideas;

• It does not engage in business activities;

• It has no shareholders or other individuals who receive a benefi t that might discourage an individual from 

disassociating from the corporation on the basis of that corporation’s political positions; and

• It was not established by a business corporation or labor organization and does not accept direct or indirect 

donations from business corporations.

NCRL argued that it failed to meet this exemption only because it accepted a small amount of corporate 

contributions and participated in “minor business activities incidental and related to its advocacy of issues.” NCRL 

further argued that, even though the FEC had conceded that a Fourth Circuit decision in an earlier case between 

NCRL and North Carolina over a similar provision in a North Carolina statute barred enforcement of the Act’s 

prohibition against NCRL, its offi cers remained subject to criminal liability and, as a result, their First Amendment 

rights were censored.

NCRL also argued that, in this case, the Act’s ban on corporate contributions to political candidates infringed on 

the organization’s right to association. While the FEC argued that NCRL’s ability to contribute through a separate 

segregated fund minimized this infringement, NCRL contended that the maintenance of such a fund was a burden.

Decision

The court found no compelling justifi cation for denying NCRL (a nonprofi t, ideological organization) the right to 

make contributions and independent expenditures solely because it was an incorporated entity. Moreover, the court 

was not persuaded by the FEC’s argument that a ban on corporate contributions was constitutional, as applied to 

NCRL, while a ban on corporate expenditures might not be.1 The court found the distinction between contributions 

and expenditures immaterial. 

The court declared that the provisions in question were unconstitutional as applied to NCRL and suggested that the 

court in its fi nal order, deem these provisions facially unconstitutional.
Selected Court Case Abstracts

Cases Through March 2004 17

B

Final Order

On January 24, 2001, the court found that the prohibitions on corporate contributions and expenditures of the 

Act and Commission regulations were unconstitutional as applied to NCRL. The court found that the statute and 

regulations infringed on NCRL’s First Amendment rights without a compelling state interest. The court permanently 

enjoined the Commission from relying on, enforcing or prosecuting violations of 2 U.S.C. §441b and 11 CFR 114.2(b) 

and 114.10—or any other parts of the Act whose restrictions fl ow from these provisions—against the plaintiffs.

The court did not fi nd, however, that 2 U.S.C. §441(b) and its implementing regulations were unconstitutional on their 

face. In order to fi nd a statute facially unconstitutional, rather than merely invalid as applied to a specifi c case, the 

court must fi nd that its constitutional infringements are “substantial” in relation to its legitimate uses. The plaintiffs 

submitted a list of nonprofi t, tax-exempt corporations, arguing that the statute’s unconstitutional infringement was 

“substantial” in that it reached “hundreds, if not thousands, of constitutionally protected ideological corporations.” 

The court, however, ruled that the plaintiffs had failed to show that the statute’s constitutional infringements were 

substantial in relation to their “plainly legitimate sweep.” The court said, “In light of these numbers [4.5 million forprofi t corporations] and the importance of the statute’s ‘plainly legitimate’ purpose of regulating for-profi t corporations, 

its inadvertent infringement on the rights of ‘hundreds if not thousands’ does not appear ‘substantial’ . . .” The court 

concluded that the constitutionality of the statute should be considered on a case-by-case basis.

Appeal

On March 6, 2001, the Commission appealed this case to the U.S. Court of Appeals for the Fourth Circuit. On March 

15, 2001, the Fourth Circuit Court of Appeals consolidated this appeal with a previous appeal, fi led on December 

22, 2000, that requested relief from the district court’s preliminary injunction of October 26, 2000. That injunction 

barred the Commission from relying on and enforcing the challenged provisions against the plaintiffs pending a fi nal 

decision in the case. The plaintiffs fi led a cross appeal on March 16, 2001.

Appeals Court Decision

On January 25, 2002, the appeals court affi rmed the district court decision that found the prohibitions on corporate 

contributions and expenditures to be unconstitutional as applied to NCRL. The appeals court also affi rmed the 

district court’s fi nding that the Act’s prohibition on corporate contributions and expenditures, and Commission 

regulations that implement the prohibition, were not facially unconstitutional.

The appeals court found that a complete ban on corporate contributions and expenditures in connection with federal 

elections, with an exception to the corporate expenditure ban “so narrow that NCRL does not fi t into it,” burdened 

the plaintiffs’ First Amendment speech and association interests. The court explained that “Organizations that in 

substance pose no risk of ‘unfair deployment of wealth for political purposes’ may not be banned from participating 

in political activity simply because they have taken on the corporate form.”

The FEC argued that the Act did not absolutely ban corporations from engaging in political activity. Rather, it permits 

corporations to establish political action committees, which can make contributions and expenditures subject to the 

Act’s limits. The appeals court, however, found that the reporting requirements and administrative burdens associated 

with maintaining a political committee “stretch far beyond the more straightforward disclosure requirements of 

unincorporated associations.” The court concluded that, as a nonprofi t advocacy group, the “NCRL is more akin to 

an individual or an unincorporated advocacy group than a for-profi t corporation.”

The appeals court found that the criteria at 11 CFR 114.10, which create a test for whether a nonprofi t corporation 

qualifi es for the MCFL exemption, merely codify the list of nonprofi t corporate attributes considered by the Supreme 

Court in MCFL. Relying upon a previous Fourth Circuit case involving NCRL, the appeals court held that these 

rigid criteria could not be used to determine whether an organization qualifi ed for the constitutionally-mandated 

exception. The court ruled that the NCRL was constitutionally entitled to the exception and was not barred from 

making independent expenditures to infl uence federal elections.

The court also ruled that the prohibition on corporate contributions was unconstitutional as applied to NCRL. 

The court reasoned that same rationale the Supreme Court used to fi nd the ban on independent expenditures 

unconstitutional as applied to MCFL also applied to contributions. The court found that contributions by an 

MCFL-type corporation carried no greater risk of political corruption than did independent expenditures by such 

an organization. Thus, the appeals court concluded that, as applied to the NCRL, the prohibition on corporate 

contributions was not closely drawn to match a suffi ciently important government interest in preventing real or 

perceived corruption of the political system.
Selected Court Case Abstracts

18 Cases Through March 2004

B

The appeals court, however, found that the Act’s corporate prohibition was constitutional in the “overwhelming 

majority of applications,” and, thus, was not facially unconstitutional. 2 U.S.C. §441b(a). The court rejected the 

plaintiffs’ argument that the statute was unconstitutional because it did not contain an MCFL exception, citing a case 

in which the Supreme Court had rejected a similar argument concerning a state statute modeled on §441b(a). The 

appeals court affi rmed the district court’s permanent injunction barring the FEC from prosecuting the plaintiffs for 

violations of §441b and 11 CFR 114.2(b) and 114.10. The appeals court also affi rmed the district court’s fi nding that 

the statute and its implementing regulations are not facially unconstitutional.

Supreme Court Decision

The case was appealed to the Supreme Court solely on the issue of the constitutionality of the ban against contributions 

from nonprofi t advocacy corporations.2 The Court agreed to hear the case because on this issue the U.S. Court of 

Appeals for the 4th Circuit was in confl ict with the U.S. Court of Appeals for the 6th Circuit.

The Court began its decision by noting that federal law has banned corporations from contributing directly to 

federal candidates for nearly 100 years. Over the years the Court had reasoned this prohibition against corporations 

is intended to:

• Prevent corruption and the appearance of corruption3 by ensuring that corporate earnings are not turned into 

political war chests; 

• Protect individuals who have paid money into a corporation from having their funds used to support candidates 

to whom they may be opposed; and 

• Hedge against the use of corporations as illegal conduits for circumventing the contribution limits.

The Court then noted that its decision in FEC v. National Right to Work Committee (National Right to Work)4 “all but 

decided the issue against NCRL’s position.” See FEC v. National Right to Work Committee, 459 U.S. 197 (1982). The 

Court explained that in National Right to Work it specifi cally rejected NCRL’s arguments that deference to Congress 

on the proper limits of corporate contributions depended upon the details of a corporation’s form or its affl uence. 

The Court also explained that its decision in MCFL, which NCRL and the U.S. Court of Appeals for the 4th Circuit 

had relied upon in their reasoning, undermined NCRL’s arguments, noting that in MCFL the Court concluded that 

restrictions “on contributions require less compelling justifi cation than restrictions on independent spending.”

According to the Court, ruling in favor of NCRL would mean recasting its understanding of the “risks of harm” 

of corporate political contributions, their “expressive signifi cance” and the deference owed to Congress on how to 

treat them. NCRL argued that contributions by MCFL-type corporations posed no potential threat to the political 

system, and the governmental interest in combating corruption was not suffi ciently strong to warrant Act’s broad 

prohibition against contributions from MCFL-type corporations. The Supreme Court, in rejecting this argument, 

noted that nonprofi t advocacy corporations, “like their for-profi t counterparts, benefi t from signifi cant ‘state-created 

advantages’ and may well be able to amass substantial ‘political war chests.’” Additionally, the Court stated that 

nonprofi t corporations are “no less susceptible than traditional business corporations to misuse as conduits for 

circumventing the contribution limits imposed on individuals.”

NCRL also argued that the Act’s ban on corporate contributions should be subject to a strict level of constitutional 

scrutiny because it bans corporations from making contributions rather than merely limiting them from doing so. 

The Court also rejected this argument noting that in reviewing political fi nancial restrictions, “the level of scrutiny 

is based on the importance of the ‘political activity at issue’ to effective speech or political association.” The Court 

determined that contribution restrictions “have been treated as merely ‘marginal’ speech restrictions” and therefore 

are constitutional if they are “’closely drawn’ to match a ‘suffi ciently important interest.’” Additionally, the Court 

pointed out that recognizing that the “degree of scrutiny runs on the nature of the activity regulated is the only 

practical way to square two leading cases,” National Right to Work andMCFL. 

Moreover, the Court stated that NCRL’s contention that the corporate prohibition is unconstitutional because it is 

not suffi ciently closely drawn rests on a false premise in that the prohibition is not a complete ban but rather contains 

signifi cant exceptions, including allowing corporations and unions to pay for the administrative expenses of their 

PACs. Finally, the Court noted that in National Right to Work, which was decided by a unanimous Supreme Court 

in 1982, it thought that the regulatory burdens placed on PACs were insuffi cient to make them unconstitutional as an 

advocacy corporation’s sole avenue for making contributions. “There is no reason to think the burden on advocacy 

corporations is any greater today,” the Court concluded, “or to reach a different conclusion here.”
Selected Court Case Abstracts

Cases Through March 2004 19

B

Having found that the prohibition on corporate contributions is constitutional as applied to NCRL, the Supreme 

Court ordered that the judgment of the U.S. Court of Appeals for the 4th Circuit in Beaumont v. FEC Beaumont v. FEC be reversed. be reversed.

Source: FEC Record, December 2000, p. 5; February 2001, p. 8; March 2001, p. 2; May 2001, p. 6; December 2000, p. 5; , December 2000, p. 5; February 2001, p. 8; March 2001, p. 2; May 2001, p. 6; December 2000, p. 5; 

February 2001, p. 8; March 2001, p. 2; May 2001, p. 6; March 2002, p. 4; July 2003 p. 1. 

278 F.3rd 261

1

 The Supreme Court’s decision in FEC v. Massachusetts Citizens for Life, permitting qualifi ed nonprofi t corporations to make 

independent expenditures, extends only to corporate expenditures and not to corporate contributions.

2

 The Court noted that as a result it had no occasion to address whether NCRL was entitled to an MCFL-type exception to the ban 

on corporate independent expenditures. The Court also quoted from its decision in MCFL noting that MCFL’s formal policy against 

accepting donations from corporations was “essential to our holding.”

3

 The Court quoted from its decision in FEC v. Colorado Federal Republican Campaign Committee that it understood corruption 

to mean “not only quid pro quo agreements, but also undue infl uence on an offi ceholder’s judgment, and the appearance of such 

infl uence.” See FEC v. Colorado Federal Republican Campaign Committee533 U.S. 431. 4 National Right to Work National Right to Work addressed a nonstock corporation’s ability to solicit contributions from outside of its membership. The Court addressed a nonstock corporation’s ability to solicit contributions from outside of its membership. The Court 

concluded that a solicitation to any individual who had at one time contributed to the PAC, regardless of whether or not he or she was 

a member, went beyond the permissible solicitation of members provided for by 441b.

BECKER v. FEC

NADER v. FEC

Independent voter Heidi Becker, candidate Ralph Nader, the Green Party and others (Becker) asked the U.S. District 

Court for the District of Massachusetts to fi nd that the Commission’s regulations concerning debates, at 11 CFR 

110.13 and 114.4(f), were unlawful. 

The Commission’s regulations allow a nonprofi t corporation to stage a debate among federal candidates and to “use 

its own funds” and “accept funds donated by corporations or labor organizations” as long as certain guidelines are 

followed. 11 CFR 110.13 and 114.4(f).

Becker argued that these regulations exceed the Commission’s statutory authority because the Federal Election 

Campaign Act (the Act) prohibits corporations from making contributions or expenditures “in connection with” a 

federal election, and the statute does not make an exception for corporate activity that helps stage federal candidate 

debates. 2 U.S.C. §441b(a). Becker further argued that Commission regulations allow corporations to fund debates 

between the major party candidates that exclude independent and ballot-qualifi ed third party candidates. Becker 

alleged that the Commission’s regulations deprived the plaintiffs of their right to participate in presidential elections 

that are free of the corrupting infl uence of illegal corporate contributions.

Becker asked the court to:

• Enter a declaratory judgment that 11 CFR 110.13 and 114.4(f) exceed the Commission’s statutory authority; 

• Enter a declaratory judgment that the Act does not permit a debate staging organization to use its own 

corporate funds or accept funds donated by corporations or labor organizations; and

• Preliminarily and permanently enjoin the Commission from relying on 11 CFR 110.13 and 114.4(f) and 

require it to enforce the Act’s prohibition against the use of corporate funds in the staging of federal candidate 

debates.

District Court Decision

On September 1, 2000, the court denied Becker’s motion for a preliminary injunction. The court found that these 

regulations are not in excess of the FEC’s statutory authority under the Act. The court also dismissed the complaint 

for lack of standing with regard to the individual-voter plaintiffs.

By consent of the parties, the district court entered a fi nal judgment in favor of the FEC on September 14, 2000. The 

plaintiffs fi led an appeal of this decision on September 15, 2000, and asked for an expedited review. The appeal was 

argued as Nader v. FEC.

Nader v. FEC

On November 1, 2000, the U.S. Court of Appeals for the First Circuit upheld the district court’s denial of relief. On 

January 31, 2000, Mr. Nader and the other petitioners fi led a writ of certiorari with the U.S. Supreme Court. The 

Court denied the plaintiff’s petition on April 30, 2001.

Source: FEC Record, August 2000, p. 13; November 2000, p. 8; April 2001, p.8; and June 2001, p 9. , August 2000, p. 13; November 2000, p. 8; April 2001, p.8; and June 2001, p 9.

Nader v. FEC, 230 F.3d 381.
Selected Court Case Abstracts

20 Cases Through March 2004

B

BOULTER v. FEC

On August 3, 1988, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the FEC’s July 26 

decision to certify public funds for the general election campaign of Democratic Presidential nominee Michael S. 

Dukakis and his Vice Presidential running mate Lloyd M. Bentsen. 

The petitioners, Congressman Beau Boulter, the Republican Senatorial candidate from Texas, and the National 

Republican Senatorial Committee, a national committee of the Republican party, had submitted their petition to 

the appeals court after the FEC had dismissed their request to deny public funding to the Democratic Presidential 

ticket. In its expedited review of the petition, the court decided to dismiss as moot the petitioners’ emergency motion 

for a stay of the certifi cation because, on July 27, the U.S. Treasury had disbursed the public funds to the Democratic 

Presidential and Vice Presidential nominees. Nor did the court grant petitioners’ request for an emergency injunction 

barring the Democratic ticket from expending the grant. The court held that “petitioners have failed to carry the 

‘burden of showing that exercise of the court’s extraordinary injunctive powers is warranted.’” Cuomo v. Nuclear 

Regulatory Commission, 722 F.2d 972, 974 (D.C. Cir. 1985). 

Finally, the court summarily affi rmed the agency’s certifi cation of funds to the Democratic ticket. The appeals court 

noted that its standard for reviewing the FEC’s decision was whether the FEC’s action was “arbitrary, capricious 

or contrary to law.” See In re Carter-Mondale, 642 F.2d at 542. Based on this standard, the court concluded that 

“petitioners’ allegations are insuffi cient on their face to warrant a revocation of the certifi cation.” 

Source: FEC Record, September 1988, p. 7. , September 1988, p. 7. 

Boulter v. FEC, No. 88-1541 (D.C. Cir. 1988) 

(unpublished order). 

BRANSTOOL v. FEC

On April 4, 1995, the U.S. District Court for the District of Columbia granted defendant’s motion for summary 

judgment. This decision sustains the Commission’s dismissal of plaintiffs’ administrative complaint.

Background

The origins of this case are rooted in the 1988 Presidential contest between Republican candidate George Bush and 

Democratic candidate Michael Dukakis. In the course of the Presidential race, the National Security Political Action 

Committee (NSPAC) fi nanced the production and airing of the “Willie Horton” ad. This ad attacked the Democratic 

candidate by blaming then Massachusetts Governor Michael Dukakis for the violent crimes committed by a convict 

while on furlough from a state prison.

Plaintiffs fi led an administrative complaint with the FEC in May 1990, alleging that the NSPAC coordinated the 

production and airing of the Willie Horton ad with the Bush campaign. Under the Federal Election Campaign 

Act (the Act), a candidate running in a Presidential general election who accepts public funding may not accept 

contributions. The Bush campaign accepted public funding. If, as plaintiffs claimed, the Horton ad had been 

coordinated, then it would have been an in-kind contribution, in violation of 26 U.S.C. §9003(b)(2). The complaint 

thus hinged on the issue of whether the Horton ad was a coordinated in-kind contribution, and therefore illegal, or a 

permissible independent expenditure as defi ned under 2 U.S.C. §431(17). 1

After examining the complaint, the Commission found reason to believe that the Bush campaign and the NSPAC had 

violated the Act, but after a limited investigation into the matter, the Commission deemed the evidence inconclusive 

and decided to take no further action on the matter. Plaintiffs’ complaint was subsequently dismissed.

This led plaintiffs to fi le this suit in January 1992, claiming that the FEC had abused its discretion in not conducting a 

comprehensive investigation and had violated the Act by dismissing plaintiffs’ complaint. Plaintiffs noted that among 

the FEC investigation’s fi ndings were a record of a June 1988 telephone conversation between the Bush campaign’s 

chief media advisor and a NSPAC media consultant, and documentation showing that a media technician worked for 

both NSPAC and the Bush campaign. Plaintiffs contended that these fi ndings were proof of coordination.

The Court’s Decision

In addressing plaintiffs’ challenge to the Commission’s decision to limit the investigation into their complaint, the 

court saw no reason to depart from the general policy of giving broad deference to agency prosecutorial decisions.
Selected Court Case Abstracts

Cases Through March 2004 21

B

The court held that it could set aside FEC statutory interpretations as “impermissible” only if they have no reasonable 

basis. The court concluded that the factual conclusions underpinning the Commission’s decision were “suffi ciently 

reasonable” to warrant the court’s deference.

For instance, in dismissing the complaint, the Commission concluded that the inference of coordination created 

by the telephone call was rebutted by other fi ndings. With regard to the media technician’s dual employment, the 

Commission reasonably concluded that he performed technical tasks for the two committees and had no role in 

substantive or strategic decisions.

Source: FEC Record, June 1995, p. 12. , June 1995, p. 12.

Branstool v. FEC, No. 92-0284 (D.D.C. Apr. 4, 1995). 1 An independent expenditure is an expenditure made without any coordination with a candidate’s campaign for a communication 

which expressly advocates the election or defeat of a clearly identifi ed candidate for federal offi ce

BREAD PAC v. FEC

This suit, fi led by the National Lumber and Building Dealers Association and the National Restaurant Association 

(trade associations) and by Bread Political Action Committee, Restaurateurs Political Action Committee and Lumber 

Dealers Political Action Committee (separate segregated funds of trade associations), challenged the constitutionality 

of 2 U.S.C. §441b(b)(4)(D). (Civil Action No. 77-C-947.) This provision of the election law restricts solicitations by 

a trade association or its separate segregated fund to the stockholders, executive and administrative personnel (and 

their families) of member corporations which have given prior approval for such solicitations to occur, and limits 

member corporations to approval of one trade association per calendar year. 

District Court Ruling

On April 5, 1977, plaintiffs asked the U.S. District Court for the Northern District of Illinois to enjoin the FEC from 

enforcing 441b(b)(4)(D) or, in the alternative, to certify constitutional questions to the appeals court, pursuant to 2 U.

S.C. §437h. (Section 437h allows for expedited handling of constitutional challenges to the Act and a right of direct 

appeal to the Supreme Court.)

The district court ruled in September 1977 that plaintiffs lacked standing to bring suit under the Act’s expedited 

review procedures. The court held that only the following types of plaintiffs had standing to bring suit under 2 U.

S.C. §437h(a): the national committee of a political party, individuals eligible to vote in Presidential elections 

and the FEC. 

Appeals Court: First Ruling

On January 12, 1979, the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, overturned the district court’s 

decision in response to an interlocutory appeal fi led by plaintiffs. The appeals court ruled that plaintiffs did have 

standing to bring suit under the expedited review procedures. It remanded the case to the district court for further 

fact fi nding and certifi cation of the constitutional questions. These constitutional challenges were then certifi ed to the 

appeals court for its decision:

• Whether 2 U.S.C. §441b(b)(4)(D), both facially and as applied, infringes plaintiffs’ right of assembly guaranteed 

by the First Amendment...? 

• Whether 2 U.S.C. §441b(b)(4)(D), both facially and as applied, deprives plaintiffs of liberty without due 

process of law in violation of the Fifth Amendment...? 

• Whether the failure of the Federal Election Campaign Act, as amended, 2 U.S.C. §431 et seq., to defi ne the 

term ‘solicitation’ infringes plaintiffs’ right of assembly guaranteed by the First Amendment...or deprives 

plaintiffs of liberty without due process of law in violation of the Fifth Amendment...? 

• The failure of the Federal Election Campaign Act, as amended, 2 U.S.C. §431 et seq., to defi ne the term ‘trade 

association’ as used in 2 U.S.C. §441b(b)(4)(D), violates the due process clause of the Fifth Amendment...?

Appeals Court: Second Ruling

As to the issue of plaintiffs’ standing to bring suit under 2 U.S.C. §437h(a), the appeals court declined to overrule its 

earlier decision that Section 437h(a) did not limit parties who may utilize the expedited review procedures. 

As to constitutional challenges brought by plaintiffs, the court rejected their claim that Section 441b (b)(4)(D) infringed 

on their First Amendment rights by requiring that plaintiffs obtain the prior approval of a member corporation to 

solicit the corporation’s stockholders, executive and administrative personnel and their families. The court found 
Selected Court Case Abstracts

22 Cases Through March 2004

B

that there had been no showing that this restriction on trade association solicitations “...has had or could have any 

prior restraining effect whatsoever on the free fl ow of political information and opinion by trade associations or their 

political action committees.” The court noted that plaintiffs were “...free to solicit any individual...to join their trade 

association.” Moreover, once he or she became a member of the association, the individual could “...be solicited for 

contributions without limit under §441b (b)(4)(D).” Thus, the court concluded that the challenged provision was “...

a very narrowly drawn aspect of a statutory scheme carefully designed to balance a compelling governmental interest 

[i.e., the prevention of the appearance or actuality of corruption in federal elections caused by large contributions] 

and jealously guarded First Amendment freedoms.”

The court also rejected plaintiffs’ claim that §441b(b)(4)(D) unconstitutionally discriminated against trade associations. 

The court found the exact opposite to be true and concluded that plaintiffs’ argument was “...largely premised...

on a misreading of the statute.” Specifi cally the court noted that, although trade associations may not solicit 

contributions from a member corporation’s employees without the corporation’s prior approval, trade associations 

are granted more avenues for solicitation than are corporations. “Incorporated trade associations, because they are 

corporations, have precisely the same solicitation rights under paragraphs (A) and (B) [of 2 U.S.C. §441b(b)(4)] as 

do others corporations.... Moreover, trade associations are also membership organizations or corporations without 

capital stock and are therefore provided precisely the same solicitation rights as they have under paragraph (C) [i.e., 

solicitation of their individual members].... Finally, trade associations are provided under paragraph (D) with an 

additional group of potential solicitees [i.e., the stockholders, executive and administrative employees of corporate 

members and their families].”

The court also rejected plaintiffs’ claims that in failing to defi ne the terms “solicitation” and “trade association,” 

§441b(b)(4)(D) abridged their First and Fifth Amendment rights. The court found that the term “solicitation” had 

a widely accepted meaning and that rules and statutes using the term had been uniformly upheld. The court further 

held that the Commission’s advisory opinions, which had ruled on whether certain communications constituted 

solicitations under the Act, were not inconsistent. Rather, the opinions (AO’s 1979-13 and 1979-66) had ruled on 

different types of communications by corporate and trade association separate segregated funds. Similarly, the court 

noted that the FEC had adhered to the “plain and ordinary meaning of trade association” as defi ned by Commission 

regulations at 11 CFR 114.8(a) and (g)(1). 

Supreme Court Ruling

In an opinion issued on March 8, 1982, in Bread Political Action Committee v. FEC Bread Political Action Committee v. FEC (Supreme Court No. 80-1481) the (Supreme Court No. 80-1481) the 

Supreme Court ruled that plaintiffs lacked standing to bring suit under 2 U.S.C. §437h, which allows for expedited 

handling of constitutional challenges to the Act and a right of direct appeal to the Supreme Court. The Court 

remanded the suit to the appeals court without ruling on the plaintiffs’ constitutional challenges. The Court’s ruling 

overturned a decision by the appeals court for the Seventh Circuit while upholding an earlier decision by the Northern 

Illinois district court. 

The Court ruled that plaintiffs lacked standing to bring suit under Section 437h because they did not fall within 

the categories of qualifi ed plaintiffs enumerated in the provision. The Court held that “the plain language of §437h 

controls its construction, at least in the absence of ‘clear evidence,’...of a ‘clearly expressed legislative intention to 

the contrary....’” The Court concluded that “the appellants, however, fall far short of providing ‘clear evidence’ of a 

‘clearly expressed legislative intention’ that the unique expedited procedures of §437h be afforded to parties other than 

those belonging to the three listed categories.” 

Nor did the Court fi nd merit to plaintiffs’ argument that, since Congress had expressly extended the judicial review 

procedures of Section 437h to cover all constitutional questions about any provision of the Act, Congress had also 

intended to broaden the categories of plaintiffs eligible to fi le suit under §437h. 

Moreover, the Court refuted plaintiffs’ contention that, while Congress had specifi ed three eligible classes of plaintiffs 

to remove any doubts about their standing to bring suit, it had not intended to exclude other classes of plaintiffs. To 

the contrary, the Court concluded that Congress “went to the trouble of specifying that only two precisely defi ned 

types of artifi cial entity and one class of natural persons could bring these actions.” The Court noted, however, that 

its ruling did not affect the right of parties involved in FEC enforcement actions to challenge, under 2 U.S.C. §437g, 

the constitutionality of any provision of the Act and to be afforded expedited review. 

Source: FEC Record, May 1981, p. 6; and May 1982, p. 6. , May 1981, p. 6; and May 1982, p. 6. 

Bread Political Action Committee v. FEC, 591 F.2d 29 (7th Cir. 1979), 635 F.2d 621 (7th Cir. 1980) (en banc), rev’d, 455 U.S. 577, (1982), , 455 U.S. 577, (1982), 

on remand, 678 F.2d 46 (7th Cir. 1982) , 678 F.2d 46 (7th Cir. 1982) (en banc) (remanding to District Court). 
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BROWN v. FEC

On November 20, 1981, the U.S. Court of Appeals for the District of Columbia Circuit issued a judgment affi rming 

an earlier decision by the district court in Archie E. Brown v. FEC Archie E. Brown v. FEC (Civil Action No. 80-2108). The district court’s (Civil Action No. 80-2108). The district court’s

decision had upheld the FEC’s dismissal of the complaint plaintiff had fi led against the International Brotherhood of 

Teamsters, Chauffers, and Warehousemen and Helpers of America (the Teamsters). In his complaint, plaintiff alleged 

that Local 745 of the Teamsters had violated 2 U.S.C. §441b(b)(3)(A) by attempting to coerce him to contribute to 

DRIVE (the Democratic Republican Independent Voter Education), the separate segregated fund of the Teamsters. 

Plaintiff alleged that he was subsequently denied membership in Local 745 because he had refused to contribute to, 

or join, DRIVE. Plaintiff claimed that the FEC’s dismissal of his complaint was contrary to law. 

In upholding the FEC’s determination, the district court said that the General Counsel’s Report to the Commission 

indicated that “...plaintiff’s membership in Local 745 was denied because his union dues were unpaid, not because 

he refused to contribute to DRIVE.” Moreover, the district court held that the General Counsel’s Report, by itself, 

was a suffi cient record for the court’s review of the Commission’s determination in the complaint. In appealing 

the district court’s decision, plaintiff contended, however, that the General Counsel’s Report alone, without a 

separate statement of the Commission’s reasons for dismissing the complaint, afforded “...an inadequate basis for 

informed judicial review.”

In its Memorandum affi rming the district court’s decision, the appeals court found no merit in plaintiff’s assertion. 

The appeals court cited the Supreme Court’s decision in FEC v. Democratic Senatorial Campaign Committee, which 

held that the General Counsel’s Report constituted suffi cient grounds to dismiss an administrative complaint—even 

if the Report were not expressly adopted by the Commission. 

The appeals court concluded that the General Counsel’s Report to the Commission recommending dismissal of 

Brown’s complaint was suffi ciently reasonable, “...particularly when considered in the context of the large discretion 

the Commission has to determine whether or not a civil violation of the Act has occurred.” 

Source: FEC Record, January 1982, p. 6. , January 1982, p. 6. 

Brown v. FEC Brown v. FEC (D.D.C. July 17, 1980) (unpublished opinion), (D.D.C. July 17, 1980) (unpublished opinion), aff’d mem., 672 F.2d 893 (D.C. Cir. 1981), cert. denied, 457 U.S. 1111 , 457 U.S. 1111 

(1982).

BUCHANAN v. FEC

On April 18, 1996, the U.S. Court of Appeals for the District of Columbia Circuit granted a joint stipulation to 

dismiss this case; the parties settled this matter out of court.

Patrick J. Buchanan and his publicly-funded 1992 Presidential campaign committee had petitioned this court to 

review the FEC’s fi nal repayment determination. See the November 1995 Record, page 8, for a summary of the suit , page 8, for a summary of the suit

fi led by plaintiffs. See the October 1995 Record, page 9, for the FEC’s fi nal repayment determination. , page 9, for the FEC’s final repayment determination.

The Buchanan committee made most of the repayment immediately from an escrow fund previously established, and 

agreed to pay the remainder of the amount ordered by the FEC, with full interest, within 6 months.

Source: FEC Record, June 1996, p. 4. , June 1996, p. 4.

BUCHANAN v. FEC (00-1775) 

On September 14, 2000, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment and denied the plaintiffs’ motion for summary judgment in this case. The district court ruled that, although 

the plaintiffs had standing to challenge the FEC’s dismissal of their administrative complaint against the Commission 

on Presidential Debates, they failed to show that the FEC’s interpretation of the debate regulations at 11 CFR 110.13 

was arbitrary and capricious. 
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The plaintiffs appealed, and were granted an expedited appeal concerning the single issue of whether a debate must 

include all nominees who have qualifi ed for public funding in order to comply with the “objective criteria” standard 

set out in the Commission’s debate regulations. The U.S. Court of Appeals for the District of Columbia Circuit 

affi rmed the district court’s order on this issue on September 29, 2000.

Dismissal of Case

On November 30, 2000, the U.S. Court of Appeals for the District of Columbia Circuit granted the motion by 

Buchanan et al. to dismiss their appeal. The FEC did not oppose the motion.

Source: FEC Record, November 2000, p. 10; and January 2001, p. 10 , November 2000, p. 10; and January 2001, p. 10

BUCKLEY v. VALEO

On January 30, 1976, the Supreme Court issued a per curiam opinion in Buckey v. Valeo, the landmark case involving 

the constitutionality of the Federal Election Campaign Act of 1971 (FECA), as amended in 1974, and the Presidential 

Election Campaign Fund Act. 

The Court upheld the constitutionality of certain provisions of the election law, including:

• The limitations on contributions to candidates for federal offi ce (2 U.S.C. §441a);

• The disclosure and recordkeeping provisions of the FECA (2 U.S.C. §434); and

• The public fi nancing of Presidential elections (Subtitle H of the Internal Revenue Code of 1954).

The Court declared other provisions of the FECA to be unconstitutional, in particular:

• The limitations on expenditures by candidates and their committees, except for Presidential candidates who 

accept public funding (formerly 18 U.S.C. §608(c)(1)(C-F)); 

• The $1,000 limitation on independent expenditures (formerly 18 U.S.C. §608e); 

• The limitations on expenditures by candidates from their personal funds (formerly 18 U.S.C. §608a); and

• The method of appointing members of the Federal Election Commission (formerly 2 U.S.C. §437c(a)(1)(A-C)).

Background

On January 2, 1975, the suit was fi led in the U.S. District Court for the District of Columbia by Senator James L. 

Buckley of New York, Eugene McCarthy, Presidential candidate and former Senator from Minnesota, and several 

others.1 The defendants included Francis R. Valeo, Secretary of the Senate and Ex offi cio member of the newly 

formed Federal Election Commission, and the Commission itself.2 The plaintiffs charged that the FECA, under 

which the Commission was formed, and the Presidential Election Campaign Fund Act were unconstitutional on a 

number of grounds. 

On January 24, 1975, pursuant to Section 437h(a) of the FECA, the district court certifi ed the constitutional 

questions in the case to the U.S. Court of Appeals for the District of Columbia Circuit. On August 15, 1976, the 

appeals court rendered a decision upholding almost all of the substantive provisions of the FECA with respect 

to contributions, expenditures and disclosure. The court also sustained the constitutionality of the method of 

appointing the Commission. 

On September 19, 1975, the plaintiffs fi led an appeal with the Supreme Court, which reached its decision on 

January 30, 1976. 

Supreme Court Decision

Contribution Limitations 

The appellants had argued that the FECA’s limitations on the use of money for political purposes were in violation of 

First Amendment protections for free expression, since no signifi cant political expression could be made without the 

expenditure of money. The Court concurred in part with the appellants’ claim, fi nding that the restrictions on political 

contributions and expenditures “necessarily reduce[d] the quantity of expression by restricting the number of issues 

discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means 

of communicating ideas in today’s mass society requires the expenditure of money.” The Court then determined that 

such restrictions on political speech could only be justifi ed by an overriding governmental interest. 
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The Court upheld the contribution limitations in the FECA,3 stating that they constituted one of the election law’s 

“primary weapons against the reality or appearance of improper infl uence stemming from the dependence of 

candidates on large campaign contributions” (the other weapon being the disclosure requirements). Although it 

appeared that the contribution limitations did restrict a particular kind of political speech, the Court concluded that 

they “serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly 

impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.”

The Court found no evidence to support the appellants’ allegations that the contribution limitations discriminated 

against nonincumbent candidates. With respect to the appellants’ charge that the contribution limitations discriminated 

against minor and third parties and their candidates, the court noted that the FECA, “on its face,” treated all 

candidates and parties equally. Furthermore, the Court said there was a legitimate argument that the limitations, 

in fact, appeared to benefi t minor parties, since major parties and candidates received a greater proportion of their 

funding from large contributions. 

The appellants had additionally challenged the limitations on certain expenses incurred by volunteers working on 

behalf of candidates or political committees. While the FECA placed no limits on most unreimbursed volunteer 

activities, it did limit unreimbursed travel expenses and certain costs of organizing campaign functions. Beyond these 

limits the costs were considered in-kind contributions (§431(8)(B)(i, ii, and iv)). The Court upheld the provisions for 

limited spending by volunteers, stating that they were a “constitutionally acceptable accommodation of Congress’ 

valid interest in encouraging citizen participation in political campaigns while continuing to guard against the 

corrupting potential of large fi nancial contributions to candidates.” 

Expenditure Limitations

In contrast to its ruling on contribution limitations, the Court found that the expenditure ceiling in the FECA imposed 

“direct and substantial restraints on the quantity of political speech” and invalidated three expenditure limitations as 

violations of the First Amendment. 

The overall limitations on expenditures by federal candidates and their committees were struck down by the Court. 

The appellees had argued that these limitations (formerly 18 U.S.C. §608(c)) served a public interest by equalizing the 

fi nancial resources of candidates, but the Court determined that the amount of money spent in particular campaigns 

must necessarily vary, depending on the “size and intensity” of the support for individual candidates. Furthermore, 

expenditure ceilings “might serve not to equalize the opportunities of all candidates but to handicap a candidate who 

lacked substantial name recognition or exposure of his views before the start of the campaign.” The appellees had 

also claimed that the expenditure limitations would reduce the overall cost of campaigning, and they cited statistics 

demonstrating the dramatic increases in campaign spending that had occurred nationwide in preceding years. The 

Court decided, however, that “[t]he First Amendment denies government the power to determine that spending to 

promote one’s political views is wasteful, excessive or unwise.” The Court ruled, therefore, that the limitations on 

overall expenditures were unconstitutional. 

The appellants had charged that the $1,000 per candidate annual limitation on independent expenditures—i.e., 

expenditures made by persons “relative to a clearly identifi ed candidate...advocating the election or defeat of such 

candidate” (formerly 18 U.S.C. §608(e)(1))—was both unconstitutionally vague and an excessive hindrance on First 

Amendment rights of free expression. The Court resolved the vagueness question by reading “relative to” to mean 

“advocating the election or defeat of such candidate” in the same subsection, and by construing the provision to 

apply only to “expenditures for communications that in express terms advocate[d] the election or defeat of a clearly 

identifi ed candidate for Federal offi ce.” While the Court of Appeals had accepted the appellees’ argument that the 

provision was necessary to prevent circumvention of the contribution limitations, the Supreme Court found that the 

“governmental interest in preventing corruption and the appearance of corruption”—which justifi ed the contribution 

limitations—was not suffi cient to warrant the limitation on independent expenditures. If expenditure ceilings were 

to apply only to situations of express advocacy, the limitation would be easily circumvented by “expenditures that 

skirted the restriction on express advocacy of election or defeat but nevertheless benefi ted” a candidate. Moreover, 

the Court pointed out, abuses that might be generated by large independent expenditures did not appear to pose the 

same threat of corruption that large contributions posed since the “absence of prearrangement or coordination of 

the expenditure with the candidate or his agent alleviates the danger that expenditures will be given as a quid pro quo

for improper commitments from the candidates.” Thus fi nding that no substantial governmental interest was served 

by the limitation on independent expenditures, the Court concluded that such expenditures were protected as political 

discussion and expression under the First Amendment. 

Regarding the limitations on a candidate’s use of personal funds, the Court found that the provisions unconstitutionally 

interfered with the protected and valued right of an individual “to engage in the discussion of public issues and 

vigorously and tirelessly to advocate his own election.” The Court continued that no governmental interest supported 

the limit on such personal funds. To the contrary, the Court noted that “the use of personal funds reduces a candidate’s 
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B

dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to 

which the contribution limitations are directed.”

Finally, the Court added that its invalidation of the expenditure limitations was severable from Subtitle H, which 

provides for the public fi nancing of Presidential elections. The limitations on expenditures by Presidential candidates 

who received public funds was legitimate since the acceptance of public funds was voluntary. Therefore, with regard 

to publicly fi nanced elections, the consequent societal and governmental benefi ts weighed more heavily in favor 

of expenditure limitations. 

Reporting and Disclosure Requirements 

The appellants had sought a blanket exemption from the public disclosure provisions for all minor parties, claiming 

that contributors to minor parties, unlike contributors to the Republican and Democratic Parties, were more 

vulnerable to threats, harassment and reprisal as a result of the public disclosure of their names. The appellants 

claimed the provisions constituted a violation of their rights to free association under the First Amendment and to 

equal protection under the Fifth Amendment. Recognizing that “compelled disclosure, in itself, can seriously infringe 

on privacy of association and belief guaranteed by the First Amendment,” the Court nevertheless ruled that the Act’s 

reporting and disclosure provisions were justifi ed by governmental interest in (1) helping voters to evaluate candidates 

by informing them about the sources and uses of campaign funds, (2) deterring corruption and the appearance of 

it by making public the names of major contributors, and (3) providing information necessary to detect violations 

of the law. 

The Court acknowledged the potential disadvantage for minor parties that could result from the public disclosure 

provisions of the law, but it noted that none of the minor parties that were appellants in this suit had demonstrated 

that their contributors had been injured by the disclosure provisions. Therefore, the Court ruled a blanket exemption 

unnecessary. The Court left open the possibility, however, that minor and new parties might successfully claim an 

exemption from FECA disclosure requirements by showing proof of injury. 

Presidential Election Campaign Fund

The Court upheld the constitutionality of Subtitle H of the Internal Revenue Code, which established the public 

fi nancing of Presidential campaigns through a voluntary income tax checkoff. The Court determined that 

the appellants’ claim that Congress violated the First Amendment in not allowing taxpayers to earmark their 

$1.00 checkoff to any candidate or party of their choice was not suffi cient to invalidate the law. In the Court’s 

opinion the checkoff constituted an appropriation by Congress, and as such it did not require outright taxpayer 

approval. Furthermore, “every appropriation made by Congress uses public money in a manner to which 

some taxpayers object.”

The appellants had also argued, by analogy, that just as Congress may not subsidize or burden religion under the 

freedom of religion clause of the First Amendment, the freedom of speech clause prohibits it from fi nancing particular 

political campaigns. The Court ruled the analogy inapplicable, however, fi nding that Subtitle H furthered rather than 

abridged political speech because its purpose was “to facilitate and enlarge public discussion and participation in 

the electoral process.” 

The appellants further claimed that the public funding provisions violated the Fifth Amendment’s due process clause, 

arguing that the eligibility requirements for public funds were comparable to unconstitutionally burdensome ballot 

access laws. The Court found no merit in the argument; the denial of public funds to candidates did “not prevent any 

candidate from getting on the ballot or prevent any voter from casting a vote for the candidate of his choice.”

“In addition,” the Court said, “the limits on contributions necessarily increase the burden of fundraising, and Congress 

properly regarded public fi nancing as an appropriate means of relieving major-party Presidential candidates from the 

rigors of soliciting private contributions.”

The Court also rejected appellants’ contention that the public fi nancing provisions discriminated against minor and 

new party candidates, in violation of the Fifth Amendment. Specifi cally, the appellants had argued that Subtitle H 

favored major parties and their nominees by granting them full public funding for their conventions and general 

election campaigns, while minor and new parties and their candidates received only partial public funding according 

to a formula based on percentage of votes received. 

Similarly, the appellants challenged the provision that restricted the payment of primary matching funds to only 

Presidential candidates who met certain requirements. These requirements included a provision for payments to 

candidates who had raised a minimum amount of contributions in at least twenty states (26 U.S.C. §9033(b)(3-4)). 

The Court found that such requirements for receiving public funds were reasonable; rather than preventing small 

parties from receiving public fi nancing, the law only required them to demonstrate that they had a minimum level of 

broad-based support in order to qualify for federal subsidies. The Court concluded, “Any risk of harm to minority 
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B

interests...cannot overcome the force of the governmental interests against the use of public money to foster frivolous 

candidacies, create a system of splintered parties, and encourage unrestrained factionalism.” Furthermore, the Court 

noted that the advantage of receiving public fi nancing was balanced by the requirement to adhere to strict expenditure 

limitations. As mentioned above, the Court upheld the constitutionality of expenditure limits as they applied to 

candidates and parties receiving public funds. 

Appointment of the Commissioners 

The appellants had challenged the method of appointing the six members of the Commission, as specifi ed in the 

FECA, which provided that the President, the Speaker of the House of Representatives and the President pro tempore 

of the Senate each appoint two members. Arguing that the FEC’s powers were executive rather than legislative, 

the appellants contended that the Congressional appointment of Commissioners violated the separation of powers 

principle embodied in the appointments clause of Article II of the Constitution. The Supreme Court determined 

that the appointments clause permitted only the President, with the advice and consent of the Senate, to appoint 

offi cers to exercise such executive authority as the Commission was granted. The Court ruled that the Commission, 

as it was then constituted, could not exercise its authority to enforce the law, conduct civil litigation, issue advisory 

opinions or determine eligibility for public funds, because these functions could not properly be regarded as 

legislative. The Commission’s informational and auditing powers, however, were found to be legislative in nature, 

and therefore constitutional. 

The Court accorded de facto validity to all acts of the Commission prior to the ruling and granted a 30-day stay of 

judgment—during which time the agency could exercise all of the authorities given to it under the FECA—so that 

Congress could reconstitute the Commission according to the provisions of Article II of the Constitution. The initial 

30-day stay expired on February 29, 1976, but was extended to March 22. On March 23 the FEC’s executive powers 

were suspended, and they remained suspended until May 21, when the Commissioners were reappointed by the 

President pursuant to the FECA Amendments of 1976, Pub. L. No. 94-283 (May 5, 1976). 

Buckley v. Valeo, 387 F. Supp. 135 (D.D.C. 1975) (application for three judge district court denied: constitutional questions certifi ed 

to the Court of Appeals), 519 F.2d 817 (D.C. Cir. 1975) (per curiam) (motion to remand for the purpose of certifying constitutional 

questions granted), 519 F.2d 821 (D.C. Cir. 1975) (per curiam) (certifi ed questions answered), 401 F. Supp. 1235 (D.D.C. 1975) (relevant 

portions of the opinion of the D.C. Cir. adopted), aff’d in part, rev’d in part, 424 U.S. 1 (1976), on remand on remand, 532 F.2d 187 (1976 D.C. Cir.) , 532 F.2d 187 (1976 D.C. Cir.) 

(en banc), (modifying answers to constitutional questions certifi ed by the district court). 

1 Along with Buckley and McCarthy, the appellants in this suit included Congressman William A. Steiger of Wisconsin, Mr. Stewart 

Rawlings Mott (a major contributor to various political committees), the Committee for a Constitutional Presidency—McCarthy ’76, 

the Conservative Party of the State of New York, the New York Civil Liberties Union, the American Conservative Union, Human 

Events, Inc., Conservative Victory Fund, the Mississippi Republican Party and the Libertarian Party. 

2 The other appellees included the Clerk of the House of Representatives W. Pat Jennings, the Comptroller General Elmer B. Staats, 

and the Attorney General. 

3 The contribution limitations in the FECA included a $1,000 per candidate, per election, ceiling on contributions by individuals and 

political committees, a $5,000 per candidate, per election, ceiling on contributions by committees which qualify as multicandidate 

committees, a $25,000 annual ceiling for all contributions by any individual, and limitations on contributions to political party 

committees. 

BUSH-QUAYLE ’92 PRIMARY COMMITTEE v. FEC

On January 14, 1997, the U.S. Court of Appeals for the District of Columbia Circuit remanded this case to the FEC 

and asked it to explain why the Commission departed from precedent, or remedy that departure, when it required the 

Bush-Quayle ’92 Primary Committee to repay $323,832 of the federal matching funds it received.

Background

As required by law, the FEC, at the end of the 1992 election cycle, audited former President George Bush’s 1992 

campaign. The audit included the primary committee, the Bush-Quayle ’92 General Committee and the legal and 

accounting arm of the general election committee, the Bush-Quayle ’92 Compliance Committee. The latter two 

committees are party to this lawsuit.

During the 1992 election, the primary committee received nearly $10.7 million in public funds through the Matching 

Payment Act. Once Mr. Bush and his running mate, Dan Quayle, had received the Republican nomination for 

President and Vice President, the general committee received $55.2 million in public funds.

The Law

The Matching Payment Act provides partial public funding—paid for through the $3 check-off on federal tax 

forms—to Presidential primary candidates who meet certain qualifi cations. Candidates who receive public funding 
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must agree to limit expenditures to “qualifi ed campaign expenses,” i.e., those expenses that are incurred by the 

candidate in connection with his or her campaign for nomination and that do not violate state or federal law. 26 

U.S.C. §9032(9)(A).

The Commission also must conduct an audit of every publicly funded campaign after it ends and require the 

committee to repay the U.S. Treasury for any nonqualifi ed campaign expenses that were paid for with public funds. 

The Commission also can require a committee to repay any matching funds that it received in excess of what the law 

allows. 26 U.S.C. §9038(b)(1).

Final Repayment Determination

The FEC issued a fi nal repayment determination to the primary committee on August 17, 1995, having determined 

that $409,123 in expenses incurred by the primary committee were not qualifi ed primary campaign expenses because 

they had, in fact, been made for the benefi t of the general election campaign as well.

The expenses in question included disbursements for direct mailings and political advertisements and for equipment 

and materials sent to the Bush campaign’s national headquarters. All these disbursements took place before August 

20, 1992—the day Mr. Bush was nominated by his party to run for President. Concluding that expenses benefi ted 

both the primary and general campaigns, the Commission determined that half of the expenses should be assigned 

to the general election committee and the other half to the primary committee.

The FEC calculated the repayments as follows:

• The primary committee would pay its share of the nonqualifi ed campaign expenses—$106,979—plus an 

additional $216,853 that the FEC determined it had received in excess of the matching fund allowance.

• As a result of reassigning half of the expenses in question to the general committee, the FEC found that the 

general committee had exceeded its expenditure limit by $182,785. The FEC recommended, but did not order, 

that the compliance fund reimburse the general committee for this overspending. That would resolve the 

general committee’s excess expenditure problem.

Expenses in Connection With Primary

The Bush-Quayle committees challenged the FEC’s fi nal repayment determination in court, saying the Commission 

should have used a “bright-line” rule and allocated expenses based solely on whether they were incurred before the 

August 20 Presidential nomination or after the party’s Presidential contender had been named.

The Commission had rejected this approach, arguing that whether an expenditure is a primary qualifi ed expenditure 

depends on both its timing and nature. To qualify, the Commission had explained, the expense must be primarily in 

connection with the primary. The committees had argued that any connection to the primary campaign would qualify 

an expense fully as a qualifi ed primary campaign expenditure.

Finding that arguments from both the agency and the committees were defensible, the court upheld the FEC’s 

interpretation, based on Chevron U.S.A. Inc. v. NRDC.

1 That case requires that, where statutory language is ambiguous, 

courts must uphold the agency’s interpretation so long as it is reasonable. The court added, however, that another 

committee objection to the Commission’s decision merited further consideration.

Arbitrary and Capricious

The committees charged that the FEC had acted “arbitrarily and capriciously” because it had treated expenditures of 

the Bush-Quayle 1992 campaign differently than similar expenditures of the 1984 Reagan-Bush campaigns.

In the 1984 election, the committees said, the FEC had concluded that certain pre-nomination expenditures 

by the Reagan-Bush Primary Committee were primary expenses despite the fact that some benefi ted the 

general election campaign.

The FEC responded that the two cases were distinguishable from each other and thus were treated differently. 

It also said that in the Reagan audit, the FEC had not adopted a “bright line” test based on the date of 

the candidate’s nomination.

The court found the FEC’s response inadequate. Further, the court said: “An agency interpretation that 

would otherwise be permissible is, nevertheless, prohibited when the agency has failed to explain its departure 

from prior precedent.”2

The court noted further that the FEC’s determination was especially problematic given the fact that the agency 

had adopted new regulations two months before making its repayment determination concerning the Bush-Quayle 

campaign, but had not applied the approach embodied in those regulations to that determination. The court said 
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that the new rules use a “bright-line” approach to determine whether expenses should be attributed to primary 

or general elections.

The court remanded the matter to the FEC either to justify its approach or to reconsider the 

repayment determination.

Source: FEC Record, March 1997, p. 5. , March 1997, p. 5.

Bush-Quayle ’92 Primary Committee v. FEC, 104 F.3d 448 (D.C. Cir. 1997). 1 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 844 (1984). 2 See Interstate Quality Servs. Inc. v. RRB, 83 F. 3d 1463, 1465 (D.C. Cir. 1996); ANR Pipeline Co. v. FERC, 870 F. 2d 717, 723 (D.C. Cir. 

1989); Greater Boston Tel. Corp. v. FCC, 444 F. 2d 841, 852 (D.C. Cir.), cert denied, 403 U.S. 923 (1971). , 403 U.S. 923 (1971).

CALIFORNIA MEDICAL ASSOCIATION v. FEC

This suit was precipitated by an FEC enforcement proceeding in which the California Medical Association (CMA), an 

unincorporated professional association, and CALPAC, a political committee, were respondents. On April 19, 1979, 

the FEC had found “probable cause to believe” CMA had violated 2 U.S.C. §441a(a)(1)(C) by making contributions 

exceeding $5,000 to CALPAC, which CALPAC had accepted. When it was unable to reach a conciliation agreement 

with the respondents, the Commission fi led suit against them on May 22, 1979, in the U.S. District Court for the 

Northern District of California (Civil Action No. C79-U97-WHO).1

Claims Filed Against Commission

Anticipating the FEC enforcement action, CMA fi led a separate suit against the FEC on May 7, 1979, challenging 

the constitutionality of those provisions of the Act it had allegedly violated. (Civil Action No. 79-4426) Specifi cally, 

CMA asked the district court to certify the following constitutional questions to the U.S. Court of Appeals for 

the Ninth Circuit:

• Whether 2 U.S.C. §441a(a)(1)(C), which limits contributions to multicandidate committees to $5,000 

per year, per contributor, abridges First Amendment rights of free speech and association. In particular, 

does §441a(a)(1)(C) unconstitutionally limit contributions by an unincorporated association (CMA) to a 

political committee (CALPAC) for the purpose of establishing, administering or soliciting contributions to 

the committee; and

• Whether 2 U.S.C. §441b(b)(2)(C), which permits labor organizations and corporations (but not unincorporated 

associations) to pay costs of establishing, administering and soliciting funds to a separate segregated fund, 

abridges the equal protection provisions of the Fifth Amendment. 

Ruling of Appeals Court

In its opinion of May 23, the appeals court, sitting en banc, rejected all the constitutional claims asserted by CMA. 

Relying on the Supreme Court’s decision in Buckey v. Valeo, the court found that the contribution limits imposed 

only inconsequential restrictions on rights of free speech. The court observed that these restrictions were minimal 

compared to the “potent alternative means of expression” available to unincorporated associations like CMA. It 

noted that CMA, CALPAC and its members could make contributions and expenditures in connection with federal 

elections, as long as the per-candidate and per-committee contribution limits were respected. Further, CMA, its 

members and CALPAC could make unlimited independent expenditures to express their political views. Moreover, 

the court concluded that the contribution limits were supported by a compelling governmental interest, namely 

preventing the circumvention of the contribution limits, which were intended to minimize both the actuality and 

appearance of corruption in federal political campaigns. 

The court also found that the Act did not abridge Fifth Amendment rights by discriminating against political 

activities of unincorporated associations. To the contrary, the court concluded that unincorporated associations 

like CMA are regulated to a lesser degree under the Act. While corporations and labor unions are prohibited from 

making any contributions or expenditures in connection with federal elections, and individuals are limited to total 

contributions of $25,000 per year, unincorporated associations have no overall limit imposed on the total amount 

they may contribute or expend in connection with federal elections. Unlike corporations and labor organizations, 

they may solicit contributions from anyone and make partisan communications to the general public. 
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Appeal to Supreme Court 

In its appeal to the Supreme Court, fi led on June 4, 1980, CMA reiterated the arguments which the appeals court 

had rejected and restated its claim that the challenged provisions violated both First and Fifth Amendment rights. 

In challenging the constitutionality of limits on contributions to multicandidate committees, CMA argued that, 

in its Buckey v. Valeo decision, the Supreme Court had not equated contributions to political committees with 

contributions to candidates. CMA maintained that “...contributions to political committees are functionally different 

from contributions to candidates.”

In its Supreme Court brief, the FEC challenged appellants’ raising of constitutional issues under 2 U.S.C. §437h, a 

provision by which the Supreme Court may expedite its handling of constitutional challenges to the federal election 

law. The Commission argued that the provision was “...enacted by Congress in 1974 for the specifi c purpose of 

facilitating the resolution of a major constitutional challenge to the Act prior to the 1976 general election.” In the 

Commission’s view, appellants sought to “...invoke the extraordinary process of 437h for the purpose of avoiding the 

Commission’s enforcement procedures.”

As to the constitutional issues raised in the suit, the Commission supported the decision of the appeals court, 

reiterating its arguments that the Act violated neither the First nor Fifth Amendment rights of appellants.

Supreme Court Ruling

On June 26, 1981, the Supreme Court handed down a decision in California Medical Association v. FEC California Medical Association v. FEC (Civil Action (Civil Action

No. 79-1952) that affi rmed the earlier decision of the U.S. Court of Appeals for the Ninth Circuit. 

In its opinion, the Court upheld the constitutionality of 2 U.S.C. §441a(a)(1)(C), which limits contributions to a 

political committee to $5,000 per year, per contributor. The Court concluded that the challenged provision did not 

violate the First Amendment rights of appellants because it was an appropriate means by which Congress could seek 

to protect the integrity of the contribution restrictions upheld in Buckey v. Valeo (424 U.S. 1 (1976)). The Court said, 

“If First Amendment rights of a contributor are not infringed by limitations on the amount he may contribute to a 

campaign organization which advocates the views and candidacy of a particular candidate, the rights of a contributor 

are similarly not impaired by limits on the amount he may give to a multicandidate political committee, such as 

CALPAC, which advocates the views and candidacies of a number of candidates.” 

The Supreme Court also upheld the appeals court’s ruling that Section 441a(a)(1)(C) did not violate appellants’ 

equal protection rights under the Fifth Amendment. Appellants had unsuccessfully claimed that the provision 

allowed corporations and labor organizations to make unlimited contributions to their separate segregated funds 

while limiting to $5,000 a year the contributions an unincorporated association could make to the multicandidate 

committee it established. The Court held, however, that no equal protection violation existed. The Court stated, 

“Appellants’ contention ignores the fact that the Act as a whole imposes far fewer restrictions on individuals and 

unincorporated associations than it does on corporations and unions. The differing restrictions placed on individuals 

and unincorporated associations, on the one hand, and on corporations and unions, on the other, refl ect a congressional 

judgment that these entities have differing structures and purposes and that they therefore may require different forms 

of regulation in order to protect the integrity of the political process.” 

The Court found no merit, however, to the FEC’s claim that the appellants’ direct appeal to the Court (pursuant to 

Section 437h of the Act)2 was inappropriate because an FEC enforcement proceeding was pending against appellants 

(pursuant to Section 437g of the Act). The Court found that neither the legislative history nor the statutory language 

of Sections 437g and 437h indicated that a direct appeal should be limited to situations where no enforcement 

proceeding was pending. 

Source: FEC Record, April 1981, p. 7; and August 1981, p. 1. , April 1981, p. 7; and August 1981, p. 1. 

California Medical Association v. FEC, 641 F.2d 619 (9th Cir. 1980) (en banc), aff’d, 453 U.S. 182 (1981). , 453 U.S. 182 (1981). 1

 In its October 21, 1980, opinion in FEC v. California Medical Association, the district court ordered CMA and CALPAC to pay the 

FEC civil penalties of $5,000 each. 

2

 Section 437h provides for expedited handling of constitutional challenges to the Act. Section 437h(b), which granted the right of 

direct appeal to the Supreme Court, was repealed by Congress in 1988. 
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CANNON v. FEC 

On August 18, 2003, the U.S. District Court for the District of South Carolina, Columbia Division, granted the 

Commission’s motion for summary judgment in this case.

The plaintiff had appealed a $5,500 civil money penalty the Commission imposed on the Joe Grimaud for Congress 

Committee and its treasurer Peter J. Cannon for failure to fi le the Committee’s 2001 Year-End Report. Although the 

Committee fi led the report on paper, they were required to fi le electronically. 11 CFR 104.18(a)(1)-(2). Mr. Cannon 

alleged that the Committee’s computer system was infected with a virus, destroying their records and preventing them 

from fi ling electronically. 

The district court adopted and incorporated the Report and Recommendation of a U.S. Magistrate Judge after Mr. 

Cannon failed to fi le an objection to the report with the district court. In the Report and Recommendation, the 

Magistrate Judge determined that Mr. Cannon waived all arguments by failing to fi le objections with the Commission 

during the Commission’s administrative process. The Magistrate further concluded that the Commission imposed the 

proper penalty called for in its regulations, and Mr. Cannon’s claim that he was unable to fi le electronically because 

of a computer virus was not an “extraordinary circumstance” under 11 CFR 111.35(b).

Source: FEC Record, December 2002, p. 13; and October 2003, p. 13. , December 2002, p. 13; and October 2003, p. 13. 

COMMITTEE FOR JIMMY CARTER v. FEC

On March 2, 1981, the U.S. Court of Appeals for the District of Columbia Circuit dismissed Committee for Jimmy 

Carter v. FEC Carter v. FEC (Civil Action No. 79-2425). The court’s action came in response to an agreement for dismissal of the (Civil Action No. 79-2425). The court’s action came in response to an agreement for dismissal of the 

appeal, fi led by the parties on February 20, 1981. This agreement resulted from the Commission’s acceptance of the 

plaintiff’s offer to settle the suit. 

Petitioners had originally fi led the suit on December 3, 1979, challenging an FEC decision to deny matching funds 

to the Committee for Jimmy Carter (the Committee), the principal campaign committee of former President Carter’s 

1976 primary campaign. In its suit, the Committee asserted that the Commission had acted arbitrarily, capriciously 

and contrary to law in certifying only $88,293.92 of the $185,749 in matching funds requested by the Committee in 

July 1979. The Commission argued that it was bound by its regulations (11 CFR 133.3 (d) and (e))1 to certify only 

those funds the Committee needed to retire the legitimate debts of Mr. Carter’s primary campaign. The Commission 

therefore asserted that, if it had granted the Committee’s entire request, it would have acted contrary to law by 

sanctioning an improper use of primary matching funds. Specifi cally, the Committee had stated in its request for 

primary matching funds that it planned to use the amount withheld by the Commission ($97,456.08) for the following 

expenditures. In the Commission’s view, none of these constituted qualifi ed campaign expenses.

• Approximately $78,000 would be transferred to former President Carter’s 1976 general election committee 

(the 1976 Democratic Presidential Campaign Committee). The general election committee would, in turn, 

use the funds to defray legal and compliance costs of the general election campaign, including nearly $50,000 

in repayments of public funds that Mr. Carter had accepted for the campaign.2 (The repayment represented 

approximately $22,000 the Committee had spent on nonqualifi ed campaign expenses and approximately 

$27,000 in interest income it had earned on invested public funds.)

• $19,500 would be used to replace funds that the Committee had previously transferred to Mr. Carter’s 1976 

general election committee in 1978 and 1979, despite the fact that the Committee itself had continued to incur 

debts during this period. 

The Committee argued that the transfers to the 1976 general election committee were part of an ongoing transfer 

authorization granted by the Commission in February 1977. This authorization had allowed the Committee to transfer 

$500,000 in private contributions to the compliance fund of the general election committee. These contributions were 

received after Mr. Carter’s nomination to the Presidency in July 1976. Moreover, the Committee argued that the 

Commission’s partial denial of the certifi cation violated Section 134.3(c)(2) of FEC regulations, the provision in effect 

during the 1976 elections. The Committee claimed that this provision entitled it to receive matching funds up to the 

full amount of its outstanding debts on the date Mr. Carter was nominated for the Presidency, regardless of whether 

it received any private contributions after that date.3

The Commission maintained, however, that the transfer authorization had terminated in August 1977 when the 

Committee repaid $126,515 in matching funds to the U.S. Treasury. The Commission noted that it had requested the 
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repayment because it had certifi ed the funds on the understanding that the Committee planned to transfer $500,000 

in private contributions to the compliance fund for the general election committee. The Committee had, however, 

transferred only $300,000. 

In the agreement settling the Committee’s claim for matching funds, the Commission agreed to certify $65,650.01 

to the Committee, an amount equivalent to qualifi ed legal expenses the Committee had incurred through February 

1981. The Commission expressly conditioned this certifi cation on the Committee’s consent to: 

• Use the funds solely to pay its own outstanding campaign debts; 

• Request no further matching funds and terminate; and

• Execute and fi le the agreement for dismissal of the suit with the court of appeals. 

Source: FEC Record, May 1981, p. 7. , May 1981, p. 7. 1

 The FEC prescribed revised regulations in May 1979. Section 133.3(d) is now 9034.1(a) and Section 133.3(e) is now 9034.1(b). 

2

 Under the Presidential Election Campaign Fund Act, major party nominees are eligible for public grants of $20 million (plus a costof-living adjustment) to fi nance their general election campaigns. 

3

 Under the revised regulation (11 CFR 9034) prescribed in May 1979, Presidential primary candidates are entitled to continue receiving 

matching funds after their date of ineligibility only if the combined total of their matching funds and private contributions does not 

cover outstanding debts.

CARTER/MONDALE PRESIDENTIAL COMMITTEE v. FEC (82-1754)

On June 24, 1983, the U.S. Court of Appeals for the District of Columbia ruled that, since the Carter/Mondale 

Presidential Committee, Inc. (the Committee) had failed to fi le its petition for review of certain fi nal FEC repayment 

determinations within 30 days after the FEC had made them, the court had no jurisdiction over the petition. Filed on 

July 6, 1982, the Committee’s petition concerned certain fi nal Commission determinations with regard to the FEC’s 

audit of the Committee’s publicly funded primary campaign in 1980. 

Since it dismissed the suit on jurisdictional grounds, the court did not address the issue of whether the FEC could 

require the Committee to: 

• Repay federal matching funds in an amount equal to total federal and private funds used for nonqualifi ed 

campaign expenses; or

• Repay only the portion of nonqualifi ed expenses that were paid with federal funds. 

Source: FEC Record, August 1983, p. 8. , August 1983, p. 8. 

Carter/Mondale Presidential Committee, Inc. v. FEC, 711 F.2d 279 (D.C. Cir. 1983). 

CARTER/MONDALE PRESIDENTIAL COMMITTEE v. FEC (84-1393)

On November 1, 1985, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FEC did not 

abuse its discretion in declining to reconsider a fi nal determination the agency had made with regard to the Carter/

Mondale Presidential Committee, Inc.’s (the Committee’s) repayment of nonqualifi ed campaign expenses to the U.S. 

Treasury.1 CA No. 84-1393 and 84-1499 (The Committee was the publicly funded principal campaign committee for 

former President Carter’s 1980 primary campaign.) The court’s ruling sustained decisions made by the FEC on July 

12 and September 20, 1984, not to reconsider its fi nal repayment determination with regard to the Committee. 

Background

On July 6, 1982, the Committee had fi led a petition with the appeals court which sought review of an FEC fi nal 

determination that the Committee must repay $104,300.78 to the U.S. Treasury, an amount equal to those nonqualifi ed 

expenses incurred by the Committee during the 1980 primary campaign. (Carter/Mondale Presidential Committee v. 

FEC; 111 F.2d 279 (D.C. Cir. 1983); see summary at left.) The court dismissed the case on grounds that it had not been 

fi led within the time frame required by the election law. See 26 U.S.C. §9041(a). 

On August 7, 1984, the Committee fi led a petition, asking the Court to review the decision that the FEC made on its 

own initiative not to reopen its fi nal repayment determination for the Committee in light of recent decisions made 

by the court in two other suits concerning repayments. (In Kennedy for President Committee v. FEC andReagan for 

President Committee v. FEC, the court had held that the FEC had exceeded its authority under 26 U.S.C. §9038(b)(2) 
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when it required repayment of the entire amount of nonqualifying payments, rather than the portion attributable 

to the matching payment account.) The Committee also asked the FEC to reconsider its decision (taken in July 

1984) not to reopen the Carter/Mondale repayment determinations. The Commission had decided to reconsider only 

the repayments by the Kennedy and Reagan committees, which had been required by the court. The Commission 

had taken this position “ ‘in the interest of fi nality in the administrative process, now and in the future.’” The 

Committee claimed that the FEC’s decision disregarded the principle of equal treatment for all candidates, which the 

Committee alleged the agency had established in reconsidering a fi nal repayment determination made with regard 

to John Anderson’s publicly funded campaign. On September 20, 1984, the FEC once again declined to reconsider 

the Committee’s fi nal repayment determination. On October 2, 1984, the Committee fi led a second petition with the 

appeals court. On October 15, 1984, the court consolidated this case with the Committee’s August 1984 case.

Appeals Court’s Ruling

The court rejected the Committee’s claim that the FEC’s July determination was unlawful because it contradicted 

a precedent established by the agency’s reconsideration of the Anderson Campaign’s repayment requirements: 

“Far from establishing any general or even selective practice of reopening fi nal determinations, the record 

before us [of the FEC’s reconsideration of the Anderson determination] displays only an isolated situation in 

which the facts distinguishable from those in the case at hand tugged the Commission away from application of 

the fi nality principle.”

Nor did the court fi nd merit in the Committee’s assertion that the FEC had treated the Committee unfairly. “No 

favoritism can be attributed to the FEC when it carries out the letter of a court’s order” to reconsider repayments by the 

Kennedy and Reagan committees. Moreover, the Committee’s tardiness in seeking court review of its own repayment 

determination contradicts “‘Congress’ strong interest in resolving federal matching fund audits expeditiously.’ 111 

F.2d at 289 and n.19.”

Finally, the court rejected the Committee’s argument that the FEC had failed to give reasons for refusing to reopen its 

repayment determination. “[A]bsence of an express statement does not render its action unlawful where reasons for 

that action may be gleaned from its [the FEC’s] staff’s reports.” 

Source: FEC Record, December 1985, pp. 6-7. , December 1985, pp. 6-7. 

Carter/Mondale Presidential Committee, Inc. v. FEC, 775 F.2d 1182 (D.C. Cir. 1985). 1

 The public funding statutes require Presidential candidates to repay the U.S. Treasury for nonqualifi ed campaign expenses. 26 U.S.C. 

§§9007(b)(4) and 9038(b)(2).

CARTER/MONDALE REELECTION COMMITTEE and DNC v. FEC

The Commission’s certifi cation of public funds to the Republican nominee was challenged in Carter-Mondale 

Reelection Committee, Inc. and the Democratic National Committee v. FEC, fi led July 24, 1980. The Carter-Mondale 

Committee (the Committee) asked the U.S. Court of Appeals for the District of Columbia Circuit to prevent the 

Commission’s certifi cation of the Republican nominees, pending resolution of an administrative complaint fi led by 

the plaintiffs against the nominees. In their complaint to the Commission, the Committee had said that Ronald 

Reagan would be ineligible for public funds since he had allegedly violated the law on several counts. The Committee 

had charged that several groups, purportedly making independent expenditures on Mr. Reagan’s behalf, were in 

fact making qualifi ed campaign expenditures with the prior consent of the candidate and his agents. In the suit, 

the Commission argued that the certifi cation was proper and within the Commission’s exclusive jurisdiction. On 

September 12, the court ruled in the Commission’s favor and affi rmed the Commission’s “action in certifying the 

nominees’ application for funds.”

Source: FEC Annual Report 1980, p. 20. 

In re Carter-Mondale Reelection Committee, Inc., 642 F.2d 538 (D.C. Cir. 1980). 
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CENTER FOR RESPONSIVE POLITICS v. FEC (93-2250)

This case was voluntarily dismissed as moot when the Commission took action on three complaints the Center had 

fi led with the agency in 1990 and 1991 (MURs 3175, 3249 and 3325). The Center had fi led suit to force the FEC to 

take action but, in March 1994, agreed to suspend the litigation for four months while the FEC worked to resolved 

the MURs, which concerned excessive contributions.

The U.S. District Court for the District of Columbia dismissed the case on July 11, 1994. (Civil Action 

No. 93-2250 (SSH).)

Source: FEC Record, September 1994, p. 8. , September 1994, p. 8.

Center for Responsive Politics v. FEC, No. 93-2250 

(D.D.C. Oct. 29, 1993).

CENTER FOR RESPONSIVE POLITICS v. FEC (95-1464)

On November 9, 1995, the U.S. Court of Appeals for the District of Columbia dismissed this case. 

The Center for Responsive Politics (CRP) and its executive director, Ellen Miller, brought this suit alleging that the 

FEC acted contrary to law when, in a recent rulemaking (60 FR 31854, June 16, 1995), it failed to repeal regulations 

that permit publicly funded Presidential candidates to accept private contributions for their general election legal 

and compliance fund.

The court ruled that the CRP and Mrs. Miller lacked standing to bring this suit. Neither the CRP nor Mrs. Miller 

suffered harm that could be directly traced to the FEC’s action. Additionally, neither one was qualifi ed to bring suit 

since their alleged injury was outside the statute’s “zone of interest” in this case.

Source: FEC Record, January 1996, p. 3. , January 1996, p. 3.

Center for Responsive Politics v. FEC, No. 95-1464 (D.C. Cir. Nov. 9, 1995).

CHAMBER OF COMMERCE v. FEC

On November 14, 1995, the U.S. Court of Appeals for the District of Columbia reversed the district court’s dismissal 

of this case and ordered the court to issue appellants appropriate declaratory relief.

The U.S. District Court for the District of Columbia had dismissed this case on October 28, 1994, on the grounds that 

the matter was not ripe for review and that the plaintiffs lacked standing to bring the action.

This case involved the FEC’s regulatory defi nition of “member.” FEC regulations allow membership organizations 

to use their corporate funds to send political communications and solicitations, but only to their administrative and 

executive personnel and to persons who qualify as “members” under federal election law.1 To qualify as a “member” 

under FEC regulations a person must have a signifi cant fi nancial interest in the organization, or pay regular dues 

and possess the right to vote either directly or indirectly for at least one representative in the organization’s highest 

governing body, or possess the right to vote for all members of the organization’s highest governing body. 11 CFR 

114.1(e)(2).

Background

In 1976, FEC regulations defi ned an organization’s “members” as “all persons who are currently satisfying the 

requirements for membership” in the organization. 11 CFR 114.1(e). In subsequent years, court decisions and advisory 

opinions established that political communications and solicitations fi nanced with corporate monies could only be 

sent to persons who have a signifi cant fi nancial or organizational attachment to the membership organization. 
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In 1993, the FEC adopted new rules to refl ect these precedents. These rules clarifi ed that a person will be considered 

a “member” for purposes of the Act if that person:

• Has some signifi cant fi nancial attachment to the organization beyond the mere payment of dues, such as a 

signifi cant investment or ownership stake; or

• Is obligated to make regular dues payments and has the right to vote, either directly or indirectly, for at least 

one representative in the membership organization’s highest governing body; or

• Is entitled to vote directly for all who sit on the organization’s highest governing body. 11 CFR 114.1(e)(2).

When these new regulations took effect, the Chamber of Commerce of the U.S.A. and the American Medical 

Association (AMA ) submitted Advisory Opinion Requests (AORs) 1994-4 and 1994-12 to the Commission, asking 

about the “member” status of their members. The Commission responded to the AORs by stating that the six 

Commissioners could not reach a consensus on the status of more than 200,000 Chamber members and nearly 45,000 

AMA members; these persons paid dues to their respective organizations but lacked voting rights.

Not satisfi ed with this result, the Chamber and the AMA challenged the FEC’s revised defi nition of “member” in the 

U.S. District Court for the District of Columbia.

District Court Decision

The district court ruled that:

• The case was not ripe for review because neither plaintiff had suffered harm by the rule;

• Plaintiffs lacked standing to bring this suit because the rule did not present a reasonable threat of prosecution 

to them; and 

• The FEC’s defi nition of “member” was entitled to deference because it was a permissible construction of that 

term by the Commission. Chevron U.S.A. v. Natural Resources Defense Council Chevron U.S.A. v. Natural Resources Defense Council (467 U.S. 837, 1984). (467 U.S. 837, 1984).

Appeals Court Decision

The court of appeals found that the Chamber and the AMA did have standing to argue their case before the court: 

“In the last federal election, appellants, not surprisingly, felt constrained to alter their prior practice—they ceased 

political communications with those constituents who did not qualify as ‘members’ under the Commission’s new 

rule. and counsel for the Commission agreed . . . that he would not advise the Chamber and the AMA to ignore 

the rule.” Thus, the issue brought before the court was ripe for review because it caused both the Chamber and

the AMA harm.

Further, the Chamber and the AMA had standing to bring this suit because, although an FEC enforcement decision 

had not been issued against them, there was a credible threat of enforcement if they chose to ignore the regulation. 

Additionally, the possibility that appellants’ First Amendment rights were chilled by the FEC’s regulations conferred 

standing upon appellants. Virginia v. American Booksellers.

The court found that the FEC’s rules presented “serious constitutional diffi culties” because they precluded “appellants 

from communicating on political subjects with thousands of persons, heretofore regarded by the Commission as 

members.” Thus, although the court did not disagree with the district court’s conclusion that the FEC was entitled to 

deference under the Chevron doctrine, the court reasoned that the confl ict between the rules and the First Amendment 

warranted judicial review.

At issue here, in the court’s view, was whether the FEC’s rule accorded with the Supreme Court’s opinion in FEC 

v. National Right to Work Committee (459 U.S. 197, 1982). There, the Court ruled that “members of nonstock 

corporations were to be defi ned . . . by analogy to stockholders of business corporations and members of labor 

unions . . . [which] suggest[ed] that some relatively enduring and independently signifi cant fi nancial or organizational 

attachment is required . . . ”

The appeals court concluded that the FEC’s new rule did not square with the Supreme Court’s opinion in NRWC: 

“[I]mplicit in the Commission’s rule is the view that dues, no matter how high, are not by themselves a manifestation 

of a signifi cant fi nancial attachment.” The court said that the FEC’s position reads the disjunctive “or” between 

“fi nancial” and “organizational” as if the Supreme Court had used the conjunctive “and.”

Furthermore, the court held that, “It is . . . quite illogical to regard someone who has one share of stock in a public 

corporation, which can be sold in minutes, as more signifi cantly attached to the organization than a person or entity 

who pays $1000 or even $100,000 (as is the case for some Chamber members) in annual dues.”
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The court also criticized the rule’s voting requirement. It noted that the nearly 45,000 AMA members in 

question are subject to sanction by the organization should they violate the organization’s Principles of Medical 

Ethics. “It might be thought, that for a professional, placing oneself in such a position is the most signifi cant 

organizational attachment.”

Lastly, the court noted that the rule treats some labor unions and federated rural electric cooperatives differently, 

exempting them from its new defi nition of “member.” The court noted that this question had not been squarely 

presented on appeal, but stated that it was not satisfi ed with the FEC’s claim that the separate treatment was 

consistent with the Act’s legislative history. Without further elaboration, the court stated, it “would determine that 

these exemptions make the regulation arbitrary and capricious.”

Source: FEC Record, December 1994, p. 1; and January 1996, p. 2. , December 1994, p. 1; and January 1996, p. 2.

Chamber of Commerce v. FEC, 1994 WL 615786 (Oct. 28, 1994); No. 94-5339 (D.C. Cir. Nov. 14, 1995). 1

 This is an exception to the general ban on the use of corporate money in connection with federal elections. 2 U.S.C. §441b.

CINCINNATI v. KRUSE

BURRIS v. RUSSELL

On November 16, 1998, the U.S. Supreme Court refused to review two court cases that posed First Amendment 

challenges to limits on campaign contributions and expenditures in state and local elections. Both cases had been cast 

as potential challenges to Buckey v. Valeo, the landmark court case on the Federal Election Campaign Act (the Act). 

The FEC was not a party to either suit.

Background of Buckley

The appellate courts’ reasoning in the two cases was based in great part on Buckley, where the high court equated 

campaign spending with the First Amendment’s guarantee of free speech. While the Court found that a compelling 

government interest in preventing real or perceived corruption justifi ed imposing restrictions on contributions, it 

concluded that this governmental interest was inadequate to sustain limitations on campaign expenditures.

Decision in Cincinnati

In the fi rst case, Cincinnati v. Kruse, John Kruse, a candidate for a Cincinnati City Council seat, challenged a council 

ordinance that limited campaign expenditures for council elections to about $140,000. The city council argued that 

the rising cost of city council races had resulted in a rise in the infl uence of wealthy donors and the decline in the 

infl uence of small donors. The U.S. District Court for the Southern District of Ohio at Cincinnati ruled in favor of 

Mr. Kruse, fi nding that the ordinance was unconstitutional on its face.

The U.S. Court of Appeals for the Sixth Circuit affi rmed that ruling on April 27, 1998. It reiterated the Supreme 

Court’s view that restrictions that have the potential of limiting the First Amendment guarantee of political expression 

must be subjected to “exacting scrutiny” by the courts and that “the prevention of corruption or the appearance 

of corruption” is the only governmental interest that survives strict scrutiny and, as a result, justifi es restrictions 

on campaign fi nance.

• Cincinnati failed to show that an expenditure limit would reduce corruption in the political process. The city had 

no direct evidence that imposing contribution limits alone could prevent quid pro quo corruption. The council 

did not adopt contribution limits until after it had passed the expenditure limits. Further, it based its views 

of corruption on perceived abuse of the Act on the federal level. The court found that such evidence was 

not enough. The three-judge panel stated that problems on the federal level are explained primarily by the 

exception allowing soft money contributions to party committees “and do not undermine the Supreme Court’s 

conclusion that spending restrictions are not narrowly tailored to addressing the problem of the corrupting 

nature of money in politics.”

The court also said the perception that the public is discouraged and cynical about the democratic process as a result 

of perceived corruption in campaign fi nance is not suffi cient evidence for limiting campaign spending.

• Cincinnati failed to show that an expenditure limit would curb the rising cost of campaigns. The city, through 

an amicus brief fi led by the Brennan Center, had argued that the Buckley Court had not considered what is 

now perceived to be “uncontrollable campaign spending” and the effects of such spending, such as the large 

amounts of time candidates must spend raising campaign funds. The court rejected this view, stating that the 

Supreme Court, in Buckley, concluded that “reducing the allegedly skyrocketing costs of political campaigns 

is not compelling or suffi cient to justify restrictions on campaign spending.”
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• Cincinnati failed to prove that leveling the playing fi eld among candidates is suffi cient justifi cation for an expenditure 

limit. The city had argued that the government had an interest in eliminating the advantage wealth plays in 

elections and the perceived disadvantage of poor and minority voters and candidates. The court found that 

restricting the free speech guarantees of some in order to enhance the voices of others would violate the First 

Amendment. It also said that the Buckley Court had rejected this argument. The Buckley Court explained that 

spending limits, rather than promoting fi nancial equality among candidates, could instead protect incumbents 

and handicap well-known candidates.

Decision in Russell

In Burris v. Russell, Ron Russell challenged the Arkansas Ethics Commission after the state’s voters approved a 

referendum that set contribution limits per election for district races at $100 per contributor and for statewide races 

(such as governor and state treasurer) at $300 per contributor. (The lowest contribution limit per contributor allowed 

under Buckley is $1,000.) The referendum also introduced an entity called the small-donor PAC. Individuals could 

contribute up to $25 to the PAC, and the PAC, in turn, could contribute up to $2,500 per candidate, per election. The 

initiative also created independent expenditure committees that could accept no more than $500 from any person 

annually. Finally, the initiative authorized local governments to set reasonable limits on the amount of campaign 

funds candidates for local offi ces could raise. Before this initiative, Arkansas voters had approved a measure that 

limited PAC contributions to $200 per year, down from $1,000.

This case was merged with Citizens for Clean Government v. Russell. The U.S. District Court for the Eastern 

District of Arkansas rendered a split decision, upholding some of the contribution limits and ruling others 

unconstitutional. On June 4, 1998, the U.S. Court of Appeals for the Eighth District struck down the individual and 

PAC contribution limits.

• Supporters of the initiative failed to prove a link between large contributions and undue infl uence or corruption 

of Arkansas offi cials. Proponents argued, for example, that fi nancial contributions and support by the 

Tobacco Institute and other pro-tobacco sources caused a state legislator to champion a measure that would 

have prohibited local governments from regulating tobacco products. The court, however, showed that the 

pro-tobacco legislator in question had already stated his support for tobacco interests, had not changed 

his position on the issue as a result of the contributions and had not tried to conceal the tobacco industry 

contributions. The court also found that the $2,700 in tobacco money the legislator received was not enough 

to infl uence his vote on the measure. “We believe,” the court stated, “that $1,000 is simply not a large enough 

sum of money to yield, of its own accord and without further evidence, a reasonable perception of undue 

infl uence or corruption.”

This same pattern emerged with contributions to legislators from several lobbyists who represented various groups, 

including real estate interests. Again, none of the contributions individually exceeded $1,000.

The court found that the $100 and $300 contribution limits approved in the voter initiative were too low to allow 

meaningful participation in the political process. The court also held that the $200-per-year PAC contribution limit 

enacted before the voter initiative was “simply too low to allow for appropriately robust participation in protected 

political speech and association.”

The court concluded that, “the limitations in question here are ... dramatically lower than, and different in kind from, 

the limits approved in Buckley, and thus are unconstitutionally low.”

• Proponents of small-donor PACs with higher contribution limits failed to show that differential treatment was 

warranted. The supporters argued that raising funds in $25 amounts would alleviate the potential for corruption. 

The court found, in fact, that the potential for corruption would move from the individual contributor to the 

small-donor PAC itself.

 “If any contribution is likely to give rise to a reasonable perception of undue infl uence or corruption, it would be one 

from an entity permitted to contribute two-and-a-half times the amount that most others are allowed to contribute,” 

the court stated. “The small-donor PAC provision is not, then, narrowly tailored to serve the compelling government 

interest of combating the reality or perception of undue infl uence or corruption.”

Severability. The court found that the contribution limits were severable from the remainder of the voter initiative. It 

let stand the provisions for independent expenditure committees and rendered no decision on the instructions to local 

governments to establish reasonable limitations on campaign contributions and expenditures.

Source: FEC Record, January 1999, p. 3. , January 1999, p. 3.

Kruse v. City of Cincinnati, 142 F.3d 907 (6th Cir. 1998), cert. denied 1998 WL 651027 (U.S.); 1998 WL 651027 (U.S.); Russell v. Burris, 146 F.3d 563 (8th Cir. 

1998), cert. denied, 119 S. Ct. 1040 (1999). , 119 S. Ct. 1040 (1999). 
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CLARK v. FEC and THE COMMISSION ON PRESIDENTIAL DEBATES

On March 10, 1997, the U.S. Court of Appeals for the District of Columbia Circuit ruled in the FEC’s favor, granting 

its motion for summary affi rmance in this case and denying the motion of John P. Clark and the Green Party USA for 

emergency summary reversal. The ruling upholds the district court’s denial of a motion by Mr. Clark, other individual 

voters and the Green Party to intervene in a suit brought by the Natural Law Party (NLP) and its presidential and 

vice-presidential candidates against the FEC and the Commission on Presidential Debates (CPD).

This case stemmed from an October 4, 1996, ruling from this same court that upheld a lower court ruling and dismissed 

lawsuits fi led against the FEC and the CPD by the NLP and the presidential and vice presidential candidates running 

under the Reform Party banner. Both the NLP and the Reform Party candidates had sought to participate in the 

presidential debates being sponsored by the CPD. The CPD excluded the candidates—the NLP’s Dr. John Hagelin 

and Mike Tompkins and the Reform Party’s H. Ross Perot and Pat Choate—from the debates, saying that the minor 

party candidates did not meet the criteria for participation.

Background

On September 6, 1996, the NLP fi led an administrative complaint with the FEC and, on September 13, fi led suit in U.S. 

District Court for the District of Columbia, contending that the CPD had violated FEC rules governing nonpartisan 

candidate debates. 11 CFR 113.10. Specifi cally, the NLP suit asked the court to impose a temporary restraining order 

and issue preliminary and permanent injunctions to prevent the CPD from using any debate selection criteria that 

did not comply with FEC rules. In the alternative, it asked the court to order the FEC, prior to the debates, to take 

action on its administrative complaint. 

The Green Party, Mr. Clark and seven other individuals, all independent voters or supporters of the Green Party USA 

and its 1996 presidential candidate Ralph Nader, fi led a motion for intervention on September 27, 1996. The district 

court found that Mr. Clark and the others “show[ed] their curiosity in the case, but...fail[ed] to demonstrate suffi cient 

grounds for intervention.” On September 30, the court therefore denied the motion for intervention. However, it did 

grant Mr. Clark leave to fi le a brief as a friend of the court.

On November 22—more than a month after the appeals court had ruled in this case and weeks after the debates and 

1996 elections had taken place—Mr. Clark fi led a notice of appeal of the district court ruling. Mr. Clark had not 

participated as a friend of the court in the appeals process, nor in a subsequent and unsuccessful petition from Mr. 

Hagelin for an expedited rehearing and rehearing en banc.

FEC Arguments and Appeals Court Order

First, the FEC argued that the appellants had failed to demonstrate a common question of law, a requirement for 

permissive intervention under Fed. R. Civ. P. 24.1 Among other things, Mr. Clark’s complaint claimed that the CPD’s 

debate selection criteria violated unspecifi ed sections of the U.S. Constitution. Mr. Hagelin’s complaint, on the other 

hand, had claimed that the CPD’s criteria violated FEC regulations at 11 CFR 110.13. Further, the FEC argued 

that there were no common “questions of fact,” as required by Rule 24(b), between Mr. Clark’s and Mr. Hagelin’s 

complaints. In addition, the FEC said that the Clark appellants had not shown an independent jurisdictional basis 

for their claims. The would-be plaintiffs did not even include a presidential or vice-presidential candidate who might 

have claimed exclusion from the debates.

Timeliness was also at issue, the FEC argued. Rule 24(b) states that a court must consider “whether the intervention 

will unduly delay or prejudice the adjudication of the rights of the original parties.” Because the debates were to begin 

shortly after the original complaints were fi led, the district court set about adjudicating the matter on an expedited 

schedule, but Mr. Clark’s motion was not fi led until the last day of the briefi ng schedule.

Finally, the FEC argued that because the district court granted Mr. Clark the option of fi ling a brief as a friend of 

the court, it did not abuse its discretion in denying his initial motion to intervene. The appeals court found that the 

merits of the parties’ positions were so clear that they warranted summary action. It held that the district court did 

not abuse its discretion in denying the appellants’ motion to intervene.

Source: FEC Record, May 1997, p. 1. , May 1997, p. 1. 1

 Federal Rule of Civil Procedure 24(b) states that would-be intervenors must timely fi le their applications and demonstrate that 

their claim or defense and the “main action” have a question of law or fact in common. In addition, they must show an independent 

jurisdictional basis for their claims.
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CLARK v. VALEO

In a suit fi led in 1976, Ramsey Clark, former candidate in the New York State Senate primary election, asked the 

U.S. District Court of the District of Columbia for declaratory and injunctive relief against those provisions in the 

Act governing legislative review of the rules, regulations and advisory opinions of the FEC. Under these provisions, 

regulations proposed by the Commission may not be prescribed until they have been before Congress for 30 legislative 

days, during which time either house may disapprove them. 

Clark argued that the “one-house veto” violated the constitutional principle of “separation of powers.” Further, he 

asserted, regulations would be tainted by congressional infl uence on the Commission’s decision-making process. He 

also claimed the procedure delayed promulgation of Commission regulations, thereby denying him, as voter and as 

candidate, protection of the Act. 

Intervening as a plaintiff on behalf of the Executive Branch, the Attorney General also requested an injunction 

against the “one-house veto,” arguing that it intrudes “upon those areas reserved by the Constitution of the United 

States to the Executive Branch.... ”

The Federal Election Commission asked the court to dismiss the complaint, arguing inter alia, the case was not 

ripe for court action since Congress had not disapproved any regulation and the plaintiff had claimed no hardship 

resulting from compliance with the substance of a proposed regulation. 

The district court certifi ed a number of constitutional questions to the court of appeals. Concluding that the matter 

was not “ripe” for adjudication, the court of appeals, in a 6-2 decision on January 21, 1977, returned the certifi ed 

questions to the district court unanswered, with instructions to dismiss. The court said that Clark’s case, based on 

his status as a candidate, became moot when he failed to win the primary in New York. As a voter, Clark had neither 

protested a specifi c veto action by Congress nor identifi ed any proposed regulation tainted by the threat of veto or 

review. With respect to the constitutional issue raised by the one-house veto, the court held the case was “unripe” 

because congressional disapproval of a proposed regulation had not yet occurred. “Until Congress exercises the 

one-house veto,” the Court said, “it may be diffi cult to present a case with suffi cient concreteness as to standing and 

ripeness to justify resolution of the pervasive constitutional issue which the one-house veto provision involves.”

On June 6, 1977, the Supreme Court of the United States affi rmed the lower court’s decision.1 

Source: FEC Annual Report 1977, p. 19. 

Clark v. Valeo, 559 F.2d 642 (D.C. Cir.) (per curiam), aff’d mem. sub nom. Clark v. Kimmit, 431 U.S. 950 (1977). 1

 The Court eventually found the one-house veto to be unconstitutional in Immigration and Naturalization Service v. Chadha, 462 U.S. 

919 (1983).

CLIFTON v. FEC

On May 20, 1996, the U.S. District Court for the District of Maine invalidated the FEC’s regulations on voting 

records and voter guides because they regulate issue advocacy and therefore go beyond the FEC’s authority.

On June 6, 1997, the U.S. Court of Appeals for the First Circuit declared invalid two parts of those regulations. 

The court declared the voting record regulation at 11 CFR 114.4(c)(4) invalid only insofar as the FEC may 

purport to prohibit mere inquiries to candidates and the voter guide regulation at 11 CFR 114.4(c)(5) invalid 

only insofar as it limits contact with candidates to written inquiries and replies and imposes an equal space 

and prominence restriction.

The plaintiffs petitioned the court for a rehearing in this case, but that petition was denied on June 27, 1997. The FEC 

fi led a petition for rehearing and suggestion for rehearing en banc on July 21, 1997.

On February 23, 1998, the Supreme Court denied Maine Right to Life Committee’s petition for certiorari 

in this case.

On April, 30, 1998, on remand from the appeals court, the district court declared the Commission’s “electioneering 

message” provisions of its regulations governing voting guides to be invalid because they were inseverable from those 

struck down by the appeals court.
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Background

The Maine Right to Life Committee (MRLC) is a nonprofi t membership corporation established for the purpose of 

advocating pro-life stances. MRLC uses its corporate funds to create and distribute to its members and the general 

public voter guides and voting records. Robin Clifton is a Maine voter who wishes to receive this information.

FEC regulations at 11 CFR 114.4(c)(4) and (5) make it illegal for a corporation or labor organization to distribute 

voting records or voter guides to the general public if such materials expressly advocate the election or defeat of a 

clearly identifi ed candidate or if the organization consults or coordinates with any candidates concerning the content 

or distribution of such materials. At 11 CFR 114.4(c)(5)(ii), the FEC lists additional restrictions for voter guides, such 

as prohibiting a corporate or labor organization from contacting a candidate (except through written questions to 

which a candidate may respond in writing) and requiring the organization to give all candidates for a particular offi ce 

an equal opportunity to respond.

MRLC argued that the regulations were too restrictive, exceeding the FEC’s statutory power and chilling First 

Amendment rights. The FEC contended that it had the authority to regulate corporate expenditures for voting 

records and voter guides if there was coordination with a candidate about the preparation, contents and distribution 

of such materials.

District Court Decision

The court pointed out that the ban on direct corporate contributions had been upheld by the U.S. Supreme Court in Buckey v. 

Valeo on the grounds that the government’s interest in preventing corruption or its appearance outweighs First Amendment 

concerns. On the other hand, based on the Supreme Court’s opinions in Buckley and FEC v. Massachusetts Citizens for 

Life, Inc. (MCFL), the court said that corporate spending cannot be limited unless it expressly advocates the election or 

defeat of a particular candidate. “In other words,” the court concluded, “spending on issue advocacy... cannot be limited.” 

The question the court addressed was whether a corporation’s contact with a candidate when preparing a voter guide 

or voting record would transform permissible issue-advocacy spending into a prohibited contribution.

To answer the question, the court examined two provisions of the Federal Election Campaign Act (the Act). In §441a, 

the Act sets dollar limits on contributions, and for this purpose “contribution” is defi ned to include “expenditures 

made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his 

authorized political committees, or their agents.” 2 U.S.C. §441a(a)(7)(B)(i).

The other provision, §441b, prohibits corporate “contributions” and “expenditures,” which are defi ned to include 

“any direct or indirect payment...or anything of value” provided “to any candidate...in connection with any [federal] 

election.” 2 U.S.C. §441b(b)(2). The district court cited the MCFL Court’s interpretation of Section 441b as 

prohibiting payments (including indirect payments) made “on behalf of candidates.” The district court stated: “That 

is the statutory and interpretive language on which the FEC’s new regulations must be based.”

The court said that the FEC, in relying on Section 441a as its authority for the challenged regulations, had 

“misinterpreted the Supreme Court’s teachings.” The district court pointed out that, in Buckley, the Supreme Court 

upheld the dollar limitations on contributions because limits on amounts given to a candidate are not the same as limits 

on direct political speech. “Here,” the district court said, “both the disbursements and the speech are direct political 

speech by the MRLC, not by the candidate. They are thus at the heart of the [Supreme] Court’s First Amendment 

concerns.” (Emphasis in original.)

The court concluded that the FEC had based the challenged regulations on too broad an interpretation of the §441b 

prohibition on corporate expenditures. The court said that the voter guide regulations mistakenly hinge on whether 

a corporation has had any contact with a candidate rather than on whether the voter guide conveys issue advocacy 

on behalf of a candidate (which would be an acceptable interpretation). Under the voting record regulations, 

MRLC would be in violation of §441b if it included an explanation solicited from a candidate concerning apparent 

inconsistencies in his or her voting record. The court stated: “...it is a distortion of the English language to say that 

[such an activity] would turn the MRLC’s publication...into spending ‘on behalf of’ a candidate.”

In concluding that the FEC had overstepped its authority in promulgating 11 CFR 114.4(c)(4) and (5), the court 

pronounced that, “as long as the Supreme Court holds that expenditures for issue advocacy have broad First 

Amendment protection, the FEC cannot use the mere act of communication between a corporation and a candidate 

to turn a protected expenditure for issue advocacy into an unprotected contribution to the candidate.”
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Appeals Court Decision

The appeals court found that to avoid First Amendment concerns, it would construe 2 U.S.C. §441b narrowly. Under 

this construction, both the Commission’s restriction on oral contact between MRLC and candidates and its insistence 

that voter guides provide equal space to candidates were unlawful.

The appeals court found that the FEC’s requirement of equal space was a “content-based” restriction because it 

would affect the content of the MRLC’s voting guides. The court said that “[T]here is a strong First Amendment 

presumption against content-affecting government regulation of private citizen speech, even where the government 

does not dictate the viewpoint.” The court cited a case where the Supreme Court struck down Florida’s “right of 

reply” statute, which guaranteed political candidates equal space to reply to criticism printed in the Miami Herald.

1

With regard to the Commission’s requirement that contact between corporations and candidates be limited to 

written communications when such corporations are preparing voter guides, the court said that the regulation 

treads “heavily upon the right of citizens, individual or corporate, to confer and discuss public matters with their 

legislative representatives or candidates for such offi ce.” The court said that such a ban on communications served as 

a “handicap” for discourse between legislators—and would-be legislators—and those they wish to represent.2

With respect to both regulations, the court rejected the FEC’s argument that such restrictions were justifi ed to prevent 

illegal corporate contributions to candidates. While the court acknowledged the Commission’s legitimate concern 

with uncovering prohibited contributions, it said that the agency should be able to investigate such impermissible 

actions through its enforcement proceedings.

The court did not take up MRLC’s challenge to the regulation concerning “electioneering message” and instead 

referred the matter back to the district court. The court concluded that at the district court level there had been 

inadequate briefi ng as to the content, purpose and severability of these regulations.

District Court Decision on Remand

The district court declared the Commission’s “electioneering message” provisions of its regulations governing 

voting guides to be invalid because they are inseverable from those struck down by the appeals court. The sections 

in question—11 CFR 114.4(c)(5)(ii)(D) and (E)—state that voter guides prepared on the basis of written responses 

from candidates to questions posed by a corporation or labor organization (1) must not include an “electioneering 

message” and (2) may not score or rate the candidates’ responses in a way that conveys an “electioneering message.”

Both the Commission and Clifton agreed that the “electioneering message” provisions were not severable from the 

portions of the FEC’s voter guide regulation that had been declared invalId. 

Supreme Court Action

On February 23, 1998, the Supreme Court denied Maine Right to Life Committee’s petition for certiorari 

in this case.

Source: FEC Record, July 1996, p. 1; August 1997, p. 1; and July 1998, p. 4. , July 1996, p. 1; August 1997, p. 1; and July 1998, p. 4.

Clifton v. FEC, 927 F. Supp. 493 (D.Me. 1996), 114 F.3d 1309 (1st Cir. 1997), cert. denied, 118 S. Ct. 1036 (1998). , 118 S. Ct. 1036 (1998). 1 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974). 2

 In a dissenting opinion, Senior Circuit Judge Hugh H. Bownes wrote that the written-contact-only regulation does not infringe on 

the First Amendment. Citing Buckley v. Valeo, the judge said that the Supreme Court had acknowledged that some governmental 

interests outweigh the possibility of constitutional infringement. He wrote: “At this stage of American history, it should be clear to 

every observer that the disproportionate infl uence of big money is thwarting our freedom to choose those who govern us. This sad truth 

becomes more apparent with every election. If preventing this is not a compelling governmental interest, I do not know what is.”
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COMMITTEE FOR A UNIFIED INDEPENDENT PARTY, INC. v. FEC

On May 8, 2000, the Committee for a Unifi ed Independent Party and other plaintiffs (collectively the Committee) 

asked the U.S. District Court for the Southern District of New York to fi nd that the FEC’s debate regulations are 

not authorized by the Federal Election Campaign Act (the Act) and violate the First and Fifth Amendments to the 

Constitution.

The regulations in question, 11 CFR 110.13 and 114.4(f), permit nonprofi t corporations to stage candidate debates 

and to accept donations from corporations and labor unions to defray the costs of those debates. This exemption 

from the general prohibition against corporate and union contributions and expenditures is based on a statutory 

provision that permits “nonpartisan activity (by corporations or unions) designed to encourage individuals to vote or 

to register to vote.” 2 U.S.C. §431(9)(B)(ii).

The Committee argued that debates are not “nonpartisan activity designed to encourage individuals to vote or 

to register to vote” and are therefore not authorized by the Act. Further, even if debates were considered exempt 

nonpartisan activity, the FEC’s regulations unlawfully expand the statutory exemption to permit debates that are 

neither nonpartisan nor designed to encourage voting. Rather, the debate regulations permit corporations and unions 

to make prohibited contributions to infl uence federal elections.

The Committee further contended that the debate regulations “tilt the electoral playing fi eld so as to put minor parties 

. . . and persons and organizations seeking to promote a democratic multiparty electoral process, at a competitive 

disadvantage” in violation of the First and Fifth Amendments to the U.S. Constitution.

Decision

On October 10, 2001, the court granted the Commission’s motion to dismiss this case, fi nding that the Committee 

lacked standing to challenge the Commission’s debate regulations. In order to have standing to bring a case in federal 

court, the plaintiffs must satisfy a three-part test. The plaintiffs must:

1. Allege personal injury;

2. Show that the injury is fairly traceable to the defendant’s allegedly unlawful conduct; and

3. Show that the injury is likely to be redressed by the relief that the plaintiffs request.

In this case, the court found that the plaintiffs that were political parties lacked standing because they either were 

not injured as a result of the regulations or could not trace their injury directly to the regulations. Likewise, the 

CUIP, an organization interested in sponsoring multilateral debates, could not show an injury that was traceable to 

the debate regulations. The court also found that the plaintiffs who were individual voters, minor party supporters 

or former candidates lacked standing to challenge the regulations. Having found that Plaintiffs lacked standing, the 

court ordered the case closed without considering the merits of Plaintiffs’ claims.

Source: FEC Record, July 2000 , p. 8; and December 2001, p. 1. , July 2000 , p. 8; and December 2001, p. 1.

COMMON CAUSE v. FEC (78-2135)

On April 30, 1980, the U.S. District Court for the District of Columbia granted summary judgment in two cross 

motions fi led by parties to the suit, Common Cause v. FEC Common Cause v. FEC (Civil Action No. 78-2135). (Civil Action No. 78-2135). 

Common Cause had fi led its motion for summary judgment in November 1978, requesting that the court rule the 

FEC had acted contrary to law in failing to take fi nal action on Common Cause’s administrative complaint within 90 

days of its being fi led. 2 U.S.C. §437g(a)(9)(B)(ii). In its complaint, Common Cause had asserted that the American 

Medical Political Action Committee (AMPAC), the separate segregated fund of the American Medical Association 

(AMA), and the state political action committees of AMA’s state affi liates constituted a single political committee 

by virtue of their affi liation. 2 U.S.C. §441a(a)(5). Therefore, alleged Common Cause, AMPAC and its affi liated 

state PACs shared a single contribution limit of $5,000 per candidate, per election. Common Cause’s complaint 

listed numerous instances in the 1976 Congressional elections where the combined contribution of AMPAC and an 

affi liated state PAC to a candidate had exceeded the $5,000 limit.1

At the time Common Cause fi led its motion for summary judgment, the Commission had entered into conciliation 

agreements only with AMPAC and a few of the state PACs named in the June 1978 complaint. By fall of 1979, 

however, the Commission had entered into separate agreements with an additional fi ve state PACs; between Fall 
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1979 and Spring 1980 the Commission entered into agreements with eleven other state PACs and was preparing to 

enter into 10 additional agreements. The court also noted that in February 1977 the Commission had broadened the 

scope of its initial investigation to include all of the AMA’s state affi liates and their PACs. Moreover, the Commission 

had begun investigating four additional complaints which also alleged violations of the Act’s contribution limits by 

AMPAC and its affi liated state PACs.

Common Cause nevertheless maintained that the FEC had acted contrary to law in not taking fi nal action on its 

complaint within 90 days. The FEC, on the other hand, viewed the 90-day provision as jurisdictional, giving the court 

power to decide after the 90-day period whether or not the Commission had acted contrary to law.2 

In addition to supporting the FEC’s interpretation of the 90-day provision, the court noted that the determination of 

whether AMPAC and its state PACs were affi liated (i.e., whether they had been established, fi nanced, maintained or 

controlled by the same entity) was a factual question requiring proof provided by extensive investigation. Therefore, 

the court did not fi nd the FEC’s efforts to collect further evidence to be an abuse of discretion. Moreover, the court 

found that the FEC’s decision not to investigate combined contributions by state PACs affi liated with AMPAC 

(in addition to the combined AMPAC-State PAC contributions it had investigated) was not contrary to law since 

Common Cause had mentioned only one such occurrence among the 69 violations it had cited. The court did, however, 

order the Commission to either enter into conciliation agreements with the ten remaining respondents named in 

Common Cause’s complaint within 30 days of the court’s ruling or bring suit against them. The Commission did 

enter into conciliation agreements with the remaining respondents, and the court issued an order on June 13, 1980, 

dismissing the case. 

Source: FEC Record, August 1980, p. 8. , August 1980, p. 8. 

Common Cause v. FEC, 82 F.R.D. 59 (D.D.C.), 83 F.R.D. 410 (D.D.C. 1979), 489 F. Supp. 738 (D.D.C. 1980). 1

 While this decision was pending, the court issued an order on August 10, 1979, directing the Commission to release to the plaintiff 

certain internal FEC communications regarding the administrative enforcement action that had been triggered by Common Cause’s 

complaint. Among other things, the court ordered the documents to be released under court seal, and access to them was to be 

restricted to plaintiff’s counsel and to senior offi cers of Common Cause. Disclosures to outside parties (including the respondents in the 

FEC enforcement action) were prohibited until a further order of the court. 83 F.R.D. 410 (D.D.C. 1979).

2

 In 1979 Congress amended §437g, expanding the period in which the Commission must act on a complaint from 90 days to 120 days. 

COMMON CAUSE v. FEC (83-0720)

On June 10, 1983, the U.S. District Court for the District of Columbia approved dismissal of Common Cause’s suit 

against the FEC (Civil Action No. 83-0720). Common Cause requested the dismissal because, on May 23, 1983, the 

FEC had taken fi nal action on the administrative complaint which had precipitated the suit. 

Pursuant to 26 U.S.C. §437g(a)(8)(A), Common Cause had asked the district court to issue an order directing the 

Commission to take fi nal action, within 30 days, on a complaint Common Cause had fi led on September 26, 1980.1 

In its administrative complaint, Common Cause had alleged that fi ve political committees had made independent 

expenditures on behalf of the 1980 Republican Presidential nominee which were in violation of 26 U.S.C. §9012(f).2 

(This provision prohibits unauthorized committees from making expenditures exceeding $1,000 to further the election 

of a publicly funded Presidential nominee.)

Alleging that the committees were not, in fact, independent of the offi cial Reagan campaign, Common Cause had 

claimed that the committees’ activities also resulted in violations of: 

• 26 U.S.C. §9012(b)(1), which makes it unlawful for a major party Presidential nominee who receives public 

funding to accept private contributions;

• 26 U.S.C.§9012(a)(1), which makes it unlawful for a major party Presidential nominee to incur campaign 

expenditures in excess of the amount of public funding he receives; and

• 2 U.S.C. §441a(a), which prohibits political committees from making contributions in excess of $5,000, per 

election, to a federal candidate. 

Source: FEC Record, May 1983, p. 7; and August 1983, p. 8. , May 1983, p. 7; and August 1983, p. 8. 1

 This complaint was merged with a similar one fi led several months earlier by the Carter-Mondale Reelection Committee and the 

Democratic National Committee. 

2

 On July 15, 1980, the FEC fi led suit in the district court against three of the committees named in Common Cause’s complaint. The 

FEC sought the court’s declaratory judgment that the committees’ proposed expenditures were in violation of 26 U.S.C. §9012(f) and 

that the provision was constitutional as applied to the committees’ expenditures. On August 28, 1981, the court ruled that section 

9012(f) was unconstitutional as applied to the defendant committees. On January 19, 1982, the Supreme Court voted 4 to 4 on the issue. 

While this split vote left the district court decision intact, the Court itself made no ruling on the constitutionality of the provision. 
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COMMON CAUSE v. FEC (83-2199)

On December 31, 1986, the United States District Court for the District of Columbia declared that the FEC’s 

dismissal of an administrative complaint fi led in 1980 by Common Cause was, in part, contrary to law. (Civil Action 

No. 83-2199.) The case was remanded to the FEC for action consistent with the court’s opinion. 

On March 15, 1988, the U.S. Court of Appeals for the District of Columbia Circuit reversed the decision by the 

district court. (Common Cause v. FEC, Civil Action No. 87-5036). The appeals court found “entirely permissible” 

the interpretation of 2 U.S.C. §432(e)(4) that the FEC had applied to allegations contained in Common Cause’s 

complaint. The appeals court also vacated the district court’s order remanding the case to the Commission for a 

statement of reasons concerning the FEC’s tie-vote dismissal of an allegation in the complaint and instructed the 

district court to enter an order dismissing the suit. 

Background

The original complaint alleged that fi ve unauthorized political committees, which supported Ronald Reagan’s 

1980 campaign committee, had violated the Act by using Reagan’s name in their respective names. Furthermore, 

it was alleged that the committees involved in the complaint had impermissibly coordinated their “independent 

expenditures” with the offi cial Reagan committee and, by doing so, had made contributions which exceeded the 

committees’ limits. The fi ve committees named in the complaint were: Americans for an Effective Presidency (AEP), 

Americans for Change (AFC), North Carolina Congressional Club1 (NCCC), Fund for a Conservative Majority 

(FCM) and National Conservative Political Action Committee (NCPAC). After investigating the majority of the 

claims, the FEC voted to close the fi le regarding the administrative complaint and take no further action. 

In its suit, fi led August 1, 1983, Common Cause alleged that the FEC had wrongfully dismissed the complaint.

District Court Ruling

FEC Determination to Dismiss Complaint on Committees’ Use of Candidate’s Name

The fi rst legal issue addressed by the court was Common Cause’s allegation that AFC, FCM and NCPAC violated 

the Act (2 U.S.C. §432(e)(4)) by using the name of a candidate, Ronald Reagan, in their respective committee 

names. Under the Act, only an authorized committee may use a candidate’s name in its name. In this case, the 

committees involved were not authorized by any candidate. Evidence revealed that each committee had used the 

name “Reagan” in its respective fundraising project when soliciting funds and otherwise communicating with the 

public. The FEC argued that, because the offi cial registered names of the committees did not contain Reagan’s name 

and that the use of “Reagan” was merely for the purpose of identifying a particular fundraising project, the Act had 

not been violated. 

In its opinion, the court noted that the name of the committee which is presented to the public for identifi cation 

constitutes a “name” within the meaning of the Act and, therefore, the decision by the FEC to dismiss the complaint 

was contrary to law. Further, the court ordered the Commission to conform with its opinion within 30 days, pursuant 

to 2 U.S.C. §437g(a)(8)(c). 

FEC Determination Not to Investigate Coordination

In the original administrative complaint, by a vote of 3-3, the FEC reached no conclusion as to whether there was 

reason to believe AEP and NCCC had coordinated their expenditures with the offi cial Reagan campaign. (With 

regard to the other three committees, the Commission did fi nd “reason to believe” and did conduct an investigation. 

See below.) This decision, which resulted in an automatic dismissal of this portion of the complaint, was contrary 

to the recommendation made by the FEC’s General Counsel. Moreover, the Commission submitted no explanation 

for its decision. 

The court stated that some explanation of the FEC’s reasons for dismissing the complaint was warranted to enable 

the court to review the original determination on the issue. As a result, the court ruled that the FEC’s action was 

arbitrary and capricious and required the agency to provide an explanation for its action within 30 days. 

FEC Determination to Dismiss Complaint on Coordination

The fi nal issue addressed by the court concerned Common Cause’s allegation that the FEC, after investigating 

expenditures by AFC, FCM and NCPAC, acted contrary to law by dismissing the complaint. In the original 

complaint, it was alleged that all of the committees had “coordinated” their expenditures with those of the offi cial 

Reagan campaign and had, thereby, made contributions—rather than independent expenditures. These contributions, 

according to Common Cause, exceeded the limitations contained in the Act, under 2 U.S.C. §441a(a). (There are no 

limits on independent expenditures.)
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In its suit, Common Cause contended that a determination of coordination should be based on the “totality of 

circumstances.” According to Common Cause, the FEC should have considered circumstances such as interlocking 

membership of persons at the policy-making level, prior alliances with the offi cial committees and the use of common 

vendors by the committees. The FEC argued, however, that evidence of “direct coordination” was a necessary 

prerequisite to a determination of “impermissible coordination,” and it found no evidence of direct coordination. 

The court concluded that the FEC’s interpretation of what constitutes “impermissible coordination” was not contrary 

to the law. Moreover, the court noted that, absent evidence of express intent or communication, “it is diffi cult to state 

exactly what combination of circumstances would prove that coordination had occurred.” Therefore, in this issue, the 

court ruled that the FEC’s action was proper. 

Appeals Court Ruling

Committee Names 

In reversing the district court’s ruling, a three-judge panel of the appeals court affi rmed the FEC’s interpretation of 

Section 432(e)(4), that is, that a political committee’s “name” refers only to the offi cial or formal name under which 

the committee must register. The court held that the “sparse legislative history of Section 432(e)(4) shows nothing 

defi nitive to undercut the Commission’s consistent interpretation of this provision as applying only to the offi cial 

name of a political committee.” The court therefore concluded that, while Common Cause’s interpretation of the 

provision was “not totally implausible,” it did not “preclude the Commission’s quite plausible alternative. There is, in 

short, a genuine ambiguity in Section 432(e)(4)’s text.”

Further, considering the structure of the statute, the appeals court agreed with the FEC’s argument that “name” 

should be similarly defi ned in Sections 432(e)(4) and 433(b)(1). (Section 433(b)(1) requires unauthorized committees 

to register one offi cial name with the FEC.) The court held that these two provisions, along with the Act’s disclaimer 

provision (Section 441d(a)), allowed the Commission “to establish a coherent means by which readers and potential 

contributors can fi nd out the identity and status of those who are soliciting them.”

In dissenting from the majority decision on the “name” issue, Judge Ruth B. Ginsburg argued that “Congress enacted 

Section 432(e)(4) to avoid public confusion and to increase public awareness of the sources of campaign messages.... 

Sensibly and purposively construed, the Section 432(e)(4) prohibition covers not only the formal, registered name of 

a political committee, but also the name the committee actually uses to identify itself in communications with the 

public purporting to solicit contributions for, or on behalf of, a candidate.” 

Deadlock Vote 

Finally, the appeals court reversed the district court’s ruling that the FEC’s deadlock vote dismissal of other allegations 

against two political committees must be remanded for a statement of reasons. The appeals court concluded that its 

recent ruling in Democratic Congressional Campaign Committee (DCCC) v. FEC Democratic Congressional Campaign Committee (DCCC) v. FEC (Civil Action No. 86-5661) was (Civil Action No. 86-5661) was

applicable to the circumstances of Common Cause’s case. In DCCC v. FEC, the court found that the FEC’s dismissal 

of an administrative complaint as the result of a deadlock vote was subject to judicial review. Consequently, the court 

could require the FEC to supply a statement of reasons for such dismissals. 

Nevertheless, the court declined to “apply the precedent retroactively to this case, which arose before our DCCC 

decision...To do so, in this case at least, would be an exercise in futility and a waste of the Commission’s resources.” 

The court added, however, that it would “enforce the DCCC rule with respect to all Commission orders of dismissal 

based on deadlock votes that are contrary to General Counsel recommendations issued subsequent to our decision 

in that case.”

Source: FEC Record, February 1987, p. 6; and May 1988, p. 7. , February 1987, p. 6; and May 1988, p. 7. 

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) rev’d, 842 F.2d 436 (D.C. Cir. 1988). , 842 F.2d 436 (D.C. Cir. 1988). 1

 NCCC has subsequently become the National Congressional Club.
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COMMON CAUSE v. FEC (85-0968)1

On June 25, 1986, the U.S. District Court for the District of Columbia issued an opinion in Common Cause v. FEC, a 

suit in which Common Cause challenged the FEC’s dismissal of an administrative complaint, which the organization 

had fi led with the Commission in September 1984 (Civil Action No. 85-0968). In remanding the suit to the FEC, the 

court ordered the agency to provide: (1) an explanation of the legal standard that the agency had used in making its 

decision to dismiss the complaint and (2) a statement of reasons demonstrating how the FEC had applied this legal 

standard to the facts before it.

Background

On August 24, 1984, one day after accepting the Republican Party’s Presidential nomination, President Reagan 

addressed a convention of the Veterans of Foreign Wars (the VFW) in Chicago. During his speech, Mr. Reagan did 

not expressly mention his candidacy; nor did he solicit contributions to his campaign. Since the Reagan administration 

viewed the Chicago trip as offi cial business, the administration allowed the government to absorb the travel costs and 

did not report them to the FEC. 

On September 20, 1984, Common Cause fi led an administrative complaint with the FEC against the Reagan-Bush 

’84 General Election Committee (the Reagan campaign), President Reagan’s principal campaign committee for the 

1984 general election. In the complaint, Common Cause alleged that the travel costs related to President Reagan’s 

Chicago speech constituted “qualifi ed campaign expenses” incurred for Mr. Reagan’s publicly funded general election 

campaign.2 Consequently, Common Cause claimed that the Reagan campaign had to: (1) pay for and report the 

costs of the Chicago trip as “qualifi ed campaign expenses” and (2) reimburse the government for using a government 

airplane to make the trip. On December 24, 1984, the FEC’s General Counsel recommended that the Commission 

fi nd “reason to believe” that the Reagan campaign and its treasurer had violated provisions of the election law and 

public funding statutes by failing to report these expenses. On January 15, 1985, however, the Commission decided, by 

a four to two vote, to fi nd “no reason to believe” the Reagan campaign and its treasurer had violated federal election 

laws. Consistent with past practice, the Commission did not issue a formal statement of reasons for its decision to 

dismiss Common Cause’s administrative complaint. 

On March 22, 1985, Common Cause challenged the FEC’s dismissal decision by fi ling suit against the Commission with 

the district court. In its suit, Common Cause asked the court to declare that the FEC’s dismissal of its administrative 

complaint was contrary to law and to order the agency to act on the allegations in its complaint. 

In arguing that the FEC’s dismissal was contrary to law, Common Cause said that, in determining whether President 

Reagan’s Chicago trip was campaign related, the Commission should have considered the “totality of circumstances” 

surrounding his Chicago speech rather than using a narrower review standard, which focused solely on: (1) whether 

President Reagan’s speech expressly advocated his reelection and (2) whether he solicited contributions in conjunction 

with his speech.

The Court’s Ruling

Although accepting the legal standard which the parties agreed had been applied by the FEC in its dismissal of 

Common Cause’s complaint, the court observed that it still had to “determine whether the agency has presented 

a rational basis for its decision.” In this regard, the court noted that “the record before us prevents that threshold 

determination.” The court therefore remanded the case to the FEC “both for an explanation of the legal standard 

actually applied and...a statement of reasons demonstrating how the Commission applied such legal standards to the 

facts before it.”

Commissioners’ Second Statements of Reasons

In response to the court’s second remand order, Commissioners Joan D. Aikens and John W. McGarry submitted a 

joint statement of reasons, while Commissioner Lee Ann Elliott submitted a separate statement. The fourth dissenting 

Commissioner in the case, Frank P. Reiche, did not submit a statement of reasons because he left the Commission 

in April 1985. 

On July 15, 1988, the three Commissioners submitted the statements to the court and to Common Cause. While the 

Commissioners all agreed that President Reagan’s speech before the V.F.W.’s annual convention was not campaign 

related, they were not in unanimous accord concerning the standard that should have been applied to reach this 

determination. Commissioners Joan D. Aikens and John W. McGarry concluded that they had applied a “totality of 

circumstances” standard. On the other hand, Commissioner Elliott concluded that, in the case of an offi ceholder, the 

“two-pronged” test was appropriate. 
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Commissioners Aikens and McGarry 

The Commissioners stated their views that, in determining whether an offi ceholder’s speech was campaign related, 

the Commission “has consistently applied a ‘totality of circumstances’ test, involving examination of external 

factors.” While they agreed that an examination of the elements of the “two-pronged” test was a necessary fi rst step, 

they maintained that they had to “look further to the timing, the setting and the purpose of the event as integral 

components of the ‘totality of circumstances’ test and as necessary to the ultimate determination that certain activity 

is or is not campaign-related.” Citing agency precedents, the Commissioners stated that their use of the “totality 

of circumstances” standard was “totally consistent with the approach recommended by the General Counsel in his 

Report...and adopted by the Commission in many advisory opinions.”3

Based on these standards, the Commissioners concluded that President Reagan’s speech was made in performance 

of his offi cial duties, rather than to further his reelection. The speech did not expressly advocate President Reagan’s 

election or solicit contributions to his campaign. Nor did the timing, setting or purpose of the President’s speech 

support the complainant’s allegations that the speech was campaign related. 

With regard to the timing of the speech, the Commissioners noted that the V.F.W. convention was an annual event 

and that the invitation to attend it had been extended to President Reagan six months before the Republican National 

Convention. They concluded, “To argue that the timing of this appearance makes it a campaign event would mean that 

no incumbent President could make an offi cial appearance to perform offi ceholder duties after the renomination.” 

Commissioner Elliott 

In explaining her view that the Commission should apply only the “two-pronged” test to determine whether 

President Reagan’s speech was campaign-related, Commissioner Elliott stated that “an offi ceholder’s speech will 

be considered campaign-related if it expressly advocates the election or defeat of a clearly identifi ed candidate or 

solicits contributions on behalf of a federal candidate. This ‘two-pronged’ test is sensible and workable Commission 

precedent and has repeatedly been held a permissible construction of the Act. Further, the ‘two-pronged’ test avoids 

subjective or imponderable considerations when evaluating an offi ceholder’s speech.”

Commissioner Elliott cited as precedent for the test the Supreme Court’s decision in Buckey v. Valeo, as well as a series 

of other federal court cases and FEC actions, including Commission advisory opinions.4 The Commissioner noted 

that “the reasonableness of this policy is enhanced when viewed against 11 years of even-handed application.”

Commissioner Elliott concluded that the totality of circumstances approach “is really not applicable for offi ceholders. 

Its objective elements are already part of the ‘two-pronged’ test’s legal inquiry into ‘express advocacy’ and its subjective 

elements are too vaporous upon which to rest a legal conclusion.”

Finally, the Commissioner stated that the “totality of circumstances” test could not be appropriately applied to 

the Reagan speech. In the past, the Commissioner explained, this test had been applied only to (1) nonincumbent 

candidates, (2) offi ceholders who were engaging in activities that were not normally part of their duties and (3) 

offi ceholders who were invited to make appearances as candidates, rather than in their offi cial capacities. 

Commissioner Elliott therefore concluded that “following Counsel’s recommendation in this case would not have been 

following Commission precedent.”

Commissioner Elliott found that, based on the “two-pronged” test, President Reagan had not made a campaignrelated speech at the convention. “I concluded that the speech [did] not advocate the re-election of the President or 

the defeat of his opponent...His appearance was that of a head-of-state and his remarks were on issues of importance 

to America’s veterans.” 

Joint Stipulation of Dismissal

On September 27, 1988, the U.S. District Court for the District of Columbia issued a joint stipulation of dismissal in 

which Common Cause and the FEC agreed to the dismissal, with prejudice, of the suit.

In the joint stipulation of dismissal, Common Cause did not abandon its position that the FEC’s action on the 

administrative complaint was contrary to law. Nor did the FEC abandon its position that its dismissal of the 

complaint was reasonable. 

Source: FEC Record, August 1986, p. 6; and October 1988, p. 7. , August 1986, p. 6; and October 1988, p. 7. 1 See also Antosh v. FEC (85-1410). 2 FEC regulations defi ne “qualifi ed campaign expenses” as those expenditures made during the reporting period to further the general 

election campaign of a publicly funded Presidential candidate. See 11 CFR 9002.11. 

3 For example, the Commissioners cited as precedent Advisory Opinions 1977-42, 1977-54, 1978-4, 1978-15, 1980-16, 1980-22, 1981-37, 

1982-15, 1982-56 and 1984-13. 

4 For example, the Commissioner cited as precedent Buckley v. Valeo, 424 U.S. 1, 84 n. 112 (1976) and Advisory Opinions 1977-42, 1977-

54, 1978-4, 1979-25, 1980-16, 1980-22, 1980-89 and 1981-37. 
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COMMON CAUSE v. FEC (85-1130)

On June 19, 1990, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court decision by 

ruling that the FEC did not adequately analyze an affi liation issue in its dismissal of an administrative complaint fi led 

by Common Cause. (Civil Action No. 89-5231.) The court remanded the case to the district court with instructions to 

return the matter to the FEC for reconsideration consistent with the appeals court ruling.

Background

Common Cause fi led an administrative complaint with the FEC alleging that the Republican National Independent 

Expenditure Committee (RNIEC) and the National Republican Senatorial Committee (NRSC) were affi liated 

committees and that RNIEC’s expenditures on behalf of then-Senator Dan Evans’ 1984 reelection campaign were 

coordinated with NRSC. As a result, Common Cause contended, contributions made by the two committees on 

behalf of Mr. Evans exceeded the contribution limits of 2 U.S.C. §441a. The Commission found no probable cause to 

believe that a violation of the Federal Election Campaign Act had occurred.

 After the Commission dismissed the administrative complaint, Common Cause fi led suit in 1985 with the U.S. 

District Court for the District of Columbia. (Civil Action No. 85-1130). Common Cause asked the court to fi nd that 

RNIEC and NRSC were affi liated committees, or that they had coordinated their expenditures on behalf of Senator 

Evans. (Either fi nding would have resulted in excessive contributions by NRSC.)

District Court Decision

In its decision of May 30, 1989, the court found that the Commission’s dismissal of Common Cause’s principal 

allegations—affi liation and coordination between RNIEC and NRSC—was reasonable. The court did remand one 

issue from the original complaint—that of affi liation between RNIEC and the Republican National Committee—back 

to the FEC for further consideration, fi nding that the Commission had not addressed that allegation in dismissing 

the administrative complaint.

Appeals Court Decision

In its per curiam opinion, the appeals court noted the deference accorded by the courts to FEC decisions. However, 

in considering the General Counsel’s brief recommending the “no probable cause to believe” fi nding adopted by the 

Commission, the court found that “the brief lacks any discussion of the affi liation issue that is independent of the 

analysis of the separate coordination issue.”

Common Cause’s affi liation claim was based on three facts: (1) Mr. Rodney Smith served as the fi nancial director 

and treasurer of NRSC until two months before he co-founded and became treasurer of RNIEC; (2) Senator 

John Heinz continued to be a member of NRSC a short time after he co-founded and joined the advisory panel of 

RNIEC; and (3) there was a substantial overlap in contributors to the two committees, the result of RNIEC’s use of 

NRSC’s mailing list.

Section 441a(a)(5) of the Act defi nes affi liated committees as those that are “established or fi nanced or maintained or 

controlled” by the same person or group. Commission regulations then in effect listed several indicia of affi liation at 

11 CFR 100.5(g)(2)(ii)(A)-(E). (Current FEC rules provide revised indicia at 11 CFR 100.5(g)(4)(ii)(A)-(J).) The court 

stated that the General Counsel’s brief made no attempt to tie the relevant indicia of affi liation to the facts of the case. 

As a result, there was no indication that the agency had considered one pertinent indicium of affi liation: whether Mr. 

Smith or Senator Heinz had the ability to infl uence the decisions of both committees. 11 CFR 100.5(g)(2)(ii)(C) (since 

revised at 100.5(g)(4)(ii)(B)).

Another indicium set out in the rules is whether two committees show a similar pattern of contributions. 11 CFR 

100.5(g)(2)(ii)(D) (since revised at 100.5(g)(4)(ii)(J)). The General Counsel’s brief did not specifi cally refer to this 

indicium. The appeals court found this issue “less troubling” since the brief considered possible affi liation resulting 

from RNIEC’s use of RNSC’s contributor list but went on to explain that this implication was rebutted by the 

committees’ dispute over the ownership of the list.

In conclusion the court stated: “Based upon the General Counsel’s brief to the Commission, it is impossible to 

discern whether the FEC applied the applicable statute and regulation to the claim that the NRSC and the RNIEC 

were affi liated.” The court therefore reversed the judgment of the district court on the affi liation issue and remanded 

the case with instructions for the FEC to reconsider the issue based on the court’s decision.

Source: FEC Record, August 1990, p. 11. , August 1990, p. 11.

Common Cause v. FEC, 715 F. Supp. 398 (D.D.C. 1989) rev’d, 906 F.2d 705 (D.C. Cir. 1990). , 906 F.2d 705 (D.C. Cir. 1990). 
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COMMON CAUSE v. FEC (86-1838)

On August 3, 1987, the U.S. District Court for the District of Columbia issued an order which granted the FEC’s 

motion for summary judgment on all issues in this case except one: the allocation, between the federal and nonfederal 

accounts of state party committees, of expenses of certain specifi ed activities (e.g., voter registration, “get out the 

vote” efforts, and campaign materials used in connection with volunteer activities). (Common Cause v. FEC, Civil 

Action No. 86-1838.) For reconsideration of that issue, the court remanded to the FEC Common Cause’s petition for 

rulemaking concerning the use of “soft money” in federal elections.1 

On August 25, 1988, the U.S. District Court for the District of Columbia decided to hold in abeyance Common 

Cause’s motion to enforce the district court’s previous order that the FEC promulgate rules on “soft money.” Instead, 

the court retained jurisdiction in the case and ordered the FEC to submit, at 90-day intervals, concise reports on the 

agency’s progress toward promulgating the rules.

Background

Common Cause fi led its petition for rulemaking on November 7, 1984. The FEC published a notice of availability 

in the Federal Register, sent copies of the petition to a number of organizations and received fi ve comments. On 

December 5, 1985, the FEC’s General Counsel recommended that the Commission seek information and comments 

on “soft money” issues. The FEC then scheduled two days of public hearings, published a notice of inquiry on the 

matter in the Federal Register, sent the notice to 77 organizations and considered the 15 comments it received in 

response. The Commission also received testimony from Common Cause, the Center for Responsive Politics and the 

Republican National Committee. On April 29, 1986, the FEC denied Common Cause’s petition for rulemaking (see 

51 Fed. Reg. 15915). 

On June 30, 1986, Common Cause fi led this court action pursuant to the Administrative Protection Act, 5 

U.S.C. §706, which provides that agency action that is “not in accordance with the law” must be set aside by 

the reviewing court. 

In its motion for summary judgment, Common Cause argued that the FEC: 

• Improperly construed the Federal Election Campaign Act (the Act) by (a) improperly considering “intent” 

as a requisite factor when it concluded that nonfederal funds had not been transferred to the state and local 

level with the intent to infl uence federal elections and (b) allowing the allocation of expenditures made in 

connection with federal and nonfederal elections; 

• Inadequately regulated the allocation of federal and nonfederal funds, thereby creating a loophole through 

which “soft money” could be used in connection with federal elections; and 

• Acted arbitrarily and capriciously in denying the petition for rulemaking, given ample evidence to 

justify a rulemaking.

District Court Ruling

The court noted that, in 1979, Congress amended the Act to permit state and local party committees to spend money 

in federal elections for voter registration, “get out the vote” activities, and campaign materials used in connection 

with volunteer activities. 2 U.S.C.§§431(8)(B)(x), 431(8)(B)(xii), 431(9)(B)(viii) and 431(9)(B)(ix). Under the Act, 

only monies that are subject to the provisions of the Act may be used for these activities. 2 U.S.C.§§431(8)(B)(x)(2), 

431(8)(B)(xii)(2), 431(9)(B)(viii)(2) and 431(9)(B)(ix)(2). Under the Commission’s regulations at 11 CFR 102.5 

and 106.1, when fi nancing these political activities in connection with both federal and nonfederal elections, state 

and local party committees may spend money from both their federal and nonfederal accounts, allocating “on 

a reasonable basis.”

In reviewing the FEC’s denial of the rulemaking petition, the court rejected plaintiffs’ argument that the FEC 

improperly considered intent as a requisite element. The court found that the question of intent was not crucial 

or even relevant in the FEC’s denial of the rulemaking. Instead, the court said, the FEC had found that there 

was inadequate evidence to conclude that any “soft money” had been used in the ways Common Cause alleged 

in its petition. 

The court also rejected Common Cause’s contention that no allocation method is permissible under the Act, noting 

that “the FECA regulates federal elections only,” and that “Congress would have had to have spoken much more 

clearly in the amendments at issue to contradict” this limit on the FECA’s reach. The court further noted that “the 

plain meaning of the Act is that any improper allocation of nonfederal funds by a state committee would be a 

violation of the FECA.”
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The court maintained, however, that the Commission’s regulations provide “no guidance whatsoever on what 

allocation methods a state or local party committee may use,” and thus found that a revision of the Commission’s 

regulations was warranted with respect to this one issue and remanded the matter to the Commission. 

Finally, the court found that it was not arbitrary and capricious for the Commission to decline to initiate a rulemaking 

based on the evidence before it, except with respect to the allocation issue discussed above. The court observed, “The 

Commission opened its doors to comments from each of the fi fty state election fi nance agencies, as well as both major 

parties and various other groups interested in the issue of campaign fi nancing. Only fi fteen responses were received, 

some of which adamantly stated that there were no abuses of the type alleged by Common Cause. Indeed, there was 

testimony that some of the anecdotes submitted by Common Cause were factually erroneous.” In conclusion, the 

court granted the FEC’s motion for summary judgment affi rming its decision to deny the rulemaking petition with 

respect to all issues except that of allocation.

District Court Ruling: August 1988

In petitioning the district court to enforce its order of August 1987, Common Cause asked the court to impose a 

timetable on the FEC which would require the agency to:

• Propose allocation rules within 30 days of the court’s order; and

• Make the proposed rules fi nal as soon as possible.

The FEC argued that it had begun to respond to the court’s 1987 order by publishing a Notice of Inquiry in the 

Federal Register that sought comments on its proposed rulemaking. The FEC pointed out that the election law had 

established no timetable for rulemakings. Furthermore, under the law, Common Cause could fi le a documented 

administrative complaint to remedy any alleged abuses of the allocation rules. Additionally, the FEC argued that 

its delay (of seven months) did not approach the three-and fi ve-year agency delays that courts have found to be 

reasonable. Finally, the agency cited demands on the FEC’s resources during a Presidential election year. 

The court concluded that “Common Cause ha[d] not shown that the Commission’s delay thus far warrant[ed] the 

intrusive relief sought by the plaintiffs.” Nevertheless, the court ruled that the FEC should submit a report to the 

court every 90 days on its progress toward promulgating the rules. 

Source: FEC Record, September 1987, p. 6; and October 1988, p. 6. , September 1987, p. 6; and October 1988, p. 6. 

Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987); 692 F. Supp. 1397 (D.D.C. 1988). 1

 In its complaint, Common Cause defi ned the term “soft money” as “funds from sources prohibited under the FECA that are given 

to political committees and party organizations ostensibly for use at the state and local level, but which are actually used in connection 

with and to infl uence federal elections in violation of the FECA.”

COMMON CAUSE v. FEC (87-2224)

The U.S. District Court for the District of Columbia granted the FEC’s motion to dismiss Common Cause’s suit and 

to dissolve a protective order that had placed court documents under seal. In its order of January 11, 1989, the court 

noted that Common Cause did not oppose the FEC’s motion.

Background

In its suit, fi led August 12, 1987, Common Cause asked the court to declare that the FEC failed to take action within 

the required 120-day period on an administrative complaint Common Cause had fi led with the Commission on 

October 28, 1986. Common Cause further asked the court to direct the FEC to take action within 30 days, pursuant 

to 2 U.S.C. §437g(a)(8). Civil Action No. 87-2224. Common Cause had alleged in its administrative complaint that 

the National Republican Senatorial Committee had made excessive contributions to several candidates, a violation 

of 2 U.S.C. §441a(h).

FEC’s Motion to Dismiss Suit and Lift Seal

The Commission asked the court to dismiss Common Cause’s suit because the agency had taken fi nal action on the 

administrative complaint, thus rendering the litigation moot. On December 23, 1988, the Commission had voted to 

enter into a conciliation agreement with the National Republican Senatorial Committee and had then closed the fi le. 

Citing other “failure to act” cases fi led against the agency pursuant to 2 U.S.C. §437g(a)(8), the FEC pointed out that 

the courts have granted similar dismissals once the agency has taken fi nal action. 
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The FEC had originally requested that the court impose a seal on documents fi led in the case that related to the 

administrative complaint, which was pending at the time and therefore subject to the confi dentiality provision of 

2 U.S.C. §437g(a)(12). That provision prohibits the agency from making public any information on administrative 

complaints until the case is resolved. The court imposed a protective seal on October 2, 1987. 

Under another provision, however, the Commission must release to the public the results of its inquiries once an 

enforcement matter is resolved. 2 U.S.C. §437g(a)(4)(B)(i). In its motion to lift the protective seal, the FEC stated 

that the confi dentiality requirements of 437g(a)(12) no longer applied since the agency had since closed the fi le 

on the case. 

Source: FEC Record, March 1989, p. 3. , March 1989, p. 3. 

Common Cause v. FEC, No. 87-2224 (D.D.C. Feb. 8, 1988) (memorandum and order), dismissed as moot, (D.D.C. 1989) (unpublished 

order).

COMMON CAUSE v. FEC (89-0524)

FEC v. NATIONAL REPUBLICAN SENATORIAL COMMITTEE (90-2055)

On June 12, 1992, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court’s 

judgment. The district court had ruled that the National Republican Senatorial Committee (NRSC) had exceeded the 

contribution limits through its exercise of “direction or control” over earmarked contributions. The court of appeals, 

however, found that the district court had erred in a previous decision. In that case, Common Cause v. FEC, the district 

court had ordered the FEC to conform to the court’s own interpretation of “direction or control.”

Background

If a committee, in soliciting earmarked contributions to be passed on to a candidate, exercises “direction or control” 

over the contributor’s choice of the recipient candidate, the contribution counts against both the contributor’s limit 

and the committee’s limit. 11 CFR 110.6(d)(2). 

In an administrative complaint fi led with the Commission (MUR 2282), Common Cause alleged that NRSC had 

exercised direction or control over the earmarked contributions it had solicited for twelve Senate candidates. As 

a result, Common Cause claimed, the contributions counted against NRSC’s limits for the candidates and caused 

NRSC to exceed the contribution limits.

NRSC’s October 1986 solicitation letter asked readers to support Republican Senate candidates running in four 

states, without mentioning the names of the candidates. The letter noted that contributions would be divided equally 

among the four candidates. Various combinations of the four states appeared in different versions of the letter; twelve 

states were covered in all. Checks were payable to NRSC or an NRSC-controlled fund. The mailing resulted in $2.3 

million in contributions. The NRSC deposited the checks in its own accounts, aggregated the contributions to the 

specifi ed candidates and forwarded the contributions to the candidates in checks drawn on its accounts. 

The FEC’s General Counsel recommended, inter alia, that the agency fi nd probable cause to believe that NRSC 

had exceeded the contribution limits by exercising direction or control over the choice of recipient candidates. The 

Commission, in a 3-3 vote, deadlocked with respect to this allegation and therefore took no action. Commissioner 

Thomas J. Josefi ak (who has since left the Commission), joined by Commissioners Aikens and Elliott, issued a 

statement of reasons supporting their votes against a probable cause fi nding.

The Commission did fi nd probable cause to believe that NRSC had committed other violations, and the MUR was 

resolved through a December 1988 conciliation agreement in which NRSC agreed to pay a $20,000 civil penalty. The 

MUR was then closed.

Common Cause v. FEC

Common Cause asked the court to compel the FEC to act on the “direction or control” allegation. On January 24, 

1990, the district court found that the FEC’s dismissal of the allegation was contrary to law. Ruling that NRSC had 

exercised direction or control, the court ordered the agency to proceed on that basis. In compliance with the order, the 

Commission reopened MUR 2282 and found probable cause. When it failed to reach a conciliation agreement with 

NRSC on the matter of direction or control, the agency fi led suit.
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FEC v. NRSC

The new suit was assigned by lot to the same district judge. On April 9, 1991, the district court granted the FEC’s 

motion for summary judgment, ruling that the NRSC had exceeded the contribution limits by exercising direction or 

control over earmarked contributions. The court imposed a $24,000 penalty. 

Court of Appeals Ruling

In addressing the central issue—the interpretation of direction or control—the court cited its decision in Democratic 

Congressional Campaign Committee (DCCC) v. FEC. In that opinion, the court held that, when the FEC dismisses a 

complaint due to a 3-3 deadlock, the action is subject to judicial review, and the three Commissioners who voted to 

dismiss must provide a statement of reasons for their vote. The NRSC court noted the purpose of this requirement: 

“Since those Commissioners constitute a controlling group for purposes of the decision, their rationale necessarily 

states the agency’s reasons for acting as it did.” A footnote to the DCCC opinion “strongly suggests that, if the 

meaning of the statute is not clear, a reviewing court should accord deference to the Commission’s rationale.”

In the present case, the court pointed out that the three Commissioners who had voted against probable cause in 

MUR 2282 voted in favor of reopening the enforcement proceedings only because they felt they “were obligated to 

follow the [district] court’s order.”1

The court of appeals found that Commissioner Josefi ak’s Statement of Reasons in MUR 2282, joined by two other 

Commissioners, should have been sustained in Common Cause v. FEC.

2 The court observed that Commissioner 

Josefi ak’s statement “identifi ed the two main factors the Commission’s General Counsel, and later the district court, 

invoked to support a fi nding of direction or control, and pointed out the present inadequacy of each.”

The fi rst factor was that NRSC deposited the earmarked contributions in its accounts before forwarding them to the 

candidates. Noting that FEC regulations permit a conduit committee to deposit earmarked contributions, the court 

stated: “Nothing has been offered to reveal why engaging in a Commission-approved practice should cause one to 

run afoul of other Commission rules.”

The second factor was that NRSC “controlled” the choice of candidates by selecting the candidates for whom 

contributions were solicited and by further selecting the four states mentioned in each fundraising letter. The court, 

however, observed: “Every solicitation ‘pre-selects’ candidates to some degree. It is fanciful to suppose that national 

political committees of any party would expend their resources merely to urge individuals to contribute to the 

candidate of their choice.”

To fi nd “direction or control” on the basis of these two factors, the court said, “would throw into doubt whether any 

solicitation of any earmarked contribution would be exempt from the ‘double-counting’ requirements of §110.6(d)(2).” 

However, the court concluded that it was not required to decide if that would be a permissible construction: “It is 

enough to say that the Commission has not affi rmatively adopted such a construction and that it has provided, 

through the statement of Commissioner Josefi ak, joined by two others, a reasoned justifi cation for not doing so.” 

Ruling that “[i]t was an error for the district court to force a different construction upon the Commission,” the court 

reversed the district court judgment. 

Source: FEC Record, August 1992, p. 11. , August 1992, p. 11.

Common Cause v. FEC, 729 F. Supp. 148 (D.D.C. 1990).

FEC v. National Republican Senatorial Committee, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9302 (D.D.C. 1991), ¶9316 (D.C. Cir. 1992). 1 Statement of Reasons of Commissioners Aikens, Elliott and Josefi ak, MUR 2282, December 10, 1990.

2 Statement of Reasons of Commissioner Josefi ak, MUR 2282, January 30, 1989; Concurrence, February 24, 1989. 
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COMMON CAUSE v. FEC (91-2914)

As stipulated by both parties, the U.S. District Court for the District of Columbia dismissed this case with prejudice 

on July 31, 1992, without ruling on the issues. The FEC and Common Cause stipulated the dismissal in light of the 

recent court of appeals decision in FEC v. National Republican Senatorial Committee (NRSC). (See Common Cause 

v. FEC (89-0524) on page 56.) (89-0524) on page 56.)

Common Cause had challenged the FEC’s dismissal of a complaint alleging that the NRSC had exceeded the 

contribution limits by exercising “direction or control” over earmarked contributions raised in a 1990 fundraising 

program. See 11 CFR 110.6(d)(2). However, in the NRSC case, decided on June 12, 1992, the U.S. Court of Appeals 

for the District of Columbia Circuit held that the NRSC had not exercised direction or control in a somewhat similar 

fundraising program that took place in 1986.

Source: FEC Record, October 1992, p. 11. , October 1992, p. 11.

COMMON CAUSE v. FEC (92-0249)

On March 3, 1993, the U.S. District Court for the District of Columbia dismissed this suit by agreement of both 

parties. Common Cause had asked the court to order the FEC to take action on an administrative complaint but 

agreed to drop its claim because the agency had completed the investigation and entered into conciliation agreements 

with the respondents. In its administrative complaint, Common Cause had alleged that seven individuals had each 

exceeded the $25,000 annual limit on aggregate federal contributions. 

Source: FEC Record, April 1993, p. 10. , April 1993, p. 10.

COMMON CAUSE v. FEC (92-2538)

On March 30, 1993, the U.S. District Court for the District of Columbia approved an agreement between Common 

Cause and the FEC to suspend this litigation. In light of that agreement, the court dismissed the suit. 

In its suit, Common Cause claimed that the FEC had failed to take required action on its administrative complaint 

fi led in December 1990. The complaint alleged that the National Republican Senatorial Committee (NRSC) had 

made excessive contributions and expenditures in connection with the 1988 Montana Senate race and had failed 

to report them accurately. The complaint also alleged that the Montana Republican Party had violated the law by 

participating in the NRSC’s alleged violations.

Common Cause and the FEC agreed to suspend litigation for six months, at the end of which time the FEC was to 

report on its efforts to resolve the complaint. Under the court’s dismissal order, if Common Cause was not satisfi ed 

with the Commission’s actions on the complaint, the parties would have until October 30 to reopen the litigation.1 

Source: FEC Record, August 1993, p. 5. , August 1993, p. 5. 1

 The October 30 date was extended.
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COMMON CAUSE v. FEC (94-02104)

On March 29, 1996, the U.S. District Court for the District of Columbia ordered the Commission to reconsider 

portions of two administrative complaints that had been dismissed. Both had been fi led in 1990 by Common Cause 

and John K. Addy.

On March 21, 1997, the U.S. Court of Appeals for the District of Columbia Circuit found that Common Cause 

lacked standing to litigate certain claims against the Commission, and the court therefore dismissed those claims. 

Background

The administrative complaints, designated MURs 3087 and 3204, alleged that the National Republican Senatorial 

Committee (NRSC) and the Montana Republican Party (MRP) had exceeded their contribution and expenditure 

limits with respect to Conrad Burns’s 1988 U.S. Senate campaign and had failed to disclose all the contributions and 

expenditures that they had made on behalf of the candidate.

Under the Act: the MRP’s contribution limit for the Burns campaign was $5,000 (2 U.S.C. §441a(a)(2)(A)); the NRSC’s 

contribution limit for the Burns campaign was $17,500 (2 U.S.C. §441a(h)); and the NRSC’s 1988 coordinated-partyexpenditure limit for the Burns campaign was $92,200 (2 U.S.C. §441a(d)).

The FEC’s Offi ce of General Counsel investigated the matters alleged in the complaints and found evidence that 

both committees had erroneously reported certain transactions as transfers, administrative costs or exempt volunteer 

activities when in fact they were contributions and expenditures made in excess of the Act’s limits. Based on this 

evidence, the General Counsel recommended that the six-member Commission fi nd probable cause to believe that:

• The NRSC and the MRP knowingly and willfully violated the Act when the NRSC transferred funds to the 

MRP to pay for direct mail materials promoting the Burns campaign;

• The MRP violated the Act when it paid the salary of an MRP employee who worked on the Burns 

campaign;

• The NRSC violated the Act when it paid for daily polls tracking the progress of the Burns campaign;

• The NRSC violated the Act when it did not charge the Burns campaign for the development of a list of 

registered voters; and

• The NRSC violated the Act by exercising direction and control over contributions it received in response to a 

solicitation letter that asked contributors to support Mr. Burns and other Republican candidates, and by not 

reporting a portion of the solicitation costs as a contribution to the Burns campaign.

At least four of the six FEC Commissioners must approve of an action before the FEC can execute it. Fewer than 

four FEC Commissioners voted to accept the General Counsel’s recommendations. After further deliberations failed 

to yield a compromise, fi ve of the Commissioners voted to close this case without taking any action. Subsequent to 

having their administrative complaints dismissed, Common Cause and Mr. Addy fi led suit.

District Court Ruling

The court stated that it could only order the FEC to reconsider its dismissal of these MURs if it found that the 

dismissal was arbitrary or capricious or an abuse of discretion. The court reviewed the reasons for the Commissioners’ 

actions, as articulated in their “statement of reasons.” The court found that Commissioners on both sides of most of 

the issues involved in these MURs presented well reasoned explanations for their differing interpretations of federal 

election law; the court let the Commission’s dismissal of these issues stand. The court, however, did not accept the 

Commission’s reasons for dismissing the following issues.

MRP payments to mailing vendor. Both the NRSC and the MRP had argued that payments for a direct mailing that 

promoted Mr. Burns’s candidacy were not contributions or expenditures on the candidate’s behalf. The MRP had 

argued that these payments fell under the volunteer activities exemption at 2 U.S.C. §431(8)(B)(x) and were therefore 

not contributions. The court noted that this exemption only applied when the purchased materials were distributed 

by volunteers and not by commercial vendors. 11 CFR 100.7(b)(15)(iv) and 100.8(b)(16)(iv). The Commissioners 

who voted against fi nding probable cause assumed that the MRP used volunteers to distribute these materials, but 

the MRP never produced any documentation that showed that volunteers were used. The court therefore ordered the 

FEC to reconsider its dismissal of this charge.
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MRP salary payments to Burns campaign worker. MRP employee Ken Knudson was paid a salary by the MRP 

while he was extensively involved in managing and staffi ng the Burns campaign. The FEC’s General Counsel had 

determined that the MRP’s salary payments to Mr. Knudson constituted contributions to the Burns campaign. The 

Commissioners who disagreed with this determination reasoned that payments made to fi eld staff who perform a 

variety of functions for a variety of persons need not be attributed to any one candidate. They based this reasoning 

on MUR 3218. The court noted, however, that MUR 3218 states that such salary payments would not constitute a 

contribution to a candidate’s campaign “absent evidence that [a committee’s] fi eld staff [were] extensively involved in 

managing or staffi ng [a] particular campaign on an ongoing basis . . . .” Since this was precisely what Mr. Knudson 

had been doing for the Burns campaign, the court found the dismissal of this charge to be arbitrary and capricious 

and ordered the FEC to reconsider this issue.

Solicitation costs for earmarked contributions. All of the Commissioners agreed that the NRSC had made a contribution 

to the Burns campaign when it incurred costs associated with the mailing of a letter that encouraged contributors 

to earmark their contributions to the Burns campaign, among other Republican campaigns. 11 CFR 106.1(c)(1). 

However, despite this consensus, the Commission failed to take action on this issue because the Commissioners who 

originally accepted the General Counsel’s probable-cause-to-believe fi nding refused to separate this issue from the 

less-clear-cut issue of whether the NRSC had exercised direction and control over these earmarked contributions. In 

their statement of reasons, these Commissioners explained that they were reluctant to separate these issues because 

doing so would imply that they rejected the General Counsel’s direction-and-control analysis. The court noted that 

the General Counsel’s report made separate recommendations with regard to the direction-and-control issue and 

the solicitation-costs issue. Therefore, the court reasoned, approving one recommendation did not imply rejecting 

the other. Based on this reasoning, the court found the Commission’s dismissal of the solicitation-costs issue to be 

arbitrary and capricious. The court ordered the FEC to reconsider its dismissal of this issue. 

Appeals Court Ruling

The appeals court rejected all three of Common Cause’s theories as to why it had standing to litigate 

the remaining claims.

In order to show standing, a plaintiff must have suffered an injury in fact, or an actual wrong against a legally 

protected interest, that is traceable to the challenged act and is likely to be redressed by a favorable decision from 

a court. Organizations may have standing to sue in order to vindicate the rights and immunities it enjoys or, under 

certain conditions, on behalf of its members. When an organization sues on its own behalf, it must show a concrete 

injury to its activities with a resulting drain on its resources in order to attain standing. In the case of an organization 

suing on behalf of its members, the organization must show that its members would otherwise have standing to sue 

in their own right, that the interests it seeks to protect are germane to the organization’s purpose and that neither the 

claim asserted nor the relief requested requires individual members to participate in the lawsuit.

• Member Standing. The court found that Common Cause was unclear on exactly what “political information” 

was denied its members. However, in the court’s view, the nature of the information was crucial to the injuryin-fact analysis. If the information allegedly withheld was simply that a violation of the Act had occurred, 

then Common Cause’s members did not suffer the type of injury that the court had previously held to be 

suffi cient for standing. To allow a plaintiff to establish the required injury in fact in those circumstances, the 

court concluded, would be “tantamount to recognizing a justiciable interest in the enforcement of the law. 

This we cannot do.”

• Organizational Standing. The court also said Common Cause itself did not have standing in this case. It found 

that the organization was asserting an interest in knowing whether the NRSC and MRP had violated the 

Act’s contribution and expenditure limits. Just as this was an inadequate interest to establish standing when 

Common Cause asserted it on behalf of its members, it was inadequate to establish Common Cause’s own 

standing. The court stated that, in contrast, if Common Cause had asserted “an interest in knowing how 

much money a candidate spent in an election, infringement of such an interest may...constitute a legally 

cognizable injury.” While Common Cause also alleged that the NRSC and MRP had violated the Act’s 

reporting requirements, this was a small part of its complaint. Further, Common Cause asked only for an 

investigation and, if its allegations were proven, monetary penalties against the two Republican committees. 

The court specifi cally noted that Common Cause did not ask for any kind of disclosure of the allegedly 

undisclosed fi nancial information.
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• Dismissal of Complaint. The court also rejected Common Cause’s fi nal argument—that it had standing because 

the FEC had dismissed its complaint in a manner contrary to law. The organization relied on a section of the 

law that grants any person who has fi led an administrative complaint with the FEC the right to seek review 

in the U.S. District Court for the District of Columbia if the Commission dismisses that complaint. 2 U.S.C. 

§437g(a)(8)(A). Based on the U.S. Supreme Court’s ruling in Lujan v. Defenders of Wildlife,

1

 the court said that 

“absent the ability to demonstrate a ‘discrete injury’ fl owing from the alleged violation of FECA, Common 

Cause cannot establish standing merely by asserting that the FEC failed to process its complaint in accordance 

with law.” Section 437g(a)(8)(A), the court explained, “does not confer standing; it confers a right to sue upon 

parties who otherwise already have standing.” Because Common Cause did not demonstrate an injury as a 

result of the alleged violations of the Act, it could not assert standing under this provision.

Source: FEC Record, May 1996, p. 5; May 1997, p. 4. , May 1996, p. 5; May 1997, p. 4.

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997). 1

 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

COMMON CAUSE v. SCHMITT 

FEC v. AMERICANS FOR CHANGE1

On July 1, 1980, Common Cause fi led suit against Americans for Change and several of its offi cers in the U.S. 

District Court for the District of Columbia. Common Cause alleged that defendants had made (or were about to 

make) independent and coordinated expenditures in violation of 26 U.S.C. §9012(f), which prohibits unauthorized 

political committees from making expenditures of more than $1,000 on behalf of a publicly funded Presidential 

candidate. Common Cause asked the court to uphold the constitutionality of Section 9012(f) as applied to 

defendants’ alleged expenditures. 

On July 11, the Commission was allowed to intervene in the Common Cause suit and moved to dismiss the action on 

the grounds that the Commission had exclusive jurisdiction over civil enforcement of the alleged violations and that 

Common Cause lacked standing to bring suit. Four days later, the Commission fi led suit, alleging that the defendant 

political committees (which claimed to be independent of candidate Reagan’s campaign) planned to spend large sums 

in support of the Republican Presidential candidate’s general election campaign. The FEC also asked the court to 

uphold the constitutionality of 9012(f) as applied to defendants’ expenditures. On September 24, 1980, the district 

court consolidated the two suits for argument before the court.

FEC’s Argument

In the motion it fi led for summary judgment, the FEC rejected the defendants’ argument that the Supreme Court’s 

decision in Buckey v. Valeo invalidated Section 9012(f). The FEC pointed out that the constitutional protection 

accorded political communications is not the same in every context. Citing the Supreme Court’s rulings on the public 

funding program in Buckey v. Valeo (424 U.S. 1, 96, 99 and 101 (1976)) and in Republican National Committee v. 

FEC, the FEC maintained that the Court had confi rmed the governmental interest served by the contribution and 

expenditure limits contained in the Presidential public funding program. The FEC argued that, in a similar vein, 

Section 9012(f) closed off “...the only major avenue by which enormous amounts of aggregate wealth and private 

fi nancing could be interjected into a scheme designed to encompass only public funding, while avoiding any direct 

and substantial infringement of protected rights by permitting individuals independent expenditures and by limiting 

its [Section 9012(f)’s] reach to only those campaigns where candidates have chosen public fi nancing as an alternative 

to private funding.” The FEC maintained that if the defendant committees’ “...stated intentions [came] to fruition, 

namely to raise and expend on behalf of the general election campaign an amount approximately double that which 

Mr. Reagan and Mr. Bush have accepted in public fi nancing, the Congressional purpose in enacting this legislation 

would clearly be subverted, with the taxpayer left footing the bill.”

The FEC noted that the legislative history demonstrates that Congress was principally concerned with ensuring the 

effectiveness of the overall limitations imposed upon those candidates accepting public funding. As stated by Senator 

Taft in support of his amendment to limit committee expenditures, Section 9012(f)’s purpose was “...to prevent 

any political committees from being formed as a subterfuge so that they can go beyond the authorization of the 

committees and make expenditures that were not within the limitations of the expenditures which are in the bill.”

The FEC further argued that the limited restrictions of Section 9012(f) were constitutional as applied to defendants 

“...because public funding of a general election presidential campaign is an option which is chosen by candidates 

in place of unlimited private funding.” Additionally, the provision did not abridge free speech rights because “...the 
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transformation of [political committee member] contributions into political debate involves speech by someone other 

than the contributor (Buckey v. Valeo, 424, U.S. at 21), thereby removing political committee expenditures from the 

core of individual political expression.” (See California Medical Association v. FEC, Opinion at 9 n. 5, 10, 15; Mott 

v. FEC, Opinion at 7.) 

Defendant Committees’ Argument

In their motion for summary judgment in the suit, defendants argued that the independent expenditures in question 

were a form of free speech and, as such, were protected by the First Amendment. They contended that, in its Buckey v. 

Valeo decision (424 U.S. 1 (1976)), the Supreme Court had held that statutory limits on the amounts which individual 

citizens or groups could spend on independent communications in political campaigns were an impermissible restraint 

on First Amendment freedoms. Defendants argued, therefore, that Section 9012(f) could be interpreted as prohibiting 

only coordinated expenditures authorized or requested by a candidate.

District Court Decision

In its opinion of August 28, 1980, the court ruled on the claims made by the FEC and Common Cause in the 

consolidated suits. In its rulings on the FEC’s claims, the three-judge court determined that Section 9012(f) did 

apply to defendants’ activities. The court concluded, however, that the defendants’ proposed expenditures constituted 

“independent expenditures” which, under Buckey v. Valeo, could not be limited. The court said, “The compelling 

governmental interest to fi ght electoral corruption is insuffi cient, here, as in Buckley, to justify what amounts to a 

direct limitation on political speech.... Whereas a Presidential candidate, by accepting public funds, may choose...

to do without unlimited contributions and expenditures, the candidate’s public supporters have a separate, 

protected right to express themselves, individually or jointly. This preserves free access and full participation in 

the public debate.”

Since it had ruled on the constitutionality of Section 9012(f) in the FEC’s suit, the court dismissed that portion of 

Common Cause’s suit (Count I) as moot. The court also dismissed Count II of the Common Cause suit, which had 

sought enforcement of provisions of the Act allegedly violated by defendants. The court stated that the Commission 

had been vested by Congress with exclusive jurisdiction over enforcement of the Act. The court did not, however, rule 

on Common Cause’s standing to bring suit. 

Supreme Court Hearing

On February 23, 1981, the Supreme Court agreed to consolidate the cases of FEC v. Americans for Change, Americans 

for an Effective Presidency and Fund for a Conservative Majority (Civil Action No. 80-1754) and Common Cause v. 

Harrison Schmitt (Civil Action No. 80-1609).

On January 19, 1982, the Supreme Court, in a 4 to 4 split vote, left standing the earlier decision by the district court. 

(U.S. Supreme Court Nos. 80-1067 and 80-847) 

Source: FEC Record, April 1981, p. 8; and March 1982, p. 1. , April 1981, p. 8; and March 1982, p. 1. 

Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980) (three-judge court), aff’d by an equally divided court, 455 U.S. 129 (1982), by an equally divided court, 455 U.S. 129 (1982), 

petition for further relief denied, (D.D.C. Oct. 19, 1983) (three-judge court) (unpublished opinion). 

1

 See also Fund for a Conservative Majority v. FEC and FEC v. National Conservative Political Action Committee (83-2823).

COMMON CAUSE and DEMOCRACY 21 v. FEC

On November 21, 2001, Common Cause and Democracy 21 (the plaintiffs), both nonprofi t public interest organizations, 

asked the U.S. District Court for the District of Columbia to fi nd that the Commission acted contrary to law when 

it dismissed the plaintiffs’ administrative complaint, fi led April 4, 2000. The administrative complaint alleged that, 

during the 2000 election, joint fundraising efforts by authorized Senate campaign committees and national and state 

party committees resulted in violations of the Federal Election Campaign Act (the Act). On September 25, 2001, the 

Commission dismissed the administrative complaint.

Background.

Under Commission regulations, political committees, such as authorized candidate committees and party committees, 

may engage in joint fundraising efforts and may form a committee to act as a joint fundraising representative. 11 

CFR 102.17(a). If any participant in the joint fundraiser can lawfully accept nonfederal funds (soft money), then 

the joint fundraising representative can accept nonfederal funds. 11 CFR 102.17(c)(3) and 2 U.S.C. §§441a, b, c, 

e, f and g. However, only federal funds—contributions that comply with the Act’s limits and prohibitions—may 
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be used to infl uence a federal election. Party committees may make coordinated expenditures on behalf of their 

federal candidates, so long as only federal funds are used and the expenditures do not exceed the coordinated party 

expenditure limits. 2 U.S.C. §441a(d).

Administrative Complaint. In their April 2000 administrative complaint, the plaintiffs alleged that during the 2000 

federal elections a number of campaign committees and party committees were using nonfederal funds raised 

through joint fundraising activities to make expenditures that violated the Act. The plaintiffs alleged that during 

the 2000 New York Senatorial race, the Democratic Senatorial Campaign Committee (DSCC), the New York State 

Democratic Committee (NYSDC) and Senator Hillary Clinton’s campaign committee (Clinton Committee) created 

a joint fundraising representative that raised funds for the committees. The plaintiffs claimed that the DSCC and 

the NYSDC used joint fundraising funds, including nonfederal funds, to purchase television advertisements that 

were intended to promote Senator Clinton’s election and that may have constituted coordinated party expenditures 

because they appeared to have been coordinated with the Clinton committee. According to the complaint, donors 

who gave money to the joint fundraising representative understood that their donations would be used to support 

Senator Clinton’s campaign. The plaintiffs asserted that the DSCC transferred funds that under the Act could not be 

allocated to the Clinton Committee to the NYSDC, which then purchased the ads. Thus, the administrative complaint 

alleged that the committees violated the Act’s contribution limits and its prohibitions on corporate and labor union 

contributions. 2 U.S.C. §§441a and 441b.

Court Complaint

In their November 2001 court complaint, the plaintiffs repeated the above allegations concerning the 2000 New 

York Senate race. The court complaint further alleged that these expenditures, when aggregated with the parties’ 

other expenditures, exceeded the Act’s coordinated party expenditure limits and were not properly reported to the 

Commission.

As a result, the complaint alleged, the Clinton Committee, the DSCC and the NYSDC violated the Act by:

• Accepting contributions in excess of the individual contribution limits and in violation of the prohibitions on 

contributions from corporations and labor organizations (2 U.S.C. §§441a and 441b(a)); 

• Accepting or expending funds in excess of the coordinated party expenditure limits (2 U.S.C. §§441a(d) and 

441a(f)); and

• Failing to report contributions and expenditures used to infl uence a federal election (2 U.S.C. §434(b)).

Additionally, the complaint alleged that the DSCC exceeded the Act’s limit on national committee contributions 

to Senate candidates and that the DSCC and the NYSDC exceeded limits on political committee contributions to 

candidates and their authorized committees. 2 U.S.C. §§441a(h) and 441a(a).

In their complaint, the plaintiffs also asserted that other committees involved in joint fundraising for the 2000 elections 

had committed similar violations, including Democratic committees in Michigan supporting Senator Stabenow and 

Republican committees in Missouri supporting then-Senator Aschcroft.

Relief

The plaintiffs claim that the Commission failed to provide a reasoned basis for its decision to dismiss their administrative 

complaint and that the dismissal was erroneous. The plaintiffs ask the court to declare that the Commission’s dismissal 

of the administrative complaint was arbitrary and capricious and contrary to law under the Act.

Source: FEC Record, February 2002, p. 4. , February 2002, p. 4.

CONDON v. USA

On March 26, 1996, the parties in this case agreed to a voluntary dismissal by the U.S. Court of Appeals for the Fourth 

Circuit. The plaintiff in the case, South Carolina Attorney General Charles Condon, had asked the court to declare 

that the National Voter Registration Act (NVRA) was an unfunded federal mandate that was unconstitutional. The 

FEC was named in this suit as one of the defendants.

Mr. Condon had alleged that the NVRA violated the Tenth Amendment, which states that powers not delegated to 

the federal government and not prohibited to the state by the Constitution are reserved to the states.

Source: FEC Record, December 1997, p. 7. , December 1997, p. 7.
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LUIS M. CORREA, et al. v. FEC (03-1208)

On September 30, 2003, the U.S. District Court for the District of Puerto Rico granted the plaintiffs’ request to 

dismiss Luis M. Correa, et al. v. FEC Luis M. Correa, et al. v. FEC with prejudice. The plaintiffs requested dismissal of their suit after reaching with prejudice. The plaintiffs requested dismissal of their suit after reaching 

a settlement agreement with the Commission, pursuant to which the plaintiffs paid in full the fi ne assessed 

by the Commission.

On March 3, 2003, the Comité Jose Hernandez Mayoral Comisionado Residente, Inc., (the Committee) and its 

treasurer Luis M. Correa fi led a petition in the U.S. District Court for the District of Puerto Rico challenging the 

Commission’s fi nal determination that the Committee violated 2 U.S.C. §434(a) by failing to fi le its 2001 Year-End 

report in a timely manner and the assessment of a $1,000 civil money penalty. The plaintiffs’ petition alleges that they 

were unable to fi le the report electronically by the January 31, 2002, deadline because of electronic data conversion 

and transmission problems for which the Commission was responsible.

Background

On June14, 2002, the Commission found reason to believe that the plaintiffs violated 2 U.S.C. §434(a) by failing to fi le 

the report in a timely manner and made an initial determination to assess a $1,000 civil money penalty. The plaintiffs 

fi led a challenge to the preliminary determination and penalty on July 24, 2002.

On January 24, 2003, the Commission made its fi nal determination that the Committee had violated 2 U.S.C. §434(a) 

and assessed the full $1,000 civil money penalty. The FEC Reviewing Offi cer, in recommending that the Commission 

make this fi nal determination, found that the plaintiffs had failed to show that timely fi ling had been prevented by 

“extraordinary circumstances” beyond their control under 11 CFR 111.35.

Court Petition

The petition claims that, despite attempts to gain technical support from the Commission, the Committee did not 

receive adequate assistance with its electronic data problems until after the fi ling deadline. The plaintiffs claim that 

they were not responsible for the late fi ling because the Commission’s technical support staff sent data to an incorrect 

e-mail account, and because the Commission’s electronic fi ling system software could not accept Spanish characters.

The plaintiffs ask the court to set aside the Commission’s fi nal determination and penalty assessment.

Source: FEC Record, May 2003, p. 5.; December 2003, p. 7 , May 2003, p. 5.; December 2003, p. 7

COX FOR U.S. SENATE v. FEC (03-3715)

On January 21, 2004, the U.S. District Court for the Northern District of Illinois, Eastern Division, granted summary 

judgment in favor of the Commission in this case.1 The Cox for U.S. Senate Committee (the Committee) and John 

H. Cox, its treasurer, fi led suit against the Commission on May 30, 2003, appealing a civil money penalty assessed 

against them by the Commission under its administrative fi nes regulations for the Committee’s failure to fi le two 48-

hour reports documenting campaign contributions in excess of $1,000. The plaintiffs argued that the Commission’s 

determination that the Committee and its treasurer violated 2 U.S.C. §434(a) and the Commission’s assessment of 

a $22,150 civil money penalty were arbitrary, capricious, an abuse of discretion and otherwise not in accordance 

with law. The plaintiffs also argued the Administrative Fines Schedule (the Schedule) imposes a form of criminal 

punishment and violates the substantive due process and equal protection clauses of the Fifth Amendment, as well as 

the “excessive fi nes” clause of the Eighth Amendment.

Background

On February 11, 2002, the Commission sent a Primary Election Report Notice to the Committee, which explained 

that, under 2 U.S.C. §434(a)(6)(A), campaign contributions of $1,000 or more (including personal loans) received by 

the Committee between February 28, 2002, and March 16, 2002, must be reported to the Commission within fortyeight hours of the committee’s receipt of the same. Mr. Cox delegated responsibility for fi ling reports during the 48-

hour reporting period to a Committee employee, Cheryl Warren. 

The Committee received a $75,000 loan from Mr. Cox in the form of a check on March 5, 2002. Although Ms. 

Warren received the check, she was uncertain as to whether the loan needed to be reported during the 48-hour 

period, did not take steps to determine whether reporting was required and failed to bring the issue to Mr. Cox’s 

attention. Ms. Warren spent the better part of March 6, 2002, consoling a fellow Committee employee and helping 

him to fi nd temporary lodging after his apartment had burned in a fi re earlier that day. Neither she nor Mr. Cox 
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60 Cases Through March 2004

C

fi led a 48-hour report disclosing the $75,000 loan. On March 12, Mr. Cox wired a $144,507.47 loan directly to the 

Committee’s bank account. Ms. Warren did not know about this second loan, and neither she nor Mr. Cox fi led a 

48-hour report disclosing it. Both loans, however, were subsequently reported by the Committee in its post-election 

April 2002 Quarterly Report, which is required by a separate reporting provision.

On September 18, 2002, the Commission found reason to believe that the Committee and Mr. Cox, as its treasurer, 

violated 2 U.S.C. §434(a)(6)(A) by failing to properly report three contributions of $1,000 or more, totaling 

$224,507.47, that were received during the 48-hour reporting period.2 On September 19, 2002, the Commission 

notifi ed the Committee of its fi nding and the $22,750 civil money penalty, which had been calculated according 

to the Schedule.

The Committee submitted a response to the Commission’s Offi ce of Administrative Review (OAR) on October 25, 

2002, in which it conceded that the two loans should have been reported within forty-eight hours of their receipt. The 

Committee argued, however, that: 

• Mr. Cox had announced his intention to make the loans in campaign speeches prior to making the loans; 

• The loans were subsequently disclosed in the Committee’s post election Quarterly report;

• Both loans were from the candidate himself; 

• The omissions were inadvertent; and 

• A campaign staff member’s apartment fi re and the payment of the March 12, 2002, loan by wire transfer 

contributed to the oversights, although the committee admitted that the factual circumstances may not strictly 

constitute “extraordinary’ circumstances that would excuse their violations.

The OAR issued its recommendation on March 27, 2003. After determining that a $5,000 contribution from a political 

action committee (one of the three contributions originally at issue) was not made during the 48-hour reporting 

period, the OAR recommended reducing the amount of the civil money penalty from $22,750 to $22,150. However, 

the OAR rejected the remainder of the Committee’s arguments, fi nding that:

• Ms. Warren had previously fi led reports for candidate loans received during the 48-hour reporting period in 

Mr. Cox’s prior Congressional races and was, therefore, aware that candidate loans must be reported; 

• A fi re in the apartment of the campaign staff member did not constitute “extraordinary circumstances” within 

the meaning of 11 CFR 111.35; 

• Mr. Cox also the Committee’s treasurer, which made him personally responsible for reporting his own loans; 

• Mr. Cox’s public statement that he would contribute money to his own campaign did not override his duty to 

report the loans made during the 48-hour reporting period; and 

• Reporting contributions in the post-election quarterly report was not a substitute for reporting contributions 

within forty-eight hours of their receipt.

The Committee responded to the recommendation with a number of new arguments, including constitutional challenges 

to the Schedule. The Commission made a fi nal determination that the Committee violated 2 U.S.C. §434(a)(6)(A) and 

assessed a civil money penalty of $22,150 and notifi ed the Committee on April 30, 2003. The plaintiffs subsequently 

fi led their complaint with the court on May 30, 2003.

Court Decision

Assessment of civil penalty

The court found that the Commission’s assessment of a civil money penalty was not arbitrary, capricious, irrational 

or an abuse of discretion and was in accordance with law. The court explained that:

• The record establishes that the Commission considered the Committee’s mitigating factors before reaching 

its decision, and the Committee conceded that the “mitigating factors” do not qualify as “extraordinary 

circumstances” under Commission regulations.

• Campaign promises by Mr. Cox provide no guarantee that pledged contributions from Mr. Cox’s personal 

assets would be made or even derived from the stated funding sources, and, therefore, in failing to report loans, 

the Committee undermined the three “substantial governmental interests” that the disclosure requirements 

protect. Buckley v. Valeo, 424 U.S. 1 (1976).
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Penalty Schedule

The court found that the Schedule does not impose a form of criminal punishment and determined the Schedule’s 

penalties to be civil in construction, nature and application. The court explained that civil fi nes are not historically 

regarded as punishment and that the plaintiffs failed to establish that the Schedule’s deterrent effect is penal in nature 

or how it might restrict their future behavior. Moreover, the Federal Election Campaign Act provides separate criminal 

penalties for knowing and willful violations, which suggests that the Schedule is directed towards civil behavior. 2 

USC § 437g(d) An alternative purpose for the civil money penalty, other than a punitive purpose, is clearly assignable 

–namely the protection of “substantial governmental interests” related to the pre-election disclosure of campaign 

contributions - and not excessive.

The court also determined that the Schedule does not violate substantive due process or the Equal Protection Clause 

of the Fifth Amendment. The Committee argued that the sanctions imposed by the Schedule are “so severe that 

they transform the sanctions into criminal penalties,” and this transformation renders the Schedule unconstitutional 

because the penalties set forth therein “constitute criminal punishment without the safeguards afforded an accused 

under the Fifth and Sixth Amendments.” 

The court, however, found that the Committee failed to explain how the money required to satisfy the civil penalty 

assessed by the Commission constituted or related in any way to an “underlying constitutionally protected property 

interest.” In addition, the court determined that the Committee failed to establish that the Schedule is not “narrowly 

tailored to serve a compelling state interest.” Although the plaintiffs were assessed a civil money penalty for failing 

to comply with 2 U.S.C. §434(a)(6)(A), their campaign activities and/or ability to run for public offi ce were in no 

way limited. Furthermore, the disclosure requirements and accompanying Schedule serve to further “substantial 

governmental interests.” 

The Committee also failed to establish to the satisfaction of the court that the Schedule creates classifi cations subject 

to equal protection analysis, or even how the disclosure requirements differ among campaign committees. In addition, 

the plaintiffs failed to establish that they have suffered “invidious discrimination” or disparate treatment, or that such 

treatment was purposeful. 

The court also concluded that the Schedule is not grossly disproportionate to the conduct to which it applies and, 

thus, does not violate the Eighth Amendment’s excessive fi nes clause. Instead, the court found that the Committee 

subverted “substantial governmental interests” by failing to report the contributions received during the 48-hour 

reporting period, depriving the public of important pre-election information. Moreover, the court stated that 

campaign promises are not a substitute for formal and timely reporting. While the violations were inadvertent, the 

Committee was directly responsible for both violations – negligence is specifi cally excluded as an “extraordinary 

circumstance.” 11 CFR 111.35(b)(4). Finally, the court found that the Schedule is directly proportional to the amount 

of the unreported contributions and takes into account the existence of prior violations.

Order

The Court denied the Committee’s motion for summary judgment, granted summary judgment in favor of the 

Commission and upheld the fi ne assessed against the Committee.

Source: FEC Record, 2003 August, p. 3; and March 2004, p. 4. , 2003 August, p. 3; and March 2004, p. 4. 1

 The granting of summary judgment by a court is appropriate where there is “no genuine dispute of material fact and the moving party 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Under the Administrative Procedure Act, a court can set aside an 

agency action it fi nds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A); 

Smith v. Offi ce of Civilian Health & Med. Program of the Uniformed Servs., 97 F.3d 950, 954 (7th Cir. 1996). 2

 Other than the amounts and dates of the contributions, no other information about the loans was available to the Commission when it 

made its reason-to-believe fi nding.
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CUNNINGHAM v. FEC (01-0897)

On October 28, 2002, the U.S. District Court for the Southern District of Indiana granted the Commission’s motion for 

summary judgment against the Robert W. Rock for Congress committee (the Committee) and its treasurer, Jeremiah 

T. Cunningham. The Committee had fi led suit challenging the Commission’s determination that the Committee had 

failed to fi le timely its 2000 Post-General report and alleging that the civil money penalty assessed by the Commission 

was excessive, erroneous and unwarranted.

The court granted the FEC’s motion for summary judgment and denied the Committee’s crossmotion for summary 

judgment, fi nding that:

• The Committee had waived before the court any arguments it failed to raise before the Commission during its 

administrative proceedings; and

• The Commission’s penalty determination, assessed in accordance with its administrative fi nes regulations, was 

not arbitrary and capricious.

Background

On March 20, 2001, the Commission found reason to believe that the Committee had fi led its 2000 Post-General 

Report on February 1, 2001, more than 30 days after the December 7, 2000, deadline. If a report is not fi led within 30 

days of the deadline, it is considered not fi led.

As part of its Administrative Fine program, the Commission made a preliminary determination that the Committee 

had violated the Act’s reporting requirements and thus owed a $4,500 civil penalty. Commission regulations provide 

for an administrative process through which respondents can challenge the preliminary fi nding and proposed civil 

penalty. See 11 CFR 111.35-111.37. The Commission informed the Committee that it had 40 days to challenge the 

Commission’s fi nding, but the Committee failed to raise any arguments before the Commission challenging that 

fi nding. The Commission then made a fi nal determination that the plaintiffs violated the Federal Election Campaign 

Act (the Act) and assessed the civil money penalty in accordance with its administrative fi nes regulations.

Court Case

Under the Administrative Procedure Act, a district court may set aside an agency action only if it is found to be 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2)(A). The 

Committee argued that the penalty was excessive and unwarranted because:

• The report had been fi led with the Commission by the time the Commission made its fi nal determination and 

assessed the $4,500 civil money penalty; and

• The Commission did not take the Committee’s cash-on-hand into account when determining the amount 

of the penalty.

The court found that the Committee had received adequate notice of the Commission’s action and that it had waived 

any arguments before the court by not raising them before the Commission during its administrative proceedings.1

See 11 CFR 111.38.

The court also held that the Commission’s determination was rationally based on the administrative record before it. 

It further found that the Federal Election Campaign Act states that, when calculating civil penalties, the Commission 

must consider the amount of the violation involved (that is, the level of activity of the report that was untimely fi led) 

and the existence of any prior violations. The Act delegates solely to the Commission the determination of what other 

factors to take into account in calculating the civil penalty, a decision that the court concluded was not for courts “to 

second guess.” 2 U.S.C. §437g(a)(4)(C)(i)(II).

Source: FEC Record, January 2003, p. 19; and August 2001, p. 4. , January 2003, p. 19; and August 2001, p. 4. 1

 Notice of the Commission’s preliminary determination as well as its fi nal determination was sent to the Committee’s address of record 

as listed on its Statement of Organization, which was also the same address of Mr. Rock, the candidate and attorney for the Committee 

and its treasurer in this case. A signed certifi ed mail receipt indicated that the preliminary determination notice was received by the 

Committee, even if Mr. Cunningham did not specifi cally receive it. The court concluded that mailing a document to the last known 

address constitutes adequate notice, and the Committee was not deprived of an opportunity for administrative review.
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DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE v. FEC 

(84-3352)

On November 2, 1984, the U.S. District Court for the District of Columbia issued an order denying plaintiff’s motion 

for a preliminary injunction in Democratic Congressional Campaign Committee v. FEC Democratic Congressional Campaign Committee v. FEC (Civil Action No. 84-3352). (Civil Action No. 84-3352).

Background

In its suit, fi led on November 2, 1984, the Democratic Congressional Campaign Committee (the Committee) had 

sought action against the FEC for the agency’s failure to expedite action on an administrative complaint the Committee 

had fi led on October 22, 1984. In light of the November 6 general election, the Committee’s administrative complaint 

had asked the FEC to initiate expedited enforcement proceedings against the Republican National Committee and the 

National Republican Congressional Committee for their alleged violations of the election law. In its civil complaint, 

the Committee asked the court to enter a permanent injunction directing the Commission to institute expedited 

enforcement proceedings concerning the violations of the election law alleged in the Committee’s complaint. The 

Committee also asked the court to establish and announce the compliance standards no later than 5:00 p.m. on 

November 2, 1984. 

In addition, the Committee sought a preliminary injunction ordering the Commission to give expedited consideration 

to the Committee’s administrative complaint and to announce its determination on that complaint no later than 5:00 

p.m. on November 2, 1984. 

District Court Ruling

On November 2, 1984, the district court denied the Committee’s motion for a preliminary injunction. The court 

concluded that it lacked jurisdiction to require the Commission to make an expedited decision on the Committee’s 

administrative complaint because 120 days had not yet elapsed since the Committee had fi led the complaint with 

the FEC. See 2 U.S.C. §437g(a)(8)(A). In addition, the court stated that it clearly lacked authority to direct the 

Commission to shorten the time period set forth in the Act’s enforcement provisions because Congress had given that 

authority to the Commission’s discretion. 

Appeal

The Committee fi led an appeal with the U.S. Court of Appeals for the District of Columbia Circuit but later asked 

the court to dismiss it. On December 14, 1984, the court granted the Committee’s motion and dismissed the appeal. 

Source: FEC Record, December 1984, p. 3; and February 1985, p. 6. , December 1984, p. 3; and February 1985, p. 6.
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DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE v. FEC 

(86-2075)

On October 3, 1986, the U.S. District Court for the District of Columbia declared that the FEC’s dismissal of an 

administrative complaint fi led with the agency by the Democratic Congressional Campaign Committee was contrary 

to law. (Democratic Congressional Campaign Committee v. FEC; Civil Action No. 86-2075.) Pursuant to 2 U.S.C. 

Section 437g(a)(8)(C), the court directed the FEC to conform with its declaration within 30 days. 

On October 23, 1987, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion which 

partially affi rmed the district court decision. The appeals court affi rmed the ruling that the FEC’s dismissal of an 

administrative complaint resulting from a deadlock vote was subject to judicial review. However, since the appeals 

court lacked a Commission explanation for the dismissal, it rejected the district court’s fi nding that the dismissal was 

contrary to law. Instead, the court remanded the suit to the district court with instructions that the district court, in 

turn, remand the suit to the Commissioners for an explanation of why they voted to dismiss the complaint.

Background

The Democratic Congressional Campaign Committee (DCCC), a national committee of the Democratic Party, fi led 

its administrative complaint with the FEC on December 20, 1985. DCCC alleged that its Republican counterpart, the 

National Republican Congressional Committee (NRCC), violated the election law by failing to allocate $10,000 to 

NRCC’s coordinated party spending limits for the reelection of Congressman Fernand St Germain in Rhode Island.1 

NRCC made the expenditures for mailings during 1985, which allegedly benefi ted the Republican House candidate 

in Rhode Island’s First Congressional District. (Although the mailings were offi cially sponsored by the Rhode Island 

Citizens Group, NRCC did not deny that it had actually prepared and paid for the mailings.)

The mailings encouraged recipients to petition the House Ethics Committee to investigate newspaper charges that 

“Cong. St Germain had amassed a multimillion dollar personal fortune by using his public position to help wealthy 

investors.” (Congressman St Germain was the Republican candidate’s opponent for the Rhode Island House seat.) 

The General Counsel recommended the Commission fi nd reason to believe that the NRCC had violated the election 

law by failing to allocate and report the mailing expenses as coordinated party expenditures. However, on June 5, 

1986, a majority of the Commissioners failed to fi nd “reason to believe” the NRCC had violated the election law. 

Subsequently, by a unanimous vote, the Commissioners closed the fi le on the complaint. 

Court Ruling

Initially the court noted that, even though the Commissioners’ dismissal of the complaint had resulted from their 

failure to obtain the votes required to fi nd reason to believe the election law had been violated, the DCCC still had 

“the right [under the statute] to seek review of an adverse outcome.”

On reviewing the DCCC’s administrative complaint, the court found that the mailing addressed in FEC 

Advisory Opinion 1985-14 and those conducted by the NRCC in Rhode Island were similar. They both: “(1) 

were prepared by a national committee of a political party, (2) identifi ed by name a specifi c Congressman of the 

opposing party, (3) criticized the record of the Congressman, and (4) were distributed to the constituents of the 

Congressman in question.”

Furthermore, the court noted that “...[T]he Counsel found that the mailer’s statement about ridding the government 

of corruption ‘is a reference to an election in that one way to remove Congressman St Germain would be to vote him 

out of offi ce.’”

The court therefore concluded that the “NRCC mailer conveys an ‘electioneering message’ as defi ned by the FEC’s 

own advisory opinions and as interpreted by its General Counsel. Thus the FEC’s dismissal of the plaintiff’s complaint 

was ‘contrary to law.’”

FEC Appeal

On July 16, 1987, the FEC fi led an appeal of the district court’s decision with the U.S. Court of Appeals for the 

District of Columbia Circuit (No. 86-5661). The FEC argued that “authoritative legislative history... demonstrate[d] 

that Section 437g(a)(8) [of the election law] was not intended to authorize judicial review” of the agency’s dismissal 

of an administrative complaint which results from a deadlock vote on the merits of the complaint.2 Moreover, the 

FEC contended that “...even apart from the controlling legislative history of Section 437g(a)(8), the courts have 

traditionally found agency deadlocks that do not resolve substantive issues to be inappropriate for judicial review.” 
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The FEC further argued that the district court should not have ruled on the merits of DCCC’s administrative 

complaint but should have limited its role to determining whether the FEC’s dismissal of the complaint “could be 

rationally justifi ed.” The FEC claimed that “the district court’s failure to limit its review to this narrow question [ran] 

afoul of Congress’ expressed intent not to ‘work a transfer of prosecutorial discretion from the Commission to the 

courts...’ and was therefore erroneous.”

Appeals Court Ruling

The appeals court concurred with the district court’s fi nding that the FEC’s dismissal of the complaint in this case 

was subject to judicial review, but it rejected the lower court’s ruling that the FEC’s dismissal of the complaint was 

contrary to law. 

The court found that “because Section 437g(a)(8)(A) provides broadly for court review of an FEC order dismissing 

a complaint...we resist confi ning the judicial check to cases in which... the Commission ‘act[s] on the merits.’” The 

court further noted that the explanation of the provision in the legislative history occurred three years after Congress 

originally enacted the provision. However, the court limited its decision to the narrow circumstances presented in the 

case, “specifi cally a general counsel recommendation to pursue the complaint in fi delity to FEC precedent in point.”

Furthermore, the appeals court did not agree with the district court’s resolution of the merits of DCCC’s administrative 

complaint. “Because we have no explanation why three Commissioners rejected or failed to follow the General 

Counsel’s recommendation, we are unable to say whether reason or caprice determined the dismissal of DCCC’s 

complaint,” the court saId. The court therefore held that “the Commission or the individual Commissioners should 

fi rst be afforded an opportunity to say why DCCC’s complaint was dismissed in spite of the FEC’s General Counsel’s 

recommendation.” The case was remanded to the district court. 

Source: FEC Record, July 1985, p. 6; November 1986, p. 4; and December 1987, p. 5. , July 1985, p. 6; November 1986, p. 4; and December 1987, p. 5.

Democratic Congressional Campaign Committee v. FEC, 645 F. Supp. 169 (D.D.C. 1986), aff’d in part and remanded, 831 F.2d 1131 , 831 F.2d 1131 

(D.C. Cir. 1987).

1

 Coordinated party expenditures are limited expenditures which may be made by party committees on behalf of federal candidates in 

general election campaigns. During 1986, based on the cost of living adjustment, a national party committee could spend up to $21,810 

for each of its House candidates in Rhode Island. 2 U.S.C. §441a(d). 

2

 “[I]f the Commission considers a case and is evenly divided as to whether to proceed, that division...is not subject to review anymore 

than a similar prosecutoral decision by a U.S attorney.” See legislative history of 2 U.S.C. §437g(a)(8)(A) at 125 Cong. Rec. 36,754 

(1979) (emphasis added), reprinted in FEC, Legislative History of the FECA Amendments of 1979, at 549.

DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE v. FEC 

(96-0764)

On November 18, 1996, the U.S. District Court for the District of Columbia dismissed this case. The Democratic 

Congressional Campaign Committee (DCCC) had voluntarily requested such action.

Originally, the DCCC had asked the court to require the FEC to take action on an administrative complaint it fi led 

with the agency on November 4, 1994, alleging violations of the Federal Election Campaign Act (the Act) by Grant 

Lally, a Congressional candidate from New York.

The Act allows a complainant to fi le a lawsuit against the FEC if the agency fails to take action on his or her 

administrative complaint within 120 days after it is fi led. 2 U.S.C. §437g(a)(8)(A). The DCCC fi led suit on April 23, 

1996, after more than 120 days had elapsed.

In its original complaint, the DCCC alleged that Mr. Lally, who was vying to represent the fi fth district, received 

substantial, undisclosed contributions in violation of the limits of the Act. 2 U.S.C. §441a. The DCCC alleged that 

the money was in excess of $300,000. Mr. Lally said the money was “personal funds” lent to the campaign. The 

DCCC fi led a supplemental complaint in 1995 alleging that Mr. Lally had continued to violate the Act.

Source: FEC Record, January 1997, p. 4. , January 1997, p. 4.
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DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v.

 FEC (80-2074)

NATIONAL REPUBLICAN SENATORIAL COMMITTEE v. 

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE

In an administrative complaint, fi led May 9, 1980, DSCC alleged that NRSC had violated the Act by making special 

“coordinated” expenditures (2 U.S.C. §441a(d)(3)) as an agent for certain state Republican Party committees. Based 

on written agreements with the state party committees, the NRSC had made the expenditures to support the general 

election campaigns of various Senatorial candidates in 1978. NRSC’s expenditures were within the limits prescribed 

by §441a(d)(3) for special party expenditures that a state party committee may make on behalf of its Senate candidate 

(i.e., $20,000 or 2 cents multiplied by the voting age population of the state). On July 11, 1980, the Commission 

unanimously determined that there was “no reason to believe” that NRSC had violated the Act. This action was 

consistent with Commission determinations in prior enforcement actions.

District Court Ruling

In a petition fi led with the U.S. District Court for the District of Columbia on July 30, 1980 (Democratic Senatorial 

Campaign Committee v. FEC, Civil Action No. 80-1903), DSCC sought a declaration from the court that the FEC’s 

determination was contrary to law and an order directing the Commission to comply with the declaration within 

30 days. On August 28, 1980, the district court, ruling on cross-motions for summary judgment, denied the DSCC’s 

petition and affi rmed the Commission’s determination and interpretation of §441a(d)(3), concluding that the dismissal 

of DSCC’s complaint was not arbitrary, capricious, an abuse of discretion or otherwise contrary to law. 

Appeals Court Ruling

DSCC appealed the district court’s order on September 3, 1980 (No. 80-2074). On October 9, 1980, in a per curiam

opinion, the appeals court reversed the district court’s judgment and declared the Commission’s determination 

contrary to law. Finding that the Commission had presented no reasoned explanation for its determination on the 

administrative complaint, the court decided the issue de novo. The court determined that neither the language of the 

statute nor its legislative history could support the Commission’s interpretation of §441a(d)(3), i.e., that Congress 

had not intended to prohibit intraparty agency agreements, such as those used by the Republican Party committees. 

Accordingly, the appeals court held that, in the absence of an explicit statutory authorization, the agreements between 

NRSC and the state Republican Party committees violated Section 441a(d)(3). It issued a mandate directing the 

Commission to conform with its decision. 

On October 10, 1980, while the Commission was attempting to comply with the court’s decision, intervenor NRSC 

fi led an application to recall the mandate and a petition for an en banc rehearing of the case. The appeals court 

denied both motions on October 11, 1980. Then, in response to a request from NRSC, the Chief Justice of the 

Supreme Court issued a stay of the appeals court’s judgment, pending the Court’s decision on NRSC’s petition for a 

writ of certiorari.

Supreme Court Ruling

On March 2, 1981, the Supreme Court granted the Commission’s petition for a writ of certiorari in FEC v. Democratic 

Senatorial Campaign Committee (Civil Action No. 80-939). The Court also granted a petition for a writ of certiorari 

fi led by the National Republican Senatorial Committee (National Republican Senatorial Committee v. Democratic 

Senatorial Campaign Committee, Civil Action No. 80-1129) and consolidated the cases for oral argument. 

In a brief fi led with the Supreme Court on April 16, 1981, the Commission argued that its decision to dismiss 

DSCC’s administrative complaint was based on a reasonable interpretation of the Act and should be affi rmed. The 

Commission contended that, by substituting its judgment for that of the FEC, the appeals court had interfered with 

the Commission’s exclusive role as the expert body established by Congress to administer, enforce and interpret the 

Act. Moreover, in reversing the FEC’s consistent construction of Section 441a(d)(3), the appeals court had ignored 

precedent in the District of Columbia circuit, which gave judicial deference to the Commission’s interpretations of 

the Act. The Commission also asserted that the appeals court’s decision required it to develop a new rule of law or 

statutory interpretation in the context of an enforcement proceeding. This requirement was contrary to the statutory 

mandate that such rules and interpretations be made through advisory opinions and rulemaking. 

Furthermore, the Commission argued that its interpretation of 2 U.S.C. §441a(d)(3) was not contrary to law. Rather, the 

Commission’s interpretation was consistent with statutory language, Commission regulations and advisory opinions 

and legislative history. A contrary interpretation would confl ict with the clear Congressional intent to encourage a 
Selected Court Case Abstracts

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close working relationship among the various party committees. For example, under the Act, funds may be transferred 

without limit between political committees of the same party. 2 U.S.C. §441a(a)(4). The Commission asserted that 

Congress recognized the Act did not prohibit such intraparty arrangements when it rejected an amendment to the 

Act that would have prohibited NRSC from transferring funds to the state party committees for the purpose of 

making §441a(d) expenditures. The Commission therefore argued that its interpretation of §441a(d)(3) was entitled 

to deference by the appeals court. 

On November 10, 1981, the Supreme Court issued an opinion reversing the appeals court decision. The Supreme 

Court’s opinion affi rmed the Commission’s construction of §441a(d)(3) as a “suffi ciently reasonable” one. The Court 

found that the district court had been “correct” in according deference to the Commission’s interpretation.1 The Court 

held that “Section 441a(d)(3) does not expressly or by necessary implication foreclose the use of agency arrangements, 

such as are at issue here, and the FEC thus acted within the authority invested in it by Congress when it determined 

to permit such agreements.... While §441a(d)(3) does not authorize the NRSC to make expenditures in its own right, 

it does not follow that it may not act as agent of a Committee that is expressly authorized to make expenditures.” The 

Court further held that “the FEC’s view that the agency agreements were logically consistent with §441a(4)—which 

authorizes the transfer of funds among national, state, and local committees of the same party—is acceptable.” 

Source: FEC Record, August 1981, p. 2; and January 1982, p. 6. , August 1981, p. 2; and January 1982, p. 6. 

Democratic Senatorial Campaign Committee v. FEC, 660 F.2d 773 (1980 D.C. Cir.), rev’d 454 U.S. 27 (1981), 454 U.S. 27 (1981), on remand, 673 F.2d 551 , 673 F.2d 551 

(1982). 

1

 Moreover, the Court did not take issue with the fact that the FEC’s dismissal of the complaint was based solely on the General 

Counsel’s Report. 

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. FEC 

(90-1504)

On August 27, 1990, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment, ruling that the agency did not act contrary to law when it dismissed a portion of an administrative complaint 

fi led by the Democratic Senatorial Campaign Committee (DSCC). (Civil Action No. 90-1504.)

Background

In its administrative complaint (MUR 2766), DSCC alleged that $325,000 in media expenditures made by the Auto 

Dealers and Drivers for Free Trade Political Action Committee (Auto Dealers PAC) in support of 1988 Florida 

Senate candidate Connie Mack were not independent and thus violated the PAC’s $5,000 contribution limit for 

a candidate under 2 U.S.C. §441a(a)(2)(A). DSCC contended that, because the Auto Dealers PAC and the Mack 

campaign (Friends of Connie Mack) both used the services of two key campaign consultants, the independence 

of the PAC’s expenditures was compromised, resulting in excessive contributions by the PAC. The consultants, two 

media fi rms, provided services to the Mack campaign in Florida and to the Auto Dealers PAC for expenditures 

in other states.

The PAC denied using either media fi rm in connection with the Florida Senate race, identifying a third fi rm as its 

media consultant for Florida. The PAC’s director explained in an affi davit that, when the presidents of the two media 

fi rms disclosed that they were retained by the Mack campaign, he told them “not to say anything at all” about the 

Florida race to anyone associated with the PAC. The PAC submitted affi davits by the two presidents consistent with 

the PAC director’s affi davit. The Mack campaign also denied any consultation or coordination with the PAC and 

provided supporting affi davits.

The FEC’s General Counsel recommended that the Commission authorize an investigation of the matter because of 

“unanswered questions.” However, the Commission, by a vote of 3-2 (and one abstention), failed to fi nd “reason to 

believe” that a violation had occurred with respect to the independent expenditure portion of the complaint, thereby 

dismissing that portion.1 (The Commission did fi nd reason to believe that the Mack campaign had failed to comply 

with the 48-hour notice requirement for last-minute contributions and later entered into a conciliation agreement 

with the campaign with respect to that violation.)

On June 26, 1990, DSCC fi led suit seeking summary judgment that the FEC had acted contrary to law in dismissing 

DSCC’s allegation of coordination between the Auto Dealers PAC and the Mack campaign with respect to the PAC’s 

independent expenditures.
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Court Decision

The court found that the Commission’s decision to dismiss the independent expenditure allegation was not contrary 

to law, given the “totality of the circumstances” of the case.

DSCC had argued that the “totality of the circumstances” compelled an investigation to determine whether the 

PAC’s expenditures were independent. These circumstances included: (1) the two common consultants used by the 

Auto Dealers PAC and the Mack campaign; (2) the General Counsel’s recommendation to fi nd “reason to believe” 

and authorize an investigation; and (3) the affi davits submitted by the PAC and the Mack campaign, which DSCC 

claimed raised substantial questions. The court, however, was not persuaded by DSCC’s arguments.

With respect to the common consultants, the court found that “there was no reason to presume ‘coordination’ as the 

consultants were retained by the PAC to work on elections only outside the state of Florida.”

The court also found that the Commission’s decision not to follow the General Counsel’s recommendation was not 

unreasonable. Citing Commissioner Josefi ak’s Supporting Memorandum for the Statement of Reasons, the court 

stated: “In refusing to order an investigation, the Commission applied a minimum evidentiary threshold that required 

at least ‘some legally signifi cant facts’ to distinguish the circumstances from every other independent expenditure....

[O]therwise every ‘independent expenditure’ complaint would demand investigation.” The court said that “the only 

record of fact offered in support of DSCC’s allegations was the use of ‘common consultants.’” In the court’s view, 

however, the affi davits suggested that “the Florida Auto Dealers PAC built a ‘Chinese Wall’ between itself and the 

two Mack consultants.”

With regard to the affi davits, the court found it “entirely reasonable to read [them] as precluding, rather than raising, 

an inference of coordination.”

Accordingly, the court entered summary judgment in favor of the FEC and against DSCC.

Source: FEC Record, October 1990, p. 8. , October 1990, p. 8.

Democratic Senatorial Campaign Committee v. FEC, 745 F. Supp. 742 (D.D.C. 1990). 1 Four affi rmative votes are necessary to fi nd “reason to believe.” 

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. FEC 

(93-1321)

On November 14, 1994, the U.S. District Court for the District of Columbia ordered the FEC to vacate its dismissal of 

the Democratic Senatorial Campaign Committee’s (DSCC’s) complaint against the National Republican Senatorial 

Committee (NRSC) with respect to excessive contributions made in the 1992 Georgia U.S. Senate race. The court 

based this judgment on FEC regulations defi ning general and runoff elections. 11 CFR 100.2(b) and (d).

Background

A general election was held in Georgia on November 3, 1992, in which none of the candidates for U.S. Senate won a 

majority. Under Georgia law, when an election for U.S. Senator fails to produce a majority winner, a second election 

must be held between the top two vote getters. Such an election was held on November 24, 1992.

Under the federal election law, the DSCC and the NRSC were each permitted to spend up to $535,608 on behalf of 

their party nominee in the 1992 Georgia general election for U.S. Senate. 2 U.S.C. §441a(d). The NRSC had exhausted 

this spending authority by November 3, while the DSCC had not. Subsequently, the NRSC requested an advisory 

opinion from the FEC as to whether to classify the November 24 election as a second general election or as a runoff. 

The NRSC would be legally entitled to a new $535,608 spending authority if the election were deemed a general 

election, but not if it were deemed a runoff election. Since the Commission split 3-3 1 on how to classify the November 

24 election, no advisory opinion was issued. The NRSC then proceeded to spend nearly the full amount permitted for 

a general election in support of its candidate for the November 24 election. The DSCC, on the other hand, limited its 

expenditures to the balance which remained from the original §441a(d) allowance.

The DSCC fi led a complaint with the FEC on November 19, alleging that the NRSC had violated federal election 

law by exceeding its §441a(d) spending limit in this race. The Commission split 3-3 on whether or not to initiate an 

investigation and then dismissed the DSCC’s complaint. The DSCC then brought this case before the court.
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Court’s Ruling

Based on its interpretation of FEC regulations, the court concluded that the November 24 election was not a general 

election. It reasoned that the election could not qualify as a general election because it was not held on the Tuesday 

following the fi rst Monday in November in an even numbered year, nor was it designed to fi ll a vacancy, thus failing 

to meet either of the criteria for a general election. 11 CFR 100.2(b).

The court further reasoned that the November 24 election fi t the defi nition of a runoff election because it was held 

after a general election and it was prescribed by applicable state law as the means for deciding which candidate was 

the winner. 11 CFR 100.2(d).

The court disagreed with the argument that the November 24 election could be both a general and a runoff election. 

The court observed that the regulations do not state that a runoff election can also be a general election, whereas, in 

defi ning other types of elections, the regulations clearly state where overlap is possible.

The court ordered the FEC to initiate appropriate enforcement proceedings against the NRSC.

Source: FEC Record, January 1995, p. 10. , January 1995, p. 10.

Democratic Senatorial Campaign Committee v. FEC, No. 93-1321 (HHG) (D.D.C. Nov. 14, 1994). 1

 Four votes (out of six) are required to adopt advisory opinions and to take action in compliance matters. 11 CFR 112.4(a).

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. FEC

(95-0349)

On April 17, 1996, the U.S. District Court for the District of Columbia ruled that the FEC acted contrary to law when 

it allowed nearly 600 days to pass without taking any meaningful action on an administrative complaint fi led by the 

Democratic Senatorial Campaign Committee (DSCC). Under 2 U.S.C. §437g(a)(8)(A), anyone who fi les a complaint 

with the FEC may seek court intervention if the FEC fails to complete action on the complaint within 120 days.

The DSCC fi led the complaint on May 14, 1993. In the complaint, the DSCC alleged, among other things, that the 

National Republican Senatorial Committee had violated the law by making illegal “soft money” contributions to 

infl uence the 1992 Senate elections—particularly the runoff in Georgia.

On February 22, 1995, the DSCC fi led this suit claiming that the FEC’s failure to complete action was 

arbitrary and capricious.

The court reasoned that while FEC decisions concerning whether to conduct an investigation were entitled to 

judicial deference, the agency’s failure to consider a complaint for nearly 600 days was subject to judicial review. The 

court examined whether the FEC had acted reasonably in allowing nearly 600 days to pass before taking action on 

the DSCC’s complaint.

The criteria the court used to review the FEC’s inaction are outlined in Rose v. FEC Rose v. FEC (1984) and (1984) and Telecommunications 

Research & Action Center v. FCC Research & Action Center v. FCC (1984); they are: (1984); they are:

• The credibility of the allegation;

• The nature of the threat posed;

• The resources and information available to the agency;

• The novelty of the issues involved;

• The time it takes for the agency to make decisions;

• Whether Congress mandated a timetable for the agency to take action on such matters as the one at hand;

• The nature of the matter (for instance, delayed agency action on matters affecting human health and welfare 

are less tolerable than those in the sphere of economic regulation);

• The effect that court-ordered expedited action on the matter would have on agency activities of a higher or 

competing priority;
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• The nature and extent of the interest prejudiced by the agency’s delay in acting on the matter; and

• The fact that the court need not “fi nd any impropriety lurking behind agency lassitude in order to hold that 

agency action is ‘unreasonably delayed.’”

Based on its analysis of the factors listed above, the court ruled that the FEC’s failure to consider the DSCC’s 

complaint for nearly 600 days was contrary to law. The court noted, however, that while this litigation was pending, 

the FEC had moved forward with respect to the DSCC’s complaint. The court warned that should the FEC stall on 

this matter again, “the need for additional judicial intervention may well be compelling.”

Source: FEC Record, July 1996, p. 5. , July 1996, p. 5.

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. FEC

 (96-2109)

On October 9, 1996, the U.S. District Court for the District of Columbia dismissed this case in an expedited decision 

prompted by the nearness of the November general election. The court said that it could not rule on how party 

committees may make expenditures that are “independent” because the FEC has not yet addressed the issue in a 

rulemaking or an advisory opinion.

The Democratic Senatorial Campaign Committee (DSCC) and the Democratic Congressional Campaign Committee 

(DCCC) wanted the court to rule that their proposed expenditures qualifi ed as “independent expenditures” and 

therefore were outside any spending limits. But the court said that the FEC “has been granted primary jurisdiction 

and therefore should be given an adequate opportunity to address the issues raised by Plaintiffs.”

Background

In a June 26, 1996, decision, the Supreme Court held that political parties were capable of making “independent 

expenditures,” thus reversing the FEC’s long-held presumption that party expenditures on behalf of candidates were 

“coordinated” with candidates and thus subject to contribution or expenditure limits. Colorado Republican Federal 

Campaign Committee v. FEC, 116 S. Ct. 2309 (1996).

In July, the DSCC and the DCCC asked the FEC to revise agency regulations in time for the November election 

to explain how party committees, with their traditionally close contacts with candidates, could make independent 

expenditures. The Commission agreed to conduct the rulemaking but said it could not revise the rules in time for the 

1996 election cycle.

That same month the committees also formally requested an FEC advisory opinion (AOR 1996-30) to answer questions 

on their proposed independent expenditures, such as whether past contacts between party staff and candidates’ 

campaign staff would compromise the independence of the expenditures, or whether the party committees could 

erect a “Chinese Wall” to segregate staff chosen to work on independent expenditure campaigns.

An advisory opinion drafted by the FEC’s Offi ce of General Counsel and voted on in late August failed to win 

approval by the required four-vote majority of Commissioners.

In September, the plaintiffs fi led suit asking the court to fi nd that their proposed expenditures would qualify as 

independent expenditures. The committees claimed that they were forced to fi le suit because the FEC’s failure to 

issue formal guidance would expose them to possible penalties under the Federal Election Campaign Act should they 

pursue their independent expenditure program.

Court Decision

The court ruled that the plaintiffs had standing to fi le suit because they suffered injury: “the chilling of First 

Amendment rights” and “a creditable threat of prosecution.”

However, the court said, it was unable to rule on the substance of the case because the FEC had not yet taken any 

fi nal agency action that could be reviewed by a court. The court said that the plaintiffs “are asking the Court to ‘step 

into the Commission’s shoes’ and issue the advisory opinion and fi nal rules which it was unable to provide.” The court 

noted that Congress intended the FEC to interpret the statute fi rst, before the courts.
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The court therefore granted the FEC’s motion to dismiss the case.

The DSCC and DCCC subsequently asked the U.S. Court of Appeals for the District of Columbia to review the 

lower court’s judgment on an expedited basis so the case could be resolved before the election. That court, however, 

on October 11, 1996, denied the request to expedite the appeal. 

Source: FEC Record, November 1996, p. 7. , November 1996, p. 7. 

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. FEC

(96-2184, 97-5160 and 97-5161)

On November 25, 1996, the U.S. District Court for the District of Columbia denied a request from the Democratic 

Senatorial Campaign Committee (DSCC) to fi nd that the FEC violated the Federal Election Campaign Act when it 

failed to take action on an administrative complaint the DSCC had fi led with the Commission.

The DSCC fi led the lawsuit against the FEC after the agency had failed to act on its administrative complaint against 

the National Republican Senatorial Committee (NRSC) within 120 days. 2 U.S.C. §437g(a)(8)(A).

On April 10, 1998, the U.S. Court of Appeals for the District of Columbia Circuit remanded these two cases to the 

district court after fi nding that the question of standing had not been resolved.

On October 18, 1999, the U.S. District Court concluded that the DSCC had constitutional standing to 

litigate these cases.

Background

The DSCC fi led its administrative complaint in 1993 and followed it with a supplemental complaint in 1995. The 

complaints alleged that the NRSC had made at least $187,000 in illegal “soft money” expenditures to infl uence the 

Senate election of a Republican candidate in Georgia. The NRSC did this, the DSCC alleged, by funneling the money 

through four nonprofi t organizations that were allegedly closely aligned with the Republican Party.

In April 1996, the DSCC asked the court to order the FEC to act on its administrative complaints. The court found 

the FEC’s delay was contrary to law and told the agency to move forward with the case. It also told the DSCC to fi le 

another lawsuit if the FEC did not take action.

The DSCC did just that. In September 1996, it fi led suit, asking the court again to order the FEC to complete the 

consideration of its complaint within 30 days or give the DSCC the authority to fi le a civil action against the NRSC. 

In denying the DSCC’s request, the court said the FEC’s conduct did not yet constitute a failure to act that was 

contrary to law. Further, the FEC provided the court and the DSCC with a chronology of its actions taken over the 

past 15 months.

The court also based its ruling, in part, on the FEC’s considerable work load, lack of resources and competing priorities. 

In particular, it noted the U.S. Supreme Court ruling in the Colorado Republican Federal Campaign Committee case, 

which was handed down in June 1996 and which invalidated part of the FEC’s regulation governing expenditures by 

national and state party committees. That ruling, the court said, added an “additional layer of complexity” to the 

DSCC’s allegations against the NRSC.

The court noted that the statute of limitations period was coming to a close with regard to the DSCC’s administrative 

complaint. Therefore, the court ordered the FEC to fi le status reports on its progress on the administrative complaint 

every 30 days (the fi rst report was due December 10, 1996) and scheduled a March 1997 status conference for the FEC 

and the DSCC in the event that the matter was not resolved by then.

After waiting an additional four months and nearing the fi ve-year statute of limitations for this case, the DSCC fi led 

a motion for summary judgment, citing the FEC’s “near glacial pace” in the investigation and arguing again that the 

agency’s actions were contrary to law.

On May 30, 1997, the court granted the DSCC’s motion and ordered the FEC to take action, within 30 days, on the 

committee’s administrative complaint. The court also stated that if the FEC failed to take action within 30 days, then 

the DSCC could initiate its own lawsuit against the NRSC pursuant to 2 U.S.C. §437g(a)(8)(C).
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Arguments from the Commission

The FEC contended that it was moving forward with the investigation of the DSCC’s complaint and that it was 

“conducting a careful and deliberate investigation of constitutionally sensitive and factually complex issues arising 

from a national party’s payments to independent issue advocacy groups.” The FEC also argued that, without suffi cient 

time to conduct a thorough investigation, its fi ve commissioners would not be able to make an informed decision as 

to whether there was probable cause to believe that a violation of the Act had occurred. The FEC added that certain 

witnesses were challenging the Commission’s discovery requests.

District Court Decision

The standard for evaluating administrative delay is whether an agency has acted reasonably and in a manner 

that is not arbitrary or capricious.1 To measure this, the courts use several criteria described in Rose v. FEC and

Telecommunications Research & Action Center v. FCC.

Using those criteria, the court concluded that the FEC’s delay—taking more than four years from when the 

administrative complaint was fi led and nearly two years from the Commission’s “reason to believe” determination to 

decide whether there was probable cause to believe a violation of the Act had occurred—was unreasonable.

The court said that the FEC could no longer claim that the Supreme Court’s decision in the Colorado case complicated 

its investigation. The court also cited the impending fi ve-year mark for the case, and said that litigation delays resulting 

from motions to quash FEC subpoenas were foreseeable and provided no acceptable excuse for the delay.

The court concluded that the FEC’s failure to investigate and make a “probable cause” determination in a reasonable 

time frame was contrary to law under 2 U.S.C. §437g(a)(8)(C). It ordered the Commission to conform its conduct 

with the court’s declaration within 30 days. Subsequently, on June 20, 1997, the Commission appealed this decision 

to the U.S. Court of Appeals for the District of Columbia Circuit.

Appeals Court Decision

The appeals court remanded both cases to the district court to determine whether the DSCC had standing to sue the 

Commission under §437g(a)(8). In citing the issue of standing, the appeals court acknowledged that the question had 

come up only on appeal and mainly through an amicus curiae, or friend of the court, brief. The appeals court based its 

ruling on a 1998 U.S. Supreme Court decision in Steel Co. v. Citizens for a Better Environment, which “seems to hold 

that before deciding the merits (of a case), federal courts must always decide Article III (of the U.S. Constitution) 

standing whenever it is in doubt.” Because some doubt has now been raised, the appeals court remanded the cases 

to the district court to address the standing question. The DSCC must present evidence that it satisfi ed the threepronged test of standing—injury in fact, causation and redressability. With regard to redressability, the court said that 

the standing analysis may well have to depend on the Supreme Court’s decision in Akins v. FEC.

2 

District Court Decision

On remand, the district court decided that, in the fi rst case, the DSCC did not qualify as a “prevailing party” as 

defi ned in the Equal Access to Justice Act, and therefore vacated its earlier decision to award the DSCC attorney’s 

fees. The court did reconfi rm its prior order in the second case that found the Commission to have unreasonably 

delayed taking action on the administrative complaint fi led by the DSCC and required the Commission to conclude 

the matter within 30 days.

Source: FEC Record, January 1997, p. 2; August 1997, p. 3; June 1998, p. 4; and January 2000, p. 2. , January 1997, p. 2; August 1997, p. 3; June 1998, p. 4; and January 2000, p. 2.

DSCC v. FEC, 139 F.3d 951 (D.C. Cir. April 10, 1998). 1 Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980). 2 In the Akins case, several former government offi cials fi led a lawsuit against the FEC after it dismissed an administrative complaint 

they had fi led. Among the issues discussed at the Supreme Court was whether these former offi cials had standing to initiate this lawsuit.
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DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE v. 

NATIONAL REPUBLICAN SENATORIAL COMMITTEE

On August 15, 1997, in response to a court order, the FEC fi led an amicus brief about the confi dentiality of its 

documents in the Democratic Senatorial Campaign Committee (DSCC) suit against the National Republican 

Senatorial Committee (NRSC).

The DSCC’s suit was the fi rst contested case in which a private party has sued another private party for violations of 

the Federal Election Campaign Act (the Act), pursuant to 2 U.S.C. §437g(a)(8)(C). That section of the Act states that 

if the FEC fails to take action on a complaint within 30 days after it has been ordered to do so by the U.S. District 

Court for the District of Columbia, then the complainant may fi le suit in his or her own name against the alleged 

offender of the Act.

The DSCC had fi led two previous lawsuits—in April and November 1996—against the FEC charging that it had 

failed to take action within 120 days on an administrative complaint fi led by the DSCC, alleging that the NRSC had 

made illegal “soft money” expenditures to infl uence a Senate election in Georgia. 2 U.S.C. §437g(a)(8)(A). In the 

resolution of the second delay suit, which occurred on May 30, 1997, the court ordered the FEC to take action on 

the administrative complaint within 30 days. When that did not happen, the DSCC fi led suit on its own against the 

NRSC. 

The Commission’s brief was in response to an order from the court seeking the FEC’s views on keeping under seal 

certain documents it fi led during proceedings in the two DSCC delay cases and to which the NRSC has requested 

access. The Commission argued that providing such information to the NRSC would compromise its investigation 

into the DSCC’s original administrative complaint, which continues despite the DSCC’s most recent lawsuit against 

the NRSC. The documents being sought by the NRSC included information about potential witnesses and FEC 

actions and procedures in the investigation. The FEC contended that the information in the sealed fi les contained 

no evidence about the NRSC’s alleged violations, and thus would be of little relevance to the NRSC’s court battle 

with the DSCC. And, although the DSCC had seen some of the information under seal, it was barred by the court’s 

protective order from using that information in its own lawsuit against the NRSC.

The Commission also noted the precedent the court would set if it were to allow the NRSC to view the confi dential 

information covered by the protective order, stating that the Commission would have to take such actions into 

consideration in deciding what information to provide the court in future delay cases.

On August 27, 1997, the court granted a stay requested by the NRSC without deciding whether to maintain the 

confi dentiality of the documents. 

Source: FEC Record, October 1997, p. 1. , October 1997, p. 1.
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DNC v. FEC (96-2506)

On February 20, 1997, with the agreement of both parties, the U.S. District Court for the District of Columbia 

dismissed this case without prejudice and ordered the FEC to periodically update the Democratic National Committee 

(DNC) on the status of an administrative complaint it fi led against Bob Dole’s 1996 presidential campaign. 

In June 1996, the DNC fi led an administrative complaint with the Commission alleging that Mr. Dole’s presidential 

committee, Dole for President, Inc., disregarded the limit on expenditures during the pre-primary season. The 

administrative complaint was designated MUR 4382. Under the Presidential Primary Matching Payment Account 

Act, presidential candidates may receive matching payments for their primary campaigns if they agree to limit their 

expenditures to a set amount—in this case, a little more than $37 million. 2 U.S.C. §441a(b)(1)(A).

After no apparent action had taken place on the complaint, the DNC, on October 31, 1996, fi led suit asking the court 

to order the FEC to move forward on its allegations against the Dole campaign. The DNC said that in failing to 

act on its complaint within 120 days after it was fi led—the original administrative complaint was fi led June 12 and a 

supplemental complaint was fi led on July 22—the FEC was acting contrary to law. 2 U.S.C. §437g(a)(8)(A).

The court said that the FEC should give lawyers for the DNC confi dential, updated chronologies on the Commission’s 

actions in MUR 4382. The fi rst was to be delivered at the end of March 1997 with subsequent chronologies presented 

at 12-month intervals until the matter was resolved or there was further court action.

The contents of the chronologies may not be disclosed to anyone not involved in the administrative complaint. 

Additionally, DNC counsel may use the information only in preparation for litigation that may result from the MUR. 

To ensure that there is no unauthorized dissemination of the chronologies, DNC counsel must inform in writing each 

person who sees the information that it may not be shared with others. The DNC must maintain a list of those people, 

what information they have seen and a written statement from each person acknowledging that he or she understands 

the confi dentiality provisions that are part of this court action.

Source: FEC Record, May 1997, p. 5. , May 1997, p. 5.

DNC v. FEC (97-676)

On July 2, 1998, at the request of the FEC, and with the consent of the Democratic National Committee (DNC), 

the U.S. District Court for the District of Columbia dismissed this case without prejudice and remanded the matter 

back to the FEC to review the impact of the appellate and U.S. Supreme Court decisions in Akins v. FEC Akins v. FEC on issues on issues

presented in this case. 

The suit concerned the Commission’s dismissal of the DNC complaint alleging that the Christian Coalition is a 

political committee.

Source: FEC Record, December 1995, p. 1; February 1997, p. 1; June 1997, p. 7; July 1998, p. 1; and September 1998, p. 3. , December 1995, p. 1; February 1997, p. 1; June 1997, p. 7; July 1998, p. 1; and September 1998, p. 3.

DOLAN v. FEC

By agreement of both parties, the U.S. District Court for the District of Columbia dismissed this case on August 17, 

1990. (Civil Action No. 90-0542.) Robert E. Dolan had asked the court to declare that 2 U.S.C. §438(a)(4), referred 

to as the “sale and use restriction,” was unconstitutional as applied to his efforts to solicit individuals identifi ed as 

contributors in FEC reports.

On July 13, 1990, the Commission had fi led suit in the same court, asking the court to declare that Mr. Dolan 

knowingly and willfully violated the sale and use restriction.

On September 5, 1990, the Commission fi led a motion to amend its complaint by requesting a court declaration that 

the sale and use restriction is constitutional insofar as it curtails the sale or use of contributor data for commercial 

purposes. The Commission also asked the court to certify the constitutional issue to the U.S. Court of Appeals for 

the District of Columbia Circuit under 2 U.S.C. §437h.

Source: FEC Record, October 1990, p. 8. , October 1990, p. 8.
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DOLBEARE v. FEC

On March 11, 1982, the U.S. District Court for the Southern District of New York issued a ruling granting a 

preliminary injunction to the plaintiffs in Dolbeare v. FEC Dolbeare v. FEC (No. 81 Civ. 4468-CLB). (No. 81 Civ. 4468-CLB). 

Plaintiffs’ suit challenged pending FEC investigations of various activities with respect to the Citizens for LaRouche 

Committee (the LaRouche campaign), Lyndon H. LaRouche’s principal campaign committee for the 1980 

Presidential primaries. The LaRouche campaign claimed that the statutory provision authorizing the investigations 

(2 U.S.C. §437g(a)(2)) was unconstitutional as applied to the LaRouche campaign because it placed no limits on the 

time for completing the investigations. Moreover, the LaRouche campaign alleged that the FEC had undertaken the 

investigations to harass the campaign. Furthermore, the investigations had a chilling effect on the free association 

rights of the campaign’s contributors. The LaRouche campaign also claimed that, in conducting its investigations, the 

FEC had gone beyond the prescribed scope for FEC investigations. 

The FEC sought dismissal of the suit on jurisdictional grounds. Primarily, the FEC claimed that the suit was not 

justiciable because, under 2 U.S.C. §437g(a), an agency has the discretion to decide whether there is “reason to 

believe” the Act has been violated and whether an alleged violation should be investigated. The FEC also argued 

that, pursuant to the Supreme Court’s decision in Federal Trade Commission v. Standard Oil of California, such 

initial agency determinations are not fi nal and thus not ripe for judicial review in a federal court. Moreover, the FEC 

said that §437h provides jurisdiction only for claims of statutory unconstitutionality, not for claims that a statute 

is unconstitutional as applied. Furthermore, the FEC argued that the LaRouche campaign’s claim that the FEC’s 

investigations would have a long-term chilling effect on their political activities did not meet the test for immediate 

injunctive relief—evidence of “specifi c present objective harm or a threat of specifi c future harm...” (Laird v. Tatum, 

408 U.S. 1, 13-14 (1971)). The FEC further argued that the LaRouche campaign had failed to present suffi cient 

evidence to demonstrate a likelihood of succeeding with its case on the merits. 

In granting a preliminary injunction, the court found that it did have jurisdiction over the claims raised in the suit and 

that §437h could be used to challenge the constitutionality of the Act, as applied. The court also held that it did not 

have to certify the campaign’s constitutional questions to the appeals court, pursuant to §437h, but could itself take 

primary jurisdiction over them. The court reasoned that the campaign would be caused “irreparable harm” as a result 

of substantial legal fees and the depletion of volunteer staff resources required to defend the campaign against the 

FEC’s ongoing investigations. The court therefore barred the FEC from:

• Initiating any more investigations into the LaRouche campaign’s 1980 Presidential primary activities until the 

pending enforcement actions were concluded; and

• Auditing, or issuing depositions to, LaRouche campaign contributors unless the FEC simultaneously notifi ed 

the LaRouche campaign of such actions. 

Moreover, the court ordered the FEC to complete its enforcement actions promptly and to treat the LaRouche 

campaign as a respondent to all pending investigations involving the campaign’s 1980 Presidential primary activities. 

The court also ordered the FEC to furnish copies of depositions taken with regard to any of the pending investigations, 

if requested by the LaRouche campaign. The court, however, conditioned its enforcement of the injunction on:

• Plaintiffs’ agreement to waive certain legal claims with respect to time limits for the FEC enforcement actions; 

and 

• Plaintiffs’ full cooperation with the FEC in completing the pending enforcement matters. 

Source: FEC Record, May 1982, p. 6. , May 1982, p. 6. 

Dolbeare v. FEC, No. 81 Civ. 4468-CLB (S.D. N.Y. March 9, 1982) (unpublished opinion).
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DOLE V. FEC

On February 29, 2001, Robert J. Dole and Dole/Kemp ’96, Inc., (Dole/Kemp), Mr. Dole’s 1996 presidential campaign 

committee, fi led in the U.S. Court of Appeals for the District of Columbia Circuit a petition for review of the Federal 

Election Commission’s audit of Dole/Kemp. On January 29, 2001, the Commission made a fi nal determination that 

the petitioners must repay $1,416,903.40 to the U.S. Treasury. 

On April 2, 2001, the court granted a joint motion fi led by the petitioners and the Commission to hold the case in 

abeyance through May 23, 2001, to allow the parties an opportunity to engage in settlement discussions that might 

eliminate the need for further litigation. 

Source: FEC Record, May 2001, p. 6. , May 2001, p. 6.

DOLE v. INTERNATIONAL ASSOCIATION MANAGERS

On February 14, 1991,1 the U.S. District Court for the District of Arizona granted the FEC’s motion for leave to 

intervene in the case. (Civil Action No. CIV 90-0129 PHX RCB.)

The suit was fi led by the Department of Labor and its Secretary, Elizabeth Dole. They alleged that defendants 

failed to pay overtime wages in violation of the Fair Labor Standards Act. International Association Managers, Inc. 

(IAM) and two of its offi cers were named as defendants. Counsel for the defense took depositions from two former 

IAM employees who defendants believe are involved in the Department of Labor investigation and in an ongoing 

investigation by the FEC. When questioned about their communications with the two agencies, the employees refused 

to answer, citing the “government informant’s privilege.” Defendants then fi led a motion to compel the employees to 

respond to these questions.

In response to the defendants’ motion, the FEC fi led a motion to intervene in the case or to fi le an amicus response to 

defendants’ motion to compel. The court granted the motion, stating: “The interest of the FEC in protecting against 

disclosure of the identity of informants and the nature of informants’ communications with the FEC is similar to the 

interest the Department of Labor seeks to protect....The interest of the two agencies may not be identical, however, 

and the court can see no reason for requiring the FEC to rely on another agency to protect its interest.”

The court also denied defendants’ motion to compel the testimony of the two employees. Further, it granted the 

FEC’s motion for a protective order to prohibit defendants from questioning any witness to learn the identity of 

persons communicating with the FEC and the nature of those communications. The court granted a motion for a 

similar order requested by the Department of Labor to protect that agency’s communications.

Source: FEC Record, June 1991, p. 9. , June 1991, p. 9.

1 The order was amended on April 1, 1991, to correct a typographical error.

DUKAKIS v. FEC

SIMON v. FEC

On May 5, 1995, the U.S. Court of Appeals for the District of Columbia Circuit ruled that in both these cases the 

FEC was time barred from imposing repayment obligations on the plaintiffs. Both plaintiffs did not receive an initial 

repayment determination within the 3-year statute of limitations. 26 U.S.C. §9038(c). The FEC’s actions in these 

matters were therefore reversed.

Background

Both Governor Michael Dukakis and Senator Paul Simon made bids for the 1988 Democratic Presidential 

nomination. Both of them received public funding for their campaigns. Pursuant to 26 U.S.C. §9038(a), the FEC 

conducted audits of both campaigns. The 3-year statute of limitations was triggered on July 20, 1988, the day the 

Democratic National Convention nominated Governor Dukakis for President. Final audit reports containing 

initial repayment determinations were issued on December 9, 1991, for Dukakis and on October 22, 1991, for 

Simon. These initial determinations were not fi nalized until February 25, 1993, for Dukakis and March 4, 1993, 

for Simon; the Commission determined that the Dukakis and Simon campaigns owed the U.S. Treasury $491,282 

and $412,162, respectively.
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D

The 3-Year Statute of Limitations

26 U.S.C. §9038(c) states: “No notifi cation [of repayment] shall be made by the Commission . . . with respect to a 

matching payment period more than 3 years after the end of such period.” The FEC contended that the interim audit 

report, issued in both cases within 3 years of the date of the nomination, was suffi cient notice to obligate plaintiffs 

to make the repayments. To bolster this argument, the FEC reminded the court that, in accordance with the decision 

in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the court must defer to an agency’s reasonable 

interpretation of the statute it administers.

The court concluded that deference was not required in this case because Chevron requires a court to defer to an 

agency only in cases where the statute at hand is ambiguous on the issue in dispute. The court found no ambiguity 

in either of these cases: “Subsection §9038(b) requires that the Commission notify the candidate of the amount 

which he is to pay to the Secretary. The interim audit report does not even purport to notify the candidate of 

any such amount.”

The court cited 11 CFR 9038.2, which states that the inclusion of a preliminary repayment calculation in an interim 

audit report is optional, as grounds on which to dismiss the notion that the interim report fulfi lled the FEC’s obligation 

under the statute of limitations. Further, the court noted that when the Commission issued rules making the interim 

audit report a mandatory part of the audit process, it included in its Explanation and Justifi cation language stating 

that: “[Preliminary] calculations will not . . . be considered as the Commission’s initial repayment determination . . . .”

The court also dismissed the FEC’s reliance on a 1991 amendment to its regulations, 11 CFR 9038.2(a)(2), that 

explicitly states that the interim audit report constitutes notifi cation for purposes of the 3-year statute of limitations. 

“[No] such administrative action by the Commission can override the plain mandate of the legislation,” said the court.

Additionally, the court held that, although the statute does not explicitly say so, the 3-year notifi cation period 

implicitly applies to the repayment of surplus campaign funds when the candidate disputes that a surplus exists, as 

well as to the repayment of nonqualifi ed campaign expenses and excessive payments. 26 U.S.C. §9038(b)(1), (2) and 

(3). Thus, in the case of Governor Dukakis, who disputed the audit’s fi nding that he had a surplus, the Commission 

was required to notify him of the amount due within the 3-year period.

Source: FEC Record, July 1995, p. 9. , July 1995, p. 9.

Dukakis v. FEC, No. 93-1219 (D.C. Cir. May 5, 1995). Simon v. FEC, No. 93-1252 (D.C. Cir. May 5, 1995).

DURKIN FOR U.S. SENATE v. FEC

Plaintiff initially sought a declaratory judgment from the court that certain individuals associated with a “Defeat 

Durkin” effort constituted a “political committee” under the Act, which had failed to register and report with the 

FEC, and that one of the individuals had made excessive contributions to the “Defeat Durkin” effort. Plaintiff also 

sought a preliminary injunction to enjoin the “Defeat Durkin” effort from: spending any additional funds until it 

registers with the FEC or spending any funds which consist of contributions in excess of the limits. Finally, plaintiff 

asked the court to order the FEC to expedite review of a complaint plaintiff had fi led three days earlier, on October 

24, against the same individuals and the “Defeat Durkin” effort. 

On October 31, 1980, the district court denied plaintiff’s request for declaratory and injunctive relief and dismissed 

the suit. The court maintained that it had no jurisdiction over the suit because the Act stipulates the time frame 

in which the Commission must resolve complaints. The court said, “The FECA explicitly requires...that the party 

accused of a violation be given 15 days to ‘demonstrate, in writing...that no action should be taken against such 

person on the basis of the complaint.’ .... By the terms of the statute, the Commission cannot act until they [the 

accused parties] have responded or until 15 days have passed.”

(U.S. District Court for the District of New Hampshire, Docket No. C80-503D, October 27, 1980)

Source: FEC Record, December 1980, p. 7. , December 1980, p. 7.

Durkin for U.S. Senate Committee v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) 9147 (D.N.H. 1980).
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F

EPSTEIN v. FEC

On September 23, 1981, the U.S. District Court for the District of Columbia issued an order in Jon Epstein v. FEC

(Civil Action No. 81-0336) upholding the Commission’s determination in an administrative complaint that plaintiff 

had brought against the Reader’s Digest Assoc., Inc. in March 1981. Plaintiff’s suit sought review of the FEC’s 

dismissal of his complaint (Matter Under Review [MUR] 1283), pursuant to 2 U.S.C. §437g. In the complaint, he 

alleged that an ad Reader’s Digest had placed in the August 27, 1980, edition of the Washington Post constituted 

illegal corporate contributions to the campaigns of the Democratic and Republican Congressmen whose excerpted 

articles had appeared in the ad (in violation of 2 U.S.C. §441b). Introductory and concluding copy in the ad had 

also promoted Reader’s Digest as a “forum for ideas.” Plaintiff claimed the FEC’s dismissal of his complaint was 

contrary to law. 

The court found that the standard used by the FEC in dismissing the complaint was not arbitrary or otherwise 

contrary to law. The court held that the “...Commission may reasonably determine that expenditures on publicity 

that have a purpose other than assistance of political candidates...were not intended by Congress to be” regulated by 

the Act. This is particularly true, the court said, when the “major purpose” of the publicity is “not to advocate the 

election of candidates, but to promote the organization paying for the publicity.” The court further noted that, in 

making this determination, the FEC had “relied upon a growing body of decisions...that remove advertisements and 

other forms of publicity from the Act’s prohibition” on corporate expenditures, even though the advertisements” may 

have political aspects.”

Moreover, the court found no merit in plaintiff’s argument that the General Counsel’s Report did not explain the 

Commission’s decision to dismiss the complaint. “The General Counsel’s Memorandum alone, if it is complete 

enough to have provided a basis for the Commission decision to accept the General Counsel’s recommendation, will 

be adequate for judicial review under section 437g(a)(8).” Nor did the court fi nd merit in plaintiff’s contention that 

the ad was partisan because it offered commentary only by representatives of the two major parties. The court held 

that the issue was not “the narrowness, or diversity, of the political views” represented in the ad but rather whether 

the ad served a “partisan purpose.”

Source: FEC Record, November 1981, p. 4. , November 1981, p. 4. 

Epstein v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) 9161 (D.D.C. 1981), aff’d mem., 684 F.2d 1032 (D.C. Cir. 1982). 

FAUCHER v. FEC 

On June 29, 1990, the U.S. District Court for the District of Maine ruled that 11 CFR 114.4(b)(5)(i), which concerned 

the publication and public distribution of voter guides by corporations, was unauthorized by the Federal Election 

Campaign Act. In the court’s view, the rule was invalid because it applied “issue advocacy” as a factor in determining 

whether a voter guide constituted a prohibited expenditure.

The court denied, however, a request from plaintiffs for injunctive relief to prevent the FEC and the U.S. Attorney 

General from taking enforcement action against plaintiffs’ proposed 1990 publications. 

On March 21, 1991, the U.S. Court of Appeals for the First Circuit affi rmed the district court decision. On October 

7, 1991, the U.S. Supreme Court denied the FEC’s petition for a writ of certiorari. 

Background

Previous Suit

The Maine Right to Life Committee, Inc. (MRLC), a nonprofi t membership corporation, and Sandra Faucher, an 

MRLC board member, fi led a similar suit in the same court in 1985, Faucher v. FEC, 708 F. Supp. 9 (D. Me. 1989). 

In that suit, MRLC and Ms. Faucher also challenged 11 CFR 114.4(b)(5), which permits corporations to prepare 

and distribute to the public nonpartisan voter guides consisting of questions posed to candidates on campaign 

issues and the candidates’ responses. Anticipating that the proposed MRLC voter guide would not comply with the 

FEC’s standards for nonpartisanship, plaintiffs asked the court to invalidate the regulation and issue an injunction 

preventing the FEC from enforcing the rule. On February 24, 1989, the court dismissed the suit on the ground that 

plaintiffs fi rst needed to obtain an FEC advisory opinion on the legality of the proposed publication. Plaintiffs then 

sought an advisory opinion, which was issued on February 14, 1990 (AO 1989-28). 
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F

AO 1989-28

In AO 1989-28, the Commission concluded that MRLC could not use general treasury funds to distribute to the 

general public a newsletter containing a proposed voter guide.

First, because MRLC had a policy of accepting corporate contributions and had, in fact, accepted such contributions, 

it failed to qualify for the exemption granted to certain nonprofi t corporations as a result of the Supreme Court’s 

decision in Massachusetts Citizens for Life, Inc. (MCFL) v. FEC, 479 U.S. 238 (1986). In that decision, the Supreme 

Court ruled that the prohibition against corporate spending was unconstitutional as applied to nonprofi t corporations 

that satisfi ed certain criteria.

Second, MRLC’s proposed publication did not comply with the criteria for nonpartisan communications set forth 

at 11 CFR 114.4(b)(5). Specifi cally, the publication favored a pro-life position, although the rule states that a 

nonpartisan voter guide may not suggest or favor any position on the issues covered by the candidate survey. 11 CFR 

114.4(b)(5)(i)(C) and (D). (For a more detailed summary of this opinion, see the March 1990 Record.) 

Second Suit

On April 18, 1990, MRLC and Faucher fi led a second suit, again challenging 11 CFR 114.4(b)(5) on the grounds 

that the regulation was beyond the authority of the FEC and was unconstitutionally vague. Plaintiffs also sought 

a declaratory judgment that MRLC’s proposed 1990 publications were permissible under the Federal Election 

Campaign Act. They further sought an injunction prohibiting the FEC and the U.S. Attorney General from enforcing 

the voter guide regulations with regard to MRLC’s proposed activity.

District Court

In its June 29 decision, the court found that 11 CFR 114.4(b)(5) was invalid because it focused on “issue advocacy.” 

The court found that plaintiffs did not have standing to challenge other aspects of the rule and denied plaintiffs’ 

request for declaratory and injunctive relief. 

Invalidity of 11 CFR 114.4(b)(5)

The court fi rst cited 2 U.S.C. §441b as the statutory basis for the regulation in question. Section 441b prohibits “any 

corporation whatever” from making “a contribution or expenditure in connection with any [federal] election....” The 

court, however, found that the Supreme Court, in its MCFL decision, had limited the scope of the prohibition to 

expenditures that “expressly advocate” the election or defeat of a clearly identifi ed candidate.

Under the regulation in question, 11 CFR 114.4(b)(5), a corporation may use its treasury funds to distribute a voter 

guide to the general public only if the guide is “nonpartisan.” Included among the factors defi ning “nonpartisan” is 

that the wording does not favor any position, or express an editorial opinion, on the issues covered by the candidate 

survey. 11 CFR 114.4(b)(5)(i)(C) and (D). The court found that “[t]his approach ignores the clear language of FEC v. 

Massachusetts Citizens for Life that issue advocacy by a corporation cannot constitutionally be prohibited and that 

only express advocacy...is constitutionally within the statute’s prohibition.”

The court therefore concluded that the regulation, “with its focus on issue advocacy, is contrary to the statute as the 

United States Supreme Court has interpreted it and, therefore, beyond the power of the FEC.” 

Other Challenges

The court ruled that MRLC did not have standing to challenge another aspect of the regulation: its failure to 

incorporate in explicit language the MCFL holding that the statute cannot constitutionally limit even express 

advocacy by a certain type of nonprofi t membership corporation. MRLC lacked standing because it did not qualify 

as the type of corporation covered under the MCFL exemption. One of the essential factors for the exemption is 

that the nonprofi t corporation must not receive contributions from business corporations and must have a policy 

against accepting such contributions. Although MRLC received “comparatively modest” amounts from corporate 

businesses, without an explicit policy against accepting such contributions, organizations like MRLC could serve as 

a conduit for corporate contributions.

The court also declined to address plaintiffs’ challenge that 11 CFR 114.4(b)(5) does not explicitly incorporate the 

statutory “news story” exemption at 2 U.S.C. §431(9)(B)(i), which exempts news media costs from the defi nition of 

“expenditure.” The court said it was “satisfi ed that the MRLC does not fi t within this media exemption” and that 

therefore plaintiffs did not have standing to challenge the regulation on this score. (Another FEC regulation, 11 CFR 

100.8(b)(2), parallels the statutory exemption.)
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FEC v.

A

Finally, the court found that plaintiffs did not have standing to challenge 11 CFR 114.4(b)(5)(ii). Plaintiffs had 

asserted that the regulation was unconstitutionally vague in directing that certain publications “not favor one 

candidate or political party over another.” Since that portion of the regulation affects only nonprofi t, tax-exempt 

corporations that do not “support, endorse or oppose candidates or political parties,” it does not apply to MRLC, 

which has established a separate segregated fund to engage in such activity. (In AO 1984-17, the Commission held that 

a tax-exempt corporation becomes an organization that supports, endorses or opposes candidates if it establishes a 

separate segregated fund that does so.) 

Denial of Declaratory and Injunctive Relief

Finding that the issue was not ripe for consideration, the district court denied plaintiffs’ request for a declaratory 

judgment that their proposed 1990 voter guide was permissible under the Act and also denied their request for 

injunctive relief to prevent any enforcement action against their proposed 1990 publications. Plaintiffs said that 

the 1990 publications would be substantially similar to the 1988 publication, but the court was “not prepared to 

base declaratory and injunctive relief upon a 1988 publication, when minor changes could make that ruling wholly 

inapplicable to the actual 1990 publications.”

The court stated: “In a context where words and nuances may be critical, I do not have the actual language and format 

of the publications. Given the FEC’s enforcement role,...such [declaratory and injunctive] relief would unduly interfere 

with the overall ability of that agency to conduct investigations of alleged violations, might well delay it in gathering 

important information and would interfere with the congressional goal of resolving specifi c election disputes through 

conciliation....An injunction may in fact be wholly unnecessary. Finally, any hardship to the parties in fi nding this 

issue not ripe is minimal, given the plaintiffs’ historical practice of publishing despite any uncertainty.”

The plaintiffs did not appeal the district court’s denial of the injunction or rejection of their constitutional challenges. 

The FEC, however, fi led an appeal seeking reversal of the court’s invalidation of section 114.4(b)(5)(i).

Court of Appeals

In affi rming the district court’s judgment invalidating the Commission’s regulation, the U.S. Court of Appeals for 

the fi rst circuit fi rst examined the scope of the statutory prohibition, section 441b(a). (The provision prohibits “any 

corporation whatever” from making “a contribution or expenditure in connection with any [federal] election....”) The 

court acknowledged that “the statute appears to allow for a very broad application,” but stated that the Supreme Court 

in Buckey v. Valeo narrowed the scope of the prohibition: “The Supreme Court, recognizing that such broad language 

as found in section 441b(a) creates the potential for fi rst amendment violations, sought to avoid future confl ict by 

explicitly limiting the statute’s prohibition to ‘express advocacy.’” The court went on: “This express advocacy test was 

again embraced by the Supreme Court in the more recent case of Massachusetts Citizens for Life.”

The court rejected the FEC’s argument that the language in the Supreme Court’s MCFL opinion which appeared to 

limit section 441b(a) was dictum and therefore not binding. The court also rejected the FEC’s alternative argument 

that even if section 441b(a) were restricted to express advocacy expenditures, the FEC’s voter guide rules were 

properly directed at advocacy of candidates and did not appreciably infringe upon a corporation’s ability to advocate 

its position on issues. The court stated: “In our view, trying to discern when issue advocacy in a voter guide crosses the 

threshold and becomes express advocacy invites just the sort of constitutional questions the Court sought to avoid in 

adopting the bright-line express advocacy test in Buckley.”

Source: FEC Record, September 1990, p. 5; May 1991, p. 8; and November 1991, p. 1. , September 1990, p. 5; May 1991, p. 8; and November 1991, p. 1.

Faucher v. FEC, 743 F. Supp. 64 (D.Me. 1990), aff’d, 928 F.2d 468 (1st Cir. 1991), , 928 F.2d 468 (1st Cir. 1991), cert. denied, 495 U.S. (October 7, 1991). , 495 U.S. (October 7, 1991).

FEC v. AFL-CIO

On November 13, 1980, the U.S. Supreme Court denied the Commission’s petition for a writ of certiorari in the suit, 

FEC v. American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) (Supreme Court Docket 

No. 80-368). The Commission sought review of a judgment of the U.S. Court of Appeals for the District of Columbia 

Circuit, which had reversed an earlier decision by the U.S. District Court for the District of Columbia, imposing a 

$10,000 civil penalty against the AFL-CIO. 

In fi ling the suit against the AFL-CIO on December 16, 1977, the Commission had sought to enjoin the organization 

from transferring funds from its COPE Education Fund (which contained general treasury funds) to COPE-PCC, its 

separate segregated fund (which contained only voluntary political contributions from individuals). The Commission 

had argued that the transfers violated provisions of the Act prohibiting labor organizations from using their general 

treasury funds to make contributions or expenditures in connection with federal elections. Between 1970 and 1977, 
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Cases Through March 2004 81

FEC 

v.

FEC v.

A

COPE-PCC had transferred funds to the COPE Education Fund several times because COPE-PCC’s funds were idle 

between elections. On demand of COPE-PCC, the funds were subsequently transferred from the COPE Education 

Fund back to COPE-PCC for its use. The COPE-PCC transfers were designated as loans to the COPE Education 

Fund but were interest free. Complete records were kept, and the transactions were reported to the Offi ce of Federal 

Elections of the General Accounting Offi ce (GAO) and later to the FEC. 

In 1977, after the FEC had succeeded to the GAO’s authority, it notifi ed the AFL-CIO that section 441b of the 

Act permits transfers of funds from COPE-PCC to the COPE Education Fund but not transfers from the COPE 

Education Fund back to COPE-PCC. In an FEC enforcement action brought against the AFL-CIO, the AFL-CIO 

attempted to negotiate with the FEC a transfer of $321,000 from the Education Fund to COPE-PCC for the purpose 

of clearing the balance between the two funds. No agreement was reached and the FEC brought a civil action against 

the AFL-CIO in the district court. On June 16, 1978, the district court granted the Commission’s motion for summary 

judgment in the case. It ruled that past transfers from the COPE Education Fund to COPE-PCC were illegal, enjoined 

the AFL-CIO from making any such transfers in the future (except for a single transfer of the $321,000 previously 

transferred) and assessed a $10,000 civil penalty against the AFL-CIO. The AFL-CIO appealed the assessment of 

the civil penalty. 

The appeals court, on April 1, 1980, reversed the imposition of the $10,000 civil penalty. The appeals court found that 

the lower court had imposed the statutory penalty for a “knowing and willful” violation of the election law, although 

the facts in this case did not support a fi nding that the defendant’s violation were “knowing and willful.” (See 2 U.

S.C. §437g(a)(5)(B).) The court held that the AFL-CIO’s belief in the legitimacy of the transfers had been reasonable; 

during the GAO audit no comment had been made about the routinely reported transfers, and neither the Act nor 

any court decision had addressed the immediate issue. (The appeals court rejected the FEC’s argument that Pipefi tters 

Local No. 562 v. United States, 407 U.S. 385 (1972) provided specifi c notice that interfund transfers were prohibited 

by the Act.)

On November 10, 1980, the Supreme Court refused a request by the FEC for a writ of certiorari to review the appeals 

court ruling on the imposition of the civil penalty. 

Source: FEC Record, January 1981, p. 6. , January 1981, p. 6.

FEC v. AFL-CIO, 628 F.2d 97 (D.C. Cir.), cert. denied, 449 U.S. 982 (1980). , 449 U.S. 982 (1980). 

FEC v. AFSCME 

On May 14, 1979, the U.S. District Court for the District of Columbia dismissed a suit which the FEC had fi led 

against the American Federation of State, County and Municipal Employees (AFSCME). In that action, it was 

alleged that AFSCME had violated the disclosure requirements of 2 U.S.C. §431(f)(4)(C) by failing to report $983.73 

it had spent to publish and circulate a political poster to its members immediately prior to the 1976 general election. 

The poster in question depicted, in caricature, President Gerald Ford, wearing a lapel button with the words “Pardon 

Me,” and embracing former President Richard Nixon. The poster contained a quote taken from a speech given by 

Ford as Vice President: “I can say from the bottom of my heart the President of the United States is innocent and 

he is right.”

The Act specifi cally excludes from the defi nition of the term “expenditure” any communication made by a membership 

organization or a corporation to its members or stockholders, but requires that the costs directly attributable to 

communications expressly advocating the election or defeat of a clearly identifi ed candidate must be reported to the 

Commission if they exceed $2,000 per election (2 U.S.C. §431(9)(b)(iii)).1 AFSCME had reported “communications 

costs” of approximately $40,000 in connection with the 1976 general election, including approximately $23,000 

directly attributable to expressly advocating the election of Jimmy Carter. 

The court found that, although the Nixon-Ford poster did pertain to a clearly identifi ed candidate and may have 

tended to infl uence voting, it did not contain an “express advocacy” of election or defeat within the narrow defi nition 

given to that term in Buckey v. Valeo. Additionally, the court held that, as a communication concerning a public 

issue widely debated during the 1976 campaign, the poster is typical of the political speech which is protected from 

regulation. Accordingly, the court dismissed the action for failure to allege a violation. 

Source: FEC Record, July 1979, p. 8. , July 1979, p. 8.

American Federation of State, County and Municipal Employees: FEC v., 471 F. Supp. 315 (D.D.C. 1979). 1 Prior to the 1979 amendments to the FECA, this statute was §431(f)(4)(C). 
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FEC v.

A

FEC v. AFSCME-PQ 

On July 10, 1990, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment, ruling that the American Federation of State, County and Municipal Employees-P.E.O.P.L.E., Qualifi ed 

(AFSCME-PQ), the separate segregated fund of AFSCME, and its treasurer, William Lucy, violated the law when 

they delayed the disclosure of in-kind contributions to the 1982 and 1984 Indiana House campaigns of Representative 

Frank McCloskey. (Civil Action No. 88-3208.) On October 31, 1991, the court assessed a civil penalty of $2,000 

against the defendants.

During September of 1982 and 1984, AFSCME-PQ established telephone banks that were used in part to advocate 

the election of Representative McCloskey. Instead of reporting these in-kind contributions at the time they were 

made (i.e., when the services were provided on behalf of the candidate), AFSCME-PQ reported them after it paid the 

bills for the services, some months after the services were provided.

Although AFSCME-PQ claimed that the in-kind contributions were reported on time (i.e., when the funds were 

disbursed), the court disagreed, citing the statutory requirement that a committee must disclose the name and address 

of “each political committee which has received a contribution from the reporting committee during the reporting 

period, together with the date and amount of any such contribution.” 2 U.S.C. §434(b)(6)(B)(i). Because AFSCMEPQ reported on a monthly basis, the contributions should have been disclosed in the months immediately following 

the making of the contributions, i.e., the operation of the phone banks.

Penalty

In its October 1991 ruling on the penalty, the court observed that, although there was no bad faith by the defendants, 

“there is always harm to the public when the FECA is violated.” Considering the maximum penalty of $10,000 

inappropriate here, the court said a $2,000 penalty would serve the public’s interest “by punishing a violation of the 

plain language of the statute.” The court declined, however, to permanently enjoin defendants from future violations 

of 2 U.S.C. §434(b). The court pointed out that defendants cured the violation and have since complied with the 

reporting provision. Because “there has been no showing of a reasonable likelihood that the defendants will commit 

future violations,” the court decided the public interest would not be substantially advanced by an injunction.

Source: FEC Record, October 1990, p. 7; and January 1992, p. 7. , October 1990, p. 7; and January 1992, p. 7. 

FEC v. AMERICAN INTERNATIONAL DEMOGRAPHIC SERVICES 

On February 10, 1986, the U.S. District Court for the Eastern District of Virginia issued an order permanently 

enjoining American International Demographic Services, Inc. (A.I.D.S.) and its Vice President, Ernest Halter, from 

using FEC campaign fi nance information for commercial purposes. The court imposed a $3,500 civil penalty on the 

defendants for illegal use of the information. (Civil Action No. 85-0437-A.)

Background

The Federal Election Campaign Act states that “...any information copied from reports or statements may not be 

sold or used by any person for the purpose of soliciting contributions or for commercial purposes, other than using 

the name and address of any political committee to solicit contributions from such committee.” 2 U.S.C. §438(a)(4). 

While the Commission has allowed FEC information on political committees to be used for contribution solicitations, 

the agency has forbidden the use of individual contributor information for commercial purposes (e.g., product 

advertisements) or for solicitations. 

The defendants’ violation of this provision involved their illegal use of two FEC computer tapes containing individual 

contributor information that had been disclosed on FEC reports fi led by political committees. The tapes had been 

purchased by Mr. Halter’s wife on behalf on the Voter Information Council PAC (VICPAC), a nonconnected political 

committee she had established in April 1982. (Mrs. Halter claimed she had purchased the tapes to purge outdated 

information on lists owned by VICPAC and by her.) As part of an agreement A.I.D.S. had entered into with Working 

Names, Inc., a list management company, Mr. Halter subsequently transferred the two FEC tapes to the company. 

Working Names used the tapes, along with two other FEC tapes, to create four mailing lists which the company 

marketed to list brokers and mailers. 

The defendants’ illegal use of FEC contributor information was discovered by the National Republican Congressional 

Committee (NRCC) when a direct mail piece was addressed to “Kane Orsell,” a fi ctitious contributor NRCC had 

listed on a report fi led with the FEC. (FEC regulations allow a political committee to “salt” its FEC report with up 

to ten fi ctitious names and addresses for purposes of detecting such illegal use of its contributor names. 11 CFR 

104.3(e).) The mailing was sent by the American Legislative Exchange Council, which had rented its list of addresses 

from a broker that Working Names had supplied with lists. (The Council had purchased the list for a one-time use.)
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After tracing original ownership of the mailing list back to A.I.D.S., NRCC held a meeting with Mr. Halter in which 

he agreed, among other things, to take the names of NRCC contributors off the list broker market and to provide 

NRCC with a list of the direct mail companies that had rented the names. Mr. Halter failed to do any of these things. 

Consequently, on September 28, 1982, the NRCC fi led a complaint against both Mr. Halter and A.I.D.S. with the 

FEC. After investigating the matter, the FEC found probable cause to believe that the defendants had violated the 

election law. Subsequently, when defendants failed to enter into a conciliation agreement with the agency, the FEC 

brought suit against them in the district court.

FEC’s Suit

In its suit, the FEC asked the court to declare that Mr. Halter and A.I.D.S. had violated Section 438(a)(4) by using 

reports fi led with the FEC for commercial purposes. Specifi cally, the FEC asked the court to fi nd that defendants 

used FEC information to: a) prepare contributor listings they rented to various organizations through a broker and 

b) increase the commercial value of contributor listings they already had. 

Court’s Ruling

After examining the evidence presented for its consideration at trial, the court found that “the defendants willfully 

violated the Act by having Working Names manage the [two FEC computer] tapes for the purpose of renting 

them out to brokers and mailers.” Mr. Halter fi led an appeal with the U.S. Court of Appeals, 4th Circuit on 

March 31, 1986. 

Appeals Court Ruling

On February 2, 1987, the U.S. Court of Appeals for the Fourth Circuit dismissed FEC v. Ernest Halter (Appeal No. 

86-1560). The court’s action responded to Mr. Halter’s request for a dismissal of his appeal. 

Source: FEC Record, April 1986, p. 8; and April 1987, p. 7. , April 1986, p. 8; and April 1987, p. 7. 

American International Demographic Services, Inc.: FEC v., 629 F. Supp. 317 (E.D. Va. 1986). 

FEC v. AMERICA’S PAC

In a default judgment entered on January 14, 1993, the U.S. District Court of the Central District of California 

ordered America’s PAC (a state committee) and Neil Barry Rincover, as executive director and acting treasurer, to pay 

a $25,000 civil penalty for violating the Federal Election Campaign Act. (Civil Action No. CV-92-2747-LGB.) 

The court found that defendants failed to forward a $2,000 earmarked contribution from the Physicians Interindemnity/

PAC to Bill Press, a U.S. Senate candidate. The acceptance of the earmarked contribution caused America’s PAC to 

become a federal political committee with registration and reporting obligations. The court ruled that the defendants, 

by failing to fulfi ll those obligations, violated 2 U.S.C. §§433(a) and 434(a)(1). The court also found that they violated 

§432(b)(1) by failing to forward the earmarked contribution and the required information to the candidate. Finally, 

because the check contained corporate funds, the court found that defendants knowingly accepted a prohibited 

contribution, in violation of §441b(a). They were ordered to pay a $25,000 penalty, refund the $2,000 contribution to 

the PAC and fi le a Statement of Organization and required reports, all within 15 days.

Furthermore, given defendants’ default in the litigation, the court found there was a likelihood that defendants would 

repeat the violations and therefore enjoined them from further violations of the provisions cited above.

Contempt Ruling

On May 23, 1994, America’s PAC and Mr. Rincover, were held in civil contempt by the district court for failing to 

comply with the January 1993 default judgment.

Earlier, on April 18, 1994, responding to an FEC petition, the court had ordered the defendants to show cause why 

they should not be held in contempt. That same day, Mr. Rincover fi led a motion to set aside the January 1993 default 

judgment. (America’s PAC never responded to the order to show cause.)

The court, however, rejected Mr. Rincover’s motion, fi nding that his claims did not indicate the “extraordinary 

circumstances” necessary for the court to set aside a judgment. The court therefore ordered Mr. Rincover and 

America’s PAC to comply with the January 1993 order within 30 days or pay $50 for each day of delay. Exercising its 

discretion, the court reduced the penalty to $5,000 because all the violations stemmed from a single incident.

 Source: FEC Record, April 1993, p. 10; and August 1994, p. 8. , April 1993, p. 10; and August 1994, p. 8.

America’s PAC: FEC v., No. 92-2747 LGB (Tx) (C.D. Cal. May 23, 1994).
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FEC v.

B

FEC v. ANDERSON FOR SENATOR 

Background

On May 7, 1984, the FEC fi led suit in the U.S. District Court for the Eastern District of Pennsylvania, seeking 

action against three defendants: the Tom Anderson for Senator Committee, the principal campaign committee of 

Mr. Anderson’s 1980 Senate campaign; the Pennsylvania Service Station Dealers Association (the Association), an 

incorporated trade association; and Mary Anderson, the candidate’s wife (Civil Action No. 84-2180). 

Specifi cally, the FEC asked the court to declare that:

• By paying Association employees approximately $4,300 in wages for services they provided to the Anderson 

campaign, the Association made a prohibited in-kind contribution to the campaign, in violation of 2 U.S.C. 

§441b(a).

• By cosigning a $50,000 campaign loan with Tom Anderson, Mrs. Anderson made a $25,000 contribution to 

his Senate campaign, thus exceeding the $1,000 contribution limit, in violation of 2 U.S.C. §441a(a)(1)(A).

• By knowingly accepting these unlawful contributions from the Association and Mrs. Anderson, the Anderson 

campaign violated 2 U.S.C. §441a(f).

Consent Order: Mrs. Anderson

On December 11, 1984, the U.S. District Court for the Eastern District of Pennsylvania issued a consent order 

resolving claims the Commission had brought against Mary Anderson. 

Within 30 days of signing the consent order, Mrs. Anderson agreed to pay a $350 civil penalty to the U.S. Treasury 

for having exceeded the election law’s contributions limits. 2 U.S.C. §441a(a)(1)(A). By cosigning a $50,000 campaign 

loan with her husband, the candidate, Mrs. Anderson had made a $25,000 contributions to his Senate campaign. The 

law limits contributions from all individuals, including spouses, to $1,000 per candidate, per election.

Consent Orders: Association and Campaign

During February 1985, the U.S. District Court for the Eastern District of Pennsylvania issued separate consent 

orders resolving claims the Commission had brought against the Association and the Anderson campaign. Within 30 

days of signing their respective consent orders, defendants agreed to comply with the following terms:

• The Pennsylvania-Delaware Service Stations Dealers, Inc. agreed to pay a $1,369 civil penalty to the U.S. 

Treasury for making a prohibited in-kind contribution to the Anderson campaign. The Association had paid 

employees approximately $4,300 in wages for services they provided to the Anderson campaign.

• The Tom Anderson for Senator Committee agreed to pay a $631 civil penalty for accepting: (1) the prohibited 

in-kind contribution from the Association and (2) an excessive contribution (in the form of a loan endorsement) 

from Mrs. Anderson. 

Source: FEC Record, July 1984, p. 8; February 1985, p. 6; and August 1985, p. 8. , July 1984, p. 8; February 1985, p. 6; and August 1985, p. 8. 

FEC v. BANK ONE

On May 20, 1987, the United States District Court, Southern District of Ohio, Eastern Division, approved a consent 

order between the Commission and the defendants in FEC v. Bank One, Columbus, N.A. (Civil Action No. C2-86-

1082.) Defendants were: the John Glenn Presidential Committee, Inc., William R. White, treasurer, and Senator John 

Glenn (Glenn Committee); and Bank One, Columbus, N.A., Ameritrust Company National Association, BancOhio 

National Bank and the Huntington National Bank (the Banks). 

Background

The FEC alleged that $2 million in loans made by the Banks to the Glenn Committee in 1984 were not made on 

a basis that assured repayment and, therefore, were in violation of 2 U.S.C. §441b(a). After failing to resolve the 

matter through the conciliation process, the FEC fi led suit in federal court on September 9, 1986, and asked the court

to fi nd that:

• The four banks violated section 441b(a) of the election law by making prohibited contributions to the 

Glenn campaign; and 

• The Glenn campaign, in turn, violated section 441b(a) of the election law by accepting the contributions. 
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The FEC also asked the court to assess a civil penalty against each defendant amounting to the greater of $5,000 or 

100 percent of the amount involved in each defendant’s violation. 

Consent Order

The consent order contained the following:

• For purposes of settlement of this litigation only, defendants agreed not to further contest the Commission’s 

allegations that the making and acceptance of the loan was in violation of 2 U.S.C. §441b(a). By agreeing not 

to further contest the Commission’s allegations, defendants did not concede that such allegations were proven 

by the record or could have been proven at trial. 

• In settlement of the litigation, the Glenn Committee agreed to pay $4,000 to the FEC.

• The parties agreed to bear their own costs and fees in this matter. 

Source: FEC Record, November 1986, p. 6; and July 1987, p. 5. , November 1986, p. 6; and July 1987, p. 5.

Bank One, Columbus, N.A.: FEC v., No. C-2-86-1082 (S.D. Ohio 1987). 

FEC v. COMMITTEE TO ELECT BENNIE BATTS

On February 14, 1989, the U.S. District Court for the Southern District of New York granted the FEC’s motion 

for summary judgment in FEC v. Committee to Elect Bennie O. Batts (Civil Action No. 87-5789(GLG)). The 

committee was Mr. Batts’ principal campaign committee for his unsuccessful 1984 primary campaign in New York’s 

20th Congressional District. 

The court found that the committee and its acting treasurer, Evelyn Batts (the candidate’s wife), violated the 

election law by:

• Failing to amend its Statement of Organization to refl ect Mrs. Batts’ actual role as treasurer and as custodian 

of the committee’s books and accounts and to disclose a campaign depository (2 U.S.C. §433(c));

• Commingling committee funds with the personal funds of Mrs. Batts in Mrs. Batts’ personal bank account 

(2 U.S.C. §432(b)(3));

• Failing to use the offi cial campaign depository for receiving contributions and making expenditures (2 U.S.C. 

§432(h)(l)); and 

• Knowingly accepting more than $10,000 in excessive contributions from Mrs. Batts’ personal account (2 U.

S.C. §441a(f)).

The court also found that Mrs. Batts personally violated the election law by making excessive contributions from 

her personal account. 

Observing that the committee’s violations had resulted from “at most...sloppy bookkeeping and unprofessional 

behavior,” and that there was no implication that the defendants had been “motivated by personal gain,” the court 

assessed civil penalties of $100 against the committee and its acting treasurer, Mrs. Batts. The court also assessed a $1 

civil penalty against Mrs. Batts personally. In addition, the court permanently enjoined the defendants from similar 

future violations of the election law. 

Source: FEC Record, May 1989, p. 8. , May 1989, p. 8. 
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FEC v. BEATTY FOR CONGRESS 

On January 15, 1987, the U.S. District Court for the Southern District of New York granted the FEC’s application 

for a default judgment in FEC v. Beatty for Congress Committee (Civil Action No. 86-Civ-3894- [RLC]). The court’s 

default judgment decreed that the Beatty for Congress Committee, the principal campaign committee for Vander 

L. Beatty’s 1982 House campaign, and the committee’s treasurer, Edward Myers, Jr., violated the election law 

on several counts. 

The court imposed a $5,000 civil penalty on the defendants for each violation and required the defendants 

to pay the FEC’s court costs and attorney’s fees. On March 31, 1987, the defendant entered a motion to vacate 

the default judgment. 

On March 21, 1988, the U.S. Court of Appeals for the Second Circuit dismissed the appeal of Mr. Myers in FEC v. 

Beatty for Congress Committee and Edward Myers (Civil Action No. 88-6011). The FEC and Mr. Myers had fi led a 

Stipulated Dismissal and Settlement Agreement with the court.

Background

On May 16, 1986, the FEC fi led suit with the U.S. District Court for the Southern District of New York against the 

Beatty for Congress Committee and against the committee’s treasurer, Mr. Myers. The FEC asked the court to fi nd 

the defendants in violation of federal campaign fi nance laws on the following counts:

• Knowingly accepting excessive contributions from individuals and from a political committee (2 U.S.C. 

§441a(f)); 

• Knowingly accepting an excessive loan from the candidate’s family and failing to report the loan (2 U.S.C. 

§434(b)(3)(E) and 441a(f) and 11 CFR 104.11(a));

• Accepting prohibited contributions from corporations and labor organizations (2 U.S.C. §441b); and 

• Accepting corporate loans and failing to report them (2 U.S.C. §441b and 434(b)(3)(E) and 11 CFR 

104.11(a)).

The Commission also asked the court to fi nd the defendants in violation of the FECA’s recordkeeping and reporting 

laws on the following counts:

• Failing to fi le two 1982 quarterly reports on time (2 U.S.C. §434(a)(2)(A)(iii));

• Failing to fi le 1982 pre-primary and year-end reports and a 1983 mid-year report (2 U.S.C. §434(a)(2)(A)(i) 

and (iii) and 434(a)(2)(B)(i));

• Failing to maintain adequate records of contributions (2 U.S.C. §432(c)(1-3)); 

• Failing to itemize certain contributions and expenditures (2 U.S.C. §434(b)(3-4) and 434(b)(5)(A)); and 

• Failing to continuously report two loans until extinguished (11 CFR 104.11(a)). 

District Court Ruling

In granting the default judgment against Mr. Myers and the Beatty Committee in January 1987, the court imposed 

a $5,000 civil penalty for each of the violations. The court denied a motion by Mr. Myers to vacate the default 

judgment against him in October 1987. Mr. Myers appealed the default judgment to the U.S. Court of Appeals for 

the Second Circuit. 

Court of Appeals

In March 1988, the appeals court dismissed the case after a stipulated agreement was reached between the FEC 

and Mr. Myers. 

By the terms of the agreement, Mr. Myers would withdraw his appeal of the district court’s October 1987 decision 

in the case. The court’s decision denied Mr. Myers’ motion to set aside the default judgment the court had entered 

against him in January 1987. That decision had imposed a $5,000 civil penalty on the defendants for each of 17 

independent violations of the election law. In addition, the parties agreed that:

• Mr. Myers would pay a $15,000 civil penalty in increments spelled out in the payment schedule contained in 

the agreement. If he failed to meet the payment schedule within the time frame specifi ed by the agreement, the 

FEC might reinstate the penalty originally imposed by the district court, plus interest from the entry date of 

the default judgment.
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• After Mr. Myers’ fi nal penalty payment, the FEC would fi le a satisfaction of judgment notice with the court. 

• By July 1, 1988, Mr. Myers would fi le certain original or amended reports for each year between 1983 and 

1988. Should Mr. Myers fail to fi le the reports by July 1, 1988, or if the reports are not adequately fi lled out, 

the FEC may increase his civil penalty by $1,000 per month until the reports are fi led in compliance with FEC 

disclosure requirements.

• Upon the acceptable fi ling of all the Beatty committee’s required reports, Mr. Myers would follow FEC 

procedures for requesting termination of the committee. 

Source: FEC Record, June 1986, p. 9; March 1987, p. 6; and June 1988, p. 9. , June 1986, p. 9; March 1987, p. 6; and June 1988, p. 9.

Beatty for Congress: FEC v., No. 86 Civ. 3894, (S.D.N.Y. Oct 23, 1987) (unpublished opinion). 

FEC v. JEFFREY BELL

On April 14, 1980, the U.S. District Court for the District of New Jersey issued a consent judgment agreed to by 

the Commission and defendant Jeffrey Bell. The Commission had fi led suit on January 21, 1980, alleging that the 

defendant had violated 2 U.S.C. §441a(f) by accepting excessive contributions from his mother, Marjorie Bell, during 

his 1978 Senatorial campaign in New Jersey. Mr. Bell agreed to pay a civil penalty of $1,500 levied by the court. 

Source: FEC Record, June 1980, p. 8. , June 1980, p. 8. 

FEC v. MARJORIE BELL

On April 10, 1980, the U.S. District Court for the District of Columbia issued a consent judgment agreed to by 

the Commission and defendants Marjorie Bell, the Bell for Senate Committee and its two treasurers, Andrew P. 

Napolitano and James S. Wagner. The Commission had fi led suit on July 20, 1979, claiming that Marjorie Bell had 

violated the contribution limits of 2 U.S.C. §441a(a)(1)(A) and 441a(a)(3); and that the Bell Committee and its two 

treasurers had violated 2 U.S.C. §441a(a)(1)(A) and 441a(a)(3); and that the Bell Committee and its two treasurers 

had violated 2 U.S.C. §441a(f) by knowingly accepting excessive contributions, and 2 U.S.C. §434(b) by failing to 

report the actual source of the contributions. Marjorie Bell agreed to pay a civil penalty of $500 levied by the court. 

The Bell for Senate Committee agreed to pay a civil penalty of $4,500 levied against both the Committee and its 

offi cers. The Committee also agreed to amend reports fi led with the Commission to indicate that Marjorie Bell was 

the actual source of $52,400 reported as loans from Jeffrey Bell to the Committee. 

Source: FEC Record, June 1980, p. 8. , June 1980, p. 8. 

FEC v. BOOKMAN & ASSOCIATES

On May 2, 1989, the U.S. District Court for the Northern District of Georgia, Atlanta Division, issued a fi nal consent 

order and judgment in FEC v. Ron Bookman & Associates (Civil Action No. 1:88-CV-1807-JTC). The consent order 

declared that Bookman & Associates, a Georgia corporation, made a $150 contribution to a federal candidate. The 

Act prohibits corporations from making contributions or expenditures in connection with federal elections. 2 U.S.C. 

§441b. 

The order also declared that Ron Bookman, as president of the company, had violated the law by consenting to the 

making of the contribution. Section 441b also prohibits corporate offi cers and executives from consenting to the 

making of contributions and expenditures. 

The consent order included a $500 civil penalty and permanently enjoined the defendants from similar future 

violations of the Act. 

Source: FEC Record, June 1989, p. 8. , June 1989, p. 8. 
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FEC v. BRYANT CAMPAIGN COMMITTEE

On September 1, 1989, the U.S. District Court for the Northern District of Texas issued a fi nal consent order and 

judgment in FEC v. John Bryant Campaign Committee (Civil Action No. CA3-89-1694). The consent order decreed 

that the committee and its treasurer, Ken Molberg, had violated the election law by accepting a $2,000 excessive 

contribution from an individual. 2 U.S.C. §441a(f). The order also decreed that the defendants had unlawfully used 

information contained in another committee’s reports for soliciting individuals. 2 U.S.C. §438(a)(4). The consent 

order included a $500 penalty and a permanent injunction against future similar violations of the law. 

Source: FEC Record, November 1989, p. 4. , November 1989, p. 4. 

FEC v. BULL FOR CONGRESS

On June 8, 1990, the U.S. District Court for the District of Maine imposed civil penalties on defendants Chipman C. 

Bull for Congress, the principal campaign committee for Mr. Bull’s 1984 House campaign, and Denise M. Deshane, 

the committee treasurer, for violating several provisions of the Federal Election Campaign Act. (Civil Action No. 88-

0037-B.) In earlier rulings of September 13, 1989, and January 9, 1990, the court found that defendants had violated 

the law by:

• Knowingly accepting $8,937.50 in excessive contributions from three individuals whose contributions took 

several forms—direct contributions, guarantees of a $10,000 bank loan and interest payments made on the 

loan (2 U.S.C. §441a(f)); 

• Failing to disclose the identifi cation of the three guarantors of the bank loan (§434(b)(3)(E)); and 

• Failing to meet the fi ling deadlines for the two reports covering 1985 activity (§434(a)(2)(B)).

In its June 8 order, the court adopted the civil penalties recommended by a United States Magistrate and assessed a 

penalty of $18,437.50 against the committee and a $500 penalty against the treasurer.

Source: FEC Record, August 1990, p. 11. , August 1990, p. 11. 

FEC v. CALIFORNIA DEMOCRATIC PARTY

On October 14, 1999, the U.S. District Court for the Eastern District of California ruled that the California Democratic 

Party, the Democratic State Central Committee of California—federal, and the Democratic State Central Committee 

of California—nonfederal (collectively, the CDP) violated the Federal Election Campaign Act (the Act) when it paid 

for a voter registration drive that was “targeted” at potential Democratic registrants entirely with nonfederal funds. 

On November 2, 1999, the court issued a consent order and judgment in which the CDP agreed to pay a civil penalty 

to the FEC in the amount of $70,000 and to transfer $354,500 from its federal account to its nonfederal account. 

Background

The CDP is the state party committee responsible for the operations of the Democratic Party in California. In 

1992 and early 1993, the CDP contributed $709,000 to Taxpayers Against Deception—No on 165 (No on 165), a 

California political committee that opposed a state ballot initiative, Proposition 165. The money, paid from the 

party’s nonfederal account, was given with the knowledge that it would be used for voter registration drives for the 

1992 general election.

The Commission had argued that the CDP had violated the Act when it failed to allocate the costs of its voter 

registration drive between its federal and nonfederal accounts. Under Commission regulations, political committees 

must allocate expenses for generic voter drives between their federal and nonfederal accounts, must pay for the 

expenses directly from their federal account or a special allocation account, and must disclose the allocation in their 

reports to the FEC. 11 CFR 102.5(a)(1)(i), 104.10(b)(4) and 106.5(d) and (g). In this case, the CDP failed to allocate 

any of the voter drive costs to its federal account, paid for all of the costs directly from a nonfederal account and 

failed to report any of the costs to the FEC.
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Court’s Findings 

Applicability of the Act

The CDP asserted that the “FECA cannot be stretched beyond its literal terms to include any activity which could 

conceivably have an infl uence on a federal election.” The court stated that the CDP’s argument was unavailing 

because it disregarded the nature of the violations claimed by the FEC—that the CDP fi nanced a partisan voter 

registration drive with nonfederal funds—and overlooked the allocation rules, which allow apportionment of the 

costs of fundraising activities not associated with a federal election, including generic voter drives, to a party’s 

nonfederal account. 

Nonpartisan Voter Registration Drive Exemption

The CDP argued that No on 165’s voter registration drive was, to its knowledge, nonpartisan and that its funding of 

the drive was therefore exempt from the Act under the Act’s defi nition of “expenditure,” which excludes “nonpartisan 

activity designed to encourage individuals to vote or to register to vote.” 2 U.S.C. §431(9)(B)(ii). The court rejected 

the CDP’s argument, and ruled that the defi nition of “expenditure” was not at issue in the case. The court also 

pointed out that there is no similar exception in the allocation rules. Further, the court determined that, in any 

event, the activities undertaken by No on 165 clearly were not nonpartisan and, therefore, could not fall under 

the exemption.

Whether the Voter Registration Drive was Partisan

The CDP further claimed that there was a genuine issue of fact as to the partisan nature of the voter drives, pointing 

out that there was no evidence that Democratic literature was distributed at the drive sites, that any worker expressly 

advocated registering as a Democrat, or that a worker refused to accept a non-Democratic registration card for fi ling. 

The court disagreed, asserting that the undisputed evidence demonstrated that No on 165’s voter registration drive 

was “a targeted effort to register Democrats to vote in a general election.”

Whether CDP Knew the Drive was Partisan

The court further concluded that the executive director undisputedly knew that No on 165 would target areas in which 

the majority of potential registrants would probably register as Democrats, and that whether she had “knowledge of 

all aspects” of the partisan conduct of the drive was not material.

Attributing the Drive

Finally, the CDP had contended that, in light of the fact that No on 165 devised its voter drive strategy independently 

of the CDP, that it raised approximately $4 million in 1994, and that No on 165 and the CDP were “separate entities 

with separate interests,” the voter registration drive could not be attributed to the CDP. The court, however, concluded 

that it was unnecessary to “attribute” the drive to the CDP in order to fi nd that the CDP had contributed only 

nonfederal funds to No on 165’s voter registration drive and that its failure to allocate an appropriate portion of the 

costs to its federal account violated the Act and the allocation rules. 

Conclusion and Remedy

Because the FEC showed that the CDP violated the Act and allocation regulations by funding a generic voter drive 

that targeted Democrats,1 the court granted the FEC’s motion for summary judgment, ruling that the CDP violated the 

Commission’s allocation and reporting rules at 2 U.S.C. §441b and 11 CFR 102.5(a)(1)(i), 104.10(b)(4) and 106.5.

Through a consent order and judgment, issued November 2, 1999, the CDP agreed to pay a civil penalty of $70,000 

and to transfer $354,500 from its federal account to its nonfederal account.

Source: FEC Record, December 1999, p. 4 , December 1999, p. 4 1

 The court, however, did not rule on one of the voter drives funded by the CDP. No on 165 had contributed $59,000 of the CDP’s 

money to another California political committee called The Committee to Protect the Political Rights of Minorities (which in turn 

engaged the Black American Political Association of California (BAPAC)) for use in a separate voter registration drive. The court 

concluded that there was insuffi cient evidence that BAPAC’s drive was conducted in a partisan manner and this matter, therefore, was 

to go to trial. In the consent order and judgment, however, the parties resolved all the issues. Consequently, a trial was not held.
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FEC v. CALIFORNIA DEMOCRATIC PARTY, ET AL. (02CV00875)

On March 17, 2003, the Commission fi led a complaint in the U.S. District Court for the District of California, 

Sacramento Division, against the California Democratic Party (CDP), its federal account, the Democratic State 

Central Committee of California-Federal, its non-federal account, the Democratic State Central Committee of 

California-Non-federal, and Katherine Moret, the treasurer of the CDP’s federal and nonfederal accounts The 

Commission alleges that in its get-out-the-vote (GOTV) activities for a 1998 special election, the CDP:

• Violated the Federal Election Campaign Act’s (the Act) ban on corporate and labor union contributions;

• Failed to report its activities as independent expenditures; and

• Failed to include the required disclaimer on GOTV communications.

Background

Under the Act, political party committees must only spend funds that are consistent with the limits and prohibitions 

of the Act to infl uence a federal election. Among other restrictions, the Act prohibits corporations and labor unions 

from makings any contribution in connection with a federal election, and also prohibits a political committee from 

receiving such a contribution. 2 U.S.C. §441b. See also 2 U.S.C. §§431(8), 441a, 441(b), 441(c), 441(e), 441(f) and 

441(g); 11 CFR parts 100, 110, 114 and 115. A party committee that maintains both federal and nonfederal accounts 

may pay for some mixed federal/nonfederal activities with a combination of federal and nonfederal funds using the 

allocation rules set forth in Commission regulations. See 11 CFR 106.5. However, any expenditure made by a political 

party committee for activities that urge the public to vote for a clearly identifi ed federal candidate must be made with 

federally-permissible funds.

In the 22nd Congressional District of California, a special general election was held on March 10, 1998, to fi ll a House 

seat left vacant after the death of Walter Capps. This federal offi ce was the only offi ce on the ballot for the special 

election, and Lois Capps was the only candidate on the ballot nominated by the Democratic Party. According to 

the complaint, the CDP paid $99,097 for direct mailings and radio advertisements that contained statements urging 

the public to vote on March 10th for Lois Capps. In its FEC disclosure reports, the CDP reported the expenditures 

for these communications as mixed federal/nonfederal activity, and it paid for the costs of these communications 

with funds from both its federal and nonfederal accounts. Of the $99,097 spent on the communications, $77,281 

came from the CDP’s nonfederal funds, which, the Commission contends, contained funds prohibited under the Act, 

including corporate and union funds.

The Commission asserts that these communications violated the Act in several respects. First, a GOTV drive conducted 

in connection with an election in which only federal candidates appear on the ballot is not a mixed federal/nonfederal 

activity. The expenditures for these communications were required to have been paid entirely from federal funds. 2 

U.S.C. §441(b); 11 CFR 102.5. Second, the Commission contends that these communications, which included phrases 

such as “Continue the Walter Capps Tradition” and “Vote Democratic” in the “Special Election, Tuesday, March 10,” 

expressly advocated the election or defeat of a clearly identifi ed federal candidate and, thus, required a disclaimer 

stating both who paid for the communication and whether it was authorized by a candidate. 2 U.S.C. §441d(a) and 

11 CFR 110.11(a)(1). These communications did not contain the required disclaimers. Third, the Commission argues 

that the communications were independent expenditures and that the committee violated the Act by failing to properly 

disclose them as such in its FEC reports.1

Relief

The Commission asks that the court:

• Declare that the defendants violated these provisions of the Act and Commission regulations;

• Permanently enjoin the defendants from further such violations of the Act;

• Order the defendants to transfer $77,281 from the Democratic State Central Committee of California-Federal 

to the CDP’s nonfederal account;

• Order the defendants to correct reports for the 1998 special general election in order to accurately describe 

these activities as independent expenditures; and

• Assess an appropriate civil penalty against the defendants jointly and severally for each violation found, not in 

an amount to exceed the greater of $5,500 or the amount of the expenditures involved for each violation. See 

2 U.S.C. §437g(a)(6)(B) and 11 CFR 111.24.

Source: FEC Record, May 2003, p. 5. , May 2003, p. 5. 1

 The Act defi nes an “independent expenditure” as an expenditure that expressly advocates the election or defeat of a clearly identifi ed 

federal candidate and is not made in cooperation or consultation with any candidate, candidate’s committee or their agents and is not 

made in concert with or at the request or suggestion of any of these. 2 U.S.C. §431(17). See also 11 CFR 109.1(b)(4). Independent 

expenditures must be paid for with federally permissible funds and must be reported under 2 U.S.C. §§434(b)(4)(H)(iii) and (6)(B)(iii).
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FEC v. CALIFORNIANS FOR A STRONG AMERICA (88-1554)

On November 14, 1988, the U.S. District Court for the Central District of California granted the FEC’s motion for 

a default judgment against the Californians for a Strong America (CSA), a nonconnected political committee, and 

CSA’s treasurer Albert J. Cook. (Civil Action No. 88-1554-AWT.) 

In the judgment, the court declared that the defendants had violated 2 U.S.C. §434 (a)(4)(A)(i) and (iv) by failing to 

fi le reports covering 1986 activity, that is, two quarterly reports and a year-end report. Accordingly, the court:

• Ordered defendants to pay a $15,000 civil penalty, together with $28.20, to cover the FEC’s court costs in the 

case; and 1 

• Enjoined defendants from similar violations of the election law in the future. 

 Source: FEC Record, January 1989, p. 9. , January 1989, p. 9. 1

 See “Contempt Ruling,” next page.

FEC v. CALIFORNIANS FOR A STRONG AMERICA (88-6449)

On June 22, 1989, the U.S. District Court for the Central District of California issued a fi nal order and default 

judgment in FEC v. Californians for a Strong America. (Civil Action No. CV-88-6449-AWT(Ex).) The court decreed 

that the committee and its treasurer, Albert J. Cook, had violated the election law by:

• Failing to fi le a 1987 mid-year report on time (2 U.S.C. §434(a)(4)(A)(iv)); 

• Failing to properly report independent expenditures incurred for radio and television advertisements and 

fundraising letters advocating the defeat of Senator Alan Cranston in the 1986 Senate election in California 

(2 U.S.C. §434(b)(6)(B)(iii)); and

• Failing to include a disclaimer notice in at least fi ve solicitation letters (2 U.S.C. §441d(a)(3)). 

The court ordered the defendants to comply with the law’s reporting requirements within 15 days of the judgment and 

to pay a civil penalty of $15,000 ($5,000 for each violation). The court also ordered the defendants to pay the FEC’s 

court costs and to refrain from future similar violations of the election law. 

Contempt Ruling

On August 13, 1993, the district court held defendants in contempt of court for failing to pay the two $15,000 

civil penalties stemming from this and a previous case (No. 88-1554, summarized in the preceding column). By 

then, the penalties had been outstanding for over three years. In both cases, defendants never responded to the 

FEC’s suits, and the judgments were by default. Defendants also failed to fi le responses or appear before the court in 

the contempt proceedings. 

The court ordered defendants to pay the penalties, plus accrued back interest, by August 31, 1993. Thereafter, they 

were to pay an additional $100 per day until they completed payment. Furthermore, if they failed to make full 

payment by September 30, the court said it would issue a warrant for the arrest of Mr. Cook.

Source: FEC Record, September 1989, p. 8; and October 1993, p. 1. , September 1989, p. 8; and October 1993, p. 1.
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FEC v. CALIFORNIANS FOR DEMOCRATIC REPRESENTATION

On January 9, 1986, the U.S. District Court for the Central District of California ruled that Californians for 

Democratic Representation (CDR), a nonprofi t organization registered with the California Fair Political Practices 

Commission, had violated various provisions of the Federal Election Campaign Act in the course of conducting a 

slate mail program during 1982. (Civil Action No. 85-2086.)

Background

CDR’s slate mail program consisted of political ads distributed through direct mail to the general public. In addition 

to endorsing ballot issues and state and local candidates, CDR’s slate mail program endorsed federal candidates 

active in California’s 1982 primary and general elections. Candidates could purchase advertising space from CDR at 

fair market value. (A candidate’s ad might include, for example, his/her photograph and a write-up.) CDR also listed 

candidates who did not purchase advertising space, at no charge to them.

Court’s Ruling

The court ruled that those federal candidates who had paid for advertising space in CDR’s slate mailings had not 

contributed to CDR; nor did their advertising space constitute in-kind contributions from CDR to the candidates. 

On the other hand, the court found that costs incurred by CDR for listing federal candidates free of charge in 

mailings constituted expenditures by CDR on behalf of the candidates, which were subject to the election law. (Nine 

federal candidates were listed free of charge in mailings for the primary elections, and three candidates were listed in 

general election mailings.) Accordingly, the court found the CDR had violated the election law by failing to register 

and report as a political committee when these expenditures exceeded $1,000 during 1982. See 2 U.S.C. §§431(4)(A), 

433 and 434. 

Finally, the court ruled that CDR’s ads failed to state who paid for them and whether or not the candidates had 

authorized the mailings. See 2 U.S.C. §441d(a). 

The court imposed a $15,00 civil penalty on the defendants. Subsequently the court denied defendants’ motion to 

have the penalty reduced. 

Source: FEC Record, March 1986, p. 8. , March 1986, p. 8. 

Californians for Democratic Representation: FEC v., No. 85-2086-JMI, (C.D. Cal. Jan. 9, 1986) (unpublished opinion).

FEC v. CAMPAIGN RESOURCE TECHNOLOGIES 

On August 3, 1987, the U.S. District Court for the District of Arizona, Tucson Division, approved a fi nal consent 

order and judgment between the Commission and defendants Campaign Resource Technologies, Inc. (CRT) and 

John Kaur (Civil Action No. CTV 86-448 TUC ACM). 

During the 1983-84 Presidential election cycle, the Bergland for President Committee (the Committee), the principal 

campaign committee for David Bergland’s 1984 Presidential campaign, contracted with CRT for certain campaign 

services. CRT, in turn, subcontracted certain services to John Kaur, who was doing business as Digitgraph Computer 

Systems Company (Digitgraph). 

In the consent order, defendants CRT and John Kaur agreed that they violated 2 U.S.C. §432(b) by failing to forward 

to the Committee’s treasurer, within 10 days, approximately $6,000 in campaign contribution checks received by CRT 

and Digitgraph on behalf of the Committee. 

The court imposed a $5,000 civil penalty which the defendants agreed to pay within 30 days of fi ling the consent 

order. The court also permanently enjoined the defendant from future similar violations of the Act. 

Source: FEC Record, September 1987, p. 8. , September 1987, p. 8.
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FEC v. CARTER COMMITTEE FOR A GREATER AMERICA

On July 21, 1986, the U.S. District Court for the Northern District of Georgia approved a consent order between the 

Commission and the Jimmy Carter Committee for a Greater America, a nonconnected political committee, and the 

Committee’s treasurer, Chip Carter. The consent order provides that defendants violated sections 434(a)(4)(A)(i) and 

(iii) of the election law during the 1983-84 election cycle by failing to meet the fi ling deadline for 1984 post-general 

election and year-end reports. 

Within 30 days of fi ling the consent order, the defendants agreed to pay a $250 civil penalty to the U.S. Treasurer. 

The consent order concluded a suit fi led by the FEC on April 7, 1986 (Civil Action No. C86-774A). 

Source: FEC Record, September 1986, p. 7. , September 1986, p. 7.

FEC v. CAULDER

On June 16, 1992, the U.S. District Court for the Eastern District of Pennsylvania ruled that Michael Caulder violated 

2 U.S.C. §432(b)(3) by knowingly and willfully commingling his personal funds with $51,600 belonging to Alerted 

Democratic Majority, a political committee. (Defendant had embezzled the committee’s funds and supplied false 

information on the committee’s FEC reports in order to disguise the embezzlement.) 

The court imposed a $103,200 civil penalty against Mr. Caulder but, in view of his depleted fi nancial situation, 

suspended all but $3,000 of the penalty, to be paid in monthly installments. The court also permanently enjoined him 

from violating §432(b)(3) and from engaging in any activity that would result in his being responsible for political 

committee funds, accounts, fi nancial records or FEC reports. 

The FEC may request full payment of the suspended penalty if it discovers that defendant made inaccurate or 

misleading representations during the litigation or that he violated any terms of the court order. The FEC may also 

request full or partial payment of the penalty should Mr. Caulder’s fi nancial circumstances improve. The court’s order 

and judgment were agreed to by both the FEC and Mr. Caulder. (Civil Action No. 91-CV-5906.)

Source: FEC Record, August 1992, p. 13. , August 1992, p. 13.

FEC v. CENTRAL LONG ISLAND 

TAX REFORM IMMEDIATELY COMMITTEE

On February 2, 1980, the U.S. Court of Appeals for the Second Circuit remanded FEC v. Central Long Island 

Tax Reform Immediately et al. to the District Court for the Eastern District of New York with an order to 

dismiss the suit. 

The FEC originally fi led the suit on August 1, 1978, alleging that violations of the Act occurred when the Central 

Long Island Tax Reform Immediately Committee (CLITRIM) published a pamphlet for general circulation in 

October 1976 at a cost of more than $100. The FEC claimed that, in publishing and distributing the pamphlet, 

defendants violated the following provisions of the Act:

• 2 U.S.C. §434(e), which requires any “person...who makes...independent expenditures expressly advocating the 

election or defeat of a clearly identifi ed candidate” in an amount exceeding $100 in any calendar year to report 

such costs to the FEC; and

• 2 U.S.C. §441d, which requires any person who “makes an expenditure for the purpose of fi nancing a 

communication expressly advocating the election or defeat of a clearly identifi ed candidate” to state in the 

communication whether it is authorized by a candidate, his authorized political committees or their agents or 

any other unauthorized person. 

In its motion to dismiss the case, CLITRIM argued that, in its Buckey v. Valeo decision, the Supreme Court had 

specifi cally mandated that the Act be amended to regulate only expenditures or communications by persons “expressly 

advocating the election or defeat of a clearly identifi ed candidate.” Buckey v. Valeo, 424 U.S. 1, 43 (1976). Further, 
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“express advocacy” must include at least one of the phrases suggested by the Court in Buckley: “‘vote for’, ‘elect’, 

‘support’, ‘cast your ballot for’, ‘Smith for Congress’, ‘Vote Against’, ‘defeat’, ‘reject.’” (424 U.S. 1 (1976) at 52). 

CLITRIM pointed out that the TRIM Bulletin did not contain any of the terms of “express advocacy” spelled 

out in Buckley. 

Responding to this argument in one of its reply briefs fi led with the court of appeals, the FEC maintained that the 

CLITRIM/National TRIM bulletin was not merely an informational or educational compilation of Congressional 

voting records. The bulletin discussed TRIM’s position on the issue of high taxes and big government, identifi ed 

federal candidates, critiqued their position on the issue of high taxes and big government and urged the voter to vote 

with TRIM. The Commission interpreted these communications as “express advocacy” communications within the 

meaning of 2 U.S.C. §434(e) and as construed by the Supreme Court in Buckley, 424 U.S. at 44, n. 52. 

In reaching its decision to dismiss the case, the court of appeals concluded that the CLITRIM Bulletin did not 

“expressly advocate” the election or defeat of a candidate within the meaning of 2 U.S.C. §§434(e) and 441d. Since, 

as interpreted by the court, these provisions of the Act did not apply to defendants’ conduct, the court concluded the 

constitutional issues raised by defendants in the case would not represent a case ripe for consideration by the court. 

On February 25, 1980, National TRIM and John W. Robbins, intervenor in the case, petitioned the court of appeals 

for a rehearing. Defendants sought injunctive relief from FEC enforcement proceedings brought against local TRIM 

committees which were not affected by the court’s February 2 order to dismiss the case. On March 5, 1980, the 

petition for rehearing was denied by the court of appeals. 

Source: FEC Record, April 1980, p. 7. , April 1980, p. 7. 

Central Long Island Tax Reform Immediately Committee: FEC v., 616 F.2d 45 (2d Cir. 1980) (en banc).

FEC v. CHRISTIAN ACTION NETWORK

On June 28, 1995, the U.S. District Court for the Western District of Virginia, Lynchburg Division, dismissed this 

case. The FEC had brought suit against the Christian Action Network (CAN) for making independent expenditures 

1 with corporate funds, for failing to include the proper disclaimer on its political communications and for failing to 

fi le the required reports with the FEC.

On August 2, 1996, the U.S. Court of Appeals for the Fourth Circuit, in an unpublished opinion, upheld the district 

court’s dismissal of this case. The court of appeals, fi nding “no error” in the district court opinion, affi rmed that 

court’s decision. Following, on April 7, 1997, the Fourth Circuit granted a request from the CAN that the FEC pay 

its attorney fees and other costs associated with this case. The court remanded the case to the district court to set the 

amount to be awarded.

District Court Decision

The communications in question—a television advertisement and two newspaper advertisements that ran during the 

weeks leading up to the 1992 Presidential general election—assailed then-candidate Bill Clinton’s alleged position on 

homosexual issues.

The court ruled that the communications were outside the Commission’s jurisdiction because they did not expressly 

advocate the election or defeat of Mr. Clinton.

The court reached this conclusion on the basis of the Supreme Court’s decision in Buckey v. Valeo. In that case, the 

Supreme Court said that, for a communication to be considered an independent expenditure and thus subject to FEC 

regulation, it must expressly advocate the election or defeat of a clearly identifi ed candidate.2 In reviewing relevant 

court decisions since Buckley, the court found that “political expression, including discussion of public issues and 

debate on the qualifi cations of candidates, enjoys extensive First Amendment protection” and that the courts “have 

adopted a strict interpretation of the ‘express advocacy’ standard . . . . Thus, courts generally have been disinclined 

to entertain arguments made by the Commission that focus on anything other than the actual language used in 

an advertisement.”

In arguing the case, the FEC had relied on the Court of Appeals for the Ninth Circuit’s decision in FEC v. Furgatch. 

In that case, the appeals court considered the timing and context of a communication in determining the existence of 

express advocacy. The FEC stressed that those elements were important here as well: the CAN television advertisement 

aired in the weeks leading up to the 1992 general election, and, although the ad did not contain words that expressly 

advocated Mr. Clinton’s defeat, its imagery, music, editing, coloring, etc. clearly conveyed that message.
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The FEC also pointed out that the newspaper ads—both of which referred to the “voting public” and one of which 

referred to a Presidential debate scheduled for that day—conveyed a message identical to that of the television ad. 

Viewed collectively, the FEC contended, the three ads sent voters the message to vote against Mr. Clinton and his 

policies in the November elections.

The court recognized the validity of the Furgatch approach but noted that the Furgatch court stated that the context 

and timing of a communication were peripheral to the actual words themselves, and therefore should be given only 

limited weight when determining the presence of express advocacy. 

Focusing on the words contained in the ads, the court said there was no call for electoral action. The newspaper ads’ 

reference to the “voting public” “does not per se translate into an exhortation to vote.”

Finding that express advocacy was absent from the ads, the court concluded that “the Defendants’ advertisements 

represent the very type of issue advocacy the Buckley Court sought to exempt from government regulation.”

Source: FEC Record, September 1995, p. 2; October 1996, p. 1; and May 1997, p. 5. , September 1995, p. 2; October 1996, p. 1; and May 1997, p. 5.

Christian Action Network: FEC v., 894 F. Supp. 946 (W.D. Va. 1995), aff’d per curiam, 92 F.3d 1178 (4th Cir. 1996). 1 An independent expenditure is an expenditure made without any coordination with a candidate’s campaign for a communication 

which expressly advocates the election or defeat of a clearly identifi ed candidate for federal offi ce.

2 The court listed the following examples of words that constitute express advocacy: “vote for,” “elect,” “support,” “cast your ballot for,” 

“Smith for Congress,” “vote against,” “defeat,” “reject.”

FEC v. CHRISTIAN COALITION

On May 13, 1997, the U.S. District Court for the District of Columbia denied the Christian Coalition’s motion for 

partial dismissal of this case.

The decision meant that the FEC was able to seek declaratory and injunctive relief for all of the alleged violations of 

the Federal Election Campaign Act (the Act), but was not able to obtain civil penalties for any of the violations that 

occurred more than fi ve years before the lawsuit was fi led.

On August 2, 1999, the district court granted in part and denied in part motions for summary judgment by both the 

Federal Election Commission (the “FEC” or “Commission”) and the Christian Coalition (the “Coalition”). 

The FEC and the Christian Coalition negotiated a fi nal judgment and order, which the court issued on 

February 23, 2000.

1997 District Court Decision

Statute of Limitations

The Coalition sought dismissal of those portions of the FEC’s suit that concerned prohibited activities that 

had occurred more than fi ve years before the suit was fi led—essentially the activities that related to the 1990 

election cycle.

At 28 U.S.C. §2462, the law provides for a fi ve-year statute of limitations for certain law enforcement proceedings. 

The Coalition argued that that time limit started running at the time that the alleged offenses occurred—not when 

they were reported to the FEC by the Democratic Party of Virginia. The FEC argued that the time began running 

when it was notifi ed through the administrative complaint process. Because its investigatory powers and resources 

are limited, the FEC said that it had no way of knowing about the Coalition’s alleged conduct until a complaint was 

fi led with the agency.

The court rejected the FEC’s argument, citing the ruling of the U.S. Court of Appeals for the District of Columbia 

Circuit in 3M v. Browner.

1 In that case, the appeals court ruled that an agency’s failure to detect violations does not 

negate the inherent diffi culties faced by bringing a case to court long after the alleged violation has occurred. The 

appeals court noted: “nothing in the language of §2462 even arguably makes the running of the limitation period turn 

on the degree of diffi culty an agency experiences in detecting violations.”

The court, however, agreed with the FEC that §2462 provides no shield for the Coalition from declaratory or injunctive 

relief. At 2 U.S.C. §437g(a)(6), the FEC has the authority to seek injunctive relief separate from its authority to seek 

legal remedies (e.g., civil fi nes, penalties and forfeitures).
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1999 District Court Decision

The Commission had alleged that the Coalition had made three expenditures for communications that expressly 

advocated the election or defeat of clearly identifi ed candidates. The court held that the following two communications 

did not contain express advocacy and, therefore, did not violate the Federal Election Campaign Act’s (the “Act”) ban 

on corporate contributions and expenditures made in connection with federal elections: 

• A 1992 Montana speech by Ralph Reed, then-Executive Director of the Coalition; and 

• A 1994 nationwide direct mail package entitled “Reclaim America.” 

The court held that a third communication, a 1994 mailing by the Georgia Christian Coalition, did expressly advocate 

the election of then-Speaker Newt Gingrich in violation of the Act. The court also held that the Coalition violated 

the Act by making a prohibited corporate contribution to Oliver North’s Senate campaign by giving it a mailing list.

The Commission also alleged that the Coalition coordinated its voter guides during the 1990, 1992 and 1994 elections 

with various federal candidates. In all but one instance, the court decided that there was no coordination. In one 

election campaign, Oliver North’s 1994 U.S. Senate campaign in Virginia, the court determined that there were 

contested issues to be resolved after a future hearing. 

Background and Holding

The Christian Coalition is a nonprofi t, nonstock corporation, originally incorporated in Virginia and doing business 

in the District of Columbia. In 1992 both the Democratic Party of Virginia and the Democratic National Committee 

fi led complaints against the Coalition with the FEC. The two complaints were merged. The Commission found 

probable cause to believe the Coalition had violated the Act and attempted conciliation with the Coalition. After that 

attempt failed, the Commission fi led this lawsuit in 1996.

The court determined that the two main issues in the litigation were:

• Whether “express advocacy” is limited to communications that use specifi c phrases or “magic words,” such as 

“Vote for Smith,” or whether a more substantive inquiry into the clearly intended effect of a communication 

is appropriate; and

• What level of contact between a campaign and a corporation constitutes “coordination” and thereby converts 

a corporate expenditure that infl uences an election into a prohibited contribution.

Express Advocacy

With regard to the fi rst issue, the court concluded that an express advocacy communication is one that a reasonable 

person would understand contains an explicit directive—using an active verb (or its functional equivalent)—that 

unmistakably exhorts the audience to take electoral action to support or defeat a clearly identifi ed candidate. The 

verb (or its functional equivalent) must be considered in the context of the entire communication, including temporal 

proximity to the election.

Corporate Coordinated Expenditure

With respect to the second issue, the district court limited its decision to “expressive coordinated expenditures” by 

corporations. The court explained that an “expressive coordinated expenditure” is an expenditure for a communication 

that (although not containing express advocacy) is “made for the purpose of infl uencing a federal election in which 

the spender is responsible for a substantial portion of the speech and for which the spender’s choice of speech has 

been arrived at after coordination with the campaign.” Such expenditures are coordinated if the candidate requests or 

suggests the expenditure, or if the spender engages in substantial discussion or negotiation with the campaign about 

the communication’s content, timing, location, mode, intended audience or volume. 

Express Advocacy Issues

Express Advocacy Standard

The FEC alleged that in three instances the Coalition used general treasury funds to fi nance independent 

communications that contained express advocacy (i.e., expressly advocated the election or defeat of a clearly identifi ed 

candidate) and thereby violated §441b of the Act, which prohibits corporations and unions from making expenditures 

in connection with federal elections.

Based on decisions by the Supreme Court and lower courts in other jurisdictions, the district court held that, in order 

for an expenditure to contain express advocacy and, if made by a corporation, violate §441b of the Act, the following 

attributes are necessary:

• The communication must contain an explicit directive. It must use an active verb or its functional equivalent 

(e.g., “Vote for Smith” or “Smith for Congress” or an unequivocal symbol).
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• The “active verb or its immediate equivalent—considered in the context of the entire communication, including 

its temporal proximity to the election—must unmistakably exhort the [receiver] to take electoral action to 

support the election or defeat of a clearly identifi ed candidate.” Electoral action includes campaigning for 

and/or contributing to a clearly identifi ed candidate, as well as voting for or against the candidate.

The court said that it is a pure question of law as to whether a reasonable person would understand the communication 

to expressly advocate a candidate’s election or defeat. Once the identity of the speaker (organization paying for the 

communication) and the content of the communication are proven, a court must determine whether the communication 

contains express advocacy “solely as a matter of law.”

Ralph Reed’s 1992 Montana Speech

The FEC alleged that the Christian Coalition used general treasury funds to pay travel expenses and compensation 

to Ralph Reed, then-Executive Director of the Coalition, for a speech that expressly advocated the defeat of Pat 

Williams, the Democratic U.S. Representative from Montana’s First District.

The court held that, while Reed’s speech made references to the Democratic incumbent, it did not direct the audience 

to do anything. He predicted that “victory will be ours” and that “we’re going to see Pat Williams sent bags packing 

. . . in November.” The court said this was “prophecy rather than advocacy,” because Reed’s speech did not contain 

an explicit exhortation to the audience to take action to defeat Representative Williams. “[I]t can only be concluded 

that Reed exhibited precisely the ‘ingenuity and resourcefulness’ in his verb choice that the Buckley Court envisioned 

possible to circumvent the prohibition on express advocacy. As others have acknowledged, results such as this appear 

unsatisfyingly formalistic, allowing precisely the sort of communications Congress sought to prohibit to remain 

immune from liability. . . . But the Supreme Court felt that the First Amendment required a choice between a toothless 

provision and one with an overbite; results such as this fl ow directly from that choice.”

“Reclaim America” 1994 Mailing

The FEC alleged that portions of a mass mailing called “Reclaim America” included prohibited express advocacy. 

The Commission argued that, when read in conjunction with the enclosed Christian Coalition scorecard (rating 

incumbents on specifi c votes), the cover letter could only be understood to urge support of those incumbents rated 

favorably and defeat of those rated unfavorably.

Though acknowledging that the cover letter contained explicit directives (e.g., “stand together,” “get organized”), the 

court concluded that a reasonable person could understand the cover letter as a directive to engage in lobbying or 

issue advocacy with all candidates. The scorecard did not identify which incumbents were candidates in 1994 and did 

not provide an electoral endorsement of any particular candidate. As a result, there was no express advocacy, and the 

expenditures did not violate §441b.

Georgia Mailing in 1994

The FEC alleged that a mailing by the Georgia Christian Coalition state affi liate (for which the Coalition admitted 

it was responsible and liable) contained a cover letter from the Coalition’s state chair expressly advocating the 

re-election of Congressman Newt Gingrich. The mailing also contained a copy of the Coalition’s nationwide 

Congressional scorecard.

The court held that, unlike the other two communications discussed above, “the Georgia mailing was expressly 

directed at the reader-as-voter.” The cover letter announced upcoming primary elections and enclosed two items 

“[to] help you prepare for your trip to the voting booth.” The second item was the congressional scorecard. The letter 

stated that Newt Gingrich, a Christian Coalition “100 percenter,” was the only incumbent facing a primary opponent. 

The letter also exhorted the voter to take the scorecard to the polls in the general election. “While marginally less 

direct tha[n] saying ‘Vote for Newt Gingrich,’ the letter in effect is explicit that the reader should take with him to the 

voting booth the knowledge that Speaker Gingrich was a ‘Christian Coalition 100 percenter’ and therefore the reader 

should vote for him. While the ‘express advocacy’ standard is susceptible of circumvention by all manner of linguistic 

artifi ce, merely changing the verb ‘vote’ into the noun, ‘trip to the voting booth’ is insuffi cient to escape the limited 

reach of ‘express advocacy.’”

Coordination Issues

Corporate Coordinated Expenditures

The court explained that §441b of the Act prohibits corporations from making any contributions or expenditures in 

connection with any federal election, and the Supreme Court, in Buckey v. Valeo, established that expenditures made 

in coordination with a campaign are contributions. The court further stated that, in FEC v. Massachusetts Citizens 

for Life, the Supreme Court “determined that Congress plainly intended the Act to reach corporate expenditures in 

connection with a federal election. . . . Under that construction, it is manifest that the Coalition’s expenditures on 

voter guides fall within Congress’s intended scope for §441b.”
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The district court went on to distinguish “expressive coordinated expenditures” from other coordinated expenditures. 

According to the court, an “expressive coordinated expenditure” is an expenditure “for a communication made for 

the purpose of infl uencing a federal election in which the spender is responsible for a substantial portion of the 

speech and for which the spender’s choice of speech has been arrived at after coordination with the campaign.” 

The court distinguished this type of coordinated expenditure from other types such as coordinated expenditures for 

noncommunicative materials (e.g., food or travel expenses for campaign staff).

The court held constitutional that portion of the FEC’s regulations that would treat, as contributions, “expressive 

coordinated expenditures” made at the request or suggestion of the campaign. In the absence of a request or 

suggestion from the campaign, the court explained, an expressive expenditure is still coordinated where the candidate 

or his agent exercises control over the communication, or where there has been substantial discussion or negotiation 

between the campaign and the spender about such things as the contents, timing, location, mode, intended audience, 

or volume of the communication. A substantial discussion, the court explained, is one from which the spender and 

the campaign emerge as partners (not necessarily equal partners) or joint venturers in the expressive expenditure. 

“This standard limits §441b’s contribution prohibition on expressive coordinated expenditures to those in which the 

candidate has taken a suffi cient interest to demonstrate that the expenditure is perceived as valuable for meeting the 

campaign’s needs or wants.”

The court stated that, under this standard, a voter guide would be considered a coordinated expenditure if the 

conversation between the spender and the campaign went well beyond inquiry and included, for example, discussion 

or negotiation over the selection and phrasing of issues to be included in the candidate survey or voter guide. 

“Coordination requires some to-and-fro between corporation and campaign . . . .”

With respect to get-out-the-vote (“GOTV”) telephone activity, the court held that the level of discussion must 

involve negotiation regarding such things as the contents of the scripts, when the calls are to be made, location or the 

audience—including which databases will be used to choose call recipients or the number of people to be called.

Using this standard, the court evaluated the facts surrounding the Coalition’s expenditures for voter guides involving 

the following campaigns.

Bush/Quayle ’92 Presidential Campaign

The court held that the Coalition’s voter guides and GOTV expenditures, in connection with the 1992 Presidential 

election, did not qualify as coordinated expenditures—primarily because the court concluded that the Bush/Quayle 

’92 campaign staff, armed with foreknowledge of the Coalition’s plans, chose not to respond to the Coalition’s implicit 

offers to discuss those plans. Although Pat Robertson (Chairman of the Board and former President of the Coalition) 

and Reed had special access to the Bush/Quayle ’92 campaign, and Reed had extensive discussions with campaign 

staff regarding the campaign’s thinking on strategic issues, and the Coalition told the campaign it intended to issue 

voter guides, “the Coalition did most of the talking.” Moreover, there was no request or suggestion by the candidate 

that the Coalition make expenditures for the voter guides. The corporation’s possession of “insider” knowledge from 

the campaign did not, in itself, establish coordination. More overt acts are required, the court saId.

Helms for Senate 1990, Inglis for Congress 1992 and Hayworth for Congress 1994

With regard to three Congressional campaigns (Helms for Senate in 1990, Inglis for Congress in 1992 and Hayworth 

for Congress in 1994), the court found no coordination. In each case, someone was simultaneously involved in both the 

Coalition and the campaign, but the court said that such “insider trading” was not suffi cient to establish coordination 

without more overt acts such as expenditures being made at the suggestion or request of the campaign.

North for Senate 1994

In one case, North for Senate in 1994, the Coalition gave to Oliver North’s campaign a list of previous delegates 

to the Virginia Republican convention who were also supporters of the Coalition. The court determined that such 

lists have commercial value, and therefore the contribution of the list to the North campaign was a prohibited 

corporation contribution.

The Coalition also distributed voter guides in Virginia in 1994. However, there is a material question of fact as to 

whether North’s campaign manager discussed with Reed which issues should be included in the voter guide. That 

issue, along with the fair market value of the mailing list, will be determined in later court proceedings.

National Republican Senatorial Campaign Committee

The FEC also had alleged that the Coalition had coordinated with the National Republican Senatorial Campaign 

Committee to create and distribute voter guides in several states the NRSC considered key in the 1990 elections. The 

NRSC had contributed $64,000 to the Coalition but had not become a partner in the voter guides by discussing their 

contents or points of distribution. The court concluded, therefore, that the Coalition had not violated the Act since 

there had been no discussion or negotiation with regard to the contents or distribution of the voter guides.
Selected Court Case Abstracts

Cases Through March 2004 99

FEC 

v.

FEC v.

C

2000 District Court Decision

The FEC and the Christian Coalition negotiated a fi nal judgment and order, which the court issued on 

February 23, 2000.

In the fi nal judgment, the court ordered that:

• The Coalition pay $45,000 to the FEC, representing a complete settlement of all outstanding issues, including 

civil penalties and sanctions; and

• Both the FEC and the Coalition bear their own costs and attorney fees.

Source: FEC Record, July 1997, p. 2; September 1999, p. 4; and April 2000, p. 7. , July 1997, p. 2; September 1999, p. 4; and April 2000, p. 7.

Christian Coalition: FEC v., 965 F. Supp. 66 (D.D.C. 1997); 52 F. Supp.2d 45 (D.D.C. 1999). 1 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994).

FEC v. CITIZENS FOR DEMOCRATIC ALTERNATIVES IN 1980

FEC v. FLORIDA FOR KENNEDY 

FEC v. MACHINISTS NON-PARTISAN POLITICAL LEAGUE

FEC v. WISCONSIN DEMOCRATS FOR CHANGE IN 1980

Between December 1980 and January 1981, the FEC fi led four separate suits in U.S. district courts seeking enforcement 

of subpoenas it had issued to three “draft Kennedy” political committees registered with the Commission, which 

had been engaged in promoting the Presidential candidacy of Senator Edward Kennedy during 1979, and to the 

Machinist Non-Partisan Political League (MNPL), the separate segregated fund of the International Association 

of Machinists, which had supported the formation of “draft Kennedy” groups in several states during 1979. The 

Commission fi led suit against MNPL and Citizens for Democratic Alternatives in 1980 in the U.S. District Court for 

the District of Columbia (FEC v. Citizens for Democratic Alternatives in 1980, Civil Action No. 800-0009 and FEC 

v. Machinists Non-Partisan Political League, Civil Action No. 79-0291), against Wisconsin Democrats for Change 

in 1980 in the U.S. District Court for the Western District in Wisconsin (FEC v. Wisconsin Democrats for Change in 

1980, Civil Action No. 80-C-124) and against the Florida for Kennedy Committee in the U.S. District Court for the 

Southern District of Florida (FEC v. Florida for Kennedy Committee, Civil Action No. 79-5964-CIV-JLK). 

Background 

The suits resulted from defendants’ failure to comply with subpoenas to produce information, which the FEC had 

issued as part of an investigation of alleged violations of the election law. 2 U.S.C. §437d. The FEC had received 

a complaint from the Carter/Mondale Presidential Committee, Inc. on October 4, 1979, alleging that nine named 

political committees were affi liated within the meaning of 2 U.S.C. §433, 441a(a)(5) and 11 CFR 110.3(a)(1)(ii)(D). 

The complaint claimed that, as affi liated political committees, the nine committees were subject to a single $5,000 

limit on contributions they accepted from a multicandidate committee. 2 U.S.C. §441a(a)(1)(C)(2)(C). The complaint 

further alleged that the draft committees had received, and MNPL had given to them, contributions in excess of the 

$5,000 limit. 2 U.S.C. §441a(a). 

After fi nding reason to believe that the draft committees and MNPL had violated the Act, the Commission 

issued 13 subpoenas to various draft committees and to MNPL in an effort to investigate the draft committees’ 

alleged affi liation. 

Continued refusal by the four defendants to comply with their subpoenas prompted the FEC to seek enforcement of 

the subpoenas in the U.S. district courts. The FEC argued that the subpoenas clearly conformed to the guidelines for 

the enforcement of an administrative agency’s subpoenas established by the Supreme Court in United States v. Morton 

Salt Co. Specifi cally, the FEC’s inquiries were authorized by 2 U.S.C. §437d(a)(1), they were not too indefi nite and 

the information they sought was reasonably relevant to the FEC’s investigation. Further, in seeking court-mandated 

enforcement of the subpoenas, the Commission had followed the procedures prescribed by 2 U.S.C. §437d(b).

Defendant committees raised collateral issues that challenged the Commission’s jurisdiction over political committees 

organized to draft candidates for federal offi ce and that raised First Amendment questions. Defendants argued that, 

for purposes of the Act, the Supreme Court had restricted the defi nition of a “political committee” in Buckey v. Valeo

to a group whose major purpose is to infl uence the nomination or election of a candidate. (Buckey v. Valeo, 424 U.S. 

at 79.)
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100 Cases Through March 2004

FEC v.

C

District Court Rulings

The district courts ordered enforcement of the Commission’s subpoenas. The courts maintained that the subpoenas 

met the guidelines for enforceability and were within the authority of the agency. 

The Wisconsin Democrats for Change in 1980 complied with the Wisconsin district court’s subpoena enforcement 

order. However, Citizens for Democratic Alternatives in 1980 and MNPL fi led notices appealing the D.C. district 

court’s decisions to the U.S. Court of Appeals for the District of Columbia Circuit, and the Florida for Kennedy 

Committee fi led a notice appealing the Florida district court’s decision to the U.S. Court of Appeals for the 

Fifth Circuit. 

The Florida for Kennedy Committee was granted its application for a stay of the district court’s order pending 

its appeal. The D.C. district and appeals courts denied the stay applications requested by Citizens for Democratic 

Alternatives in 1980 and MNPL; the Supreme Court also denied a further application made by MNPL. The appellants 

then produced all documents requested by the Commission.

Appeals Court Decision: MNPL and Citizens for Democratic Alternatives in 1980

On May 19, 1981, the appeals court for the D.C. circuit issued its opinions in FEC v. MNPL and FEC v. Citizens for 

Democratic Alternatives in 1980. The appeals court found that the Commission “lacked subject matter jurisdiction over 

the draft activities it sought to investigate.” (FEC v. MNPL, slip op. at 7; FEC v. Citizens for Democratic Alternatives in 

1980, slip op. at 2). The appeals court vacated the D.C. district court’s orders enforcing the subpoenas and remanded 

the cases to the district court for further proceedings consistent with its ruling. The appeals court limited its decision 

to the provisions of the Federal Election Campaign Act prior to the 1979 Amendments: “Whatever the post-1979 

situation, it is clear to us that in this case the contribution limitations did not apply to the nine groups whose activities 

did not support an existing ‘candidate.’” (FEC v. MNPL, slip op. at 31.) The court did note that the 1979 Amendments 

to the Act appeared to require that “draft” committees comply only with the Act’s reporting requirements. 

The appeals court departed from the standard for judicial review of agency subpoenas and established a new “extra 

careful scrutiny” standard for judicial enforcement of FEC subpoenas. The appeals court reasoned that such a 

standard was warranted since “the activities which the FEC normally investigates differ in terms of their constitutional 

signifi cance” from those of concern to other federal agencies. On June 9, 1981, the Commission decided to seek review 

of the D.C. appeals court’s decisions by petitioning the Supreme Court for a writ of certiorari. On October 13, 1981, 

the Supreme Court denied the petition. 

Appeals Court Decision: Florida for Kennedy Committee

On August 2, 1982, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion overturning a ruling of 

the U.S. District Court for the Southern District of Florida in FEC v. Florida for Kennedy Committee (FKC) (Civil 

Action No. 80-6013). 681 F.2d 1281 (11th Cir. 1982). The appeals court, with Judge Clark dissenting, found that the 

Commission lacked subject matter jurisdiction over the FKC’s activities. The appeals court therefore reversed the 

district court’s order enforcing subpoenas that the Commission had issued to FKC. 

Relying on the Supreme Court’s decision in NAACP v. Alabama (357 U.S. 499 [1958]), the appeals court maintained 

that the usual standard for judicial review of agency subpoenas did not apply in the FEC’s case. The appeals court 

reasoned that “the FEC [must] prove to the satisfaction of the courts that it has statutory investigative authority” 

before the courts may order enforcement of FEC subpoenas. The appeals court then found that “committees 

organized to ‘draft’ a person for federal offi ce” are not “political committees” within the purview of the Act and are 

not, therefore, subject to the Commission’s investigative authority.

Judge Clark, in his dissent to the majority opinion, concluded that the statutory language and legislative history both 

demonstrated that “draft” committees fall within the jurisdiction of the Act. Judge Clark argued that to exempt draft 

committees from the Act “would leave a signifi cant portion of political activity outside the coverage of the Act, a 

construction rejected by the Supreme Court.” Judge Clark also found the court’s reliance on NAACP v. Alabama to 

be inappropriate. 

On September 22, 1982, the Commission fi led a petition with the appeals court for a rehearing of the suit and a 

suggestion for a rehearing en banc, which was denied October 8, 1982. 

Source: FEC Record, July 1981, p. 5; December 1981, p. 6; and November 1982, p. 6. , July 1981, p. 5; December 1981, p. 6; and November 1982, p. 6. 

Citizens for Democratic Alternatives in 1980: FEC v., 655 F.2d 397 (D.C. Cir.), cert. denied, 454 U.S. 897 (1981). , 454 U.S. 897 (1981). 

Florida for Kennedy Committee: FEC v., 492 F. Supp. 587 (S.D. Fl. 1979), rev’d, 681 F.2d 1281 (11th Cir. 1982). , 681 F.2d 1281 (11th Cir. 1982). 

Machinists Non-partisan Political Action Committee: FEC v., 655 F.2d 380 (D.C. Cir. 1981), cert. denied, 454 U.S. 897 (1981). , 454 U.S. 897 (1981). 
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FEC v. CITIZENS FOR THE REPUBLIC

On March 1, 1979, the U.S. District Court for the District of Columbia granted summary judgment to Citizens for 

the Republic (CFR), defendants in a suit fi led by the FEC. In granting judgment to the defendant, the court found 

that there was no genuine issue as to any material fact. 

On August 11, 1977, the Commission found reasonable cause to believe that Citizens for the Republic (formerly 

Citizens for Reagan, principal campaign committee for former Presidential candidate Ronald Reagan) had violated 

the Act by failing to report or make best efforts to report the occupations and principal places of business of 35% of 

those persons who had contributed an aggregate of $100 or more to the candidate, as required by 2 U.S.C. §434(b)(2). 

On June 23, 1978, the Commission fi led suit after unsuccessfully trying, for almost a year, to resolve the matter 

through conciliation, as required by 2 U.S.C. §437g(a)(5)(A). 

The defendant maintained that:

• Section 434(b) does not impose an affi rmative duty on the candidate to obtain information which may not 

exist. Rather, the burden of proof is on the Commission, which must identify persons who contributed more 

than $100 and establish that, at the time of the contribution, they had an occupation and a principal place of 

business which they were required to report. 

• One cannot be in violation of the law for failure to make best efforts; one can only be in violation for failure 

to report the required information. In the event that the required information does exist and is not reported, 

the defendant may be relieved of guilt if he is able to demonstrate that he attempted to obtain the required 

information and was unable to do so. 

• The Commission gave insuffi cient guidance as to how the Committee might obtain the required information. 

In the absence of any regulation or guidelines, the Committee efforts were best efforts. 

The Commission argued that:

• The Act clearly imposes the burden of obtaining the required information on the candidate.

• If the CFR had been able to demonstrate that they had made an attempt to obtain the required information 

and had not been successful, their effort would have been suffi cient. The Committee’s initial mailing to 

potential contributors did not request the required information, or state that the contributor was required 

to provide it. The only Committee mailing which pointedly requested the missing information was sent in 

December 1977 (the relevant reporting period was 1975-76), after the Committee had received 14 requests for 

additional information from the Commission and after the Committee was aware that the Commission had 

found reasonable cause to believe it was in violation of the Act.

• Lack of guidance did not hinder other Presidential committees from making satisfactory efforts to obtain 

the required information. Furthermore, the Commission did provide guidance to the Committee, pointing 

out its reporting defi ciencies, suggesting ways those defi ciencies might be corrected, and discussing how other 

Presidential committees were gathering the required information.

In fi nding for the defendant, the court concluded that the Commission “had a duty to give more...detailed guidance 

by regulation.” In the absence of such guidance, the efforts made by the Reagan Committee were best efforts. 

Source: FEC Record, May 1979, p. 2. , May 1979, p. 2.

FEC v. CITIZENS PARTY (86-3113)

On July 31, 1987, the U.S. District Court for the District of Columbia entered a default judgment against the Citizens 

Party, a political party committee, and the party’s acting treasurer, Kirby Edmonds, for the respondents’ failure to 

timely pay in full a previously agreed upon civil penalty, in violation of the terms of a conciliation agreement they had 

entered into with the FEC on March 20, 1986. (FEC v. Citizens Party; Civil Action No. 86-3113 (OG).) 

The court also: (1) ordered the defendants to pay interest on the $1,250 unpaid balance of the civil penalty for the 

period from June 18, 1986, to December 8, 1986, and (2) permanently enjoined the defendants from further violations 

of the agreement. 

Source: FEC Record, March 1987, p. 6. , March 1987, p. 6.
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FEC v.

C

FEC v. CITIZENS PARTY (87-1577)

On May 1, 1989, the U.S. District Court for the Northern District of New York entered a consent order and judgment 

in FEC v. Citizens Party (Civil Action No. 87-CV-1577). The judgment declared that the Citizens Party, a political 

committee, and its treasurer, Kirby Edmonds, knowingly and willfully violated the election law by failing to fi le 

four reports in a timely manner: a 1985 year-end report and three 1986 quarterly reports (April, July and October). 

The consent order and judgment also assessed a civil penalty of $10,000 against the committee. Mr. Edmonds was 

personally assessed a $500 penalty. 

Source: FEC Record, July 1989, p. 7. , July 1989, p. 7.

FEC v. CLARK 

On April 23, 1987, the U.S. District Court for the Middle District of Florida issued a consent order in FEC v. John R. 

Clark, Jr. (Civil Action No. 86-1841-CIV-T-17B). In the order, the FEC and Mr. Clark agreed that:

• Mr. Clark had entered into a conciliation agreement with the FEC in which he admitted violating section 

441f of the election law by knowingly permitting his name to be used for a contribution made in the name 

of another person. In the conciliation agreement, Mr. Clark also agreed to pay a $250 civil penalty by 

January 25, 1985.

• Mr. Clark had violated the conciliation agreement by failing to pay the civil penalty on time.

• Mr. Clark paid the civil penalty only after the Commission had notifi ed him that the agency had fi led suit 

against him for failure to pay the penalty.

Finally, Mr. Clark assured the court that, in the future, he would fully comply with the election law. 

Source: FEC Record, June 1987, p. 6. , June 1987, p. 6.

FEC v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE

In April 1986—four months before the Democratic primary and seven months before the November general election—

the Colorado Republican Federal Campaign Committee (the Committee) ran a $15,000 radio ad in response to a series 

of television ads sponsored by the Senatorial campaign committee of then-Congressman Tim Wirth, a Democrat. 

The ad contrasted Mr. Wirth’s statements in his TV ads with his Congressional voting record, and concluded with the 

words: “Tim Wirth has a right to run for the Senate, but he doesn’t have a right to change the facts.”

Under the Federal Election Campaign Act (the Act), the Committee was authorized to spend up to a certain limit on 

coordinated party expenditures made “in connection with the general election campaign” of the Republican Party 

candidate running in the U.S. Senate race in Colorado. 2 U.S.C. §441a(d)(3). The Committee, however, had assigned 

its entire 1986 spending authority to the National Republican Senatorial Committee.

In its campaign fi nance reports, the Committee characterized the ad as a generic voter education expense that was not 

subject to the §441a(d) limits. The FEC, however, viewed it as a coordinated party expenditure and fi led suit against 

the Committee for violating the Act’s expenditure limits and reporting requirements for this type of expenditure. The 

Committee counterclaimed with a First Amendment challenge to the constitutionality of the §441a(d) limits.

District Court Decision

On August 31, 1993, the U.S. District Court for the District of Colorado granted summary judgment to the Committee. 

The court held that the Committee’s $15,000 expenditure for a radio ad, because it did not contain “express advocacy,” 

was not subject to the coordinated party expenditure limit. 

The court fi rst rejected the Committee’s argument that the ad was an “independent expenditure” (rather than a 

coordinated expenditure)—and thus not subject to spending limits—because it was aired before the Republican 

candidate had been nominated. The court noted that the FEC and the courts have said that party committees are 

incapable of making independent expenditures. The court concluded that the Committee’s expenditure “was made 

on behalf of the Republican candidate, whomever that might be; and it is irrelevant that no particular person had 

been designated.” 
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FEC v.

C

In considering whether the ad was subject to the coordinated party expenditure limits at 2 U.S.C. §441a(d), the district 

court concluded that only communications that expressly advocate the election or defeat of a candidate qualify as 

coordinated party expenditures. The court decided that the radio ad did not contain express advocacy, and therefore 

was not a coordinated party expenditure.

The district court reasoned that in FEC v. Massachusetts Citizens for Life (MCFL), the Supreme Court established that 

the presence of express advocacy determined whether or not an independent expenditure was made “in connection 

with” a federal election. Although the MCFL decision dealt with independent expenditures rather than coordinated 

party expenditures, the district court noted that §441a(d) also includes the phrase “expenditure in connection 

with” a federal election. The court therefore followed a common law rule: a phrase recurring in a statute is to be 

interpreted consistently.

The district court then referred to the list of words and phrases, contained in the Supreme Court’s Buckey v. Valeo

decision as examples of express advocacy. Finding that the Committee’s ad did not contain any of these words or 

phrases, the district court ruled that the expenditure for the ad did not constitute a coordinated party expenditure and 

therefore did not count toward the Committee’s §441a(d) limit.

Appeals Court Decision

On June 23, 1995, the U.S. Court of Appeals for the Tenth Circuit reversed the district court’s ruling that express 

advocacy is a defi ning feature of coordinated party expenditures. Further, it concluded that the Act’s limitation of 

these expenditures does not violate the Committee’s First Amendment rights. The court remanded the case to the 

district court with instructions to enter judgment in favor of the FEC and to impose on the defendant a proper civil 

penalty under 2 U.S.C. §437g(a)(6).

Coordinated Party Expenditures and Independent Expenditures

The court of appeals observed that both Buckley and MCFL distinguish between these two types of expenditures:

“The Supreme Court cases have distinguished between the potential for corruption that attaches to contributions and 

coordinated party expenditures, and those that might develop from independent expenditures, fi nding less inherent 

risk in the latter.”

The court of appeals also noted that Buckley struck down the Act’s limits on independent expenditures as an 

unwarranted infringement on the First Amendment rights of individuals but upheld the Act’s limits on party 

expenditures because they served the substantial government interest of preserving the integrity of the electoral 

process. The validity of this interest has been reinforced in subsequent court case decisions.

In the appeals court’s view, the distinctions made in these precedents indicate that the phrase “expenditures in 

connection with” should not be construed the same way with respect to independent expenditures and coordinated 

party expenditures.

Rather, the court held that judicial deference was due to the Commission’s interpretation of its statute. Advisory 

Opinions 1984-15 and 1985-14 establish the Commission’s criteria for determining whether or not a party expenditure 

counts against the §441a(d) limit: an expenditure counts against the limit if it is made for a communication that (1) 

clearly identifi es a candidate and (2) contains an electioneering message. The presence of express advocacy is not a 

factor in this determination.

The court then found that the ad identifi ed a candidate (Mr. Wirth) and “unquestionably contained an electioneering 

message,” since it sought to diminish public support for Mr. Wirth and garner support for the then-yet-to-be-named 

Republican nominee. Consequently, the court reasoned that the radio ad resulted in an “expenditure made in 

connection with” an election and thus counted against the Committee’s §441a(d) limit.

The First Amendment and the Government’s Interest

Citing the reasoning of the Supreme Court in Buckley and subsequent cases, the court of appeals ruled that, as with 

contribution limits, the coordinated party expenditure limits are a justifi able infringement on the First Amendment 

rights of party committees.

“The opportunity for abuse is greater when the contributions (or in the instant case, coordinated party expenditures) 

derive from sources inherently aligned with the candidate, rather than with independent expenditures.”

The coordinated party expenditure limits were adopted because of Congressional concern that unchecked party 

spending would give citizens who make large contributions to party committees undue infl uence on elected offi cials. 

The court concluded that the §441a(d) limits diminish this potential with a minimal impact on the important role of 

political parties. This follows the precedent set in Buckley that found that these and other contribution and expenditure 

limits served the overriding government interest of preserving the integrity of the electoral process.
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FEC v.

C

Appeal to Supreme Court

The Commission appealed the Tenth Circuit’s decision to the Supreme Court. Oral arguments were presented on 

April 15, 1996.

Supreme Court Decision

On June 26, 1996, the U.S. Supreme Court ruled that the coordinated party expenditure limits at 2 U.S.C. §441a(d) 

could not be constitutionally applied to the radio ad aired by the Committee. The Court found that the ad was not 

coordinated with any candidate; rather it was an independent expenditure that could not constitutionally be subject 

to the coordinated party expenditure limit.

The FEC had concluded that political parties, because of their special function, are incapable of making electoral 

expenditures that are “independent” of their own candidates, since the sole reason for a political party’s existence is 

to elect its candidates to public offi ce. 

The Court disagreed, stating that, with reference to the radio ad, there was no evidence of coordination between 

the Committee and the three candidates who were then seeking the Republican Senate nomination. Rather, the ad 

“was developed by the Colorado Party independently and not pursuant to any general or particular understanding 

with a candidate.” The Court also found that the potential for, or appearance of, corruption, which the Buckley

Court found suffi cient to justify limiting contributions, was not present to the extent that would justify limiting 

such independent spending by political parties on behalf of their candidates. Accordingly, the Court concluded 

that the First Amendment precludes application of the §441a(d) limits to independent campaign expenditures by 

political parties.

This decision pertained to party spending in connection with congressional races. The Court warned that this opinion 

does not “address issues that might grow out of the public funding of Presidential campaigns.”

The Court decided not to address a constitutional challenge to the §441a(d) coordinated limits brought by the 

Committee. Instead, the Court chose to “defer consideration of the broader issues until the lower courts have 

reconsidered the question in light of our current opinion.”

This decision vacated the 10th Circuit Court of Appeals’ judgment. The case was remanded to the lower courts for 

further proceedings consistent with this decision.

Concurring and Dissenting Opinions Accompanying This Judgment

Justice Breyer wrote the plurality opinion announcing the judgment of the Court. Although seven Justices concurred 

in the judgment, only Justices O’Connor and Souter joined Justice Breyer’s plurality decision. There were also two 

separate concurring opinions and one dissent which the remaining Justices signed on to, as follows:

• Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia, fi led an opinion concurring in the 

judgment and dissenting in part. This opinion reasoned that coordinated party expenditures cannot 

constitutionally be limited because this would impermissibly infringe upon the parties’ First Amendment 

right to engage in political speech.

• Justice Thomas, joined in part by Chief Justice Rehnquist and Justice Scalia, fi led an opinion concurring in 

the judgment and dissenting in part. This opinion also reasoned that the §441a(d) limits are unconstitutional. 

Justice Thomas, writing for himself only, fi rst explained that there is no constitutional difference between 

expenditures and contributions, and that neither can constitutionally be limited at all. For this reason, he 

would overrule Buckley and fi nd unconstitutional all statutory limits on contributions and expenditures. Chief 

Justice Rehnquist and Justice Scalia did not join this part of Justice Thomas’ opinion, but agreed with Justice 

Thomas’ conclusion that, under Buckley, the party expenditure limits at §441a(d) are unconstitutional in their 

entirety because there is insuffi cient evidence that coordinated spending by political parties poses a substantial 

risk of corruption.

• Justice Stevens, joined by Justice Ginsberg, dissented. The dissenters agreed with the FEC’s view that all 

campaign expenditures by political parties should be treated as coordinated with the party’s candidates, 

and concluded that the limit on party expenditures at §441a(d) is constitutional because it serves compelling 

governmental interests in avoiding both actual corruption and the appearance of corruption, and in leveling 

the playing fi eld in election campaigns.

District Court Decision on Remand (Colorado II)

On February 23, 1999, the district court granted the Committee’s motion for summary judgment on its counterclaim, 

ruling that the coordinated party expenditure limits are unconstitutional and cannot be enforced against the Committee. 

The court denied the FEC’s cross motion for summary judgment and dismissal of the amended counterclaim.
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In the district court’s view, the FEC needed to demonstrate that:

• §441a(d) serves a compelling government interest; and

• §441a(d) is narrowly tailored to achieve that interest.

The court said that the FEC had to show that coordinated party expenditure limits prevent corruption or the 

appearance of corruption. The FEC had to do more than show “the opportunity” for corruption.

The FEC argued that generous contributors could demand special favors of candidates via their party committee 

contributions; and that party committees could withhold or grant unlimited coordinated expenditures in order to 

exact a quid pro quo from candidates who needed fi nancial assistance. The court rejected the fi rst argument, saying 

that the FEC had shown that large contributors to parties had obtained access to elected offi cials, but such access did 

not constitute corruption. The court rejected the analogy to unlimited soft money donations because they may not be 

used to make coordinated party expenditures. Moreover, because of the limits on individual contributions, the court 

found the contributor-to-party-to-candidate scenario “an unlikely avenue of corruption.”

As to the second argument, the court stated that party committees, by their nature, exert some infl uence over 

candidates. “[A] political party’s decision to support a candidate who adheres to the parties’ beliefs is not corruption. 

Conversely, a party’s refusal to provide a candidate with electoral funds because the candidate’s views are at odds with 

party positions is not an attempt to exert improper infl uence.”

Furthermore, the court stated that in Buckey v. Valeo the Supreme Court’s concern with corruption was related to 

large individual fi nancial contributions—not contributions from party committees.

Finally, the court stated: “The FEC cannot rely on general public dissatisfaction with parties and politicians and the 

amount of money in the political process...to support its claim that the party coordinated expenditure limit serves a 

compelling purpose and is narrowly tailored to accomplish that purpose.”

The court concluded that the FEC had failed to offer relevant, admissible evidence that suggested coordinated party 

expenditures had to be limited to prevent corruption or its appearance. The court also stated that coordinated party 

expenditures were “indistinguishable in substance” from the candidate’s campaign expenditures. Since, under Buckley, 

candidate expenditures cannot be limited, coordinated party expenditures also cannot be regulated.

Appeals Court Decision (Colorado II)

On May 5, 2000, the U.S. Court of Appeals for the 10th Circuit affi rmed a district court decision that the coordinated 

party expenditure limits at 2 U.S.C. 441a(d)(3) are unconstitutional. 

To support the constitutionality of the 441a(d) limits, the Commission offered three principal arguments that the 

limits prevent corruption or the appearance of corruption: 

1. Section 441a(d)(3) limits the extent to which generous contributors to the party can infl uence the party “to either 

support or neglect those candidates who endorse or eschew the interests of the large contributor;” 

2. The cap on coordinated party expenditures reduces the ability of a small group of incumbent offi ceholders (the 

party elite) to exert improper pressure on the party’s candidates by granting or withholding the use of party funds; and

3. The 441a(d) limits reinforce the Act’s cap on individual contributions. Without them, individuals could try 

to circumvent the $1,000 per candidate, per election contribution limit by giving the maximum $20,000 per year 

contribution to the party with the expectation that the funds would be spent to support a particular candidate.

The court, in a 2-1 decision, rejected the fi rst of these arguments by noting, in part, that—based on the Supreme 

Court’s earlier ruling in this case—party committees can already make unlimited independent expenditures. The 

court refused to consider the potential corrupting infl uence of unregulated “soft money” contributions, since those 

funds cannot legally be spent to infl uence federal elections.

With respect to the FEC’s second argument, the court concluded that “there is nothing pernicious” about a party 

“shaping the views of its candidates.” The court added that, “Parties are simply too large and too diverse to be 

corrupted by any one faction.”

The court dismissed the Commission’s fi nal argument by noting that 2 U.S.C. 441a(a)(8) requires that contributions 

earmarked for a particular candidate (i.e., that pass through an intermediary) be treated as contributions from the 

original source to the candidate.

Having found no persuasive evidence that coordinated party expenditures corrupt, or appear to corrupt, the electoral 

process, the appeals court upheld the district court’s decision. The court concluded that “441a(d)(3)’s limit on party 

spending . . . constitutes an ‘unnecessary abridgment’ of First Amendment freedoms.” The court stated explicitly that 

its analysis and holding apply only to party spending in connection with Congressional races.
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In dissent, Chief Judge Seymour found the “majority opinion fundamentally fl awed in several respects.” In her view, 

the panel majority “substitute[d] its judgment for that of Congress on quintessentially political matters the Supreme 

Court has cautioned courts to leave to the legislative process. In so doing, the majority creates a special category for 

political parties based on its view of their place in American politics, a view at odds with history and with legislation 

drafted by politicians.” 

Supreme Court Decision (Colorado II)

On June 25, 2001, the U.S. Supreme Court, overruling the Court of Appeals for the 10th Circuit, held that the 

coordinated party expenditure limits at 2 U.S.C. §441a(d)(3) are constitutional. The Court ruled that party coordinated 

expenditures, unlike party expenditures made independently of any candidate or campaign, may be restricted to 

“minimize circumvention of [individual] contribution limits.”

In arguments before the Supreme Court, the Committee maintained that fi nancial support of candidates was an 

inherent function of political parties. Therefore, any limitation of Committee expenditures coordinated with its 

candidates would be a serious infringement of its speech and associational rights. The Committee argued that such 

a limitation would impose a unique First Amendment burden on the Committee, and such a burden could not be 

justifi ed by any benefi ts gained in preventing corruption or the appearance of corruption.

The Commission argued that coordinated expenditures should be limited not only because they are equivalent to 

contributions, but also because unlimited coordinated party expenditures would allow individuals to evade the 

contribution limits applicable to their direct contributions to candidates. Because individuals can give much larger 

contributions to parties than to candidates, if parties’ coordinated spending were unlimited, individuals would have 

an incentive to make large contributions to parties, who would then be able to spend more of those contributors’ 

dollars on a particular candidate than the individual contribution limits would allow. This circumstance would allow 

individuals and other contributors to circumvent the contribution limits upheld in Buckey v. Valeo. 

In upholding the constitutionality of coordinated party expenditure limits, the Court:

• Rejected the Committee’s argument that unrestricted coordinated spending is essential to the nature of parties, 

fi nding that parties have functioned effectively during the previous three decades, during which the coordinated 

expenditure limits were in place.

• Rejected the Committee’s argument that parties primarily act to elect particular candidates, fi nding that 

“parties are [also] necessarily the instrument of contributors . . . whose object is not to support the party’s 

message or to elect party candidates, but rather to support a specifi c candidate for the sake of a position on 

one, narrow issue, or even to support any candidate who will be obliged to contributors.”

• Found that a party committee is not in a unique position vis-à-vis other political spenders, such as wealthy 

individuals, PACs and media executives, all of whom could coordinate expenditures with a candidate’s campaign. 

Instead, precisely because political parties can effi ciently amplify their members’ power through aggregating 

contributions and broadcasting messages, they are in a position to be used to circumvent contribution limits.

Citing testimony provided by political scientists in friend-of-the-court briefs, the Court agreed with the Commission 

that there was a serious threat of abuse from unlimited coordinated party expenditures. The Court concluded: 

“Despite years of enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors, 

and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits would be 

eroded if inducement to circumvent them were enhanced by declaring parties’ coordinated spending wide open.” 

Source: FEC Record, November 1993, p. 1; August 1995, p. 1; August 1996, p. 1; April 1999, p. 1; July 2000, p. 1; , November 1993, p. 1; August 1995, p. 1; August 1996, p. 1; April 1999, p. 1; July 2000, p. 1; 

 October 2000, p. 6; and August 2001, p. 1.

Colorado Republican Federal Campaign Committee: FEC v., 839 F. Supp. 1448 (D. Colo. 1993); 59 F.3d 1015 (10th Cir. 1995), rev’d, 116 

S. Ct. 2309 (1996), on remand on remand, 41 F. Supp.2d 1197 (D. Colo. 1999); Supreme Court decision, 533 U.S. 431, 121 S.Ct. 2351. , 41 F. Supp.2d 1197 (D. Colo. 1999); Supreme Court decision, 533 U.S. 431, 121 S.Ct. 2351.

FEC v. COMMITTEE OF 100 DEMOCRATS

On September 30, 1993, the District Court for the District of Columbia granted the Commission’s motion for 

summary judgment against the Committee of 100 Democrats, the Committee to Elect Fusco to Congress (formerly 

Throw the Rascals Out) and Dominick A. Fusco, the treasurer of both committees.

The court ruled that Mr. Fusco and the committees had violated the terms of two conciliation agreements related to 

an FEC enforcement action (MUR 3148). The court ordered the defendants to comply with the agreements, assessed 

$1,000 penalties against each committee and enjoined the defendants from future violations of the agreements.
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Noting that Mr. Fusco was named as a party to the conciliation agreements and had signed them both, the court 

concluded that his “status as a party to each of the agreements subjects him to personal liability for their violation.” As 

a result, the court held Mr. Fusco and the committees “jointly liable” for compliance with the conciliation agreements 

and payment of the additional penalties.

To comply with the conciliation agreements, the Committee of 100 Democrats—and Mr. Fusco, as its treasurer—had 

to register with the Commission and fi le the appropriate reports of receipts and disbursements. Mr. Fusco and his 

Committee to Elect Fusco to Congress were to pay the FEC a $3,500 civil penalty. The court directed the defendants 

to comply with its order within 10 days. 

Payment Schedule

In a court document fi led September 13, 1994, the parties in this suit agreed to a schedule for paying the $5,500 in 

total penalties owed by the three defendants.

The stipulation agreement required the defendants to pay the penalties in monthly installments. If payments were 

late, interest would accrue on the entire unpaid balance until it was fully paid. Moreover, if defendants failed to carry 

out their obligations, they would be required to reimburse the FEC for costs and attorneys’ fees expended on the case 

since the September 1993 judgment. 

Source: FEC Record, December 1993, p. 3; and November 1994, p. 9. , December 1993, p. 3; and November 1994, p. 9.

Committee of 100 Democrats: FEC v., 844 F. Supp. 1 (D.D.C. 1993).

FEC v. DEAR FOR CONGRESS (03CV2897)

On June 5, 2003, the Commission fi led a complaint in the U.S. District Court for the Eastern District of New York 

against Dear for Congress, Inc., Dear 2000, Inc., Friends of Noach Dear ’93 and these committees’ treasurer Abraham 

Roth. The complaint alleges, among other things, that:

• Dear for Congress, Dear 2000 and Mr. Roth accepted hundreds of thousands of dollars in prohibited 

contributions;

• Dear for Congress, through Mr. Roth, fi led FEC reports showing that more than $300,000 in excessive 

contributions had been refunded to contributors when, in fact, none of the refunds had been made when the 

report was fi led, and over $200,000 remains to be refunded; and

• Dear for Congress and Mr. Roth accepted numerous money orders, purportedly from individual contributors, 

that were not made by the persons identifi ed on the money orders. 

The Commission asks the court for a civil penalty, declaratory and injunctive relief and for the maximum civil penalty 

for each violation.

Background

This complaint arose from FEC administrative matters under review 4935 and 5057. The Federal Election Campaign 

Act (the Act) limits the aggregate amount that a person may contribute to a federal candidate, and it prohibits any 

person from making a contribution in the name of another person and any person from knowingly accepting such 

a contribution. 2 U.S.C. §§441a(f) and 441f. The Act also bars corporations and unions from making contributions 

from treasury funds to infl uence a federal election and any person from knowingly receiving such a contribution. 

2 U.S.C. §441b(a). Committees and their treasurers are also required to fi le timely and accurate campaign fi nance 

disclosure reports. 2 U.S.C. §§434(b)(4)(F), 434(b)(8) and 434(a)(6)(A). On May 1, 2003, the Commission found 

probable cause to believe that the defendants had violated these provisions of the Act, and it fi led this suit after failing 

to reach a conciliation agreement with the defendants. 2 U.S.C. §§437g(a)(4)(A) and (a)(6)(A).

Court Complaint

Mr. Dear was an unsuccessful House candidate in the 1998 New York primary, and Dear for Congress was his 

campaign committee. During the campaign, Dear for Congress and Mr. Roth accepted several sets of sequentially 

numbered money orders, purportedly from some 47 individuals, totaling approximately $40,000. However, the 

Commission alleges that Dear for Congress campaign staff executed at least some of these money orders. Several 

money orders were signed in the same handwriting, and many of the individuals whose names appear on the money 

orders deny making contributions to the committee or contributions via money order. Moreover, the Commission 

alleges that in accepting these contributions, Mr. Roth failed to comply with the statutory requirement to examine the 

legality of each of these facially irregular contributions. 2 U.S.C. §432(b)(1).
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The Commission also alleges that during the 1998 election cycle, Dear for Congress and Mr. Roth accepted 

approximately $564,000 in excessive contributions and did not refund or redesignate the contributions within the 

60-day period set by Commission regulations. 11 CFR 103.3(b)(3). Dear for Congress and Mr. Roth also accepted 

impermissible campaign contributions from several corporations, totaling about $12,000. Moreover, the committee 

and Mr. Roth have still not refunded approximately $200,000 in excessive contributions, and the complaint describes 

a number of reporting violations by Dear for Congress and Mr. Roth, including falsely reporting refunds of 

impermissible contributions.

The complaint further alleges that Mr. Dear’s nonfederal campaign committee made an excessive contribution to one 

of his federal campaign committees. In addition to running for the House in 1998, Mr. Dear also campaigned for 

a New York City council seat. Friends of Dear was his campaign committee for that election, and Mr. Roth served 

as treasurer. In December 1999, Mr. Dear established Dear 2000 to serve as his principal campaign committee for 

his campaign to win a House seat in the 2000 primary. Mr. Roth again served as treasurer. During 1999 Friends of 

Dear purchased an opinion poll for $40,000 and contributed the results to Dear 2000. The Commission alleges that 

once Mr. Dear became a candidate for federal offi ce, the donation of the opinion poll resulted in an excessive in-kind 

contribution from Friends of Dear, which could only contribute $1,000 per election to Dear 2000. The Commission 

alleges that Mr. Roth knowingly accepted this excessive contribution on behalf of Dear 2000 and also failed to report 

the contribution on the committee’s fi rst fi nancial disclosure report, due January 1, 2000.

Relief 

The Commission asks the court to: 

• Declare that the defendants violated these provisions of the Act; 

• Assess appropriate civil penalties;

• Order Dear for Congress and Mr. Roth to disgorge to the U.S. treasury all unrefunded excessive contributions, 

prohibited corporate contributions and contributions in the name of another; and 

• Permanently enjoin the defendants from further similar violations of the Act.

Source: FEC Record, August 2003, p. 4. , August 2003, p. 4. 

FEC v. DEMOCRATIC PARTY OF NEW MEXICO (02-0372)

On April 2, 2002, the Commission fi led a complaint in the U.S. District Court for the District of New Mexico alleging 

that the Democratic Party of New Mexico (the Party) and its treasurer, Judy Baker, violated the Federal Election 

Campaign Act (the Act) by:

• Making excessive contributions and excessive coordinated expenditures on behalf of the Friends of Eric Serna 

Committee (the Serna Committee) (2 U.S.C. §§441a(a)(2)(A), 441a(d)(3));

• Using nonfederal funds to infl uence a federal election (2 U.S.C. §441b and 11 CFR 102.5(a)(1)(i)); and

• Failing to report expenditures that were coordinated with the Serna Committee (2 U.S.C. §434(b)). On May 

15, 2002, the Commission amended its complaint to include allegations that the Serna Committee (2 U.S.C. 

§434(b)). 

On May 15, 20002, the Commission amended its complaint to include allegations that the Serna Committee violated 

the Act by knowingly accepting direct and in-kind contributions that exceeded the limits of the Act.1 2 U.S.C. 

§441a(f).

Background

On May 13, 1997, a special election was held in New Mexico to fi ll a vacant seat in the House of Representatives. No 

other governmental offi ce was included on the ballot. The Commission’s complaint alleges that the Party assigned an 

employee to work with the Serna Committee during its campaign to win the special election seat, and that this employee 

attended Serna Committee staff meetings, met regularly with its campaign manager to discuss the campaign’s plans 

and needs and developed the fi eld campaign plan for both the Serna Committee and the Party.

The Party was entitled to spend $36,800 on behalf of the Serna Committee—the coordinated party expenditure 

limit in 1997 for House candidates in New Mexico was $31,810, and the Party could also make $5,000 in direct 

contributions to a candidate committee. 2 U.S.C. §§441a(a)(2)(A) and 441a(d)(3)(B). The complaint alleges that the 

Party’s expenditures during the special election campaign totaled approximately $217,311, and that these expenditures 
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were coordinated with the committee and were for activities that urged the public to vote for the only Democratic 

candidate running in that election. According to the complaint, the expenditures by the Party were coordinated 

with the Serna Committee, and thus were in-kind contributions subject to the Act’s contribution limits. The Party, 

however, reported only approximately $15,127 as being coordinated with the Serna Committee and reported the rest, 

approximately $202,184, as spending relating to both federal and nonfederal elections. It funded $173,800 of this 

amount from its nonfederal account.

Relief

The Commission asks that the court:

• Permanently enjoin the Party and the Serna Committee from violating these provisions in the future;

• Order the Party to transfer $173,800 from its federal to its nonfederal account and to fi le corrected reports that 

accurately describe its coordinated expenditures for the 1997 special election; and

• Assess appropriate civil penalties against the Party and its treasurer and against the Serna Committee.

Source: FEC Record, July 2002, p. 5. , July 2002, p. 5. 1

 The Commission began its investigation of the Party and the Serna Committee in response to an administrative complaint. After 

attempting for at least 30 days to reach a conciliation agreement with the defendants, the Commission fi led this court complaint. 2 

U.S.C. §437g(a)(4)(A)(i).

FEC v. DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE

(95-2881)

On January 16, 1997, the U.S. District Court for the Northern District of Georgia, Atlanta Division, ruled that the 

Democratic Senatorial Campaign Committee (DSCC) violated the Federal Election Campaign Act (the Act) when 

it contributed $17,500 to a Senatorial candidate’s runoff election after having already contributed the same amount 

during the primary and general elections.

The second contribution violated the Act at §441a(h), which sets a $17,500 limit for national committees—such 

as the DSCC and the National Republican Senatorial Committee (NRSC)—when giving to a candidate for 

the U.S. Senate.

On July 7, 1997, the court ordered the DSCC to pay a $175 penalty for violating the Act during the 1992 Senatorial 

race. The sum amounts to 1 percent of the DSCC’s violation of $17,500.

Background

The excessive contribution was made during the unusual circumstances surrounding the 1992 Senatorial campaign 

in Georgia. A state law, which has since been changed, required that the winner of the Senate seat receive a majority 

of the vote.

Former Senator Wyche Fowler Jr., a Democrat, had a plurality in the general election in 1992, receiving 49 percent 

of the ballots cast. Republican Senator Paul Coverdell, who challenged Mr. Fowler in the race, came in second with 

48 percent of the vote. Because no candidate received a majority of votes, a runoff election was held between the two 

men. Mr. Coverdell won that race with 51 percent of the vote.

During the primary and general elections, the DSCC contributed $17,500 to Mr. Fowler’s campaign, and then 

contributed another $17,500 to his runoff election.

District Court Finds for FEC

The court ruled in the FEC’s favor. The court held that the language and legislative history of the Act, coupled with 

accepted principles of statutory construction, support the view that §441a(h) precluded the DSCC from making a 

second contribution of $17,500.

The court pointed out that, unlike individuals and other committees, national committees have a higher contribution 

limit under §441a(h) and greater discretion in allocating the sum during the length of a campaign. For example, 

individuals have a $1,000 contribution limit per election (primary, general and runoff), per candidate. Multicandidate 

PACs have a $5,000 contribution limit per election, per candidate. The court held that national committees, such as 

the DSCC, may allocate part or all of their $17,500 contribution limit to a Senatorial candidate at any stage of the 

election campaign.
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The DSCC had argued that the FEC had erroneously interpreted the $17,500 limit with respect to post-general 

election runoffs and that Congress had intended the statute to be part of an effort to expand the role of national 

committees. However, the court said that the language of §441a(h) was unambiguous and that, even if it were not, the 

FEC’s interpretation of it would be entitled to deference. In AO 1978-25, the court pointed out, the Commission had 

confi rmed that §441a(h) did indeed establish a single contribution limit without regard to whether there were primary, 

general or runoff elections.

The DSCC had also argued unsuccessfully that the unusual nature of the Georgia majority-winner rule was not taken 

into account when Congress adopted the statute, and that, had its members known of such a scenario, it would have 

drafted the law differently. The court said that such speculation would not cause the court to disregard the language 

of the law.

The court rejected the DSCC’s claim that its First and Fifth Amendment rights of freedom of association and equal 

protection were violated. The DSCC said the law denied them the freedom to associate with Mr. Fowler’s campaign 

because “no committee would ever reserve funds for the uncertain prospect of a runoff.” It also pointed out that other 

types of committees and individuals were able to contribute to Mr. Fowler’s runoff election.

The court said that, while a diffi cult allocation issue confronted the DSCC, the law does not infringe on its right to 

associate with whomever it wishes. The DSCC lawfully made more than $200,000 in coordinated expenditures under 

2 U.S.C. §441a(d)1 in support of Mr. Fowler’s runoff campaign. Further, the DSCC does not have to be treated 

the same as other types of committees in respect to contribution limits. “Party committees, individuals, and other 

organizations and corporations are not similarly situated entities for election regulation purposes,” the court said.

Pursuant to a prior agreement of the parties, the court ordered briefi ng on the appropriate sanctions for DSCC’s 

violation of §441a(h).

Penalty

In determining an appropriate penalty, the court considered these four factors:

• Good or bad faith actions by the defendant,

• Injury to the public resulting from the defendant’s conduct,

• Ability of the defendant to pay the penalty and

• Vindication of the FEC’s authority.

The court found that the DSCC did act in good faith because it had believed that it was acting lawfully when it made 

the second $17,500 contribution. The court also determined that the second contribution did no harm to the public. 

While the FEC had argued that “any violation of the [Act’s] limits undermines a public perception of integrity of 

the election process,” the court disagreed with such a blanket assertion. It also found that the FEC did not require 

vindication in this case and noted that the DSCC’s ability to pay did not justify assessing it with a large penalty, which 

is what the FEC had requested.

In its deliberations, the court also considered the penalty negotiated with the NRSC in a conciliation agreement for 

a violation of a different provision of the Act—2 U.S.C. §441d—in connection with the same election. That penalty 

amounted to 1 percent of the approximately $500,000 violation, or $5,000.

Source: FEC Record, March 1997, p. 2; and August 1997, p. 3. , March 1997, p. 2; and August 1997, p. 3. 1 Under 2 U.S.C. §441a(d), the national party is entitled to make limited expenditures for the general election in cooperation with the 

candidate (in addition to the contributions it is otherwise entitled to make).

FEC v. DRAMESI FOR CONGRESS 

On July 25, 1986, the U.S. District Court for the District of New Jersey granted the FEC’s motion for summary 

judgment in FEC v. Dramesi for Congress Committee (Civil Action No. 85-4039). The court found that the John A. 

Dramesi for Congress Committee’s treasurer, Russell E. Paul, had violated 2 U.S.C. §441a(f) by knowingly accepting 

an excessive contribution from the New Jersey Republican State Committee (the State Committee) and ordered Mr. 

Paul to pay a $5,000 civil penalty to the U.S. Treasurer.1 The court had previously entered a $5,000 default judgment 

against the Dramesi Committee for accepting the excessive contribution. 

In 1990, the U.S. District Court for the District of New Jersey granted a motion by the FEC to hold the committee 

and Mr. Paul, as treasurer, in contempt of court for failing to pay the penalties imposed in 1986 (FEC v. Dramesi for 

Congress Committee, No. 85-4039(MHC) (D.N.J. Sept. 5, 1990) (unpublished opinion)). 
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Background

In 1982, when the State Committee made a $5,000 contribution to the Dramesi Committee, the State Committee 

had not achieved multicandidate status because it had not yet satisfi ed the six-month registration requirement.2 

Consequently, the State Committee was only eligible to make a contribution of up to $1,000 per election to each 

Republican Congressional candidate in New Jersey, and the Dramesi Committee could legally receive only $1,000 for 

the primary election. 

On learning of the State Committee’s excessive contributions to Republican House candidates, the FEC initiated 

enforcement proceedings against the State Committee. When the Commission failed to reach a settlement with the 

Dramesi Committee, the agency fi led a suit against the Committee and its treasurer in which it asked the court to: (1) 

assess a $5,000 civil penalty against the Committee for accepting the State Committee’s excessive contribution and (2) 

order the Dramesi Committee to refund the excessive portion ($4,000) to the State Committee. 

The Court’s Ruling

The court observed that, under the FEC regulations, the treasurer of a political committee has to “‘make his or her 

best efforts to determine the legality of a contribution.’”3 The court therefore found that “Mr. Paul...had a duty 

to determine [the contribution’s] propriety. Instead, he merely assumed from the source of the contribution that 

it was legal.” 

Nor did the court fi nd any merit to defendant’s contention that he had no way of knowing the contribution was 

illegal. The court noted that the defendant could have consulted the Index of Multicandidate Political Committees, 

an “exhaustive list of such eligible [multicandidate] committees, compiled by the FEC, [which] was readily available 

to the defendants.” 

The court therefore found that “Mr. Paul, as Treasurer of the Dramesi Committee, acted intentionally in accepting 

the $5,000 contribution in question, and was fully aware of the facts rendering his conduct unlawful.” Accordingly, 

the court ruled that defendant “knowingly accepted” the State Committee’s excessive contribution, in violation of 

2 U.S.C. §441a(f). 

FEC’s Contempt Motion

Although fi nding the Dramesi committee in contempt, the court did not take any action against it since the committee 

is defunct. The court, however, rejected Mr. Paul’s argument that he should not be held personally liable for payment 

of the penalty imposed against him. The court stated that, in its previous decision in this case, “we determined 

that Russell E. Paul’s liability was distinct from the liability of the Committee.” The court went on to state that, 

because “political committees have a tendency to dissolve after an unsuccessful campaign,” Congress chose to hold 

an individual—the committee treasurer—responsible for compliance with the Federal Election Campaign Act. See 

2 U.S.C. §432(a) and (c). It therefore follows that “an individual will also stand responsible for his indiscretions 

as a treasurer.” 

The court, in addition to holding Mr. Paul in contempt, ordered him to pay the $5,000 penalty within 30 days. The 

court imposed a $50 per day assessment if payment was not complete within 30 days. On January 2, 1991, the court 

issued stipulation and order in which Mr. Paul agreed to pay a total of $5,317 to the FEC. That amount represented 

the original $5,000 penalty, $91 in interest charges and $226 in FEC costs. The Commission agreed to waive the 

contempt penalties of $50 a day (which had been accumulating since the original contempt order in 1990) provided 

that Mr. Paul pay the $5,317 by March 1, 1991.

Source: FEC Record, September 1986, p. 6; November 1990, p. 9; and March 1991, p. 10. , September 1986, p. 6; November 1990, p. 9; and March 1991, p. 10. 

Dramesi for Congress Committee: FEC v., 640 F. Supp. 985 (D.N.J. 1986). 1

 On June 16, 1986, the U.S. District Court for the District of Columbia found that another New Jersey House incumbent campaigning 

for reelection in 1982 had not knowingly accepted an excessive contribution from the New Jersey Republican State Committee. See FEC 

v. Re-Elect Hollenbeck to Congress Committee. 2

 Multicandidate committees may contribute up to $5,000 per election to a candidate’s authorized committee(s) or any other political 

committee. To achieve multicandidate status, a committee must have more than 50 contributors, have been registered for at least six 

months and, with the exception of state party committee, have made contributions to fi ve or more candidates for federal offi ce. 2 U.S.C. 

Section 441a(a)(4); 11 CFR 100.5(e)(3). 

3

 See 11 CFR 103.3(b)(1).
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FEC v. FRIENDS OF LANE EVANS (04CV4003)

On January 30, 2004, the Commission fi led a complaint in the U.S. District Court for the Central District of Illinois, 

Rock Island Division. The complaint alleges that, during the 1998 and 2000 elections, Congressman Lane Evans’ 

campaign committee established a purportedly independent committee, the 17th District Victory Fund (the Victory 

Fund), that was in fact nothing more than an alter ego of the Congressman’s campaign committee. According to the 

complaint, the Victory Fund accepted hundreds of thousands of dollars in prohibited corporate contributions and 

contributions which, if given to the principal campaign committee itself, would have exceeded the Federal Election 

Campaign Act’s (the Act) contribution limits.

The complaint alleges that the Victory Fund spent these funds on get-out-the-vote activities to aid Congressman 

Evans and conducted its activities at the direction of, and in close coordination with, Eric Nelson, Congressman Evan’s 

campaign manager. The complaint further alleges that a local party committee, the Democratic Party organization 

for Rock Island County, Illinois, made a number of expenditures in coordination with the campaign committee that 

exceeded the Act’s limits on such in-kind contributions.

The Act and Commission regulations

Under the Act and Commission regulations, a political committee includes:

• Any “committee, club, association, or other group of persons” that receives contributions or makes expenditures 

aggregating in excess of $1,000 during a calendar year; and

• Any local committee of a political party that receives contributions aggregating in excess of $5,000 or makes 

contributions or expenditures aggregating in excess of $1,000 in a calendar year. 2 U.S.C. §431(4).

During the period in question, a candidate’s principal campaign committee could accept up to $1,000 per election 

from an individual, and the committees of a national party could accept up to $20,000 per year in the aggregate from 

an individual. Any other political committee could accept $5,000 per year from an individual. 2 U.S.C. §441a(a)(1). An 

expenditure made by any person in “cooperation, consultation or concert, with, or at the request or suggestion of, a 

candidate, his authorized political committees, or their agents” is considered a contribution to the candidate. 2 U.S.C. 

§441a(a)(7)(B)(i). Corporations and unions are barred from making contributions or expenditures in connection with 

any federal election. 2 U.S.C. §441b(a).

Court Complaint 

The Commission alleges that Congressman Evans’ principal campaign committee (the Evans Committee)— primarily 

through Mr. Nelson—established the Victory Fund, shared common consultants with it, arranged for its fi nancing 

and directed its operations. The Victory Fund, which has no charter or bylaws, did not have members, hold regular 

meetings, maintain a permanent offi ce in the 17th District or have a formal process for selecting its chairman or 

treasurer. Mr. Nelson selected and recruited the people who served in these two nominal offi cer positions. The Evans 

Committee and a consultant who also worked for the Evans Committee solicited all donations to the Victory Fund. 

The Victory Fund established separate federal and nonfederal accounts, and, from 1997 through 2000, accepted 

approximately $138,000 in contributions to its federal account and $369,000 in donations to its nonfederal account, 

including substantial donations from labor unions. During this period, contributors to the Evans Committee made 

up more than 95 percent of the Victory Fund’s federal contributors.

According to the complaint, the Victory fund hired vendors and contractors to provide political consulting and 

conduct voter identifi cation and get-out-the-vote activities, including fi eld operations, direct mail and telephone calls, 

in Congressman Evans’ district. The Victory Fund made at least $330,000 of these expenditures in cooperation and 

consultation with the Evans Committee, and paid for the expenditures with a mixture of federal and nonfederal funds. 

These coordinated expenditures constituted in-kind contributions by the Victory Fund to the Evans Committee that 

exceeded the applicable $1,000 contribution limit. Since the expenditures were made exclusively in coordination with 

a federal candidate committee, the Victory Fund was required to pay for these expenditures entirely with federal 

funds. In addition, the Victory Fund allocated its fundraising expenses using an allocation method based on the 

composition of the ballot. Under Commission regulations at that time, this allocation method could only permissibly 

be used by party committees. See 11 CFR 106.5(f). As a non-party political committee, the Victory Fund was required 

to allocate its fundraising expenses using the ratio of total funds received to federal funds received. See 11 CFR 

106.6(d).

In addition, the Commission alleges that in 1998 the Rock Island Democratic Central Committee (the ock Island 

Committee) spent approximately $18,000 on a radio ad, two direct mail pieces and a newspaper ad that expressly 

advocated the Congressman’s re-election and were coordinated with the Evans Committee, primarily through Mr. 

Nelson. These coordinated expenditures exceeded the applicable $1,000 contribution limit and the communications 
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did not include the required disclaimer stating whether they were authorized by Congressman Evans or the Evans 

Committee. 2 U.S.C. §441d(a). 

The Rock Island Committee failed to register as a political committee with the Commission and did not report its 

fi nancial activity, even though it received several hundred thousand dollars during the 1998 and 2000 cycles after 

becoming a political committee. See 2 U.S.C. §433. Also, while it did not establish separate federal and nonfederal 

accounts, it accepted contributions outside the Act’s limits and prohibitions.1

The Commission also contends that both the Evans Committee and the Victory Fund violated the Act’s reporting 

requirements. See 2 U.S.C. §§433 and 434. The Evans Committee:

• Failed to report the receipt of in-kind contributions from the Victory Fund or the Rock Island committee; 

and

• Only listed two bank accounts in 1998 even though it maintained three accounts at that time.

The Victory Fund:

• Failed to register within 10 days of becoming a political committee; 

• Falsely registered as a political party committee;

• Did not report any in-kind contributions to the Evans Committee;

• Reported the vast majority of its disbursements as administrative/voter drive expenses rather than as 

expenditures made on behalf of the Evans Committee; and 

• Reported its fundraising expenses as the administrative/voter expenses of a political party, rather than as the 

fundraising expenses of a non-party committee. 

Relief 

The Commission asks the court to fi nd that the Evans Committee, the Victory Fund, the Rock Island Committee 

and their respective treasurers violated these provisions of the Act and to permanently enjoin them from engaging in 

similar violations in the future. The Commission also asks the court to:

• Order these committees to fi le the appropriate reports and statements and amend all incorrect reports and 

statements previously fi led with Commission; and

• Assess an appropriate civil penalty against each respondent for each violation found, not to exceed $5,500 or 

the amount of the contributions or expenditures involved in each violation.

Source: FEC Record, March 2004, p. 9. , March 2004, p. 9. 1

 In 1998 political committees—other than authorized committees—could establish two separate accounts, a federal and a nonfederal 

account. Funds from the nonfederal account could not be used to make contributions to federal candidates or expenditures to support 

or oppose federal candidates. See 11 CFR 102.5.

FEC v. FRIENDS FOR FASI

On January 12, 2000, the Commission fi led a complaint alleging that Mr. Fasi, a former Mayor of Honolulu 

and gubernatorial candidate in Hawaii, and his campaign committee, Friends for Fasi, had accepted prohibited 

contributions in the form of reduced rent for space that was owned, managed and/or controlled by foreign nationals. 

The Federal Election Campaign Act (the Act) prohibits foreign nationals from making “any contribution of money 

or other things of value . . . in connection with an election to any political offi ce.” 2 U.S.C. §441e(a). The Commission 

asked the court to declare that Fasi had violated the Act, enjoin them from accepting further contributions prohibited 

by 2 U.S.C. §441e and assess appropriate civil penalties.

Subsequently, Fasi fi led a motion to dismiss the Commission’s complaint, arguing three major points: 

• First, 2 U.S.C. §441e does not apply to contributions for non-federal elections because the statute defi nes 

“contribution” as anything of value given “for the purpose of infl uencing any election for Federal offi ce” (2. 

U.S.C. §431(8)(A)(i));

• Second, because the reductions in rent began prior to 1995, the Commission’s January 12, 2000, complaint was 

fi led after the 5-year statute of limitations had expired and, thus, was time-barred (28 U.S.C. §2462); and

• Third, the Commission’s request for injunctive relief was “improper and unauthorized by law” because there 

was no basis to allege that the defendants were “about to commit” a violation of the Act.
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The court rejected Fasi’s argument that §441e only applies to federal elections. Although the court found the language 

of the statute to be ambiguous in this regard, it concluded that the Commission’s interpretation of §441e—as 

expressed in its own regulations and advisory opinions—was consistent and reasonable. The court said that the 

Commission has express authorization to “elucidate statutory policy in administering FECA” unless the court fi nds 

the Commission’s interpretations “demonstrably irrational or clearly contrary to the plain meaning” of the Act. 

United States v. Kanchanalak, 192 F.3d at 1049; Nevitt v. United States, 828 F.2d at 1406-07. 

The court granted in part and denied in part Fasi’s motion to dismiss based on Fasi’s second argument, that the 

Commission had fi led its suit after the statute of limitations had expired. The court agreed that any claims based on 

alleged violations that occurred before January 12, 1995, were barred by the statute. The court also found, however, 

that the reduced rent constituted a “continuing violation” and that each month that Fasi was allowed to rent space 

at a reduced rate marked a new and separate contribution. The court reached this decision both because the Act 

makes each contribution a separate violation of 441e and because, in the absence of a long-term rental agreement or 

a fi xed rental rate, the court concluded that Fasi had rented on a month-to-month basis. Thus, the court ruled that the 

Commission could only fi le claims based on alleged violations occurring between January 13, 1995, and November 

1996, after which Fasi allegedly stopped receiving prohibited contributions.

On January 19, 2001, the court signed a consent judgment, in which it:

• Found that Friends for Fasi violated the ban on contributions from foreign nationals by accepting the 

discounted rental space from January 1995 to November 1996; 

• Ordered Friends for Fasi to pay a $15,000 civil money penalty; and

• Permanently enjoined Friends for Fasi and its agents, employees, attorneys, including Frank F. Fasi, from 

accepting “something of value from a foreign national at less than market value in connection with U.S. 

elections for public offi ce.”

Source: FEC Record, August 2000, p. 14; and June 2001, p. 8. , August 2000, p. 14; and June 2001, p. 8.

FEC v. FRIENDS OF ISAIAH FLETCHER

On April 24, 1989, the U.S. District Court for the District of Maryland ruled that Friends of Isaiah Fletcher and Mr. 

Fletcher, as treasurer, violated section 434(a)(2)(A) of the election law by failing to fi le an October 1986 quarterly 

report. (Civil Action No. PN 88-2323.) The committee was Mr. Fletcher’s principal campaign committee for his 1986 

Congressional bId. 

The court ordered defendants to pay a civil penalty of $5,000 and to pay the Commission’s costs in the action. The 

court also permanently enjoined the defendants from similar future violations of the Act. 

In March 1990, after the Fletcher campaign had failed to make any payments on the judgment, the FEC petitioned 

the court to (1) hold defendants in contempt for their failure to pay the assessments and (2) order defendants to pay 

the interest that had accrued on the penalty. 

The court denied the motion but ordered defendants to begin paying the assessments in monthly installments 

of $300 each beginning June 15, 1990. The court also ordered Mr. Fletcher to fi le a statement profi ling 

his fi nancial situation. 

After the defendants failed to comply with these orders, the court granted an FEC petition to hold them in contempt 

on February 5, 1991. The court ordered Mr. Fletcher and the committee to pay:

• An additional penalty of $100 per day until they fully comply with the previous orders;

• Interest charges on the unpaid court costs owed to the FEC; and

• The FEC’s costs in prosecuting the contempt proceeding.

The case was closed on August 6, 1992, when the FEC notifi ed the court that the committee and its treasurer, Mr. 

Fletcher, had paid the court-ordered penalty to the satisfaction of the agency.

Source: FEC Record, June 1989, p. 8; July 1990, p. 4; April 1991, p. 6; and October 1992, p. 12. , June 1989, p. 8; July 1990, p. 4; April 1991, p. 6; and October 1992, p. 12.
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FEC v. FORBES

On February 19, 1999, the U.S. District Court for the Southern District of New York dismissed this lawsuit after 

both parties asked for the action. The court order was preceded by the Commission’s 4-2 vote to withdraw the lawsuit 

against 1996 Presidential candidate Malcolm S. “Steve” Forbes, Jr.

The FEC had asked the court in September 1998 to fi nd that bi-weekly columns authored by the candidate in 

Forbes Magazine resulted in violations of the Federal Election Campaign Act by Mr. Forbes, the magazine, his 1996 

committee and the corporation he controls.

Background

In November 1995, while running for the Republican nomination, Mr. Forbes took a leave of absence from Forbes, 

Inc., but continued to write the weekly column “Fact and Comment” for the company’s fl agship publication, Forbes 

Magazine. In addition, Mr. Forbes continued to be listed as editor-in-chief on the magazine’s masthead, and he 

controlled the length, content and format of the articles. Excerpts of these columns also appeared in another Forbes 

publication, The Hills-Bedminster Press. The columns discussed some of the same themes Mr. Forbes pressed during 

his presidential campaign, including the fl at tax, term limits, abortion and foreign intervention in Bosnia, and have 

been valued at $94,900.

The Commission contended that Mr. Forbes’s columns were not bona fi de news accounts and were not part of a 

general pattern of campaign-related news accounts that gave reasonably equal coverage to all opposing candidates. 

Furthermore, the Commission argued that Forbes, Inc., published the columns in consultation with Mr. Forbes while 

he was a candidate, thereby turning the corporation’s expenditure for the columns—$94,900—into a contribution to 

the Forbes campaign. 

In addition, the Forbes committee failed to report the value of the columns in any of its reports fi led with the 

Commission. 2 U.S.C. §434(b)(2)(A).

The FEC asked the court to fi nd that Forbes, Inc., made prohibited in-kind corporate contributions to the Forbes 

committee and that Mr. Forbes, in his capacity as CEO, violated the Act by consenting to the contributions. The 

FEC also asked the court to fi nd that Mr. Forbes, the Forbes committee and the committee treasurer violated that 

Act when they knowingly accepted the prohibited in-kind contributions. The FEC asked the court to enjoin the 

defendants from violating the Act further and to assess a civil penalty against them.

Source: FEC Record, November 1998, p. 2; and April 1999, p. 5. , November 1998, p. 2; and April 1999, p. 5.

FEC v. FRANKLIN

On September 27, 1989, the U.S. Court of Appeals for the Fourth Circuit granted the FEC’s motion for summary 

affi rmance in FEC v. William Franklin (No. 89-1512). The appeals court remanded the case to the district court (Civil 

Action No. 89-324-N). 

Background

In October 1988 Mr. Robb, the Democratic nominee for the U.S. Senate in Virginia, fi led a complaint with the 

Commission alleging that Mr. Franklin’s unknown employer had violated the election law by failing to report 

payments made to Mr. Franklin to investigate rumors linking the candidate with persons allegedly implicated in 

drug use or drug traffi cking. Mr. Franklin was a private investigator and an attorney working in Virginia. Conducted 

during the height of the 1988 campaign, Mr. Franklin’s investigation was the subject of several news stories. 

The Robb campaign also alleged that the contribution limits may have been violated by Mr. Franklin’s client. 

After fi nding “reason to believe” that the law had been violated, the Commission sent Mr. Franklin a questionnaire 

about the nature and purpose of his investigation and asking on whose behalf it was conducted. Mr. Franklin 

answered some of the questions, but he refused to identify the person who had hired him, invoking attorney-client 

privilege. The FEC subsequently obtained a court order requiring Mr. Franklin to respond fully to the questions. 

Along with ordering Mr. Franklin to identify his employer, the court ordered the FEC not to disclose the identity of 

that person until a formal enforcement action commenced, or the individual waived confi dentiality, or until disclosure 

was mandated by the election law.
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District Court Decision

Mr. Franklin challenged the FEC’s actions on four grounds:

• The FEC lacked subject-matter jurisdiction over the original complaint because the Robb campaign had 

identifi ed only “John Doe, Employer of William Franklin” as the respondent. This fact, Mr. Franklin argued, 

prevented the FEC from fulfi lling its statutory requirements in acting on the complaint. 

• The complaint from the Robb campaign was inadequate to launch an FEC investigation. 

• The FEC’s fi nding of “reason to believe” was arbitrary, capricious and contrary to law.

• Attorney-client privilege permitted him to preserve the anonymity of his client.

The court rejected all of these arguments. 

In ruling on the FEC’s jurisdiction, the court concluded that the Commission had fulfi lled its statutory requirements 

in acting on the complaint to the extent that it was possible. The election law requires that the Commission notify 

respondents of complaints fi led against them; the Commission must also give such persons the opportunity to 

respond to the allegations. 2 U.S.C. §437g(a)(1). Although the Commission did not know the name of the respondent, 

the court found that the Commission had “met the requirements of the law” by communicating with the unknown 

respondent through Mr. Franklin. 

The court also rejected Mr. Franklin’s argument that the Robb complaint was inadequate on the grounds that it 

did not identify the respondent or allege “a clear and concise recitation of the facts which describe a violation,” 

as required under 11 CFR 111.4(d)(3). “While the complaint did not identify the respondent by name,” the court 

said, “the complaint clearly identifi ed the employer of Franklin as the respondent.” The court further said that the 

regulations did not require “a complete factual and legal account of a violation.” Filing a complaint is only the fi rst 

step in the enforcement process, the court emphasized. 

With regard to Mr. Franklin’s charge that the Commission’s “reason to believe” fi nding was contrary to law, the 

court observed that “agency actions are not generally ripe for judicial review” unless they constitute “fi nal agency 

actions.” In most cases, a “reason to believe” fi nding is a preliminary action in the enforcement process, leading 

to a formal investigation. It is not a fi nal action. Furthermore, the court noted, “reason to believe” fi ndings have 

not previously been reviewed by courts unless the alleged violation was novel or unless the press exemption to the 

reporting requirements was at issue. The Robb complaint involved neither novel issues nor the press exemption. 

Adding that Mr. Franklin had not demonstrated that an FEC investigation would injure himself or his client, the 

court rejected Mr. Franklin’s argument that the Commission’s fi nding was “contrary to law.” 

The court also found that Mr. Franklin had not established that the attorney-client privilege applied to his case. 

Although he was a practicing attorney, Mr. Franklin was questioned by the FEC about his activity as a private 

investigator. “Franklin has not demonstrated that the client retained him in his capacity as an attorney or that [he] 

provided legal advice to the client relating to Franklin’s investigation,” the court saId. 

For these reasons, the court ordered Mr. Franklin to provide written answers to the FEC’s questions within 75 days. 

Furthermore, the court ordered that “upon pain of contempt, no member or employee of the FEC, or any other 

person, disclose to any person who is not a member or employee of the FEC with a need to know” the identity of 

Franklin’s client in the Robb investigation. This protective order would apply unless and until a formal enforcement 

action was begun, or Franklin’s client waived confi dentiality restrictions, or disclosure was otherwise required 

by the law. 

Mr. Franklin appealed the decision.

Appeals Court Decision

On September 27, 1989, the U.S. Court of Appeals for the Fourth Circuit granted the FEC’s motion for summary 

affi rmance. The appeals court remanded the case to the district court, which on September 29 ordered Mr. Franklin 

to provide the Commission with “full and complete answers to the extent of his knowledge to each and every question 

propounded to him” by the agency. The court ordered the defendant to provide the answers within 5 days. 

On the direction of the appeals court, the district court also vacated a protective order that it had imposed in July. 

Source: FEC Record, September 1989, p. 8; and March 1990, p. 13. , September 1989, p. 8; and March 1990, p. 13.

Franklin: FEC v., 718 F. Supp. 1272, aff’d in part, (E.D. Va.), 902 F.2d 3 (4th Cir. 1989).
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FEC v. FREE THE EAGLE

FEC v. RUFFPAC

On June 5, 1995, the U.S. District Court for the District of Columbia issued consent judgments in these two cases. In 

both cases the FEC sought enforcement of conciliation agreements (MUR or Matter Under Review 2191) entered 

into by Free the Eagle and by RUFFPAC and Tammy J. Lyles. Ms. Lyles was the managing director of Free the Eagle 

and the treasurer of RUFFPAC.

In the stipulations for consent judgments, both defendants and Ms. Lyles admitted to being in breach of the conciliation 

agreement. Free the Eagle owed the Commission $5,000, and RUFFPAC and Ms. Lyles owed the Commission $8,000, 

both with interest accrued since November 15, 1994. Defendants and Ms. Lyles agreed to the following:

• Free the Eagle and RUFFPAC, both in conjunction with Ms. Lyles, would make monthly payments of $250 

and $350, respectively, until their debts, with compounded interest, were paid in full.

• Should either Free the Eagle or RUFFPAC fi le for bankruptcy, Ms. Lyles would be personally obligated to 

make all of the defendant organization’s remaining payments. Ms. Lyles would remain liable for these amounts 

even if her relationship with Free the Eagle and RUFFPAC were terminated, unless she secured a written 

assumption of liability from her successor at each organization. This assumption would have to be approved 

by the Commission prior to the effective date of Ms. Lyles’ resignation.

Additionally, a $5,000 civil penalty was assessed against each defendant under 2 U.S.C. §437g(a)(6)(A) for breach of 

the conciliation agreement. The FEC agreed to waive both civil penalties provided that all parties complied with the 

court’s consent judgment order and that all payments were timely.

Source: FEC Record, August 1995, p. 5. , August 1995, p. 5.

Free the Eagle: FEC v., No. 95-0297 (D.D.C. June 5, 1995). RUFFPAC: FEC v., No. 95-0296 (D.D.C. June 5, 1995).

FEC v. FREEDOM’S HERITAGE FORUM, ET AL. 

On March 28, 2002, the U.S. District Court for the Western District of Kentucky at Louisville granted the Commission’s 

motions for:

• Dismissal of portions of the complaint affected by changes in FEC regulations;

• Summary judgment on claims that the Freedom’s Heritage Forum (the Forum) and its treasurer failed to 

include the required disclaimers on express-advocacy communications; and

• Dismissal of the defendants’ counterclaims charging, among other things, that the Commission selectively 

enforced the Federal Election Commission Act (the Act) against the defendants, thus, depriving them of their 

Fourteenth Amendment rights to equal protection. 

The court denied the Commission’s request for summary judgment that former congressional candidate Timothy 

Hardy knowingly received a prohibited corporate contribution because certain of the facts were contested 

by the parties. 

On August 14, 2003, the U.S. District Court for the District of Kentucky at Louisville issued an agreed order regarding 

Timothy Hardy’s involvement in this case.

Background

The Forum is a political committee that promotes pro-life and other social issues. In response to an administrative 

complaint alleging that the Forum made coordinated expenditures on behalf of Mr. Hardy’s 1994 Congressional 

campaign, the Commission found that the Forum violated the Act’s contribution limits, reporting and disclosure 

requirements and disclaimer provisions. 2 U.S.C. §§441a(a)(1)(A), 434(b), and (c) and 441d(a)(3). The Commission 

also found that Mr. Hardy accepted excessive contributions. 2 U.S.C. §441a(f). After failing to reach a conciliation 

agreement with the defendants, the Commission fi led a court complaint.

Coordination 

The Commission alleged that the Forum’s expenditures supporting Mr. Hardy, totaling $23,515.81, were not 

independent expenditures but coordinated expenditures that resulted in excessive contributions to his campaign 

committee. 2 U.S.C. §441a(a)(1)(A).
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Disclaimers and Express Advocacy

The Commission alleged that the Forum distributed seven fl yers expressly advocating the election or defeat of a 

federal candidate and failed to include the required disclaimers. 2 U.S.C. §441d(a). In its September 29 decision, the 

court reviewed four fl yers and found that one contained express advocacy and, thus, required a disclaimer. On April 

28, 2000, the court ruled on three additional fl yers, fi nding that two contained express advocacy.

1ST District Court Decision

The FEC had alleged that the expenditures supporting Mr. Hardy, totaling $23,515.81, were not independent 

expenditures but coordinated expenditures, which resulted in excessive contributions to his campaign committee. 

2 U.S.C. §441a(a)(1)(A). The Act defi nes independent expenditure as an expenditure that expressly advocates the 

election or defeat of a clearly identifi ed candidate and that is not made in concert with, or at the request or suggestion 

of, the candidate or the campaign. 2 U.S.C. §431(17). 

FEC regulations elaborate on this defi nition. They add the following presumption: “An expenditure will be presumed 

to be so made [in cooperation with the campaign] when it is based on information about the candidate’s plans, 

projects, or needs provided to the expending person by the candidate, or by the candidate’s agents, with a view toward 

having an expenditure made.” 11 CFR 109.1(b)(4)(i)(A).

The Commission alleged two instances of coordination. The fi rst was a meeting between Dr. Simon and the 

representatives of Mr. Hardy’s campaign prior to Mr. Hardy’s entering the primary. The second took place at a 

political event during which Mr. Hardy was present while Forum members planned strategies “on how to get Tim 

Hardy elected.” Following the event, the Forum made four separate direct mailings of campaign literature that 

supported the election of Mr. Hardy.

The court rejected the Forum’s assertion that actual coordination of a specifi c disbursement must be shown in order to 

consider it a “coordinated expenditure.” The court said, “This assertion fi nds no support in the statute, the regulations, 

or the case law.” Further, the court stated, “...we do not fi nd any requirement that coordinated expenditures must 

contain ‘express advocacy’ in order for them to fall within the purview of the statute.” Nevertheless, the court found 

that “the FEC has not suffi ciently plead enough facts that allege that the expenditures made by the Forum were 

coordinated with the Hardy campaign.”

Regarding the fi rst meeting, the court said that the FEC had not alleged that “Hardy actually informed Dr. Simon 

of his plans, projects, or needs with a view toward having an expenditure made.” As to the direct mailings of campaign 

literature, the court held that there were no allegations made that the mailings were at the request or suggestion of 

Mr. Hardy. The court stated that, “Hardy’s mere presence at the meeting, even if his presence was accompanied by 

the giving of a campaign speech, [was] insuffi cient to make these expenditures coordinated.” Following its conclusion 

that there was no coordination, the court dismissed the charges that the Forum had failed to report its expenditures 

as contributions.

Disclaimer and Express Advocacy

The Forum argued that its four mailings did not contain “express advocacy” and therefore did not constitute 

contributions to the Hardy campaign. The court disagreed. It said, “There is no requirement that a contribution 

as defi ned in 2 U.S.C. §441a must result in or from ‘express advocacy.’” The Forum further argued that it was not 

required to include disclaimers on the four mailings because none of the mailings included “express advocacy.” 

(Under 2 U.S.C. §441d(a), communications containing express advocacy must include certain disclaimers.) The court 

stated that, “although a communication does not have to contain ‘magic words’ [‘vote for,’ ‘elect,’ ‘support,’ ‘cast you 

ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘reject’] to constitute express advocacy, it will ordinarily contain some 

sort of functional equivalent of an exhortation, directive, or imperative for it to expressly advocate the election or 

defeat of a candidate.” 

The court agreed that all four of the Forum’s mailings clearly portrayed Mr. Hardy’s opponent in an unfavorable 

light and Mr. Hardy in a favorable light. Nevertheless, the court found that only one of the Forum’s four mailings 

contained express advocacy. That mailing included a sample ballot identifying candidates the Forum supported, 

including Mr. Hardy, which stated, “Please take this sample ballot to the polls and vote on Tuesday.” It explicitly 

urged the reader to vote for the “profamily” candidates identifi ed, and it showed a vote for Mr. Hardy. The court held, 

therefore, that the fl yer contained “the functional equivalent of an exhortation to vote for Hardy.” 

With regard to another mailing that contained a request for volunteers and contributions, the court concluded that it 

sought “to persuade the reader to get involved in soliciting votes for Hardy and to contribute time and money to the 

Forum,” but it did not contain “...an express exhortation to the reader to elect Hardy, or to defeat [his opponent].” 

FEC v. Freedom’s Heritage Forum.
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2nd District Court Decision

On April 28, 2000, the U.S. District Court for the Western District of Kentucky granted in part and denied in part 

the Freedom’s Heritage Forum’s motion to dismiss certain portions of the FEC’s complaint against it. The court’s 

decision relates to the Forum’s motion to dismiss Count VII of the Commission’s Second Amended Complaint.

In Count VII, the FEC had alleged that seven fl yers the Forum had distributed in connection with the 1994 elections— 

including the four on which the court had already ruled—contained express advocacy, but lacked the disclaimers 

required by 2 U.S.C. §441d(a).

Having already ruled on four of the fl yers, the court concluded that two of the three remaining fl yers contained 

express advocacy and should have had disclaimers.

The fi rst of them was a “Congressional Candidate Report” that compared one candidate’s positions on certain issues 

to those of his opponents. It contained in a highlighted box: “IMPORTANT! Registered Democrats and Republicans 

can vote for [the named candidate] who actively opposes the liberal Clinton agenda. Vote November 8, 1994, 6 a.m. 

to 6 p.m.” The court found that this statement was an exhortation to vote for the named candidate and therefore was 

express advocacy. The second express advocacy fl yer was a sample ballot that readers were to take to the polls on 

election day. It “explicitly urge[d] the reader to vote for the ‘pro-family’ candidates identifi ed.” The other fl yer was 

an invitation that included the statement: “We have the Pro-Abortionists right where we want them, divided and 

fi ghting each other. Now [the named candidate] can win with only 40% of the vote!” Because the fl yer lacked Lacking 

an explicit exhortation to vote, the court concluded that the statement was merely a “comment on the status of the 

election,” not express advocacy.

3rd District Court Decision

New Coordination Regulations

The Commission asked the court to dismiss with prejudice several counts of its complaint because the FEC has 

promulgated new coordination regulations. Under the new regulations, the defendants’ activities, as described in these 

counts, are not violations. The Commission also asked the court to dismiss the defendants’ counterclaims, which 

asked the court to declare one of the old regulations unconstitutional and to enjoin the Commission from enforcing 

the old regulation against the defendants. The court found that the defendants were not in danger of a second lawsuit 

based on these counts because the regulation had been repealed, and that the defendants’ counterclaims were moot 

for the same reason. The court granted the Commission’s motions on these points.

Disclaimers

Under the Act, whenever a person makes an independent expenditure, the communication must disclose both the 

name of the person who paid for the communication and the fact that the communication was not authorized by any 

candidate or candidate’s committee. 2 U.S.C. §441d(a). Since the court had previously found that three of the Forum’s 

fl yers contained express advocacy, and none of them stated whether they were authorized by a candidate, the court 

granted the Commission summary judgment on its claims that the Forum violated 2 U.S.C. §441d(a).1 The court 

imposed a $3,000 penalty—$1,000 for each violation.

Acceptance of Corporate Contributions

The Commission also requested summary judgment on its claim that Mr. Hardy knowingly accepted corporate 

contributions in violation of 2 U.S.C. §441b(a). During Mr. Hardy’s campaign, a member of his staff received 

permission from Toby Tours, Inc., to send campaign mailings using its bulk mail permit. By using the permit, the 

campaign saved $4,077.26 in postage, which, according to the Commission, resulted in an prohibited contribution 

from Toby Tours, Inc. 

The court determined that the campaign staff member had knowingly accepted the illegal contribution; however, 

it also found the Commission had not shown that the staff member acted on Mr. Hardy’s behalf. The court denied 

the Commission’s request for summary judgment because a question of material fact remained as to whether the 

staff member was acting as Mr. Hardy’s agent, and a legal question remained about whether Mr. Hardy could be 

personally charged with the violation. This issue remains to be resolved by the court.

Selective Enforcement of the Act

In their counterclaims, the defendants alleged that the Commission’s “unwarranted, selective, and lengthy proceedings” 

deprived them of their freedom of speech and associational rights under the First and Fourteenth amendments. 

The court granted the Commission’s motion to dismiss this claim, agreeing that the claim was moot because the 

administrative proceedings in question had concluded. 

The defendants also claimed that the Commission violated their rights to equal protection under the Fourteenth 

Amendment by selectively enforcing the Act against them because of their politically-conservative views. 
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Under the Sixth Circuit’s three-part test for evaluating a selective enforcement claim, the enforcement situation 

in question must:

1. Single out for prosecution a person belonging to an identifi able group (such as a group exercising constitutional 

rights) even though the enforcement offi cial has in similar situations decided not to prosecute individuals not 

belonging to that group;

2. Be initiated with a discriminatory purpose; and

3. Have a discriminatory effect on the group to which the defendant belongs.

The defendants alleged, among other things, that the Commission did not prosecute any other group involved in 

the election, including a gay or lesbian organization that published an express advocacy communication for Mr. 

Hardy’s opponent and did not include a disclaimer. The defendants also generally claimed that the Commission does 

not prosecute “liberal politicians and elected offi cials,” and specifi cally pointed out that the Commission did not 

prosecute Toby Tours, Inc. 

The court granted the Commission’s motion to dismiss this counterclaim, fi nding that the defendants had not provided 

suffi cient supporting facts. For example, the court found that even if the gay or lesbian organization had violated the 

Act, the situation was not similar to the defendants’ because they could not show that the Commission knew about 

the violation or that a complaint was fi led. Similarly, the Commission’s failure to prosecute Toby Tours, Inc., did 

not meet the test’s criteria because the corporation was not part of an identifi able group. Finally, the court found 

that the defendants’ general claims of FEC bias were not specifi c enough to withstand scrutiny under the selective 

enforcement test.

Defendants’ Motions

On April 10, 2002, the Forum and its treasurer fi led a motion to alter or vacate the court’s order and a motion to allow 

the fi ling of counter claims.

4th District Court Decision

Under the agreement, issued by the U.S. District Court for the District of Kentucky at Louisville, Mr. Hardy, a 

Congressional candidate in the 1994 elections:

• Acknowledged that an inadvertent error by a campaign staff member caused his committee—without his 

knowledge or authorization—to violate 2 U.S.C. §441b by accepting an in-kind corporate contribution through 

the use of a corporate bulk mail permit;

• Agreed to pay the FEC $250 within thirty days of the agreement pursuant to 2 U.S.C. §437g(a)(6)(B); and

• Agreed to make a good faith effort to establish procedures to prevent his campaign from accepting corporate 

contributions should he run for federal offi ce in the future.

The Commission agreed that all of its remaining claims against Mr. Hardy are resolved by this agreement.

Source: FEC Record, December 1999, p. 6; and June 2000, p. 8. December 1999, p. 6; June 2000, p. 8; August 2002, p. 2; and , December 1999, p. 6; and June 2000, p. 8. December 1999, p. 6; June 2000, p. 8; August 2002, p. 2; and 

October 2003, p. 13. 

1 The defendants had argued that the FEC was enjoined from enforcing the regulation defi ning express advocacy “against any . . . party in 

the United States of America.” However, the Fourth Circuit court of appeals vacated this injunction, fi nding that the district court “abused 

its discretion by issuing a nationwide injunction . . .” Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001). 

FEC v. FUND FOR A CONSERVATIVE MAJORITY

On September 23, 1997, parties to this suit agreed to a fi nal order and judgment by the U.S. District Court for 

the Eastern District of Virginia, Alexandria Division. Under that order, the defendants, Fund for a Conservative 

Majority (FCM) and its treasurer, Robert C. Heckman, agreed to pay a civil penalty of $2,500 for having violated the 

Federal Election Campaign Act (the Act).

Mr. Heckman failed to fi le the FCM’s 1994 year-end report on time, a violation of 2 U.S.C. §434(a)(4)(A)(i). This 

section of the Act requires political committees other than authorized candidate committees to fi le quarterly reports 

during a year in which a general election is held. The report for the fi nal quarter that ends on December 31 must be 

completed and returned to the FEC no later than January 31 of the following year.

The FCM’s 1994 year-end report should have been submitted to the FEC by January 31, 1995. Mr. Heckman hand 

delivered a copy of the FCM’s year-end report on September 7, 1995—nearly nine months late. He also delivered 
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another copy of the report to staff of the Commission’s Offi ce of General Counsel on June 27, 1996—close to a year 

and a half after it was due. 

Neither Mr. Heckman nor the FCM contested the Commission’s allegations in this case. In addition to the civil 

penalty, the defendants were permanently enjoined from making similar violations of the Act. 

Contempt Judgment

On April 28, 2000, the U.S. District Court for the Eastern District of Virginia granted the FEC’s motion to hold 

Robert Heckman and Fund for a Conservative Majority (FCM) in contempt of court for failing to pay a courtimposed civil penalty and for failing to fi le disclosure reports, as the court had ordered. 

The court ordered Mr. Heckman and FCM to pay the outstanding civil penalty plus interest (amounting to $5,540); 

to pay a $5,000 contempt fi ne; and to fi le all outstanding disclosure reports. If Mr. Heckman and FCM fail to 

comply with the court’s orders within 10 days, the court will impose additional contempt fi nes of $100 per day until 

they do so.

Source: FEC Record, November 1997, p. 1; and June 2000, p. 8. , November 1997, p. 1; and June 2000, p. 8.

FEC v. FURGATCH 

FEC v. DOMINELLI

On November 20, 1984, the U.S. District Court for the Southern District of California dismissed FEC v. Furgatch

(Civil Action No. 83-0596-GT[M]) on the ground that the case failed to state a justiciable claim. Based on its ruling 

in the Furgatch suit, on November 30, 1984, the court also dismissed a “virtually identical case,” FEC v. Dominelli

(Civil Action No. 83-0595-GT[M]). 

More than two years later, however, the district court was reversed by the court of appeals, which ruled that the 

defendants had violated the election law and which remanded the cases to the district court. 

On remand, the district court assessed a $25,000 civil penalty against Mr. Furgatch and permanently enjoined him 

from future similar violations of the election law (Civil Action No. 86-6047). Mr. Furgatch appealed the penalty and 

the injunction. 

On March 8, 1989, the appeals court upheld the lower court’s imposition of the civil penalty. However, the court 

vacated the permanent injunction against Mr. Furgatch and remanded it to the district court with instructions to 

limit its duration. 

Background

In fi ling suit against Mr. Furgatch on March 25, 1983, the FEC claimed that he had violated the election law by 

failing to report independent expenditures of approximately $25,008. 2 U.S.C. §434(c). Mr. Furgatch incurred the 

expenditures for two political ads he placed in The New York Times and The Boston Globe, respectively, which the 

Commission alleged expressly advocated the defeat of President Carter in his 1980 reelection bId. The FEC also 

claimed Mr. Furgatch had violated section 441d of the law by failing to include an adequate disclaimer notice on the 

ad he placed in The Boston Globe. 

In fi ling suit against Mr. Dominelli on the same day, the FEC had asked the court to fi nd that he had failed to report 

independent expenditures amounting to $8,471. The FEC alleged that Mr. Dominelli had incurred the expenditures 

for an ad in a November 1980 issue of The Chicago Tribune, which expressly advocated President Carter’s defeat. 

District Court Ruling on the Furgatch Suit

In ruling on whether the political ads sponsored by Mr. Furgatch expressly advocated President Carter’s defeat, and 

therefore constituted independent expenditures, the district court applied the standard contained in the Supreme 

Court’s Buckey v. Valeo opinion.1 In Buckey v. Valeo, the Court had defi ned express advocacy as “communications 

containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘cast your ballot for,’ ‘Smith for 

Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Buckey v. Valeo, 424 U.S. 1, 44 (1976). The district court cited earlier district 

and appeals court decisions which emphasized that “neither the purpose nor the effect of a political advertisement 

is determinative of the issue of whether the ad expressly advocates the election or defeat of a clearly identifi ed 

candidate.” See FEC v. CLITRIM FEC v. CLITRIM, 616 F.2d 45, 53 (2d Cir. 1980); , 616 F.2d 45, 53 (2d Cir. 1980); FEC v. AFSCME, 471 F. Supp. 315, 316 (D.D.C. 

1979). Applying this express advocacy standard to Mr. Furgatch’s ads, the court found that the pivotal question was 
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“whether the phrase ‘Don’t let him do it’ [was] the equivalent of the expression ‘vote against Carter.’” (The remainder 

of the language in the ad was beyond the election law’s scope, the court concluded, because it contained only an 

implied message not to vote for President Carter.) Interpreting the word “it” in the phrase, the court concluded that 

the ad exhorted the reader not to let President Carter “hide his own record” or “degrade the electoral process and 

lessen the prestige of the offi ce.” The court then concluded that the phrase “Don’t let him do it” did not constitute 

express advocacy. The court found that “the range of actions expressly recommended by the ad obviously did not 

include voting the President out of offi ce.” Consequently, the ad did not ask the reader to vote against the President. 

Finally, the court noted that, since it had decided the case on grounds of statutory construction, it was not “necessary 

or desirable to [address] the defendants’ constitutional challenges to sections 434(c) and 441d” of the election law. 

On January 24, 1985, the FEC fi led an appeal of the district court’s decision with the U.S. Court of Appeals for the 

Ninth Circuit. 

Appeals Court Ruling

On January 9, 1987, the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s decision in the case 

and confi rmed the FEC’s claim that Mr. Furgatch should be held liable for violations of the election law resulting 

from: his failure to report spending for the ads as independent expenditures and his failure to state in one of the ads 

that the communication was not authorized by a candidate or a candidate’s committee. 

Since FEC v. Dominelli FEC v. Dominelli presented “facts virtually identical” to those addressed in the Furgatch suit, the appeals court presented “facts virtually identical” to those addressed in the Furgatch suit, the appeals court

also reversed the district court’s ruling in that case. (FEC v. Dominelli; Civil Action No. 85-5525) 

In reversing the district court’s ruling in the case, the appeals court rejected the “strictly limited” defi nition of express 

advocacy relied upon by the district court. (See discussion above.) Instead, the appeals court found that “context is 

relevant to a determination of express advocacy.” The court therefore concluded that “[political] speech need not 

include any of the words listed in Buckley to be express advocacy under the Act, but must, when read as a whole, and 

with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation 

to vote for or against a specifi c candidate.” The appeals court stated that this standard for determining when political 

speech constitutes express advocacy would “preserve the effi cacy of the Act without treading upon the freedom of 

political expression.” 

Elaborating on this standard, the appeals court held that a political communication constituted express advocacy if:

• The communication “is unmistakable and unambiguous, suggestive of only one plausible meaning,” even if 

“not presented in the clearest, most explicit language”; 

• The communication “presents a clear plea for action”; and

• There can be no reasonable doubt about “what action is advocated.”

Conversely, the appeals court held that “speech cannot be express advocacy of the election or defeat of a clearly 

identifi ed candidate when reasonable minds could differ as to whether it encourages a vote for or against a candidate 

or encourages the reader to take some other kind of action.” In applying its express advocacy standard to Mr. 

Furgatch’s ads, the appeals court held that it had “no doubt that the ads ask the public to vote against Carter.” In 

reversing the district court’s conclusion, the appeals court held that the “pivotal question is not what the reader 

should prevent Jimmy Carter from doing, but what the reader should do to prevent it [i.e., his reelection].” The 

appeals court noted that, although “we are presented with an express call to action” in the ad, we are not told “what 

action is appropriate.” However, the court concluded, in the context of the message, “reasonable minds could not 

dispute that Furgatch’s advertisement is urging readers to vote against Jimmy Carter.” Moreover, the court held that 

its conclusion was “reinforced by consideration of the timing of the ad... timing the appearance of the advertisement 

less than a week before the election left no doubt of the action proposed.” 

Finally, the court held that Mr. Furgatch’s ads were not the kind of “issue-oriented speech” excepted from the election 

law: “The ads directly attack a candidate, not because of any stand on the issues of the election, but for his personal 

qualities and alleged improprieties in the handling of his campaign. It is the type of advertising that the Act was 

enacted to cover.” 

The court did not explicitly discuss Mr. Furgatch’s constitutional challenge to sections 434(c) and 441d of the election 

law, but noted that in deciding the case on grounds of statutory construction, it had “implicitly” dealt with the free 

speech issues raised in his suit. 

On October 5, 1987, the U.S. Supreme Court denied a petition by Mr. Furgatch for a writ of certiorari in the suit.
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District Court Judgment on Remand

On April 26, 1988, the district court entered a judgment requiring Mr. Furgatch to pay a $25,000 civil penalty and to 

comply with the FECA’s reporting requirements within 30 days. The court also permanently enjoined the defendant 

from future similar violations of the election law. Mr. Furgatch appealed the judgment in the Ninth Circuit. 

Mr. Furgatch petitioned the appeals court to fi nd that the district court had abused its discretion in assessing a $25,000 

penalty. He also asked the appeals court to fi nd that the lower court’s permanent injunction was not authorized by 

the election law, was impermissibly vague and was not imposed in compliance with Rule 65(d) of the Federal Rules 

of Civil Procedure. 

Appeals Court Decision

In fi nding that the district court had not abused its discretion in imposing the civil penalty, the appeals court observed 

that the Federal Election Campaign Act (the Act) permits a court to assess a civil penalty “which does not exceed 

the greater of $5,000 or an amount equal to any contribution or expenditure involved” in the violation. 2 U.S.C. 

§437g(a)(6)(B). Since the total expenditures Mr. Furgatch had made for the ads amounted to $25,008, the district 

court had assessed a $25,000 penalty. 

With regard to the permanent injunction, Mr. Furgatch had claimed that the Act permitted a court to issue an 

injunction only when a person “is about to commit” a violation of the law. The FEC claimed that the relevant statute, 

2 U.S.C. §437g(a)(6)(B), gave a court the authority to issue an injunction on the basis of either a past or a threatened 

future violation. Admitting that the language of the statute did not clearly indicate whether Congress intended to 

limit injunctive relief to cases of imminent violations of the Act, the court cited legislative history to conclude that 

the FEC was correct in its interpretation of section 437g. 

Nevertheless, the court said, the district court could not issue an injunction pursuant to section 437g(a)(6)(B) unless 

there was a likelihood of future violations. The court found that although the record supported a fi nding that Mr. 

Furgatch was likely to violate the election law again, it did not justify a permanent injunction—that is, an injunction 

lasting the duration of his life. 

In remanding the injunction to the lower court, the appeals court instructed it to limit the injunction to a “reasonable 

duration.” The appeals court also required the district court to state, in compliance with Rule 65(d), the reasons for 

the injunction and the specifi c actions restrained by it. 

On remand, the district court cited Mr. Furgatch’s past violations of the election law as demonstrating that he was 

likely to violate the law again. As an additional reason for the injunction, the court pointed out that his conduct 

since the enforcement action was opened (in 1980) had shown “an absence of good faith efforts by Furgatch to 

cure his violations.” 

In accordance with the appeals court’s ruling, the district court specifi ed that the injunction prohibited Mr. Furgatch 

from committing further violations of sections 434(c) and 441d of the Act. Finally, the court limited the duration of 

the injunction to eight years.

Default Judgment Against Dominelli

Since Mr. Dominelli never responded to the FEC’s complaint on remand, the agency asked the district court to issue 

a default judgment against him. 

In response to the FEC’s request, on March 14, 1988, the district court issued a judgment in which it decreed that:

• Mr. Dominelli violated section 434(c) of the election law by failing to report $8,471 in independent expenditures 

he incurred for an ad placed in a November 1980 issue of The Chicago Tribune. The ad had expressly advocated 

the defeat of President Jimmy Carter in his 1980 reelection bId. 

• Mr. Dominelli had to report these expenditures within 30 days of the entry of the court’s order 

and default judgment. 

• Mr. Dominelli had to pay an $8,471 civil penalty for the violation. 

Source: FEC Record, January 1985, p. 6; March 1987, p. 5; June 1987, p. 6; December 1987, p. 7; May 1988, p. 8; May 1989, p. , January 1985, p. 6; March 1987, p. 5; June 1987, p. 6; December 1987, p. 7; May 1988, p. 8; May 1989, p. 

7; June 1989, p. 7; and February 1990, p. 7.

Dominelli: FEC v., No. 83-0595-GT(M) (S.D. Cal. 1984) (unpublished opinion), rev’d, 810 F.2d 205 (9th Cir. 1987). , 810 F.2d 205 (9th Cir. 1987).

Furgatch: FEC v., No. 83-0956-GT(M) (S.D. Cal. 1984), (unpublished opinion), rev’d, 807 F.2d 857 (9th Cir.), , 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 , 484 U.S. 850 

(1987), on remand on remand (S.D. Cal. April 26, 1988) (unpublished order), (S.D. Cal. April 26, 1988) (unpublished order), aff’d in part, vacated and remanded in part, 869 F.2d 1256 (9th Cir. 

1989). 

1 An independent expenditure is an expenditure for a communication expressly advocating the election or defeat of a clearly identifi ed 

candidate that is not made with the cooperation or prior consent of, or in consultation with, or at the request or suggestion of, any 

candidate or his/her authorized committees or agents. 11 CFR 100.16 and 109.1(a).
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FEC v. DAVE GENTRY FOR CONGRESS COMMITTEE

On September 28, 1999, the U.S. District Court for the Middle District of Florida, Orlando Division, found in 

a default judgment that the Dave Gentry for Congress Committee (the Committee) and its treasurer violated the 

Federal Election Campaign Act (the Act) when they failed to comply with the Act’s reporting requirements. Mr. 

Gentry was defeated in the 1996 general election for Florida’s 5th congressional district. 

The Committee and its treasurer violated 2 U.S.C. §§434(a)(2)(A)(i), (ii) and (iii) and 434(a)(2)(B)(ii) by failing to fi le 

fi ve reports of receipts and disbursements until after the deadlines established by the Act. Specifi cally, they failed to 

fi le the reports listed below in a timely manner.

• The 1995 Year End Report

• The April 1995 Quarterly Report

• The July 1996 Quarterly Report

• The 1996 12 Day Pre-Primary Report 

• The 1996 30 Day Post-General Election Report

The court ordered the Committee and its treasurer to pay a civil penalty of $25,000 to the FEC within fi fteen days of 

the fi nal order and default judgment.

Source: FEC Record, November 1999, p. 4. , November 1999, p. 4.

FEC v. GOPAC

On February 28, 1996, the U.S. District Court for the District of Columbia ruled in GOPAC’s favor and dismissed 

this case. The FEC had asked the court to fi nd that, under the Federal Election Campaign Act, GOPAC fi rst qualifi ed 

as a political committee in 1989 and as such was required to fi le and register with the FEC since then. GOPAC argued 

that it did not qualify as a political committee under the Act until 1991, at which time it did register with the FEC.

The court ruled that an organization’s status as a political committee under the Act is properly determined by applying 

the “major purpose” test to narrow the statutory defi nition, which states that a political committee is any group 

that receives at least $1,000 in contributions or makes at least $1,000 in expenditures to support federal candidates. 

According to the court, the major purpose test serves as a bright line that separates groups that are political committees 

from those that are not; under the major purpose test, a group is a political committee if its major purpose is to elect 

a particular candidate or candidates for federal offi ce.

FEC Administrative Activity

Following an investigation into an administrative complaint fi led by the Democratic Congressional Campaign 

Committee in September 1990, the FEC found probable cause to believe that in 1989 GOPAC qualifi ed as a political 

committee under the Act, and that, until 1991, GOPAC failed to abide by the Act’s registration and disclosure 

requirements for political committees. This probable cause fi nding was based on a GOPAC solicitation that urged 

contributors to help “break the Democrats’ stronghold on power” in the U.S. House of Representatives.

The FEC was unable to reach a conciliation agreement with GOPAC and fi led this lawsuit on April 14, 

1994. The FEC asked the court to impose civil penalties on GOPAC and to require GOPAC to fi le 1989 and 

1990 disclosure reports.

Factual Background

In 1989, GOPAC’s stated mission was: “to create and disseminate the doctrine which defi nes a caring, humanitarian, 

reform Republican Party in such a way as to elect candidates, capture the U.S. House of Representatives and become 

a governing majority at every level of government.”

The court said that although this mission statement had as its ultimate objective the election of Republican candidates 

to the U.S. House of Representatives, GOPAC’s direct support in 1989 and 1990 was for state and local candidates 

and not for any federal candidates.

GOPAC did develop and distribute materials espousing a set of ideas for Republican candidates, including federal 

candidates. GOPAC also targeted cash contributions to local and state candidates in areas where it hoped this support 

might indirectly infl uence the election of other candidates, including federal candidates, on the Republican ticket.
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GOPAC also provided assistance to Congressman Newt Gingrich in 1989 and 1990, but the court said there was no 

material evidence that Congressman Gingrich used these funds for his 1992 reelection campaign as opposed to his 

work as GOPAC Chairman.

Legal Analysis

The Act defi nes a political committee as any group that receives at least $1,000 in contributions or makes at least 

$1,000 in expenditures for the purpose of infl uencing a federal election. 2 U.S.C. §431(4)(A).

In Buckey v. Valeo, the Supreme Court, citing First Amendment concerns, ruled that the defi nition of political 

committee “need only encompass organizations that are under the control of a candidate or the major purpose of 

which is the nomination or election of a candidate.”

The FEC contended that the Buckley decision did not require a group to provide direct support to a specifi c federal 

candidate in order for the group to be considered a political committee under the major purpose test. Instead, the 

FEC argued that Buckley’s defi nition of “political committee” encompassed groups organized to engage in partisan 

electoral politics or electoral activity. Accordingly, the FEC argued that if GOPAC’s sole purpose was to advocate the 

election of Republicans as a class of candidates, then the purpose of its activities was by defi nition campaign related. 

and if its expenditures or contributions for these campaign-related activities exceeded $1,000, it qualifi ed as a political 

committee under the Act.

The court disagreed because it found the term “partisan electoral politics” to be vague and therefore to chill the 

First Amendment rights of issue advocacy groups. The court quoted the Buckley decision: “ . . . the distinction 

between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve 

in practical application.”

The court reasoned that a bright-line test was therefore required, so that contributors and committee treasurers 

could easily conform their conduct with the law and so that the FEC could easily identify violations and take quick 

and decisive action. The court concluded that the appropriate bright line was provided by limiting the defi nition of 

political committee to groups whose major purpose was the election of a particular federal candidate or candidates. 

The court said that this test drew two relatively clear lines: it distinguished between federal and nonfederal 

candidates; and it distinguished between groups that support particular federal candidates and those that lend 

general party support.

The court noted that the FEC conceded that there was no evidence of direct GOPAC support to federal candidates in 

1989 and 1990. GOPAC’s support appeared to have been limited to state and local candidates, to general nationwide 

dissemination of ideological materials and to Congressman Gingrich in his role as GOPAC chairman and not as a 

federal candidate. The court therefore ruled in GOPAC’s favor and dismissed the FEC’s complaint.

Source: FEC Record, April 1996, p. 1. , April 1996, p. 1.

GOPAC: FEC v., 917 F. Supp. 851 (D.D.C. 1996).

FEC v. HALEY CONGRESSIONAL COMMITTEE

On February 24, 1987, the U.S. District Court for the Western District of Washington at Tacoma granted the 

defendants’ motion for summary judgment in FEC v. Ted Haley Congressional Committee (Civil Action No. 85-1185). 

The district court dismissed the suit with prejudice, fi nding no violation of federal election law regarding contribution 

limitations (2 U.S.C. §441a(a)(1)(A) and 441a(f)). The court concluded, alternatively, that if there was a violation, no 

civil penalty would be assessed. 

On July 22, 1988, the U.S. Court of Appeals for the Ninth Circuit issued a decision which reversed the district 

court ruling. Though fi nding that the defendants had, in fact, violated the contribution limitations, the appeals court 

upheld the lower court’s refusal to assess a civil penalty. 

On November 22, 1988, the court issued an amended judgment responding to the remand order.

Background

The Ted Haley Congressional Committee was the principal campaign committee for Mr. Haley’s bid for a House seat 

in Washington’s 1982 Congressional primaries. After the election, Mr. Haley obtained a $50,000 personal loan from 

a local bank to retire debts outstanding from his campaign. To secure the loan, Mr. Haley obtained guarantees from 

several friends, that is, the six other defendants in the suit. (Four of the defendants provided guarantees of $10,000 

each; two provided guarantees of $5,000 each.) The loan and the guarantees were reported by Mr. Haley’s campaign 

in its 1983 mid-year report. By the end of 1983, Mr. Haley had fully repaid the loan. 
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Under the election law and FEC regulations, an endorsement or guarantee of a loan, like a regular loan, counts as a 

contribution from the endorser or guarantor to the extent of his/her portion of the outstanding balance of the loan. 

11 CFR 100.7(a)(1)(i)(C). Consequently, each guarantor for Mr. Haley’s campaign loan exceeded his/her $1,000 limit 

for Mr. Haley’s primary campaign. On October 30, 1984, the Commission therefore found reason to believe that: 

• The loan guarantors had made excessive contributions to the Haley Campaign in the form of loan guarantees 

(2 U.S.C. §441a(a)(9)(A)); and 

• The Haley campaign and its treasurer had, in turn, violated the election law by accepting the excessive 

contributions (2 U.S.C. §441a(f)).

On July 30, 1985, after attempting to resolve this enforcement matter through informal methods of conciliation, the 

Commission fi led a suit against defendants in the U.S. District Court for the Western District of Washington.

District Court Ruling

The court found that “post-election loan guarantees, such as those made here, are presumptively for the purpose of 

infl uencing an election under the statute and regulations. This presumption, however, is not conclusive, but rebuttable. 

It simply allows the FEC to shift the burden of proof to defendants after a minimal showing.”

The court held that the defendants had successfully rebutted this presumption by showing that the “facts [of the 

case] are not in issue, and that those facts lead to the legal conclusion that the guarantees in issue were not for the 

purpose of infl uencing any election.” Thus the guarantees should not have been viewed as contributions (i.e., funds 

received to infl uence a federal election). As evidence that the loan guarantees were not made to infl uence a federal 

election, the court cited “the timing of the solicitation [of loan guarantees after the election], the nature of the 

relationships between Haley and the guarantors, their intent in making and accepting the guarantees and the facts 

and circumstances of Haley’s [re]payment.... ” of the loan. 

The court also found “no justifi able ground” for assessing a civil penalty against defendants, even if it were to 

conclude the defendant had violated the election law. On April 23, 1987, the FEC fi led an appeal with the U.S. Court 

of Appeals, 9th Circuit (Civil Action No. 87-3867).

Appeals Court Ruling

In reviewing the case on appeal, the appeals court held that, since Congress had not precisely addressed the issue of 

whether donations made to a campaign committee after the election constituted contributions for the purpose of 

infl uencing a federal election, the court could “not simply impose its own construction on the statute....” Rather, the 

court had to decide whether the FEC had based its interpretation of the statute on a “permissible construction.... ”

The court found that the FEC’s interpretation of the relevant statutory provisions through its regulations and advisory 

opinions was a “permissible” interpretation of the election law. For example, when the FEC promulgated a regulation 

in 1976 stating that post-election contributions were subject to limits, Congress did not disapprove it. In the court’s 

view, “Congress’ acquiescence [was] made more concrete in view of several advisory opinions the FEC has issued on 

the subject.”

The appeals court therefore held that “the district court erred when it substituted its interpretation of the statute and 

regulations rather than giving deference to the FEC’s interpretation of its enabling statute and its own promulgated 

regulations and advisory opinions...The appellees [the Haley Congressional Committee] cannot choose to ignore that 

interpretation of the regulatory scheme and urge this court to substitute its own construction for that of the FEC.”

The appeals court found that the district court had not abused its discretion in fi nding that a civil penalty for the 

defendants’ violations of the election law was “unwarranted.” Consequently, the appeals court decided not to “disturb 

that fi nding and conclusion.”

Finally, the appeals court vacated the district court’s award of attorneys’ fees to the defendants. Since the defendants 

were no longer the “prevailing party” in the case, the appeals court held that all parties to the suit had to bear their 

own litigation costs. 
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District Court Ruling on Remand

In its amended judgment, the district court: 

• Reversed its February 1987 decision in the suit in favor of the FEC;

• Ordered that no civil penalties be assessed against defendants; and

• Vacated its order awarding attorneys’ fees to defendants. 

Source: FEC Record, May 1987, p. 6; September 1988, p. 7; and January 1989, p. 9. , May 1987, p. 6; September 1988, p. 7; and January 1989, p. 9.

Ted Haley Congressional Committee: FEC v., 654 F. Supp. 1120 (W.D. Wash. 1987), rev’d, 852 F.2d 1111 (9th Cir. 1988). , 852 F.2d 1111 (9th Cir. 1988).

FEC v. HALL-TYNER ELECTION CAMPAIGN

On September 22, 1981, the U.S. District Court for the Southern District of New York issued an order in FEC v. HallTyner Election Campaign Committee (the Committee) granting the defendant’s motion for summary judgment in 

the suit (Civil Action No. 78-3508). The Committee was the principal campaign committee for the 1976 Presidential 

and Vice Presidential nominees of the Communist Party, U.S.A. The district court ruled that the recordkeeping 

and disclosure requirements of the Act, as applied to the Committee, would abridge First Amendment rights to the 

Committee’s supporters.

FEC’s Claim

The FEC’s suit arose from the Committee’s failure to disclose on its reports the names and addresses of 424 

contributors who had each made contributions of $100 or more. Instead, the Committee listed the contributors 

as “anonymous” (in violation of 2 U.S.C. §434(b)(2)). Moreover, the Committee’s treasurer failed to keep records 

of contributions exceeding $50 from individuals who had elected to remain anonymous (in violation of 2 U.S.C. 

§432(c)). After attempting to resolve this matter through informal methods of conciliation, the Commission fi led suit 

with the district court on August 1, 1978.

District Court Ruling

In ruling that the Committee did not have to comply with the Act’s disclosure requirements, the district court noted 

that the Supreme Court had not created a blanket exemption for minor parties from the Act’s disclosure requirements 

in its Buckey v. Valeo decision. The Supreme Court did conclude, however, that minor parties might not have to 

comply with the disclosure provisions when they had a chilling effect on contributors’ rights of free association. 

Buckey v. Valeo, 424 U.S. at 72-74. 

In order to exempt contributors from the disclosure requirements, the Court said that a minor party would have 

to demonstrate a “reasonable probability” that compelled disclosure of the names of contributors would “subject 

them to threats, harassment, or reprisals from either Government offi cials or private parties.” Id. at 74. Under these 

circumstances, disclosure could “...instill suffi cient fear in potential supporters of the organization to deter them 

from engaging in protected associational activity.” Id. at 71. On examining the evidence presented by the Committee, 

the district court found that “the record plainly refl ects an extensive history of governmental harassment and public 

hostility directed at the Party and its members and supporters.” The district court concluded that “the substantial 

infringement of First Amendment rights demonstrated in the record cannot be justifi ed by the governmental interests 

furthered by applying the FECA disclosure requirements to the defendants.” Moreover, the court noted that “the 

governmental interest served in disclosing the source and amount of contributions is less substantial” in the case 

of a minor party. The district court cited the Supreme Court’s holding in Buckley that “the undue infl uence of large 

contributions on offi ceholders” is reduced in the case of minor parties since their candidates are less likely to win an 

election. Id. at 70. 

Similarly, the district court found that the Act’s recordkeeping requirements also infringed on the contributors’ free 

association rights, even though information recorded would not be publicly disclosed. The court cited an ongoing 

governmental investigation as evidence that records of contributors’ names would subject them to undue harassment. 

The district court cited 12 affi davits submitted by anonymous individuals providing evidence of harassment. The 

district court found that the main governmental interest served by the recordkeeping requirements (i.e., effective 

monitoring and enforcement of the contribution limits) did not justify infringement of the contributors’ First 

Amendment rights. 
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Appeals Court Ruling

On May 6, 1982, the U.S. Court of Appeals for the Second Circuit issued an opinion in FEC v. Hall-Tyner Election 

Campaign Committee (Civil Action No. 81-6229). The appeals court upheld an earlier ruling by the U.S. District 

Court for the Southern District of New York that the recordkeeping and disclosure requirements of the Act, as 

applied to the Hall-Tyner Campaign Committee (the Committee), would abridge First Amendment rights of the 

Committee’s supporters. 

In affi rming the district court’s decision, the appeals court found that the Committee had met the standard set forth 

in Buckey v. Valeo for exempting minor parties from the Act’s disclosure requirements; i.e., the Committee had 

demonstrated a “reasonable probability” that disclosure of the names of its contributors would subject them to 

governmental or private harassment. Buckey v. Valeo, 424 U.S. at 72-74. Moreover, the appeals court cited the Court’s 

holding in Buckley that the governmental interest served in disclosing the source and amount of contributions (i.e., 

“the undue infl uence of large contributions on offi ceholders”) is less substantial in the case of a minor party with little 

chance of winning an election. Id. at 70. The appeals court concluded, therefore, that the governmental interest served 

in obtaining information on the Committee’s contributors did not justify the chilling effect that disclosure would have 

on their First Amendment rights of free association. 

Source: FEC Record, November 1981, p. 5; and July 1982, p. 7. , November 1981, p. 5; and July 1982, p. 7.

Hall-Tyner Election Campaign Committee: FEC v., 524 F. Supp. 955 (S.D.N.Y. 1981), aff’d, 678 F.2d 416 (2d Cir. 1982), , 678 F.2d 416 (2d Cir. 1982), cert. denied, 459 

U.S. 1145 (1983).

FEC v. FRIENDS OF JANE HARMAN

On August 18, 1999, the U.S. District Court for the Central District of California found that Friends of Jane Harman, 

the principal campaign committee of former Congresswoman Jane Harman, and its treasurer violated the Federal 

Election Campaign Act (the Act) when they accepted corporate contributions in the form of earmarked contributions 

collected by a corporate representative and an “advance” from the same corporation.

Background

Hughes Aircraft Company (Hughes), a Los Angeles corporation, sponsored a fundraiser for Ms. Harman at her 

request during the 1993-1994 election cycle. 

Hughes’s chairman and CEO approved the fundraiser and directed Hughes’s employees to carry out the logistics of 

the fundraiser. Hughes’s executives and employees secured a room at Hughes’s corporate headquarters, hired a caterer, 

issued invitations and collected and transmitted Hughes employees’ contribution checks to the Harman campaign.

A solicitation letter, sent to Hughes’s employees in tandem with an invitation, requested contributions to Ms. Harman’s 

campaign. The solicitation letter also requested that personal checks be made out to the campaign and that they be 

forwarded, via interoffi ce mail, to a Hughes employee in advance of the event. 

On October 29, 1993, Representative Harman appeared at the fundraiser held at Hughes’s corporate headquarters. 

Hughes’s Director of Public Affairs collected some contributions for the event through interoffi ce mail prior to the 

event and collected others from executives at the door. A few days after the fundraiser, a representative of the Harman 

campaign picked up the checks. Altogether, Hughes collected and forwarded $20,600 to the Harman campaign.

Three months later, the Harman campaign paid $857 to the corporation to cover Hughes’s labor costs and the cost of 

using Hughes’s facilities. The campaign paid the food caterer for the event directly.

Earmarked Contributions

The Act prohibits corporations from making contributions or expenditures in connection with any federal election. 2 

U.S.C. §441b(a). Because Hughes, as a corporation, was prohibited from making a contribution to a federal campaign, 

it was also prohibited under FEC regulations from acting as a conduit for contributions that are earmarked to 

candidates or their authorized committees. 11 CFR 110.6(b)(2). Additionally, 2 U.S.C. §441b(a) prohibits candidates 

or their committees from knowingly accepting “anything of value” from a corporation.
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The court found that the collection of contributions by a Hughes employee in her offi cial capacity as Director of Public 

Relations conferred a benefi t on the campaign from the corporation. Therefore, when the Harman campaign received 

the checks collected, it violated the §441b(a) prohibition against accepting anything of value from a corporation. 

Reimbursement of Staff Labor Costs

Section 441a(b)(2) of the Act provides that a “contribution” includes an advance. On the other hand, 11 CFR 

114.9(2) (an FEC regulation) permits campaigns to reimburse corporations for the use of corporate facilities within a 

commercially reasonable time. The FEC maintained that this regulation covers reimbursement for the use of facilities 

but not reimbursement for the labor costs of corporate employees.

Deferring to the FEC’s interpretation of the Act and its regulations, the court concluded that, “because the Harman 

Campaign did not pay for the use of employee services until after the event occurred,” the $731 value of the employees’ 

labor constituted an advance of corporate funds and was, therefore, an impermissible corporate contribution violating 

2 U.S.C §441b(a). 

Remedy

While the court found that the committee knowingly violated the Act, the court denied the FEC’s request to require 

the committee to disgorge to the U.S. Treasury an amount equal to the prohibited contributions, to assess a civil 

penalty against the committee or to enjoin the committee from accepting corporate contributions in violation of 2 

U.S.C. Section 441b(a). 

The court stated that there was no evidence that the defendants believed, at the time of the fundraiser, that they were 

not complying with the law. The court also stated that the FEC subsequently clarifi ed its regulations surrounding 

the use of corporate staff; the regulations now specifi cally state that the use of corporate staff to “plan, organize 

or carry out [a] fundraising project” requires payment of the fair market value of the services in advance. 11 CFR 

114.2(f)(2)(i)(A). The court did not issue an injunction because the likelihood of future violations of the Act by 

the campaign or its treasurer was remote since the Harman campaign is no longer in existence and Representative 

Harman is no longer in offi ce.

Source: FEC Record, October 1999, p.4; and November 1999, p. 4. , October 1999, p.4; and November 1999, p. 4.

FEC v. RE-ELECT HOLLENBECK TO CONGRESS 

On June 16, 1986, the U.S. District Court for the District of Columbia denied the Commission’s motion for 

summary judgment and entered a judgment for the defendants in FEC v. Re-Elect Hollenbeck to Congress Committee

(Civil Action No. 85-2239). The court held that the Re-Elect Hollenbeck to Congress Committee (the Hollenbeck 

Committee), Representative Hollenbeck’s principal campaign committee for his 1982 reelection effort, and the 

Hollenbeck Committee’s treasurer, David I. Korsh, had not knowingly violated the election law by accepting an 

excessive contribution from the New Jersey Republican State Committee.1

Background

In 1982, when the New Jersey Republican State Committee (the State Committee) made a $5,000 contribution to the 

Hollenbeck Committee, the State Committee had not achieved multicandidate committee status2 because it had not 

yet satisfi ed the six-month registration requirement. Consequently, the State Committee was only eligible to make a 

contribution of up to $1,000 per election to each candidate, and the Hollenbeck Committee could legally receive only 

$1,000 for the primary election. 

On learning of the State Committee’s excessive contributions, the FEC initiated enforcement proceedings against the 

State Committee, the campaign committee of each New Jersey Republican incumbent and their respective treasurers. 

When the Commission failed to reach a settlement with the Hollenbeck Committee, the agency fi led a suit against the 

Committee in which it asked the district court to: (1) assess a $5,000 civil penalty against the defendants for violating 

441a(f) of the Act in accepting the State Committee’s excessive contribution and (2) order the Hollenbeck Committee 

and its treasurer to refund the excessive portion of the contribution (i.e., $4,000) to the State Committee. 

Acknowledging receipt of the $5,000 contribution, the Hollenbeck Committee denied “knowingly accepting” an 

illegal contribution. The Committee argued that it had “erroneously assumed that the State Committee had qualifi ed 

for the status of a multicandidate political committee.”
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The Court’s Ruling

The court noted that, under FEC regulations, a campaign commitee’s “treasurer shall make his or her best efforts 

to determine the legality of any contribution”3 made to the campaign. The court observed that this regulation was 

“not unduly burdensome. It does not place an affi rmative obligation upon the treasurers to verify the legality of every 

contribution. Rather, it requires verifi cation of contributions that ‘appear to be illegal,’ including those exceeding 

$1,000 that do not appear to come from a multicandidate committee.”

In ruling that the Hollenbeck Committee should not be held liable for the State Committee’s excessive contribution, 

the court held that the State Committee’s contribution to the Hollenbeck Committee “would appear to be legal to 

any reasonable treasurer.... ”

Source: FEC Record, August 1986, p. 7. , August 1986, p. 7. 1 On July 25, 1986, the U.S. District court for the District of New Jersey found that another New Jersey House incumbent campaigning 

for reelection in 1982 had knowingly accepted an excessive contribution from the New Jersey Republican State Committee. See FEC v. 

Dramesi for Congress Committee. 2 Multicandidate committees may contribute up to $5,000 per election to a candidate’s authorized committee(s) or any other political 

committee. To achieve multicandidate status, a committee must have more than 50 contributors, have been registered for at least six 

months and, with the exception of state party committees, have made contributions to fi ve or more candidates for federal offi ce. 2 U.

S.C. §441a(a)(4); 11 CFR 100.5(e)(3). 

3 See 11 CFR 103.3(b)(1).

FEC v. INTERNATIONAL FUNDING INSTITUTE

On July 10, 1992, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, upheld the 

constitutionality of 2 U.S.C. §438(a)(4). (Civil Action No. 91-5013.) That provision of the Federal Election Campaign 

Act (the Act) prohibits anyone from using, for solicitation or commercial purposes, the information on individual 

contributors listed in political committee reports fi led with the FEC. On November 30, 1992, the U.S. Supreme Court 

denied a petition for review of the case.

On March 1, 1993, the U.S. District Court for the District of Columbia ordered defendants to pay an $18,000 civil 

penalty for knowing and willful violations of the sale or use restriction. 

Background

According to the fi ndings of fact in this case, International Funding Institute (IFI), through Robert E. Dolan, its sole 

stockholder and director, subscribed to an on-line data base service provided by Legi-Tech, Inc. (an amicus curiae

in this action). The data base contained information on individual contributors compiled from FEC reports. IFI 

developed the contributor data into a mailing list, which it marketed through a broker. The broker, in turn, rented 

the list to about fi ve customers, including American Citizens for Political Action, Inc. (ACPA), a political committee. 

(Mr. Dolan is also chairman and treasurer of ACPA.) ACPA used the list for several mailings, each soliciting about 

5,000 individuals.

In an internal enforcement matter, the FEC found probable cause to believe that IFI, ACPA and Mr. Dolan, as 

ACPA treasurer, knowingly and willfully violated section 438(a)(4). Unable to reach a conciliation agreement with 

respondents, the agency fi led suit against them in the U.S. District Court for the District of Columbia. (Civil Action 

No. 90-1623.)

Defendants asked the district court to dismiss the case, arguing that §438(a)(4) violated the First Amendment of the 

Constitution, both on its face and as applied to their conduct. The FEC moved to certify the constitutional question 

to the court of appeals. The district court granted the FEC’s motion.

Court of Appeals Opinion

Level of Scrutiny

The court fi rst examined what level of scrutiny it should apply to determine whether the use restriction of §438(a)(4) 

was constitutional. Noting some apparent confl icts in levels of scrutiny applied by the Supreme Court in similar cases, 

the court “assumed”—but did not decide—that §438(a)(4) was subject to intermediate scrutiny.

Quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984), the court explained the Supreme Court’s criteria 

for intermediate scrutiny: it “require[s] only that the restriction further ‘an important or substantial governmental 

interest unrelated to the suppression of expression’ and [that it] be ‘no greater than is necessary or essential to the 

protection of the particular governmental interest involved.’”
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Governmental Interest 

The FEC argued, inter alia, that §438(a)(4) was narrowly tailored to further an important governmental interest, that 

of protecting the value of a political committee’s contributor list. The FEC further argued that this protection, in 

turn, preserves political discourse.

The court agreed: “Without the use restriction of §438(a)(4), innumerable entrepreneurs would, like the defendants 

here, be able freely to appropriate to themselves part of the value of the contributor lists compiled by reporting 

political committees. As a result, such committees would have less incentive to compile the lists in the fi rst place. 

In other words, if the return on their investment in solicitation would be reduced by others using the resulting lists, 

political committees would not fi nd it worthwhile to solicit as much as they now do; they would raise less money, 

spend less money, and correspondingly underwrite less political discourse....[T]he use restriction protects political 

discourse from the adverse effect that the disclosure requirement of the Act would otherwise have.”

(The FEC also argued, based on legislative history, that §438(a)(4) furthers the governmental interest in protecting 

contributors from unwanted solicitations, but the court did not fi nd it necessary to reach that argument.)

Defendants claimed that a political committee has no property rights in its contributor list because a list of names and 

addresses is not suffi ciently original to warrant copyright protection. The court, however, observed that “Congress 

may recognize an intellectual property interest, narrower than copyright, that is not subject to the constitutional 

requirement of originality.”

The court rejected defendants’ alternative argument that §438(a)(4) is inconsistent with the First Amendment because 

it creates “a property interest in the political sympathies of another.” Instead, the court said, the use provision 

“narrowly protects the value of the list itself in a particular use; it does not prevent one from soliciting a person who 

is on a committee’s contributor list, so long as one does not obtain that person’s name (directly or indirectly) from a 

list fi led with the FEC.”

Conclusion

The court held that, under an intermediate level of scrutiny, section 438(a)(4) is constitutional as applied to the 

defendants’ conduct because it “advances an important governmental interest” (preserving the value of a political 

committee’s contributor list) and “is no broader than is necessary to that task.”

The court rejected defendants’ second claim, that §438(a)(4) was unconstitutional on its face. Quoting Members 

of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984), the court said that a facial 

challenge can succeed “only if the statute may ‘never be applied in a valid manner’ or is ‘written so broadly that [it] 

may inhibit the constitutionally protected speech of third parties.’” The defendants, the court said, failed to make 

such an argument.

The court remanded the case to the district court for proceedings consistent with its holding.

Defendants agreed to the district court’s March 1993 order, which imposed the $18,000 penalty and also permanently 

enjoined defendants from future violations of the sale and use restriction.

Source: FEC Record, September 1992, page 11; January 1993, page 2; and May 1993, p. 2. , September 1992, page 11; January 1993, page 2; and May 1993, p. 2.
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FEC v. AMERICANS FOR JESSE JACKSON

On May 19, 1987, the United States District Court for the District of Maryland issued a consent order in FEC v. 

Americans for Jesse Jackson (Civil Action No. Y-86-3766). Americans for Jesse Jackson was a 1984 political committee 

that was not authorized by Presidential primary candidate Jesse Jackson. In the consent order, the parties agreed that 

Americans for Jesse Jackson violated the Act in several ways:

• The committee failed to fi le a statement of organization with the Commission after it had spent over $1,000 

expressly advocating the election of Presidential candidate Jesse Jackson. 2 U.S.C. §433(a).

• It failed to fi le the required reports of receipts and expenditures with the Commission. 2 U.S.C. §434. 

• It used the name of Jesse Jackson in its name even though the committee was not authorized by the candidate. 

2 U.S.C. §432(e)(4).

• It failed to include, on a mail solicitation for contributions, the name of the person who paid for the 

communication. 2 U.S.C. §441d(a)(3). 

The defendant agreed to pay a civil penalty of $500 and to fi le all outstanding reports with the Committee within 30 

days. 

Source: FEC Record, August 1987, p. 9. , August 1987, p. 9. 

FEC v. KALOGIANIS

On March 25, 1997, the U.S. District Court for the District of New Hampshire ordered Anastasios Kalogianis to 

pay a $37,500 civil penalty to the FEC for making $249,000 in excessive contributions to the Tsongas for President 

Committee during the 1992 election cycle. Both parties to this suit agreed to the judgment and consent order.

Mr. Kalogianis made six loans to the Tsongas Committee. Although one of the checks was made payable to Nicholas 

Rizzo, the committee’s chief fundraiser, the money was given with the intention that it be used in the Tsongas 

campaign.

The Federal Election Campaign Act (the Act) states that no person may make contributions to any federal candidate 

or his or her authorized candidate committee which, in the aggregate, exceed $1,000. 2 U.S.C. 441a(a)(1)(A). A 

contribution includes anything of value made by any person for the purpose of infl uencing a federal election, including 

loans. 2 U.S.C. §431(8)(A)(i). Further, Commission regulations state that a loan that exceeds the contribution limits 

of the Act is unlawful whether or not it is repaid. 11 CFR 100.7(a)(1)(i)(A). In addition to the civil penalty, Mr. 

Kalogianis was permanently enjoined from making similar violations of the Act.

Source: FEC Record, May 1997, p. 3. , May 1997, p. 3.

FEC v. KOPKO

On June 8, 1992, the U.S. District Court for the Eastern District of Pennsylvania declared that Edward E. Kopko 

violated 2 U.S.C. §441f by making contributions in the names of others. In its complaint, the FEC had alleged that 

defendant Kopko had reimbursed twelve of his relatives and friends for their $250 checks to Alexander Haig’s 1988 

Presidential campaign. The court ordered Mr. Kopko to pay a $1,500 civil penalty and permanently enjoined him 

from violating §441f. Both the FEC and the defendant agreed to the entry of the order. (Civil Action No. 91-CV7764.)

Source: FEC Record, August 1992, p. 11. , August 1992, p. 11.
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FEC v. LANCE

On July 2, 1981, citing a lack of appellate jurisdiction, the Supreme Court dismissed an appeal brought by T. Bertram 

Lance from the U.S. Court of Appeals for the Fifth Circuit, construed Lance’s papers as a petition for a writ of 

certiorari and declined to hear the case. In FEC v. T. Bertram Lance (Civil Action No. 78-1859), the appeals court 

had affi rmed an earlier decision by the U.S. District Court for the Northern District of Georgia, which ordered 

enforcement of a deposition the FEC had issued to Mr. Lance. Motions by the appellant to stay the appeals court’s 

decision had been denied by the appeals court on February 19, 1981, and by the Supreme Court on March 11, 1981.

FEC’s Claim

The FEC had issued the subpoena to Mr. Lance as part of an investigation into Mr. Lance’s 1974 gubernatorial 

campaign in Georgia, which involved possible violations of 2 U.S.C. §441b (formerly 610 of the Federal Corrupt 

Practices Act). This provision prohibits national banks from making or candidates from accepting contributions in 

connection with any election to any political offi ce.1 The Commission’s investigation began in September 1977. 

District Court Ruling

The district court ordered Mr. Lance to comply with the subpoena. The court reasoned that the subpoena was well 

within the Commission’s “broad and inclusive” statutory authority to investigate violations of the Federal Election 

Campaign Act (the Act). 

Appeals Court: Panel

A panel of the appeals court rejected the arguments made by Mr. Lance for quashing the subpoena and affi rmed 

the district court order enforcing the subpoena. Specifi cally, Mr. Lance claimed that the FEC was investigating 

matters outside its jurisdiction. He contended that both the Constitution and the Act barred any FEC investigation 

of contributions made by national banks to his 1974 campaign. The panel responded to this claim by affi rming the 

FEC’s argument that it was “...specifi cally given authority over this provision.” (P.L. 93-433, 88 Stat. 1281 (October 

15, 1974).) “Moreover, the Supreme Court held that any party seeking enforcement of 610 (now 441b) after January 

1, 1975, must seek redress with the Commission.” Cort v. Ash, 422 U.S. 66 (1974). 

Mr. Lance further claimed that the subpoena violated the equal protection and ex post facto provisions of the 

Constitution by attempting to apply §441b to campaign activities that occurred before the enactment of the FECA in 

1975. The panel, on the other hand, affi rmed the FEC’s argument that these provisions presented no impediment to 

the FEC’s investigation: “The prohibition against the making of campaign contributions by national banks has been 

in effect since 1907. Tillman Act, 34 Stat. 864. The mere recodifi cation of 18 U.S.C. §610 as 2 U.S.C. §441b cannot 

absolve the respondent...from liability for substantive violations which were not changed by the incorporation of 

§441b into Title 2.”

Appeals Court: En Banc

On January 16, 1981, the appeals court, sitting en banc, issued an opinion that adopted the earlier panel decision, 

affi rmed the district court’s subpoena enforcement order and rejected a claim, presented by Mr. Lance in his appeal, 

that §441b was unconstitutional on its face. The appeals court adopted three of the arguments given by the appeals 

court panel, but rejected the ex post facto argument, stating that it was not ripe for adjudication. The court concluded 

that the prohibition on unsound banking practices (extensions of credit to a campaign that are outside the ordinary 

course of business) did not violate the First Amendment because all the transactions in question involved “no speech 

elements at all.” The bank drafts were transacted privately and were “...not the sort of public expression or support 

for Lance and his views that would make them even ‘symbolic speech.’”

As to Mr. Lance’s argument that §441b was unconstitutionally vague, the court noted, “The vagueness doctrine has 

been developed in the context of, and it is applicable to, penal statutes.” The court concluded that the vagueness issue 

was not ripe for adjudication because the court was “...unwilling to assume that the present investigation of Lance 

will result in his criminal prosecution.”

The court also rejected Mr. Lance’s claim that §441b abridged Fifth Amendment rights by imposing greater 

restrictions on national banks in connection with elections than on other entities. The court held that since “...the 

Banks’ contributions contain no cognizable elements of speech...we think the statute must be upheld if there is a 

rational relationship between the prohibition...and the purpose that prohibition serves.... Since we have no diffi culty 

in concluding that a prohibition against banks engaging in unsound banking practices is rational, we reject Lance’s 

equal protection claim.”

As to the defendant’s claim that the statute of limitations barred the investigation, the panel found that there was no 

statute of limitations applicable to a civil proceeding undertaken to enforce the Act. 2 U.S.C. §437g. The panel upheld 
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the FEC’s argument that the statute of limitations applied only to criminal prosecutions. “Even assuming arguendo 

that the three year statute of limitations was applicable to a future civil action brought by the Commission,” the FEC 

argued, “the Commission has information suggesting that violations have occurred within the three years. Moreover, 

as noted, the existence of violations outside the statutory period themselves provide reason to investigate to ascertain 

whether further violations occurred within the three year period.”

Finally, the defendant contended that, since the FEC already had information available to it from other government 

agencies, enforcement of the subpoena should be denied on grounds of undue burden and harassment. The panel 

rejected this claim, confi rming the FEC’s argument that “the existence of prior investigations by other agencies 

touching on similar issues does not preclude an agency from investigating matters within its jurisdiction.” FEC v. 

Texaco, 555 F.2d at 878-79. The appeals court panel determined, however, that the constitutional challenges asserted 

by Mr. Lance should be heard by the court sitting en banc. 

Source: FEC Record, September 1981, p. 1. , September 1981, p. 1.

Lance: FEC v., 617 F.2d 365 (5th Cir. 1980), aff’d, 635 F.2d 1132 (5th Cir.) , 635 F.2d 1132 (5th Cir.) (en banc), appeal dism’d, cert. denied, 453 U.S. 917 (1981). , 453 U.S. 917 (1981). 1

 Under the Act, a loan from a national bank becomes a prohibited contribution if it is not made according to applicable banking laws 

and in the ordinary course of business. 2 U.S.C. §431(8)(B)(vii).

FEC v. LaROUCHE (94-0658)

On September 28, 1994, the U.S. District Court for the Eastern District of Virginia issued an order stipulated by the 

parties holding Lyndon H. LaRouche, Jr., and his 1988 Presidential campaign committee jointly and severally liable 

for repayment of $146,464.44 in Presidential primary matching funds—plus accrued interest—to the U.S. Treasury.

Background

Mr. LaRouche received $833,577 in 1988 primary matching funds. The Commission determined that he had to repay 

$151,260 in funds received in excess of his entitlement and funds spent on nonqualifi ed campaign expenses. The 

campaign repaid part of that amount in February 1992, leaving $146,464 still outstanding.

The Commission claimed that, in a letter of September 22, 1992, it notifi ed defendants that the repayment was due 

within 30 days. On October 22, instead of repaying the funds, Mr. LaRouche and his campaign fi led suit against the 

FEC to challenge the repayment amount.1 They did not ask the FEC to stay the repayment until the court decided the 

case; nor did they deposit the repayment amount in an interest-bearing account. See 11 CFR 9038.5(c).

The FEC asked the court to fi nd that Mr. LaRouche and his 1988 Presidential primary campaign had violated 

the public funding law by failing to repay the remaining $146,464. The agency further asked the court to order 

Mr. LaRouche and his campaign to repay that amount—plus interest accruing from October 22, 1992—to 

the U.S. Treasury.

Stipulation

The order stipulated that a $158,304.84 check (the security), given to the court by Democrats for Economic Recovery—

LaRouche in ’92,2 be deposited into an interest-bearing account and used for the repayment, if appropriate.

The FEC agreed to refrain from all efforts to collect on the defendants’ repayment obligation until after the 

Commission issued a fi nal repayment determination with respect to the Presidential primary matching funds received 

by the LaRouche in ’92 committee.

If the FEC’s fi nal repayment determination concluded that the LaRouche in ’92 committee had at least $158,304.84 

in excess campaign funds, then the court would release the security—plus interest—to the FEC as repayment of the 

defendants’ repayment obligation. In this event, the FEC and the defendants would voluntarily dismiss all claims and 

counterclaims associated with this case.
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If the FEC’s fi nal repayment determination for the LaRouche in ’92 committee concluded that the committee did not 

have at least $158,304.84 in excess campaign funds, then the court would issue the FEC a check for that portion of 

the security equal to the amount of the committee’s excess campaign funds. That amount would represent a partial 

repayment of the defendants’ repayment obligation. The balance of the security (including accrued interest) would be 

returned to the LaRouche in ’92 committee. In this event, the FEC could use any available legal procedures to collect 

the remaining amount owed by the defendants.

The Commission reserved the right to conclude that the LaRouche in ’92 committee’s payment to the court was 

not a qualifi ed campaign expenditure (for the 1992 campaign) and to contest the suffi ciency of the security to pay 

the defendants’ obligation. The defendants and the LaRouche in ’92 committee reserved the right to contest any 

Commission fi nding.

Source: FEC Record, July 1994, p. 3; and December 1994, p. 2. , July 1994, p. 3; and December 1994, p. 2. 1 The campaign did not contest the entire repayment amount but only $109,149 of the total. See LaRouche v. FEC (92-1555). 2 Democrats for Economic Recovery—LaRouche in ’92 was Lyndon LaRouche’s 1992 authorized Presidential campaign committee.

FEC v. CITIZENS FOR LaROUCHE

On September 17, 1984, the U.S. District Court for the District of Columbia issued an order in FEC v. Citizens for 

LaRouche (Civil Action No. 83-0373), which granted summary judgment in favor of the FEC and dismissed the 

defendants’ counterclaims.

Background

On February 9, 1983, the FEC fi led suit against Lyndon H. LaRouche and the Citizens for LaRouche (CFL), Mr. 

LaRouche’s principal campaign committee for his publicly funded Presidential campaign in 1980. In the suit, the FEC 

asked the district court to declare that the LaRouche campaign had violated a conciliation agreement entered into by 

CFL with the FEC. The Commission claimed that the campaign had failed to pay any portion of the $15,000 civil 

penalty stipulated in the agreement. The conciliation agreement had resulted from an enforcement action in which 

the FEC had found probable cause to believe that, among other violations, the LaRouche campaign had accepted 

unlawful contributions in 1979 and 1980. 

In its suit, therefore, the FEC had asked the district court:

• To declare that CFL had violated the conciliation agreement; 

• To order Mr. LaRouche and the LaRouche campaign to pay the $15,000 civil penalty (with interest); 

• To permanently enjoin the LaRouche campaign from further violations of the conciliation agreement;

• To declare that Mr. LaRouche was jointly and severally liable for the civil penalty and that, in failing to pay 

the penalty, he had violated one of the terms of his certifi cation letter. (He had signed the letter in November 

1979 as a prerequisite to being eligible for primary matching funds); and

• To permanently enjoin Mr. LaRouche from further violating the terms of the certifi cation letter. 

Mr. LaRouche and the LaRouche campaign admitted that it had failed to pay any portion of the civil penalty. The 

defendants maintained, however, that the entire written conciliation agreement had been voided by the FEC’s alleged 

breach of both the written agreement and a supplemental oral agreement that allegedly had been reached between the 

campaign and FEC attorneys. As a result, the defendants claimed, the FEC could not recover the civil penalty.

District Court Ruling

The court noted that, under the election law, a conciliation agreement may only be entered into with the affi rmative 

vote of four Commissioners. See 2 U.S.C. §437g(a)(4)(A)(i). The court found, therefore, that it had to base its 

consideration of the case exclusively on the terms of the written conciliation agreement approved by the Commission. 

The Commission had not voted on the terms of the alleged oral agreement; nor had the written conciliation agreement 

made reference to a supplemental oral agreement. 

The court noted that, to fi le a civil action against parties that violate the terms of a conciliation agreement, “the 

Commission need only establish that the person has violated, in whole or in part, any requirement of such a 

conciliation agreement.... ” See U.S.C. §437g(a)(5)(D). Since the LaRouche campaign admitted that it had never paid 

the civil penalty required by the conciliation agreement, the court found that “the FEC is entitled to declaratory relief 

in this action and receipt of an accelerated payment of $15,000 from defendant CFL.” 
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The court further found that the candidate, Lyndon H. LaRouche, must also be held liable for the unpaid civil penalty. 

The court cited the letter of agreements that Mr. LaRouche had entered into with the FEC as a condition of matching 

fund eligibility. Under the agreements, both Mr. LaRouche and his campaign committee were held liable for any civil 

penalties assessed against his campaign. Finding no merit to the campaign’s counterclaim for damages resulting from 

“fraudulent inducement and fraudulent actions by the FEC,” the court dismissed the counterclaim “for failure to 

state a claim upon which relief can be granted.”

Source: FEC Record, November 1984, p. 6. , November 1984, p. 6.

Citizens for LaRouche: FEC v., 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9214, (D.D.C. 1984).

FEC v. LAWSON

On April 8, 1991, the U.S. District Court for the District of South Carolina, Greenville Division, granted the FEC’s 

motion for default judgment. (Civil Action No. 6:90-2116-9.) The Commission claimed that Mark Lawson knowingly 

permitted his name to be used to effect a contribution made in the name of another, a violation of 2 U.S.C. §441f. The 

FEC alleged that, in 1982, Mr. Lawson received a $1,500 bonus from his employer, Robin’s Mens Store, in order to 

make a $1,000 contribution two days later to the House campaign of Robin Tallon, Jr.

The court decreed that Mr. Lawson had violated §441f and ordered him to pay a $5,000 civil penalty within 10 days. 

The court also permanently enjoined Mr. Lawson from future violations of §441f.

Source: FEC Record, June 1991, p. 1 , June 1991, p. 1

FEC v. LEE

On October 26, 1988, the U.S. District Court for the Central District of California entered a consent order in FEC v. 

Roger Lee (Civil Action No. 88-02640). The FEC fi led the suit against Mr. Roger Lee, President and Director of the 

Bekins Company, alleging that Mr. Lee had violated section 441b(a) of the election law. 

In his capacity as Chief Financial Offi cer of the Bekins Company, Mr. Lee consented to corporate reimbursements 

for employees who made contributions to Senator John Glenn’s 1984 Presidential primary campaign. 

In settlement of this litigation, Mr. Lee agreed to pay $5,000 civil penalty for these violations within 30 days of the 

court’s order. 

Source: FEC Record, December 1988, p. 8. , December 1988, p. 8.

FEC v. LEGI-TECH

On February 16, 1996, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court’s 

decision to dismiss the FEC’s case against Legi-Tech, Inc. The district court had dismissed the case on October 12, 

1994, based on the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in FEC v. NRA Political 

Victory Fund.

On May 30, 1997, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment and imposed a $20,000 civil penalty on Legi-Tech, after it used information obtained from disclosure 

reports fi led with the FEC for commercial purposes in violation of the Federal Election Campaign Act (the Act).

Background

The Act requires political committees to identify each individual whose aggregate contributions exceed $200 in a 

calendar year by listing their name, mailing address, occupation and employer. 2 U.S.C. §434(b)(3)(A). The FEC 

must make disclosure reports available for public inspection and copying within 48 hours of receipt. However, 

“information copied from such reports or statements may not be sold or used by any person for the purpose of 

soliciting contributions or for commercial purposes.” 2 U.S.C. §438(a)(4).
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Legi-Tech, through its Campaign Contribution Tracking System (CCTS), devised a plan to provide paying subscribers 

with information about political contributors and their contributions. Starting with the 1984 election cycle, CCTS 

copied contributor information directly from disclosure reports fi led with the FEC, entered this information into a 

computer database, added telephone numbers of contributors and sold the information to its customers. In all, the 

CCTS received $273,869 from at least 42 customers, including the International Brotherhood of Teamsters, Freedom 

Policy Foundation, National Association of Independent Schools and International Funding Institute, Inc. In 

addition, Legi-Tech was aware that some of its customers used the information to solicit contributors.

In 1985, the National Republican Congressional Committee (NRCC) fi led an administrative complaint against LegiTech, alleging the company was using contributor information for commercial purposes. After an investigation of the 

complaint, the Commission found probable cause to believe that a violation of the Act had occurred and attempted 

to enter into a conciliation agreement with Legi-Tech. That effort failed, and the Commission fi led suit.

District Court Decision

While the court was considering the FEC’s suit, the U.S. Court of Appeals for the District of Columbia Circuit issued 

its decision in FEC v. NRA Political Victory Fund. In that decision, the appeals court ruled that the FEC’s structure 

was unconstitutional because, by having the Clerk of the House and the Secretary of the Senate as nonvoting ex 

offi cio members, it violated the separation of powers principle.

Following the NRA decision, the FEC removed the ex offi cio members from its body and, in this new form, ratifi ed 

its former actions and authorized its attorneys to continue litigation against Legi-Tech. The district court, however, 

said that these corrective measures were not enough. The court reasoned that, because enforcement proceedings 

against Legi-Tech had been initiated by an unconstitutionally structured FEC, the rule set forth in Harper v. Virginia 

Department of Taxation—that a newly enunciated rule of law must be retroactively applied to pending cases—had to 

be applied in this case. For this reason, the district court dismissed this case.

Appeals Court Decision

While the appeals court did not object to the district court’s application of the Harper rule in this case, it disagreed 

that dismissal was the only remedy.

In its decision, the appeals court pointed out that: “Even were the Commission to return to square one—assuming the 

statute of limitations were not a bar—it is virtually inconceivable that its decisions would differ in any way the second 

time from that which occurred the fi rst time.”

Most of the Commissioners who originally voted to fi nd probable cause that Legi-Tech had violated §438(a)(4) and, 

subsequently, voted to initiate a lawsuit against Legi-Tech, are still on the Commission and would likely vote the same 

way now as they had before, reasoned the court. The court noted that it can not “examine the internal deliberations 

of the Commission, at least absent a contention that one or more of the Commissioners were actually biased.”

Therefore, instead of dismissal, the appeals court said that “the better course is to take the FEC’s postreconstitution ratifi cation of its prior decisions at face value and treat it as an adequate remedy for the NRA 

constitutional violation.”

District Court Ruling

The court rejected Legi-Tech’s arguments, which were based, in part, on the corporation’s contention that it was an 

organ of the press and was therefore entitled to use the contributor information in the way that it did. The court 

agreed with the Commission when it stated that a publisher’s use of the names and addresses from disclosure reports 

fi led with the FEC is permissible so long as that use is incidental to the sale of a larger publication. For example, a 

newspaper article that includes such information as part of the story is permissible. What is not permissible, the FEC 

contends, is when the use of contributor information is not incidental to the sale of the publication, but, in fact, the 

primary focus of the publication. AO 1981-38.

Because the Act does not explicitly state whether commercial activity like the CCTS’s is protected, the court gave 

deference to the FEC’s construction of §438(a)(4) as well as to its regulations and advisory opinions relevant to this 

issue. On that basis, the court rejected all of Legi-Tech’s challenges.

• It said that the CCTS could not be characterized as a communication similar to a “newspaper, magazine or 

book,” but was more like a listbroker. The former would fall under the FEC’s media exemption to §438(a)(4); 

a listbroker would not.

• It said that the CCTS failed the “principal purpose” test in that its primary purpose was the dissemination 

of the contributor information for profi t. The court said: “Legi-Tech’s sale of information through the CCTS 

posed the precise threat that troubled Congress: while Congress wanted to promote disclosure of campaign 

contribution information, it also wanted to protect political committees’ intellectual property and ‘political 

discourse from the adverse effect that the disclosure requirement of the Act would otherwise have.’”
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• The court found Legi-Tech’s argument that the CCTS was exempt because Legi-Tech’s parent corporation was 

a diversifi ed media company “unpersuasive” because the CCTS’s primary purpose was commercial.

Legi-Tech also argued unsuccessfully that §438(a)(4) violates the First Amendment in that it prevents “‘the 

dissemination of the truth about political campaigns’ and constitutes ‘a content based restriction on core 

political speech.’”

The court, noting that the constitutionality of the statute already had been upheld in FEC v. International Funding 

Institute, restated that the statute “serves important governmental interests by minimizing the adverse effects of the 

Act’s disclosure requirements.” In addition, the statute also protects political committees’ intellectual property. The 

commercial use of such information, as the NRCC contended in its original complaint, diminishes the economic 

value of contributor lists. The court also found that prohibiting commercial use of contributor information would 

make it more likely that individuals would continue to support fi nancially the current private campaign fi nancing 

system for U.S. elections. Legi-Tech’s other First Amendment arguments also were rejected by the court.

Source: FEC Record, December 1994, p. 6; April 1996, p. 9; and July 1997, p. 4. , December 1994, p. 6; April 1996, p. 9; and July 1997, p. 4.

Legi-Tech, Inc.: FEC v., No. 91-0213 (JHG) (D.D.C. Oct. 12, 1994), (D.D.C. Mar. 1, 1995) (fi nal judgment); 75 F.3d 704 (D.C. Cir. 

1996); 967 F. Supp. 523 (D.D.C. 1997).

FEC v. LIBERAL PARTY FEDERAL CAMPAIGN COMMITTEE

Failing to resolve a complaint through the informal conciliation process mandated by the law (2 U.S.C. 

§437g(a)(4)(A)(i)), the FEC fi led suit in the U.S. District Court for the Southern District of New York (Civil Action 

84-CIV 5552). The Commission petitioned the court to: 

• Find that the Liberal Party Federal Campaign Committee (the Liberal Party Committee) violated 2 U.S.C. 

§441a(a)(1)(A) by making excessive contributions to the 1980 National Unity Campaign for John B. Anderson, 

Mr. Anderson’s principal campaign committee for his 1980 Presidential general election campaign;

• Order the Liberal Party Committee to amend its reports to refl ect in-kind contributions of $14,149 to the 

Anderson campaign;

• Order the Liberal Party Committee to pay a $5,000 civil penalty or an amount equal to 100 percent of any 

contributions or expenditures resulting from its violations; and

• Enjoin the Liberal Party Committee (or any of its agents or successors) from further violations of the 

election law.

On November 13, 1984, the court entered a default judgment against the Committee. Under the court order, within 

30 days of the court’s fi nal judgment, the Liberal Party Federal Campaign Committee had to amend its reports and 

pay a $5,000 civil penalty to the U.S. Treasury. On June 25, 1985, the district court entered an order fi nding the Liberal 

Party Committee in civil contempt of its November 13 order. The court ordered that, if the Liberal Party Committee 

had not fully complied with the November 13 order by July 1, 1985, it would be required to pay a fi ne of $500 per day 

until compliance was completed. 

Source: FEC Record, October 1984, p. 8; and March 1985, p. 3. , October 1984, p. 8; and March 1985, p. 3.

Liberal Party Federal Campaign Committee: FEC v., No. 84-Civ. 5552 (S.D.N.Y. June 25, 1985 contempt).
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FEC v. LIFE AMENDMENT PAC (88-0860 and 89-1429)

On June 15, 1989, the U.S. District Court for the District of Washington issued a fi nal order and default judgment 

in FEC v. Life Amendment PAC, Inc. (Civil Action No. C88-860Z). The court declared that the committee and its 

treasurer, Rick Woodrow, had violated 2 U.S.C. §434(a) by failing to fi le six reports during 1985, 1986 and 1987. The 

court ordered Life PAC to pay a civil penalty of $30,000($5,000 for each missing report). 

The court also found that Mr. Woodrow and Citizens Organized to Replace Kennedy (C.O.R.K.), a political committee 

of which he was also treasurer, had failed to disclose debts and obligations in three 1986 reports, in violation of 2 U.

S.C. §434(b)(8). The court ordered C.O.R.K. and Mr. Woodrow to fi le the missing Schedules C and D and to pay a 

$5,000 civil penalty. Permanently enjoining the defandants from future similar violations of the election law, the court 

also ordered them to pay the FEC’s costs in the action. 

On January 24, 1990, in another suit, the court granted the FEC’s motion for a fi nal order and default judgment 

against Life PAC (No. C89-1429Z (originally C89-1429WD)). The court found that Life PAC and Mr. Woodrow, as 

treasurer, had committed several violations of the election law and regulations. Unless otherwise noted, the following 

violations were found in connection with Life PAC’s 1983 and 1984 disclosure reports: 

• Failing to maintain adequate records with respect to contributions received from individuals (2 U.S.C. §432(c) 

(1)-(3));

• Failing to retain the required records for three years (2 U.S.C. §432(d)); 

• Failing to keep adequate records of 129 disbursements, totaling $72,201 (2 U.S.C. §432(c)(5));

• Failing to maintain the committee’s bank records for three years and failing to make those records available 

for audit, inspection or examination by the Commission (11 CFR 104.14(b));

• Misreporting the total amount of Life PAC’s receipts and disbursements (2 U.S.C. §434(b) (2) and (4));

• Failing to properly itemize disbursements for operating expenditures (2 U.S.C. §434(b) (5));

• Failing to properly disclose disbursements made in connection with independent expenditures (2 U.S.C. 

§434(b)(6));

• Failing to properly and continuously disclose the committee’s outstanding debts and obligations (2 U.S.C. 

§434(b)(8) and 11 CFR 104.11); and

• In the committee’s 1987 mid-year report, failing to identify contributors (2 U.S.C. §434(b)(3) (A) and (B)).

For the violations cited above, the court ordered the defendants to pay a $55,000 civil penalty.

The court further declared that the defendants had knowingly and willfully committed the following violations: 

• Failing to maintain adequate records with respect to contributions received from individuals in 1985 and 1986 

(2 U.S.C. §432(c)(1)-(3));

• Failing to preserve the required records for three years (2 U.S.C. §432(d));

• Failing to keep bank records for 1985 and 1986 for at least three years and failing to make those records 

available for audit, inspection or examination by the FEC (11 CFR 104.14(b)); and

• Failing to fi le four monthly reports on time from April through July 1988 (2 U.S.C. §434(a)(4) (B)).

For these knowing and willful violations, the court ordered the defendants to pay a civil penalty of $70,000, to amend 

and correct their reports and to pay the Commission’s court costs. The defendants were permanently enjoined from 

future similar violations of the law.

Motion for Contempt

On September 11, 1992, the court held defendants in the above cases in civil contempt of court for failing to comply 

with the court’s earlier judgments against them.

Under the contempt orders, defendants in each suit must pay an additional penalty of $100 per month until they 

comply with the earlier order. The defendants were also ordered to pay the FEC up to a maximum of $1,000 as 

reimbursement for the agency’s costs.

Source: FEC Record, October 1989, p. 11; April 1990, p. 7; and November 1992, p. 9. , October 1989, p. 11; April 1990, p. 7; and November 1992, p. 9.
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FEC v. MAGGIN FOR CONGRESS COMMITTEE

On June 29, 1993, the U.S. District Court for the District of New Hampshire held defendants Elliott S. Maggin for 

Congress Committee and its treasurer, Andi T. Johnson, in civil contempt of court for failing to pay civil penalties and 

the FEC’s costs and attorneys fees. (Civil Action No. C86-40-L.) The assessments had remained unpaid since they 

were imposed under an August 1986 court order.

The court further ordered Ms. Johnson to provide the FEC with fi nancial records on her resources and liabilities 

within 20 days and to appear before the court 30 days after submitting the records. A $10,000 civil penalty and interest 

on the earlier penalties would be assessed against her if she failed to provide the information.

Under the 1986 judgment, the court found that the defendants had violated the Federal Election Campaign Act by 

failing to fi le a 1984 quarterly report. The court ordered each defendant to pay a $5,000 civil penalty and permanently 

enjoined them from further violations of the Act. Defendants were also ordered to pay $2,569 to cover the FEC’s 

costs and attorneys fees. 

Source: FEC Record, November 1993, p. 3. , November 1993, p. 3.

FEC v. Maggin, No. C86-40-L (D.N.H. 1986)

FEC v. MANN FOR CONGRESS 

On March 21, 1991, the U.S. District Court for the District of Columbia granted the FEC’s motion for default 

judgment against Mann for Congress Committee and its treasurer, Terry L. Mann, for violating the terms of a 

conciliation agreement. (Civil Action No. 90-2419(LFO).) (Under the terms of the agreement, the committee and 

Mr. Mann had agreed to refund $17,746 in excess contributions, disclose the refunds on FEC reports and pay a 

$5,000 civil penalty.)

The court ordered defendants to comply with the agreement’s terms within 10 days and pay the FEC an additional 

$5,000 civil penalty for violating the agreement. The court also permanently enjoined defendants from future 

violations of the conciliation agreement.

Source: FEC Record, May 1991, p. 7. , May 1991, p. 7.
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FEC v. MASSACHUSETTS CITIZENS FOR LIFE

In September 1978, Massachusetts Citizens For Life, Inc. (MCFL), a nonprofi t corporation without members, 

printed 100,000 copies of a special election edition fl yer captioned “Everything You Need to Vote Pro-Life.” The 

publication contained the position of state and federal candidates on abortion-related issues. It included at least two 

exhortations to “vote pro-life” and the statement that “No pro-life candidate can win in November without your vote 

in September.” Photographs of pro-life candidates were also included in the publication. To correct minor errors in 

the special election edition, MCFL subsequently issued a supplement to the edition. 

MCFL distributed copies of the two special election editions to 5,985 MCFL contributors and 50,674 noncontributors. 

MCFL also sent copies to its local chapters for distribution, mailed out copies on request, and left copies in public 

areas for general distribution. 

In response to a complaint fi led with the Commission, the FEC found probable cause to believe that MCFL’s 

expenditures for the publications (amounting to $9,812.76) had violated the Federal Election Campaign Act’s (the 

Act’s) ban on corporate spending in connection with federal elections. 2 U.S.C. §441b. After unsuccessfully attempting 

to conciliate the matter with MCFL, on February 22, 1982, the FEC fi led suit against MCFL in the U.S. District 

Court for the District of Massachusetts. (Civil Action No. 82-609-G.)

District Court Ruling

On June 29, 1984, the U.S. District Court for the District of Massachusetts granted defendant’s motion for summary 

judgment. The court found that, in publishing the special election editions of its newsletter in 1978, MCFL had 

not made prohibited corporate expenditures in connection with the Massachusetts primary campaigns of federal 

candidates. The court found that MCFL’s expenditures were more properly characterized as independent expenditures 

and expenditures for news and editorial comments. As such, the court held that the expenditures were explicitly 

exempted from section 441b’s prohibition on corporate spending. 

In characterizing MCFL’s expenditures for the special election editions as independent expenditures, the court held 

that the “publication was uninvited by any candidate and uncoordinated with any campaign.”1

With regard to its characterization of MCFL’s publication of the special election editions as exempt spending for a 

news story and news editorial,2 the court stated: “In our opinion, the compilation of voting records and questionnaire 

responses was news, probably not available elsewhere; and the call to vote pro-life in conjunction, incidentally, with a 

quotation from Thomas Jefferson, was editorial.” The court further stated that the special election editions satisfi ed 

the statutory requirement that exempt stories may be published in a “periodical publication.” The court noted that 

the special editions were similar in size, format and content to regular issues of MCFL’s newsletter. Finally, the court 

maintained that “the legislative history of the newspaper exemption shows that Congress intended that it be a broad 

exemption, coextensive with the First Amendment.”

Alternatively, the court held that, even if it had misconstrued MCFL’s spending as exempt independent and news 

story/editorial expenditures, the statutory prohibition on corporate expenditures was unconstitutional as applied to 

MCFL’s spending. The court found that applying the prohibition to MCFL’s spending abridged the organization’s 

free speech, press and association rights because the expenditures were: “(a) independent of any candidate or party, 

(b) by a nonprofi t-making corporation formed to advance an ideological cause and (c) for the purpose of publishing 

direct political speech.” Under these circumstances, the court concluded, the compelling governmental interest served 

by banning the special election editions as prohibited corporate expenditures (i.e., the prevention of real or apparent 

corruption in federal elections) was not justifi ed. Specifi cally, since the court maintained that MCFL’s publication 

of the special election editions was not coordinated with any candidates, the court followed the Supreme Court’s 

determination in Buckey v. Valeo that their independence “alleviate[d] the danger that expenditures will be given 

as quid pro quo for improper commitments from the candidate.” (See Buckey v. Valeo at 47.) In fi nding that the 

expenditures were independent, the court noted that they were too small (i.e., $80 per federal candidate) to have a 

corrupting infl uence on federal elections. 

With regard to MCFL’s role as a nonprofi t corporation, the court held that, “by sharing its views on an important 

public issue” with the public, MCFL’s expenditures for the special election editions advanced, rather than deterred, 

governmental interests by “promoting citizen responsibility.”

Similarly, the court held that, if viewed as direct political speech, MCFL’s fi nancing of the special election editions 

“would seem to promote rather than undermine the honest functioning of representative government.” Specifi cally, 

the court found that the special editions “sought to infl uence incumbents and candidates solely by means of informed 

voter reaction to the candidates’ positions on an important public issue.” Furthermore, the court found that “the 

corporate identity of the speaker does not deprive speech of what otherwise would be its clear entitlement to protection 

under the First Amendment. (First National Bank of Boston v. Bellotti, supra at 778-786)”
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Appeals Court Ruling

On July 31, 1985, the U.S. Court of Appeals for the First Circuit ruled that MCFL’s expenditures, were subject to the 

election law’s prohibition on expenditures by corporations in connection with federal elections. This statutory ruling 

reversed that of the district court. At the same time, the appeals court affi rmed the holding by the district court that, 

if applied to MCFL’s expenditures, the Act’s prohibition on corporate expenditures (2 U.S.C. §441b) would violate 

MCFL’s First Amendment rights.

MCFL’s Expenditures Fall within the Purview of Section 441b

In overturning the district court’s ruling that section 441b(b)(2)’s ban on corporate expenditures did not apply to 

MCFL’s expenditures, the appeals court concluded that section 441b prohibits expenditures in connection with 

federal elections, in general, as well as contributions specifi cally made to candidates for federal offi ce. 

The appeals court also rejected the district court’s holding that, even if section 441b prohibited corporate expenditures 

in connection with federal elections, MCFL’s publication expenditures were exempt from the prohibition because 

the publication did not expressly advocate the election or defeat of any particular candidate. To the contrary, the 

appeals court found that the publications did constitute express advocacy: “The MCFL Special Election Edition...

explicitly advocated the election of particular candidates in the primary elections and presented photographs of 

those candidates only....” The appeals court added that it did not have to decide whether such spending was covered 

by section 441b because MCFL’s fl yers “would fi t within the defi nition of expenditure, even if an express advocacy 

requirement were incorporated into the defi nition.”

Finally, contrary to the district court, the appeals court found that the publications did not qualify for the news 

story exemption: “...the Special Editions may not be considered new stories, commentaries, or editorials because 

the editions were not distributed through the newsletter’s facilities, were not published by the newsletter’s staff, did 

not contain the newsletter masthead and were not limited to the usual MCFL newsletter circulation. “ Nor did the 

expenditures qualify under the exemption as “normal functions of a press entity.”

Prohibiting MCFL’s Expenditures Is Unconstitutional

Nevertheless, the appeals court affi rmed the district court’s holding that §441b, as applied to MCFL’s expenditures, was 

unconstitutional. The appeals court said that it did not believe that “the availability of alternative methods of funding 

speech [e.g., MCFL’s establishment of a separate segregated fund] justifi es eliminating the simplest method.”

Furthermore, the court found that there was no substantial government interest (i.e., to prevent corruption or the 

appearance of corruption in federal elections) in prohibiting MCFL’s expenditures for the publications. “Because 

MCFL did not contribute directly to a political campaign, MCFL’s expenditures did not incur any political 

debts from legislators.” The appeals court concluded that a ruling by the Supreme Court which upheld §44lb’s 

ban on solicitations by another nonprofi t corporation, the National Right to Work Committee, did not apply to 

MCFL’s expenditures. “Unlike National Right to Work Committee, [MCFL’s spending] involves a corporation’s 

indirect and uncoordinated expenditures in connection with a federal election, not a solicitation for direct 

contributions to candidates.”

The appeals court therefore affi rmed the district court’s ruling that section 441b was unconstitutional, as applied 

to MCFL’s expenditures: “We therefore uphold that the application of section 441b to indirect, uncoordinated 

expenditures by a non-profi t ideological corporation expressing its views of political candidates violates the 

organization’s First Amendment rights.”

Appeal to Supreme Court

On August 28, 1985, the Commission fi led an appeal of the fi rst circuit’s decision with the Supreme Court. On 

January 13, 1986, the Court noted probable jurisdiction in this case. Oral argument was heard on October 7, 1986.

Supreme Court Decision

In FEC v. Massachusetts Citizens for Life, Inc. (MCFL) the Supreme Court of the United States decided, by a 5 to 4 

vote, that the law’s prohibition on corporate expenditures is unconstitutional as applied to independent expenditures 

made by a narrowly defi ned type of nonprofi t corporation. The Court’s December 15, 1986, decision affi rmed an 

appeals court ruling. 

Scope of Ruling 

Acknowledging that “the class of organizations affected by our holding today will be small,” the Court delineated 

the type of corporation which would be permitted to make independent expenditures under this ruling. “MCFL has 

three features essential to our holding that it may not constitutionally be bound by §441b’s restriction on independent 

spending.” These three criteria are as follows: 
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• The organization must be formed “for the express purpose of promoting political ideas, and cannot engage in 

business activities. If political fundraising events are expressly denominated as requests for contributions that 

will be used for political purposes, including direct expenditures, these events cannot be considered business 

activities.”

• The organization must have “no shareholders or other persons affi liated so as to have a claim on its assets or 

earnings.”

• The organization must not have been established by a business corporation or a labor union, and must adopt 

a policy “not to accept contributions from such entities.”

MCFL in Violation of §441b

The Supreme Court unanimously affi rmed the appeals court ruling that, as the FEC had argued, MCFL’s expenditures 

were in violation of §441b. In making this determination, the Court rejected MCFL’s arguments to the contrary. 

MCFL had contended that, in making its expenditures, it had not provided anything to a candidate. Because of 

this, its spending was not within the reach of §441b(b)(2), which defi nes “expenditure” to include anything of value 

provided to a candidate or political committee. The Court, in holding that 441b’s scope is broader than MCFL’s 

interpretation, stated that the legislative history “clearly confi rms that §441b was meant to proscribe expenditures in 

connection with an election.”

The Court also rejected MCFL’s argument that its publication costs did not constitute prohibited expenditures because 

the material did not “expressly advocate” the election of candidates. Citing its opinion in Buckey v. Valeo, the Court 

noted it had previously concluded “that a fi nding of ‘express advocacy’ depended upon the use of language such as 

‘vote for,’ ‘elect,’ ‘support,’ etc.” Buckley, 424 U.S. 44, n. 52 (1976). Applying this test to the MCFL’s publication, the 

court stated: “Just such an exhortation appears in the ‘Special Edition.’ The publication not only urges voters to vote 

for ‘pro-life’ candidates, but also identifi es and provides photographs of specifi c candidates fi tting that description. 

The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain 

politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that its 

message is marginally less direct than ‘Vote for Smith’ does not change its essential nature.”

MCFL had also argued that its publication was a “Special Edition” of its regular newsletter and therefore payments 

for issuing the material were exempt from the defi nition of expenditure under the statute’s exception for news 

stories, commentaries and editorials distributed through periodical publications and other news media. 2 U.S.C. 

§431(9)(B)(i). The Court did not need to rule on whether MCFL’s newsletter qualifi ed for the press exemption because 

it considered the “Special Edition” a campaign fl yer rather than an issue of the newsletter. “No characteristic of the 

Edition associated in any way with the normal MCFL publication.” The Court emphasized that it was essential to 

make a distinction between regular publications and campaign fl yers “since we cannot accept the notion that the 

distribution of such fl yers by entities that happen to publish newsletters automatically entitles such organizations to 

the press exemption.”

Section 441b’s Infringement on Free Speech 

In determining whether §441b was unconstitutional as applied to MCFL’s independent expenditures, the Court fi rst 

examined the provision’s effect on political speech protected by the First Amendment. 

The FEC had argued that, although §441b prohibited MCFL from making expenditures from its corporate treasury 

funds, the law provided another avenue for MCFL to exercise political speech: It could establish a separate segregated 

fund (also called a political action committee or PAC) and make contributions and expenditures using money 

specifi cally solicited for the fund. The Court maintained that “even to speak through a segregated fund, MCL must 

make very signifi cant efforts,” and mentioned in particular the recordkeeping and solicitation requirements the law 

imposes on such funds. In conclusion, the Court stated: “These additional regulations may create a disincentive for 

such organizations to engage in political speech.... The fact that the statute’s practical effect may be to discourage 

protected speech is suffi cient to characterize §441b as an infringement on First Amendment activities.”

Section 441b Unconstitutional as Applied 

In ruling that 441b is unconstitutional as applied to MCFL’s activities in this case, a decision from which four 

Justices dissented, the Court fi rst explained that “[w]hen a statutory provision burdens First Amendment rights, it 

must be justifi ed by a compelling state interest.” The Court disagreed with the Commission’s arguments that §441b’s 

prohibition on MCFL’s expenditures was justifi ed. 

The FEC had noted the long legislative history supporting §441b’s prohibition on corporate activity and argued 

that the courts have consistently ruled that those restrictions are justifi ed by the governmental interest in protecting 

the election process from the effects of the accumulation of wealth. After examining the legislative history and past 

Supreme Court decisions, the Court concluded that this governmental interest is valid with respect to expenditure 
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restrictions applied primarily to profi t-making corporations but not to corporations such as MCFL, “formed to 

disseminate political ideas.” The Court, therefore, found no compelling justifi cation for treating business corporations 

and MCFL alike “in the regulation of independent spending.”

The Court also rejected the FEC’s argument that §441b serves to prevent a corporation such as MCFL from spending 

individuals’ money for political purposes that they might not support. The Court pointed out that individuals who 

contribute to MCFL do so because they support its political aims and expect that the organization will spend the 

funds “in a manner that best serves the shared political purposes of the organization and the contributor.”

In responding to the Commission’s argument that a contributor, while supporting the political views of MCFL, may 

not wish donations to be used to support or oppose particular candidates, the Court said that this problem could be 

resolved by “simply requiring that contributors be informed that their money may be used for such a purpose.”

Finally, the FEC had maintained that, if the §441b prohibition were not applied to expenditures by corporations 

such as MCFL, then the political process would be in danger of corruption, since business corporations and labor 

unions could funnel undisclosed treasury funds into a nonprofi t organization to be converted to political spending. 

In rejecting this argument, the Court cited 2 U.S.C. §434(c), which requires groups that are not political committees 

to report information on their independent expenditures once they exceed $250 in one year. In reporting under this 

provision, a group must include the identifi cation of persons funding independent expenditures if they contribute 

an aggregate of over $200 during a year. “These reporting obligations provide precisely the information necessary 

to monitor MCFL’s independent spending activity and its receipt of contributions,” the Court stated. Furthermore, 

the Court pointed out that “should MCFL’s independent spending become so extensive that the organization’s major 

purpose may be regarded as campaign activity, the corporation would be classifi ed as a political committee,” subject 

to the restrictions and extensive reporting requirements the law applies to such entities. 

In conclusion, the Court ruled that “§441b’s restriction of independent spending is unconstitutional as applied to 

MCFL, for it infringes protected speech without a compelling justifi cation for such infringement.” However, the 

Court did not directly rule on the constitutionality of §441b’s restrictions on “commercial enterprises,” since that was 

not at issue in this suit. 

Justice William J. Brennan, Jr., who wrote the majority opinion, was joined by Justices Thurgood Marshall, Lewis F. 

Powell, Jr. and Antonin Scalia and, in part, by Justice Sandra Day O’Connor. 

Dissents 

Chief Justice William H. Rehnquist, joined by Justices Byron R. White, Harry A. Blackmun and John Paul Stevens, 

dissented from “the conclusion that the statutory provisions are unconstitutional as applied to [MCFL].” Chief 

Justice Rehnquist observed that the differences between business corporations and corporations like MCFL “are 

‘distinctions in degree’ that do not amount to ‘differences in kind.’.... As such, they are more properly drawn by the 

legislature than the judiciary.... Congress expressed its judgment in §441b that the threat posed by corporate political 

activity warrants a prophylactic measure applicable to all groups that organize in the corporate form. Our previous 

cases have expressed a reluctance to fi ne-tune such judgments; I would adhere to that counsel here.”

In his judgment, “[t]he three part test gratuitously announced in today’s dicta...adds to a well-defi ned prohibition a 

vague and barely adumbrated exception certain to result in confusion and costly litigation.”

Source: FEC Record, August 1984, p. 7; October 1985, p. 7; and February 1987, p. 4. , August 1984, p. 7; October 1985, p. 7; and February 1987, p. 4.

Massachusetts Citizens for Life, Inc.: FEC v., 589 F. Supp. 646 (D. Mass. 1984), aff’d, 769 F.2d 13 (1st Cir. 1985), , 769 F.2d 13 (1st Cir. 1985), aff’d, 479 U.S. 238 , 479 U.S. 238 

(1986). 

1 The election law and FEC regulations defi ne an independent expenditure as an expenditure for a communication expressly advocating 

the election or defeat of a clearly identifi ed candidate that is not made with the cooperation or prior consent of, or in consultation with, 

or at the request or suggestion of, any candidate or his/her authorized committee or agents. 2 U.S.C. §431 (17); 11 CFR 110.16 and 

109.1(a). 

2 Under the election law and FEC regulations, a news story, commentary, or editorial by any broadcasting station, newspaper, magazine, 

or other periodical publication is not considered an expenditure, provided the station or publication is not owned or controlled by a 

political party, committee or candidate. 2 U.S.C. §431(9)(B)(i); 11 CFR 100.8(b)(2).
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FEC v. MASTORELLI CAMPAIGN FUND

On March 28, 1983, the U.S. District Court for the District of New Jersey entered a default judgment against the 

defendants in FEC v. Nick Mastorelli Campaign Fund FEC v. Nick Mastorelli Campaign Fund (Civil Action No. 82-0774F). The court decreed that the (Civil Action No. 82-0774F). The court decreed that the 

Mastorelli Campaign and its treasurer had violated provisions of the election law by: 

• Failing to fi le reports required for the 1978 election year on time and by failing to fi le the semiannual reports 

required for 1980 and thereafter (2 U.S.C. §434a);

• Accepting contributions in 1978 from four corporations (2 U.S.C. §441b(a));

• Accepting excessive contributions, in the form of a loan, from three individuals (2 U.S.C. §441a(f)); and

• Accepting $21,050 in excessive cash contributions in 1978 (2 U.S.C. § 441a(f)).

The district court also found that certain contributors to the Mastorelli Campaign had violated the 

election law by: 

• Making cash contributions in excess of $100 to the campaign (2 U.S.C. §441g); and

• Making contributions in the name of another (2 U.S.C. §441f).

The court permanently enjoined the defendants from any further violations of the election law. The court also assessed 

a $5,000 civil penalty against the Mastorelli Campaign and its treasurer as well as against each of the individual 

defendants named in the suit. 

Source: FEC Record, May 1983, p. 7. , May 1983, p. 7.

FEC v. MCCALLUM

On December 11, 1996, the U.S. District Court in Massachusetts issued a judgment and consent order to which both 

parties agreed. Under the order, Elkin McCallum must pay a $50,000 civil penalty to the FEC for making excessive 

contributions to the Tsongas for President Committee.

The FEC fi led the lawsuit against Mr. McCallum alleging that he had made $250,000 in loans to Paul Tsongas’s 

campaign in 1991 and 1992. These loans constituted excessive contributions. Specifi cally, the FEC alleged that Mr. 

McCallum had made the following contributions:

• He purchased a ticket for $1,000 to a Tsongas Committee fundraiser on April 8, 1991;

• He contributed $100,000 to the Tsongas Committee on August 13, 1991, and $50,000 on October 21, 1991; 

and

• He wrote a $100,000 check on February 10, 1992, payable to Mr. Tsongas’s chief fundraiser, Nicholas Rizzo, 

intending it to be a loan to the Tsongas Committee.

The Federal Election Campaign Act (the Act) states that an individual has a $1,000 contribution limit for a candidate 

or that candidate’s authorized committee per election and that the defi nition of contribution includes loans. 2 U.S.C. 

§§431(8)(A)(i) and 441a(a)(1)(A). Additionally, FEC regulations make it unlawful for a person to make a loan that 

exceeds the contribution limits whether or not it is repaId. 11 CFR 100.7(a)(1)(i)(A).

In a settlement agreement, Mr. McCallum did not contest the allegations. In addition to the civil penalty, the court 

permanently enjoined Mr. McCallum from making excessive contributions.

Source: FEC Record, February 1997, p. 4. , February 1997, p. 4.
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FEC v. COMMITTEE FOR A CONSTITUTIONAL PRESIDENCY—

McCARTHY ’76

On March 7, 1979, the U.S. District Court for the District of Columbia granted summary judgment to the Committee 

for a Constitutional Presidency—McCarthy ’76, defendants in a suit fi led by the FEC on August 22, 1977. 

The FEC alleged that the defendants had improperly classifi ed a series of payments (speaking fees from universities) 

as “other receipts” rather than as “contributions,” and requested a mandatory injunction from the court requiring the 

defendant to amend its reports accordingly. 

The court agreed with both parties that there were no material issues in dispute. The court also agreed with the FEC 

that the payments in question were, in fact, “contributions” rather than “other receipts.” However, while the court 

concluded that the defendant may have committed a technical error, it declined to enter the requested order for the 

following reasons:

• The defendant had acted in good faith and had fully reported all payments on appropriate FEC forms.

• In 1976, Congress amended the reporting provisions of 434(b), which now provide that when candidates and 

committees “show that best efforts have been used to obtain and submit the information required by this 

subsection, they shall be deemed in compliance with this subsection.” Since the events of this case occurred 

before Congress adopted the amendment, the amendment does not control the case. However, it does provide 

support for the court’s view that a candidate could act in good faith and yet technically violate a provision of 

the Act; it also corroborates the court’s conclusion that sanctions should not be imposed on a public fi gure 

who acts in good faith. 

• The public interest would not be served by the requested court order.

This public interest in disclosure is already satisfi ed by the detailed information supplied by the defendant. Furthermore, 

a court-imposed remedy would not ensure better compliance in the future since a candidate who acted in the same 

manner today would probably not be considered in violation of the Act due to the “best efforts” amendment. 

Source: FEC Record, June 1979, p. 6. , June 1979, p. 6.

Committee for A Constitutional Presidency—McCarthy ’76: FEC v., 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9074 (D.D.C. 1979).

FEC v. MICHIGAN REPUBLICAN STATE COMMITTEE

On March 22, 1995, the U.S. District Court for the Western District of Michigan, Southern Division, dismissed this 

case pursuant to a stipulation by the parties.

The FEC originally charged that the Michigan Republican State Committee (MRSC) had knowingly accepted $5,550 

in excessive contributions, had deposited $35,655 in impermissible contributions into its federal account, and had 

exceeded its coordinated party expenditure limit for a Senate candidate by $8,298.

The court issued a consent order on July 18, 1994, that resolved the excessive and impermissible contribution issues; 

the MRSC agreed to pay a $12,500 civil penalty and to transfer $35,655 from its federal account to its nonfederal 

accounts. The violation of the coordinated party expenditure limit, however, remained pending.

Subsequent to the consent order, the MRSC paid the civil penalty and transferred the nonfederal monies as agreed. 

With regard to the remaining allegation, MRSC provided the FEC with documentation showing that the Senate 

candidate reimbursed the committee for the expenditures in question and therefore the committee did not exceed its 

coordinated party expenditure limit.

Source: FEC Record, September 1994, p. 8; and May 1995, p. 4. , September 1994, p. 8; and May 1995, p. 4.

Michigan Republican State Committee: FEC v., No. 5:94-CV-27 (W.D. Mich. July 18, 1994); (W.D. Mich. Mar. 22, 1995).
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FEC v. MID-AMERICA CONSERVATIVE PAC

On October 30, 1992, the U.S. District Court for the Northern District of Iowa ordered the Mid-America Conservative 

PAC and its treasurer to pay a $10,000 civil penalty for failing to fi le several reports on time. (Civil Action No. C90-

2093.) The court also permanently enjoined defendants from late fi ling of future reports.

The decision was based on a settlement agreement between both parties. Under the settlement procedures, defendants 

agreed to submit an offer of settlement to the Commission but also agreed to accept the FEC’s fi nal determination. 

The Commissioners unanimously voted to reject the defendants’ proposal and to accept an alternative agreement 

submitted by the FEC’s General Counsel. Defendants then objected to the agreement because the Commissioners 

had not considered the matter in a public session.

In granting the FEC’s motion to enforce the settlement agreement, the court pointed out that the Commission had 

followed its usual procedures in considering and voting on the agreement. The court also noted that defendants could 

have specifi ed that the agency follow special procedures but did not do so. 

Source: FEC Record, December 1992, p. 7. , December 1992, p. 7.

FEC v. MILLER

On April 23, 1993, the U.S. District Court for the District of Columbia signed a settlement agreed to by both parties. 

(Civil Action No. 92-2244(SS).) In the joint stipulation, Stefan Miller admitted that he had violated the terms of a 

conciliation agreement he had entered into with the Commission by failing to pay the $1,300 civil penalty. He further 

agreed to make monthly installments of $75 until the full amount is paId. If he fails to make a payment, the FEC may 

require that the entire amount be paid within 10 days. 

Mr. Miller later fi led a statement in which he maintained that he never agreed to enter into the conciliation agreement, 

which was signed by his attorney on his behalf. He said, however, that he would honor the terms of the stipulation.

Source: FEC Record, June 1993, p. 8. , June 1993, p. 8.

FEC v. MINCHEW

On April 24, 1981, the U.S. District Court for the District of Columbia issued a judgment in favor of the FEC in the 

suit FEC v. Daniel Minchew (Civil Action No. 81-174). Declaring the defendant had violated the requirements of a 

conciliation agreement entered into with the FEC in October 1979, the court ordered Mr. Minchew to comply with 

the conciliation agreement and to pay a $4,000 civil penalty resulting from the agreement. The court also required the 

defendant to pay the costs of the civil action and to pay interest on civil penalty from the date of the court’s order. Mr. 

Minchew had incurred the penalty for a violation of 2 U.S.C. §432(b): he had failed to provide Senator Talmadge’s 

1974 reelection committee with detailed accounts of campaign contributions, which he had received on the Senator’s 

behalf, within the required fi ve-day period. 

Source: FEC Record, June 1981, p. 6. , June 1981, p. 6.
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FEC v. JOHN J. MURRAY FOR CONGRESS COMMITTEE

On September 10, 1996, the U.S. District Court for the Eastern District of Pennsylvania issued a consent order that the 

defendant committee, an authorized committee of a 1994 Congressional candidate in Pennsylvania, violated 2 U.S.C. 

§434(a)(6)(A) by failing to fi le a 48-hour notice disclosing the receipt of a $100,000 loan from the candidate. Under 

the 48-hour notice provision, a candidate committee must fi le a notice providing information on any contribution of 

$1,000 or more it receives after the 20th day but more than 48 hours before an election. The committee must fi le the 

notice within 48 hours of receiving the contribution.

The court awarded the FEC a $15,000 penalty but, because of the committee’s fi nancial circumstances (its lack of 

assets and $350,000 debt), the court suspended payment of all but $3,000.

Source: FEC Record, November 1996, p. 7 , November 1996, p. 7

FEC v. NATIONAL CONGRESSIONAL CLUB

On May 15, 1986, the U.S. District Court for the Eastern District of North Carolina issued a consent order agreed to 

by the Federal Election Commission and three defendants: the National Congressional Club (NCC), a multicandidate 

political committee; NCC’s treasurer, R.E. Carter Wrenn; and Jefferson Marketing, Inc. (JMI), a North Carolina 

corporation that provides media services to political committees. Plaintiff and defendants agreed that: 

• Since NCC and JMI had operated as a single entity,1 NCC and its treasurer, R.E. Carter Wrenn, had violated 

section 434 of the election law by failing to report JMI’s fi nancial activity; and

• Within 30 days of the court’s order, defendants would pay a $10,000 civil penalty to the U.S. Treasury 

for these violations.

Furthermore, defendants no longer contested the FEC’s allegation that JMI had violated section 441b of the 

election law by charging less than the fair market value for services JMI had provided to federal candidates.

In the order, defendants also agreed to establish themselves as separate entities, despite their contention that they 

had already done so in 1983. In this regard, the following changes would be made:

• Thomas Ellis and R.E. Carter Wrenn would resign as directors of the Educational Support Foundation, Inc., 

JMI’s sole shareholder;

• JMI would liquidate its outstanding debt to NCC within 12 months of the date of the consent order;

• Employees who began working for NCC after the date of the consent order, and who were later employed by 

JMI, would not be credited with benefi ts and seniority accrued during their employment by NCC; and

• As long as he remained an NCC offi cer, R.E. Carter Wrenn would not act as JMI’s director, 

offi cer or employee.

After NCC and JMI have made these changes, they will be considered separate entities. However, the FEC reserved 

the right to fi le suits and claims against JMI if JMI fails to charge the fair market value for services the organization 

provides to federal political committees and candidates. 

Within 90 days of the consent order, NCC agreed to amend its FEC reports to disclose JMI’s fi nancial activity with 

regard to federal elections during the period from December 1978 to the present. 

The suit grew out of an administrative complaint fi led by Congressman Charles Rose. In that case, the Commission 

found probable cause to believe respondents had violated the law; yet, it failed to resolve the matter through 

conciliation. Thus, on February 7, 1985, the agency fi led suit. 

Source: FEC Record, July 1986, p. 7. , July 1986, p. 7. 1 Evidence noted in the consent order for defendants’ operation as a single entity included: JMI’s fi nancial dependence on NCC, NCC’s 

control over JMI’s voting stock and Mr. Wrenn’s involvement in JMI’s decision-making process.
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FEC v. NATIONAL MEDICAL POLITICAL ACTION COMMITTEE

On May 27, 1998, the U.S. District Court for the District of Columbia entered an order submitted by the parties 

requiring the National Medical Political Action Committee (NMPAC) and its treasurer to pay a $10,000 civil penalty 

to the FEC for failing to fi le 14 disclosure reports in a timely manner during 1992, 1993 and 1994. In a stipulation, 

both parties had agreed to the facts and to the fi nal order and judgment.

NMPAC had fi led all the reports that were due during 1992 and 1993 on May 12, 1994. NMPAC also failed to fi le on 

time six other reports due in 1994 and 1995. These tardy fi lings violated 2 U.S.C. §434(a)(4)(i), (ii), (iii) and (iv). 

In addition to fi nding that NMPAC had violated the Act, the court permanently enjoined the PAC from failing to fi le 

reports within the time limits set out by Commission regulations.

Source: FEC Record, July 1998, p. 5. , July 1998, p. 5.

FEC v. NATIONAL REPUBLICAN SENATORIAL COMMITTEE (93-1612)

On June 12, 1995, the U.S. District Court for the District of Columbia found that, as stipulated by both parties in a 

Stipulation to Final Judgment, the National Republican Senatorial Committee (NRSC) violated 2 U.S.C. §§441a(h) 

and 434(b) by directing the redesignation of contributions it received and by failing to properly report this activity.

The FEC was precluded from collecting civil penalties in this case because in a February 24, 1995, decision, the court 

ruled that the 5-year statute of limitations had expired.

This case had been dismissed in November 1993, but was reopened in 1994, as explained below.

Dismissal and Reopening of Case

The court had dismissed the suit on November 24, 1993, based on an October 1993 appellate court holding that the 

FEC’s composition was unconstitutional and that the agency therefore lacked authority to bring an enforcement 

action. FEC v. NRA Political Victory Fund FEC v. NRA Political Victory Fund (NRA). In that case, the appeals court held that the presence of two (NRA). In that case, the appeals court held that the presence of two

Congressionally-appointed ex offi cio members on the Commission violated the Constitution’s separation of powers.

On December 2, 1993, the Commission moved for reconsideration of the dismissal based on FEC actions immediately 

following the NRA ruling: The agency reconstituted itself as a six-member body entirely composed of Commissioners 

appointed by the President; ratifi ed its earlier fi ndings in enforcement cases; and authorized ongoing litigation, 

including FEC v. NRSC.

Due to the FEC’s remedial actions, the district court reversed its earlier decision that NRA was a basis for dismissal, 

and the case was reopened on February 8, 1994.

Statute of Limitations

In a second stage of the case, on February 24, 1995, the court ruled that the FEC was precluded from recovering 

monetary penalties in the action because the 5-year statute of limitations expired before the suit was fi led. (The statute 

of limitations, however, does not apply to injunctive and declaratory relief.)

The statute of limitations at 28 U.S.C. §2462 1 applies in all instances except those involving other statutes in which 

Congress specifi cally included another time limitation. The court ruled that the Federal Election Campaign Act does 

not contain such an alternative statute of limitations. Accordingly, the court applied the 5-year limit to this case.2

In applying §2462, the court determined that the statute of limitations started running from the date of the alleged 

violations—the period between November 1985 and November 1986. Since the time between the dates of the 

violations and the date the FEC fi led this case with the court exceeded the 5-year statute of limitations, the FEC 

could not pursue the imposition of civil penalties.

The case then proceeded to a fi nal stage.

Stipulation to Final Judgment

In its original suit, the FEC had alleged that during the 1986 election cycle the NRSC, having exhausted its contribution 

and coordinated party expenditure limits on behalf of Republican Senate candidate Jim Santini, contacted its 

contributors and asked them to redesignate a portion of their NRSC contributions to Mr. Santini. The NRSC then 

forwarded these newly earmarked contributions to the Santini committee.
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Under 11 CFR 110.6(d)(2), the full amount of a contribution earmarked by a contributor at the direction of an 

intermediary counts against both that contributor’s and that intermediary’s contribution limit for the recipient. In 

the matter at hand, this rule caused the NRSC to exceed its contribution limit for Mr. Santini by $183,500—$104,200 

of which was the total value of the earmarked contributions and $79,300 of which was the cost of securing the 

redesignations (an in-kind contribution).

In the Stipulation to Final Judgment, the NRSC admitted to engaging in the alleged conduct, but stated that it 

offered this admission only to bring this case to a close. In addition, the NRSC agreed to accept, in all future matters, 

the FEC’s position that this conduct constitutes violations of 2 U.S.C. §§441a(h) and 434(b), and 11 CFR 110.6(d)(2). 

Furthermore, the NRSC agreed that through December 31, 1998, it would report all contributions that it asks 

contributors to redesignate to candidates as contributions from both itself and the contributor.

Source: FEC Record, January 1994, p. 12; April 1994, p. 7; April 1995, p. 4; and August 1995, p. 4. , January 1994, p. 12; April 1994, p. 7; April 1995, p. 4; and August 1995, p. 4.

National Republican Senatorial Committee: FEC v., No. 93-1612 (TFH) (D.D.C. June 24, 1994); (D.D.C. Feb. 24, 1995)(opinion); 

(D.D.C. June 12, 1995).

1 That provision reads: “Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil 

fi ne, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within fi ve years from the date when the 

claim fi rst accrued.”

2 This conclusion is inconsistent with the U.S. District Court for the Central District of California’s denial of defendant’s motion to 

dismiss in FEC v. Williams. In that case, Larry Williams argued that because the 5-year statute of limitations in §2462 had expired, the 

court should dismiss the case. The court rejected this motion without issuing an opinion. FEC v. Williams, No. CV 93-6231 ER.

FEC v. NATIONAL RIGHT TO WORK COMMITTEE (77-7125)

NATIONAL RIGHT TO WORK COMMITTEE v. FEC (78-0315)

On December 13, 1982, the Supreme Court issued a unanimous decision reversing a decision by the U.S. Court of 

Appeals for the District of Columbia Circuit in FEC v. National Right to Work Committee (NRWC) (U.S. Supreme 

Court No. 81-1506). In its opinion, the Court held that some 267,000 individuals solicited by NRWC for contributions 

to its separate segregated fund during 1976 did not qualify as solicitable “members”1 of NRWC under 2 U.S.C. 

§441b(b)(4)(C). (NRWC is a nonprofi t corporation without capital stock, which advocates voluntary unionism.)

Complaints

In November 1977, the FEC fi led suit against NRWC (FEC v. NRWC, Civil Action No. 77-7125) claiming that, 

since both NRWC’s bylaws and the articles of incorporation it had fi led with Virginia stated that NRWC had no 

members, NRWC had violated section 441b(b)(4)(C) of the Act by soliciting funds to its separate segregated fund 

from persons other than members. (Under this provision, corporations without capital stock may pay the costs of 

soliciting contributions from their members to their separate segregated funds.) NRWC contended, on the other 

hand, that its solicitations were permissible since those persons solicited were “members” of NRWC, within the 

meaning of the Act and FEC regulations.

After receiving notice of the FEC’s intent to fi le a civil action, NRWC fi led suit in October 1977 (NRWC v. FEC, 

Civil Action No. 78-0315), seeking injunctive and declaratory relief and challenging the constitutionality of 

sections 441b(b)(4)(A) and (C) of the Act, which, together, prohibit nonstock corporations from soliciting persons 

other than their “members.” Among its constitutional claims, NRWC asserted that section 441b(b)(4)(C) was 

unconstitutionally vague and infringed on the First Amendment rights of free speech and association of those persons 

solicited by NRWC. 

In February 1978, the cases were consolidated for argument before the U.S. District Court for the 

District of Columbia. 

District Court Ruling

Referring to NRWC’s articles of incorporation and bylaws, the district court found that NRWC was organized 

without members. The court held that NRWC had violated Section 441b(b)(4)(C) by soliciting contributions to its 

separate segregated fund from persons who were not members of NRWC. The court found that the legislative history 

of the Section 441b membership exception required a limited defi nition of “members.” The court defi ned “members” 

as those “...persons who have interests and rights in an organization similar to those of a shareholder in a corporation 

and a union member in a labor organization. To read the exception more broadly would be to upset the symmetry 

of the statutory scheme.” (501 F. Supp. 422, 432 (D.D.C. 1980)) The court noted that no class of persons solicited by 

NRWC had been given any such participation rights in NRWC.
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Appeals Court Ruling

On September 4, 1981, reversing the district court’s ruling, the appeals court held that the term “member” set forth at 

Section 441b(b)(4)(C) “...necessarily includes those individuals solicited by NRWC.... “ The appeals court concluded 

that the district court’s defi nition of “member” was “...so narrow that it infringes on associational rights.” The court 

noted that two identifi able public interests served by the Act (i.e., to eliminate the appearance or actuality of corruption 

in federal elections and to prevent coercive contributions) were not “...served by restricting the solicitation activities 

of a nonstock corporation organized solely for political purposes.” The court found that, “as to the fi rst interest, 

we believe that solicitation [alone] will neither corrupt offi cials nor distort elections.” As to the second interest, the 

court found that “...the individuals from whom NRWC solicits contributions, unlike employees of a corporation 

or members of a labor union, clearly are not subject to coercion.” In the court’s opinion, “the NRWC operation...

ensures that NRWC accurately identifi es and solicits only those individuals who share a similar political philosophy 

and who have evidenced a willingness to promote that philosophy through support of the Committee.”

On October 19, 1981, the Commission fi led a petition with the appeals court for a rehearing of the case and a 

suggestion for an en banc rehearing. On November 13, 1981, the U.S. Court of Appeals for the District of Columbia 

Circuit, sitting en banc, denied the FEC’s suggestion for a rehearing of National Right to Work Committee, Inc. 

(NRWC) v. FEC (NRWC) v. FEC (Civil Action No. 80-1487). On December 15, the Commission voted to petition the Supreme Court (Civil Action No. 80-1487). On December 15, the Commission voted to petition the Supreme Court

for a writ of certiorari.

Supreme Court’s Ruling

In rejecting the appeals court’s reasoning, the Supreme Court held that the “persons solicited by NRWC were 

insuffi ciently attached to the corporation to qualify as members under Section 441b(b)(4)(C) of the Act.” In this 

regard, the Court noted that the legislative history of Section 441b(b)(4)(C) indicated that “ ‘members’ of nonstock 

corporations were to be defi ned, at least in part, by analogy to stockholders of business corporations and members 

of labor unions. The analogy to stockholders and union members suggests that some relatively enduring and 

independently signifi cant fi nancial or organizational attachment is required to be a ‘member’ under 441b(b)(4)(C).” 

The Court found that those individuals solicited by NRWC through “random mass mailings” failed to meet this 

membership requirement: “Among other things, NRWC’s solicitation letters did not mention membership, its 

articles of incorporation disclaim the existence of members, and members play no part in the operations or 

administration of the corporation.” Consequently, the Court found that the respondent’s arguments would 

“virtually excise from the statute the restriction of solicitation to ‘members’.... ” and would “open the door to all but 

unlimited corporate solicitation.”

The Court found that the Act’s restrictions on solicitations by nonstock corporations did not raise “any insurmountable 

constitutional diffi culties.” The First Amendment “associational rights asserted by respondent...are overborne 

by the interests Congress has sought to protect in enacting Section 441b.” In this regard, “the statute refl ects a 

legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” 

Moreover, the Court noted that “the governmental interest in preventing both actual corruption and the appearance 

of corruption of elected representatives has long been recognized [by the Court], First National Bank of Boston v. 

Bellotti, 435 U.S. at 787, n.26, and there is no reason why it may not in this case be accomplished by treating unions, 

corporations, and similar organizations differently from individuals. California Medical Association v. FEC, 435 U.S. 

182, 201 (1981).”

As to the defendants’ claim that Section 441b(b)(4)(C) was unconstitutionally vague, the Court maintained that 

“there may be more than one way under the statute to go about determining who are ‘members’ of a nonprofi t 

corporation, and the statute may leave room for uncertainty at the periphery of its exception for solicitation of 

‘members.’ However, on this record we are satisfi ed that NRWC’s activities extended in large part, if not in toto, to 

people who would not be members under any reasonable interpretation of the statute. See Broadrick v. Oklahoma, 

413 U.S. 601 (1973).”

Remand to Appeals Court

The Court then remanded the case to the appeals court to consider, among other things, “the...imposition of a 

$10,000 civil penalty” on NRWC for unlawful solicitations to its separate segregated fund. On September 2, 1983, the 

appeals court found that the district court had erred in fi nding NRWC’s violation to be “knowing and willful.” The 

appeals court therefore concluded that the $10,000 civil penalty imposed by the district court was unwarranted.
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Remand to District Court

After the case had been remanded to the district court, the court accepted a consent order on October 4, 1984, which 

provides that:

• NRWC, ERCC and any of their agents will not solicit contributions to ERCC from persons other than NRWC’s 

members. See 2 U.S.C. §441b(b)(4). 

• Within thirty days of the date of the consent order, NRWC and ERCC will mail refunds totalling $67,401.62 

to those individuals unlawfully solicited on June 21 and September 9-15, 1976. (The court will grant extensions 

for reasonable delays.)

• Each refund will be accompanied by a letter informing the contributor that the courts have determined that 

the solicitation constituted a violation of the law’s prohibition on corporate contributions which was not 

knowing and willful. 2 U.S.C. §441b. 

• The refund checks will expressly, and in bold print, require deposit within 30 days from the date drawn. 

• NRWC and ERCC will report to the FEC on the status of the refund checks indicating whether they were 

undeliverable, cleared through the bank or remained outstanding. 

• Within 30 days of the consent order, NRWC and ERCC will pay a $5,000 civil penalty (without interest) to 

the U.S. Treasury. 

• Within 30 days of the consent order, NRWC and ERCC will pay FEC court costs from the district court 

proceeding amounting to $4,483.64 (without interest). 

• Within an agreed upon time, NRWC and ERCC will donate to the Salvation Army: any contribution refunds 

that were undeliverable; all checks which remain outstanding; and $15,000 in lieu of the interest accrued from 

April 24, 1980, on refundable contributions, NRWC’s civil penalty and the FEC’s court costs. Once NRWC 

and ERCC have satisfi ed these conditions, the parties will fi le a joint motion to:

• Have the Aetna Casualty and Surety Company released from any and all obligations under the Supersedes 

Bond fi led with the district court in these actions; and 

• Have all NRWC and ERCC contributor information which was fi led under seal with the district court returned 

to NRWC and ERCC. In addition, the FEC will return to NRWC and ERCC all contributor information that 

the defendants presented to the FEC under seal, together with all copies, lists, summaries or digests made from 

them.

Source: FEC Record, November 1981, p. 3; January 1982, p. 7; February 1983, p. 3; November 1983, p. 6; and January 1985, p. , November 1981, p. 3; January 1982, p. 7; February 1983, p. 3; November 1983, p. 6; and January 1985, p. 

7.

National Right to Work Committee: FEC v., 501 F. Supp. 422 (D.D.C. 1980), rev’d, 665 F.2d 371 (1981), , 665 F.2d 371 (1981), rev’d, 459 U.S. 197 (1982), , 459 U.S. 197 (1982), on 

remand, 716 F.2d 1401 (1983). , 716 F.2d 1401 (1983). 1 As defi ned by 11 CFR 114.1(e), “‘Members’ mean all persons who are currently satisfying the requirements for membership.... A 

person is not considered a member...if the only requirement for membership is a contribution to a separate segregated fund.”

FEC v. NATIONAL RIGHT TO WORK COMMITTEE (90-0571)

On February 15, 1996, the U.S. District Court for the District of Columbia ruled that the FEC was barred from suing 

for a civil penalty in this case because the 5-year statute of limitations had expired. 28 U.S.C. §2462. Additionally, the 

court ruled that injunctive relief was not warranted because the defendant had not violated the law again for more 

than 10 years.

Background

The National Right to Work Committee (NRWC) is a nonprofi t corporation that defends workers’ rights to refuse to 

join or support a labor union. In 1984, the NRWC spent $100,000 to hire private detectives to infi ltrate the AFL-CIO, 

the National Education Association (NEA) and the Mondale for President Committee for the purpose of gathering 

evidence that the unions were using their general treasury monies to provide support to Walter Mondale’s Presidential 

effort. (The use of labor union money in connection with a federal election is prohibited by 2 U.S.C. §441b.) The 

NRWC used the information gathered by its hired detectives to fi le administrative complaints with the FEC.

In October 1984, the NEA fi led an administrative complaint with the FEC that accused the NRWC of violating the 

same federal election laws that the NRWC had accused the NEA of violating. The NEA complaint contended that 

the NRWC’s payment of $100,000 represented illegal contributions and expenditures because the payments funded 
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the services of detectives who, in the course of conducting their clandestine information gathering, rendered services 

to the Mondale campaign.

On May 23, 1989, the Commission found “probable cause” that the NRWC had violated §441b. On March 13, 1990, 

the FEC fi led this lawsuit.

Statute of Limitations

In general, federal government agencies must initiate proceedings to assess civil penalties, fi nes and forfeitures 

within 5 years from “the date when the claim fi rst accrued.” 28 U.S.C. §2462. In FEC v. National Republican Senate 

Committee, the court ruled that this statute of limitations applied to the FEC and that the statute of limitations began 

to run when the alleged offense was committed. The FEC conceded that the NRWC’s hired detectives ceased their 

undercover operations by September 1984. The court noted that the Commission did not fi le this lawsuit until March 

of 1990. The court concluded that the 5-year statute of limitations ran out on this case and the FEC was therefore 

barred from pursuing a civil penalty in this matter.

Furthermore, the court ruled that because the FEC failed to put forth any compelling evidence that the NRWC had 

violated the law since 1984, it was both unnecessary and unwarranted to issue injunctive relief.

Source: FEC Record, April 1996, p. 11. , April 1996, p. 11.

National Right to Work Committee: FEC v., No. 90-0571 (D.D.C. Feb. 15, 1996).

FEC v. NCPAC (83-2823)

In September 1980, the U.S. District Court for the District of Columbia ruled that Section 9012(f) was unconstitutional 

as applied to Americans for Change, Americans for an Effective Presidency and FCM, three multicandidate political 

committees (not affi liated with any parent organization). This provision of the Presidential Election Campaign 

Fund Act prohibits unauthorized committees (i.e., those not authorized by a candidate) from making expenditures 

exceeding $1,000 to further the election of a publicly funded Presidential nominee in the general election. The 

committees had planned to make expenditures in excess of $1,000 to support the Republican Presidential nominee’s 

general election campaign. 

On January 19, 1982, the Supreme Court voted 4 to 4 to affi rm the D.C. district court’s September decision, with 

Justice Sandra O’Connor not participating. However, since the high Court’s vote on the suit had been equally divided, 

its affi rmance had no precedential value. Subsequently, the FEC issued advisory opinions to NCPAC and FCM in 

which the FEC stated that Section 9012(f) may be enforced.1

In an effort to obtain a fi nal ruling by the high Court on Section 9012(f)’s constitutionality, the FEC fi led a new suit 

with the U.S. District Court for the Eastern District of Pennsylvania on June 14, 1983. (FEC v. NCPAC and FCM; 

Civil Action No. 83-2823.) This suit was consolidated with another suit, Democratic National Committee (DNC) v. 

NCPAC (Civil Action 83-2329), which had been fi led on May 1, 1983. The FEC intervened in that suit as defendants (Civil Action 83-2329), which had been filed on May 1, 1983. The FEC intervened in that suit as defendants

and argued that the DNC lacked statutory and constitutional standing to bring that action. In the consolidated suits, 

plaintiffs asked that a three-judge panel of the court be convened to declare that: 

• Expenditures (in excess of $1,000) that NCPAC and FCM each intended to make on behalf of the publicly 

funded Republican Presidential nominee in 1984 would be prohibited by, and in violation of, 26 U.S.C. 

§9012(f)(1); and

• Section 9012(f)(1), as applied to the defendant committees, was constitutional.

District Court’s Ruling

On December 12, 1983, the Pennsylvania district court fi rst ruled that the Democrats had standing to bring suit. The 

court then held that Section 9012(f) was unconstitutional on its face because it violated First Amendment rights of 

free speech and association. The court based its fi nding on the Buckey v. Valeo opinion. That opinion, the court said, 

allows “restrictions on true campaign speech only to prevent corruption or its appearance.” The court concluded that 

“plaintiffs have produced virtually no evidence of actual corruption and little admissible evidence of the appearance 

of corruption.” The court held the view that “modest expenditures by political committees...[such as the defendant 

committee] have almost no potential to corrupt or to create the appearance of corruption.... ”

On December 16, 1983, the FEC fi led an appeal of this decision with the Supreme Court.
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Supreme Court’s Ruling

On March 18, 1985, the Supreme Court handed down a ruling in FEC v. National Conservative Political Action 

Committee (NCPAC) (CA No. 83-1032), which affi rmed the Pennsylvania district court’s decision that 26 U.S.C. 

§9012(f) was unconstitutional on its face because the provision violated First Amendment rights of free speech and 

association. However, the Court reversed the district court’s holding that the Democratic Party and the Democratic 

National Committee (the Democrats) had standing to fi le a suit regarding Section 9012(f)’s constitutionality and 

instructed the lower court to dismiss the Democrats’ suit. 

The Democrats Lack Standing to Bring Suit

In reversing the lower court’s ruling that the Democrats had standing to bring suit, the Supreme Court noted that, 

while the Fund Act authorized the Democratic National Committee to bring “appropriate” suit,2 such private suits 

“to construe or enforce the Act are inappropriate interference” with the FEC’s “responsibilities for administering and 

enforcing the Fund Act.”

Section 9012(f) Violates the First Amendment 

The Court noted initially that “the expenditures at issue are squarely prohibited by §9012(f).” Nevertheless, since the 

committees’ allegedly independent expenditures on behalf of President Reagan’s campaign “produc[ed] speech at the 

core of the First Amendment and implicat[ed] the freedom of association, they [were] entitled to full protection under 

that Amendment.” The Court stated that in a Presidential election, “allowing the presentation of [political] views 

while forbidding the expenditure of more than $1,000 to present them is much like allowing a speaker in a public hall 

to express his views while denying him the use of an amplifying system.”

The Court therefore concluded that “Section 9012(f)’s limitation on independent expenditures by political committees 

is constitutionally infi rm, absent any indication that such expenditures have a tendency to corrupt or to give the 

appearance of corruption. But even assuming that Congress could fairly conclude that large-scale political action 

committees have a suffi cient tendency to corrupt, §9012(f) is a fatally overbroad response to that evil. It is not 

limited to multimillion dollar war chests, but applies equally to informal discussion groups that solicit neighborhood 

contributions to publicize views about a particular Presidential candidate.”

Finally, the Court held that “section 9012(f) cannot be upheld as a prophylactic measure deemed necessary by 

Congress. The groups and associations in question here, designed expressly to participate in political debate, are quite 

different from the traditional organizations organized for economic gain [e.g., corporations and labor organizations] 

that may properly be prohibited from making contributions to political candidates.”

Source: FEC Record, January 1984, p. 8; and May 1985, p. 6. , January 1984, p. 8; and May 1985, p. 6.

National Conservative Political Action Committee: FEC v.; Democratic Party of U.S. v. National Conservative Political Action 

Committee; 578 F. Supp. 797 (E.D. Pa. 1983) (three-judge court) aff’d in part, rev’d in part, 470 U.S. 480 (1985). 1 For a summary of AO’s 1983-10 and 1983-11, see p. 2 of the July 1983 Record. 2 Under Section 9011(b)(1) of the Fund Act, the national committee of a political party, the FEC and individuals eligible to vote for 

President may fi le appropriate actions which seek to implement or construe provisions of the Fund Act.

FEC v. NCPAC (84-0866)

On May 16, 1986, the U.S. District Court for the Southern District of New York granted the FEC’s motion for 

summary judgment in FEC v. National Conservative Political Action Committee (NCPAC). (Civil Action No. 84 Civ. 

0866 (GLG).) The court ruled that expenditures made by NCPAC in its campaign to defeat Senator Moynihan’s 

1982 reelection effort constituted excessive in-kind contributions to Bruce Caputo. The court found that NCPAC 

had further violated the election law by failing to properly report these expenditures as “in-kind” contributions. 

Accordingly, on June 13, 1986, the court imposed a $15,000 civil penalty on NCPAC and ordered the PAC to fi le 

amended reports with the FEC within 30 days of the court’s order.

Background

During the 1981-82 election cycle, as part of its strategy to defeat Senator Moynihan, NCPAC established a political 

action committee, “New Yorkers Fed Up with Moynihan.” NCPAC also hired Arthur J. Finkelstein Associates, a 

polling and political consulting fi rm, to develop a media strategy to advocate Senator Moynihan’s defeat, conduct 

and analyze polls, and select election issues on which Senator Moynihan was most vulnerable. From April 1981 until 

August 1982, NCPAC spent $73,755 on its anti-Moynihan campaign. During this time, the Finkelstein fi rm also 

worked for Bruce Caputo’s campaign. 
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In March 1981, Mr. Caputo announced that he would seek the Republican Party’s nomination for Mr. Moynihan’s 

Senate seat, and he retained Mr. Finkelstein as a paid political consultant. By March 1982, when Mr. Caputo withdrew 

from the Senate race, his campaign committee had paid Mr. Finkelstein’s fi rm $28,000 to assist in all aspects of Mr. 

Caputo’s Senatorial primary campaign. 

In January 1982, the FEC received a complaint from the New York State Democratic Committee alleging that 

independent expenditures reported by NCPAC for its anti-Moynihan campaign were actually in-kind contributions 

to the Caputo campaign. In September 1983, the FEC found probable cause to believe that NCPAC’s expenditures 

were, in fact, contributions. NCPAC had therefore exceeded the election law’s contribution limits and had violated 

the disclosure requirements. After failing to reach a conciliation agreement with the respondent, the FEC fi led suit 

against NCPAC on February 6, 1984. 

NCPAC did not deny that, on its face, the election law limits the amount of such contributions. NCPAC claimed, 

however, that, in making the expenditures, it had relied in good faith on an FEC advisory opinion issued to the PAC 

in March 1980.

The Court’s Ruling

The district court concluded that NCPAC could not rely on the FEC’s advisory opinion because “the distinctions 

between the facts as they actually unfolded and the facts addressed in the FEC’s advisory opinion are patent.” The 

court found that Moynihan and Caputo were “for all practical purposes, opponents” during the primary season. The 

court also noted that the Finkelstein fi rm’s role in both “the NCPAC and Caputo efforts was far more signifi cant than 

that of a vendor of advertising services or a polling company. Finkelstein was NCPAC’s key strategist. He formulated 

and directed the execution of NCPAC’s plan to defeat Senator Moynihan.... Simultaneously, he served as the chief 

architect of Bruce Caputo’s campaign.” The court concluded that NCPAC’s coordination with the Caputo campaign 

“far exceeded the ‘communication’ sanctioned by the FEC” in its advisory opinion. Under these circumstances, the 

court concluded that “NCPAC’s anti-Moynihan expenditures must be deemed contributions to the Caputo campaign” 

rather than independent expenditures. 

On July 17, 1986, the defendants fi led an appeal with the U.S. Court of Appeals, 2nd Circuit. (Civil Action No. 86-

6139) Both parties fi led a Stipulation for Withdrawal of Appeal on August 27, 1986. The defendants were ordered to 

pay the FEC’s taxation of costs and on February 3, 1987, the district court issued an Acknowledgment of Satisfaction 

of Judgment, thereby closing the matter. 

Source: FEC Record, July 1986, p. 6; and April 1980, p. 4. , July 1986, p. 6; and April 1980, p. 4.

National Conservative Political Action Committee: FEC v., 647 F. Supp. 987 (S.D.N.Y. 1986).

FEC v. NCPAC (85-2898)

On April 29, 1987, the U.S. District Court for the District of Columbia granted plaintiff’s motions for summary 

judgment and dismissal of defendants’ counterclaim in FEC v. National Conservative Political Action Committee

(Civil Action No. 85-2898). The court found that the defendants had violated the law by failing to include a statement 

in their solicitation material clearly identifying the person who paid for the communication.

Background

During the 1984 election cycle, NCPAC mounted a $10 million independent expenditure campaign advocating the 

reelection of President Reagan. As part of this project, NCPAC mailed out materials urging the reelection of the 

President and soliciting contributions to fi nance its expenditures for this effort. The solicitation material did not 

identify who paid for it. Under the Act and Commission regulations, any communication which expressly advocates 

the election or defeat of a clearly identifi ed candidate or which solicits contributions must clearly display a disclaimer 

identifying the person(s) who paid for the communication. 2 U.S.C. §441d(a)(3). 

On April 23, 1985, after attempting to resolve this enforcement matter through informal methods of conciliation, the 

Commission fi led suit against the defendants in the U.S. District Court for the District of Columbia. In its complaint, 

the FEC sought the following: 

• A judgment declaring that the defendants violated the law by failing to include a proper disclaimer in their 

solicitation material; 

• An order permanently enjoining the defendants from repeating the violation; 

• An assessment of a civil penalty; and

• An award of attorney’s fees and costs incurred by the FEC.
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In their counterclaim, the defendants sought review of the FEC’s decision to bring this action pursuant to the 

Administrative Procedure Act (APA), 5 U.S.C. §701 et seq. The defendants claimed that the FEC decision was “fi nal 

agency action” within the meaning of section 704 of the APA and, therefore, reviewable. Furthermore, the defendants 

claimed that the FEC decision was “arbitrary, capricious, and an abuse of discretion under the APA” because the 

Commission had declined to initiate a civil enforcement action in another similar case. Finally, in denying the alleged 

violation of the Act, the defendants argued that the use of the NCPAC postal frank and other references throughout 

the material made it quite clear who paid for the communication. In their view, therefore, a specifi c disclaimer was 

not necessary.

Court’s Ruling

In ruling that the defendants had violated 2 U.S.C. §441d(a)(3), the court said that “the Act and regulations do 

not provide for disclaimers by inference and the court is consequently of the view that these repeated references to 

NCPAC which appear within the materials do not satisfy section 441d’s disclaimer requirement.”

The court also dismissed the defendants’ counterclaim. Citing an earlier Supreme Court case, the court held that 

the initiation of enforcement proceedings does not constitute “fi nal agency action” and is, therefore, not subject to 

judicial review under the APA. Regarding the defendants’ allegation that the FEC exercised selective prosecution 

against NCPAC, the court ruled that one isolated instance of nonenforcement was not evidence that NCPAC was 

being singled out for prosecution and that even if it were, defendants produced no evidence demonstrating that this 

action resulted from an improper motive. 

Finally, the court assessed a civil penalty of $3,000 against the defendants. On June 27, 1987, the defendants fi led a 

motion to stay the decision. 

Source: FEC Record, July 1987, p. 5. , July 1987, p. 5.

National Conservative Political Action Committee: FEC v., No. 85-2898 (D.D.C. April 29, 1987) (unpublished opinion).

FEC v. NEA 

On July 20, 1978, the U.S. District Court of the District of Columbia granted the Commission’s motion for summary 

judgment in this case. The FEC had fi led suit against the National Education Association (NEA), its separate segregated 

fund (NEA-PAC) and eighteen of its state affi liates seeking to enjoin them from collecting political contributions by 

means of a “reverse checkoff” procedure. Under this procedure, a political contribution is automatically deducted 

from a member’s salary along with his/her dues payment. The contribution is subsequently refundable upon written 

request by the member.

In addition to granting summary judgment, the court issued the following orders: 

• Defendants are permanently enjoined from using the reverse check-off procedure to collect political 

contributions to NEA-PAC.

• Defendants, in consultation with the Commission, must prepare a plan by which its members will be informed 

of the suit and the decision of the court. In addition, the plan must provide a method by which the members 

are afforded an opportunity to obtain, at no expense to them and with minimal effort, a refund of any monies 

deducted from the paychecks through the reverse check-off. The plan must be presented to the court by 

August 25, 1978. 

• Defendants’ counterclaim against the Commission was dismissed. 

On November 2, 1978, the U.S. District Court for the District of Columbia ordered the NEA to obtain written 

affi rmation from participants in the reverse check-off programs of their intent to make a political contribution to its 

separate segregated fund, NEA-PAC. The court set April 1, 1979, as the deadline for obtaining each member’s written 

consent to the contributions they had made through the reverse check-off procedure. NEA was further required to 

return funds to individuals who do not submit the affi rmation. 

Source: FEC Record, September 1978, p. 4; and January 1979, p. 3. , September 1978, p. 4; and January 1979, p. 3.

National Education Association: FEC v., 457 F. Supp. 1102 (D.D.C. 1978).
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FEC v. NEW REPUBLICAN VICTORY FUND

On June 23, 1986, the U.S. District Court for the Eastern Division of Virginia, Alexandria Division, approved a consent 

order between the Commission and defendants, the New Republican Victory Fund (the Fund), a nonconnected 

political committee, and the Fund’s treasurer, Charles R. Black, Jr. The consent order provides that defendants 

violated section 434(a)(4)(A) of the election law during the 1984 election cycle by:

• Failing to fi le the Fund’s October quarterly, year-end and post-general election reports; and

• Filing its July quarterly report approximately 64 days late. 

Within 30 days of fi ling the consent order, the defendants agreed to:

• File these reports; and

• Pay a $2,350 civil penalty to the U.S. Treasurer. 

The consent order concluded a suit fi led by the FEC on April 18, 1986.

Source: FEC Record, August 1986, p. 7. , August 1986, p. 7.

FEC v. NEW YORK STATE CONSERVATIVE PARTY 

STATE COMMITTEE/1984 VICTORY FUND (87-3309)

On April 17, 1990, the U.S. District Court for the Southern District of New York issued a fi nal consent order and 

judgment declaring that the New York State Conservative Party State Committee/1984 Victory Fund made excessive 

contributions in connection with a 1982 direct mail project for Florence M. Sullivan, a Republican candidate 

in the 1982 Senatorial primary election in New York. (Civil Action No. 87-3309). The order included a $15,000 

civil penalty. 

The consent order stated that the defendants fi rst made a $4,980 in-kind contribution to the Sullivan for Senate 

Committee by paying for the printing of direct mail literature. Subsequently, the defendants allowed the Sullivan 

Committee to use the Victory Fund’s nonprofi t postal permit, saving the Sullivan committee $24,852.15 on postage 

(i.e., the difference between the usual bulk rate for the Sullivan letters and the postage actually paid using the nonprofi t 

permit). These in-kind contributions exceeded the $5,000 per candidate, per election limit for multicandidate 

committees, set forth at 2 U.S.C. §441a(a)(2)(A). 

In addition, the order stated that the Victory Fund failed to report the in-kind contribution of the postage costs, in 

violation of 2 U.S.C. §434(b).

The consent order required the Victory Fund to amend its reports and pay a $15,000 civil penalty.1 Finally, the 

defendants were permanently enjoined from future similar violations.

Source: FEC Record, June 1990, p. 7. , June 1990, p. 7. 1 Payment of the civil penalty in this consent order will also satisfy two prior outstanding default judgments in FEC v. 1984 Victory 

Fund (Civil Action Nos. 86-3891 and 85-8384). See the March 1987, June 1986 and December 1985 issues of the (Civil Action Nos. 86-3891 and 85-8384). See the March 1987, June 1986 and December 1985 issues of the Record for more for more 

information on those suits.
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FEC v. NOW

On May 11, 1989, the U.S. District Court for the District of Columbia issued a memorandum opinion granting the 

defendant’s motion for summary judgment in FEC v. National Organization for Women (NOW). The court found 

that the election law’s prohibitions against corporate political expenditures did not apply to a series of direct mailings 

sent as part of a NOW membership drive because the materials did not contain express advocacy.

Background

The agency fi led suit against NOW, a nonprofi t corporation, in August 1987 after failing to reach a conciliation 

agreement with the organization in a compliance matter generated by a 1984 complaint from the National Conservative 

Political Action Committee. 

The FEC charged that three direct mailings sent by NOW during the 1984 election cycle contained communications 

connected with several U.S. Senate elections. The letters mentioned several Senators who were running for reelection 

in 1984, including Jesse Helms and Strom Thurmond. Although NOW had established a separate segregated fund 

for political activities, the expenditures for the mailings were made with money from its general treasury. The FEC 

charged that these expenditures constituted violations of 2 U.S.C. §441b, which prohibits all corporations from 

making expenditures in connection with federal elections.

District Court Decision

In fi nding that now’s fi nancing of the preparation and distribution of the letters in question with money from its 

corporate treasury did not constitute a violation of the election law, the court primarily addressed the issue of

 express advocacy. 

Citing the Supreme Court’s 1986 ruling in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), the court reasoned 

that section 441b’s prohibition against expenditures made “in connection with” federal elections did not broaden 

the general defi nition of “expenditure” given in section 431(9)(a)(i) of the Act, i.e., disbursements, gifts and other 

types of payments made “for the purpose of infl uencing” federal elections. The court determined that section 441b’s 

prohibition against expenditures made “in connection with” federal elections could only be interpreted as prohibiting 

expenditures made “for the purpose of infl uencing” federal elections. Further citing MCFL and other Supreme Court 

decisions, the district court concluded that this interpretation of the defi nition of “expenditure” required that the 

communication expressly advocate the election or defeat of a candidate. Express advocacy, in the court’s view, had to 

include “an explicit and unambiguous reference” to a candidate, as well as a clear exhortation to vote for or against 

that candidate. Using this interpretation of express advocacy—based on MCFL, the appeals court ruling in FEC 

v. Furgatch, and other decisions—the court found that now’s letters did not contain any language that expressly 

advocated the election or defeat of any candidate. 

The court found that the central purpose of each of the mailings was apparently to expand the organization’s 

membership, not to tell recipients how to vote. While the letters named some Senators who were candidates, they also 

mentioned some who were not running for reelection in 1984. Moreover, Senators were named mainly in the context 

of their opposition to causes embraced by now. The letters called for a variety of actions by the recipients in support 

of the organization and its causes. Such actions included, for example, communicating support for the equal rights 

amendment to the recipients’ own Senators, and making contributions to now. The letters “fail[ed] to expressly tell the 

reader to go to the polls and vote against particular candidates.” Since the letters were “suggestive of several plausible 

meanings...now’s letters fail the express advocacy test proposed by the ninth circuit in Fugatch.”

The district court added that, since the actual distribution of the letters was conducted by an outside direct mail 

contractor that did not inform now of where the mailings would be sent, NOW “clearly lacked the intent to infl uence” 

any particular senatorial election. 

The court decided that the now mailings constituted discussion of political issues, protected by the fi rst amendment, 

rather than an attempt to infl uence the election or defeat of any candidates because the letters did not contain 

express advocacy. 

The FEC appealed the decision. In October 1991, however, following the supreme court’s denial of the Commission’s 

petition for a writ of certiorari in Faucher v. FEC, the commission fi led a motion to dismiss the appeal. The U.S. 

Court of Appeals for the District of Columbia Circuit granted the motion on October 11, 1991. 

Source: FEC Record, July 1989, p. 7; and November 1991, p. 1. , July 1989, p. 7; and November 1991, p. 1.

FEC v. NOW FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989), appeal dismissed (D.C. Cir. Oct. 11, 1991). , 713 F. Supp. 428 (D.D.C. 1989), appeal dismissed (D.C. Cir. Oct. 11, 1991). 
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FEC v. NRA (81-1218)

On April 27, 1983, the U.S. District Court for the District of Columbia issued a consent decree resolving claims 

brought by the FEC against the National Rifl e Association of America (NRA), an incorporated association; the 

Institute for Legislative Action (ILA), NRA’s lobbying organization; and the NRA Political Victory Fund (PVF), 

NRA’s separate segregated fund (Civil Action No. 81-1218). 

The FEC fi led suit against the defendants in May 1981, claiming that they had violated 2 U.S.C. §441b(a), which 

prohibits corporations from making contributions in connection with federal elections. Specifi cally, the FEC 

alleged that:

• NRA and ILA had made corporate expenditures in connection with the 1978 and 1980 Congressional elections 

and the 1980 Presidential elections;

• NRA and ILA had made corporate contributions to PVF in the form of advanced payments of expenditures 

on behalf of PVF, for which they were later reimbursed by PVF; and

• PVF had received corporate contributions by accepting (and subsequently reimbursing) the advanced payments 

of expenditures by NRA and ILA.

On January 6, 1983, the court dismissed, without prejudice, a portion of the FEC’s claims, namely, allegations related 

to NRA’s purchase of certain goods and services for PVF that had resulted in a violation of 2 U.S.C. §441b(a). The 

court found that it did not have subject matter jurisdiction over these specifi c factual allegations because the FEC had 

not undertaken conciliation with respect to them. 

By the terms of the court’s April 27 consent decree, the defendants agreed that:

• They will no longer engage in those activities alleged in the FEC’s complaint which were not dismissed as part 

of the court’s January 6, 1983, order. 

• They will no longer spend corporate funds in connection with any federal election or otherwise engage in 

political activities prohibited by 2 U.S.C. §441b(a). 

• They will limit partisan communications to NRA’s restricted class of personnel (as specifi ed by 2 U.S.C. 

§431(8)(B)(vi)). 

• They will limit corporate expenditures in connection with federal elections to those exempt activities explicitly 

permitted by the Act and FEC regulations. 

Source: FEC Record, June 1983, p. 11. , June 1983, p. 11.

National Rifl e Association: FEC v., 553 F. Supp. 1331 (D.D.C. 1983).

FEC v. NRA (85-1018)

On June 29, 2001, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Rifl e 

Association (the NRA) and its lobbying organization, the NRA American Institute for Legal Action (ILA), violated 

the Federal Election Campaign Act’s (the Act) ban on corporate contributions and expenditures during the 1978 and 

1982 election cycles. 2 U.S.C. §441b(a). While the district court had ruled that the NRA also violated the ban in 1980, 

the appellate court determined that during 1980 the NRA qualifi ed for a constitutionally-mandated exemption from 

the ban. As a result, the appeals court remanded the case to the lower court in order to have civil penalties calculated 

based on the 1978 and 1982 violations alone.

Background

During the 1978, 1980 and 1982 election cycles, the NRA paid $37,833 of the Political Victory Fund’s expenses for 

federal election activity, including payments for newspaper advertisements, direct mailings and other materials that 

supported or opposed individual candidates. The Political Victory Fund then distributed some of these materials 

to NRA members, fi rearms dealers and other related organizations. The Political Victory Fund later reimbursed the 

NRA for these expenses and reported the disbursements as independent expenditures on its FEC disclosure reports.

In 1985, the Commission fi led a civil suit against the NRA, the ILA and the Political Victory Fund, claiming that they 

had violated the Act’s prohibition on corporate contributions and expenditures. 
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In response, the NRA argued that its payments on behalf of the Political Victory Fund were for that committee’s 

administrative expenses and, thus, permissible under the Act. The NRA also challenged the constitutionality of the 

Act as applied to its activities, arguing that the organization should qualify for the so-called MCFL exemption that 

allows certain nonprofi t political corporations to make independent expenditures.

This exemption is based on the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life (MCFL), 479 

U.S. 238 (1986). In that case, the Court held that the Act’s general prohibition of corporate-fi nanced independent 

expenditures could not constitutionally be applied to nonprofi t ideological corporations that possess three specifi ed 

features that preclude them from presenting the kinds of dangers at which the prohibition is directed.1 See also Austin 

v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

District Court Decision

The district court rejected the NRA’s argument that its payments to the Political Victory Fund were merely for 

administrative expenses. The court also concluded that the NRA, unlike MCFL, did not qualify for the constitutionallymandated exemption from the Act’s prohibition of corporate independent expenditures. The NRA, the court 

stated, had not been formed for the express purpose of promoting political ideas and pursued a variety of activities, 

many of which were not political. The court also stated that the NRA had no policy of refusing contributions 

from business corporations. The court fi ned the NRA and ILA $25,000 for making prohibited contributions and 

expenditures, and it imposed a separate $25,000 civil penalty against the Political Victory Fund for receiving prohibited 

corporate contributions.

Appeals Court Decision

Statutory Claims

On appeal, the NRA again argued that its payments on behalf of the Political Victory Fund were permissible payments 

of administrative expenses. In addition, the NRA argued that its:

• In-kind contributions of corporate materials and facilities were allowable under Commission regulations that 

permit persons to use corporate facilities for election-related activity, so long as they reimburse the corporation 

within a commercially reasonable time for the market value of the production of the materials (11 CFR 114.9 

(c)); and

• Payments to NRA employees working for Political Victory Fund on the campaigns of federal candidates 

were permissible because those payments did not meet the statutory defi nition of “contribution” at 2 U.S.C. 

§431(8)(A). 

The appeals court, however, deferred to the Commission’s interpretation of the defi nition of administrative expenses 

at 11 CFR 114.1(b), which allows corporations to cover only the overhead and start-up costs of their political action 

committees. The court also deferred to the Commission’s interpretation of 11 CFR 114.9(c), which allows only 

stockholders and employees acting as volunteers to use corporate facilities to produce materials in connection with 

a federal election. Finally, relying on FEC Advisory Opinion 1984-24, the court held that the NRA’s payments to 

its employees who were working for the Political Victory Fund on candidates’ campaigns were prohibited corporate 

contributions under the defi nition of “contribution” at section 441b(b)(2), which addresses corporate activity. The 

FEC’s advisory opinions, the court stated, are entitled to deference. They “not only refl ect the Commission’s considered 

judgment made pursuant to congressionally delegated lawmaking power, but [they] also have binding legal effect.”

Constitutional Challenge 

In its appeal, the NRA also renewed its claim that, under the MCFL decision, it was exempt from the ban on corporate 

contributions. The NRA argued that it was “not formed to amass capital, and its resources refl ect not the ‘economically 

motivated decisions of investors and customers, but rather its popularity in the political marketplace.’” 

The Commission argued that, unlike MCFL, the NRA does not have a narrow political focus but instead performs a 

wide variety of nonpolitical services for its members. The Commission also argued that the NRA’s extensive business 

activities and its acceptance of corporate contributions distinguished it from the kinds of corporations exempted by 

the Supreme Court in MCFL.

The appellate court stated that “the Commission must demonstrate that the NRA’s political activities threaten to 

distort the electoral process through the use of resources that, as MCFL put it, refl ect the organization’s ‘success in 

the economic marketplace’ rather than the ‘power of its ideas.’” The court concluded that the Commission had “failed 

to demonstrate that the NRA resembles a business fi rm more closely than a voluntary political association.”

The court found, however, that the $7,000 and $39,786 in corporate contributions that the NRA received in 1978 

and 1982, respectively, were substantial enough to risk turning it into a “potential conduit for the corporate 

funding of political activity” during these years. Thus, the court found no constitutional barrier to applying the 
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Act’s prohibitions to the NRA for those two years. In 1980, however, the NRA received only $1,000 in corporate 

contributions, an amount which, in the court’s view, did not demonstrate that the organization was acting as a conduit 

for corporate contributions. Therefore, the court held that the NRA was not in violation of the Act for contributions 

and expenditures it made to the Political Victory Fund during that year.

Penalties

The appeals court ordered that the case be remanded to the district court to recalculate penalties against the NRA, 

the ILA and the Political Victory Fund based solely on the 1978 and 1982 violations.

Rehearing

On August 23, 2001, the Court of Appeals for the District of Columbia Circuit denied the Commission’s petitions 

to have this case reheard by a panel of the court and heard en banc. The Commission had asked the court to revisit a 

portion of its June 29, 2001, ruling. The court had held that in 1980 the National Rifl e Association (NRA) qualifi ed 

for a limited exemption to the Federal Election Campaign Act’s ban on corporate contributions and expenditures. 

Although the court denied the FEC’s petitions, it did—at the Commission’s request—clarify that the NRA’s 1980 

exemption applied only to corporate independent expenditures and not to corporate contributions to candidates.

Source: FEC Record, August 2001, p. 3; and December 2001, p. 3. , August 2001, p. 3; and December 2001, p. 3. 1

 The three features set forth in MCFL are:

 1. The organization is a nonprofi t ideological corporation formed “for the express purpose of promoting political ideas, and 

 cannot engage in business activities.”

 2. It has “no shareholders or other persons affi liated so as to have a claim to its assets or earnings.”

 3. It has not been established by a corporation or labor union and has a policy “not to accept contributions from such 

 entities.”254 F.3d 173.

FEC v. NRA POLITICAL VICTORY FUND

On December 6, 1994, the Supreme Court ruled that the FEC lacked standing to independently bring a case under 

Title 2 of the U.S. Code before the Supreme Court. In future cases, the FEC must seek authorization from the U.S. 

Solicitor General if it wishes to represent itself in Title 2 cases. (Civil Action No. 93-1151.)

This decision brought to an end the FEC’s legal efforts to enforce a fi nding that the NRA contributed corporate 

monies to its separate segregated fund, the NRA Political Victory Fund. (Corporations are prohibited sources of 

contributions under 2 U.S.C. §441b(a).) In November 1991, the U.S. District Court for the District of Columbia 

had ruled in favor of the FEC and had imposed a $40,000 penalty on the defendants. On appeal, the U.S. Court of 

Appeals for the District of Columbia reversed the district court’s ruling on the grounds that the FEC’s two nonvoting, 

ex offi cio members, the Secretary of the Senate and the Clerk of the House, sat on the Commission in violation of 

the Constitution’s separation of powers.

District Court Ruling

In a November 15, 1991, order, modifi ed on December 11, the U.S. District Court for the District of Columbia 

found that a $415,745 payment made by the National Rifl e Association—Institute For Legislative Action (ILA) 

to NRA’s separate segregated fund was a corporate contribution in violation of 2 U.S.C. §441b(a). (The ILA is a 

component of NRA, a nonprofi t corporation.) (Civil Action No. 90-3090.) The court ordered defendants ILA, the 

NRA Political Victory Fund (the separate segregated fund) and the Fund’s treasurer to pay a $40,000 civil penalty. 

The court also ordered defendants to comply with 11 CFR 114.5(b)(3) in future transactions. Under that regulation, 

a corporation may reimburse its separate segregated fund (SSF) for expenses that the corporation could lawfully have 

paid as an administrative or solicitation expense, but the reimbursement must be made no later than 30 days after the 

SSF’s payment.

Application of Section 114.5(b)(3)

The payment at issue originated from transactions that took place in March and July 1988, when ILA paid for two 

solicitation mailings. The Fund reimbursed ILA $415,745, the full cost of the mailings, on August 1. ILA returned 

that amount to the Fund on October 20—81 days after the August payment. Because this reimbursement was made 

after the 30-day period specifi ed in section 114.5(b)(3), the court found that the October 20 payment was not a 

permissible reimbursement of solicitation expenses, as defendants had argued, but was instead an illegal corporate 

contribution to the Fund. The court observed that the October 20 payment was not used to pay for the solicitation 

material purchased in March and July. By defendants’ own account, the money was returned to the Fund to bolster 

its budget for campaign activities related to the 1988 elections.
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Application of MCFL

The court also rejected defendants’ argument that the October 20 payment was permissible under the Supreme 

Court’s decision in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986). MCFL permitted a 

nonprofi t corporation to make independent expenditures if, among other conditions, the corporation had a policy of 

not accepting donations from business corporations and labor unions. The district court found MCFL inapplicable 

here because the ILA does receive corporate donations.

Constitutional Status of FEC

Defendants also argued that the FEC lacked authority to bring suit because the FEC is a constitutionally fl awed 

agency. They fi rst claimed that the appointment of Commission members impermissibly restricts the appointment 

power granted the President under Article II because, under the Federal Election Campaign Act, the President is 

prevented from appointing more than three Commissioners from the same political party. Defendants further claimed 

that, because the President cannot control or remove Commissioners, the execution of the law does not rest with the 

President, an infringement of the sole executive power vested in the President under Article II. The court, however, 

ruled that the defendants did not have standing to raise these claims: “[D]efendants have raised an issue that bears on 

the rights of a third party, namely the President, and not on their own legal interests.”

Defendants also argued that the statute’s designation of the Clerk of the House and the Secretary of the Senate as 

nonvoting Commission members violated the separation of powers. Finding no showing that the nonvoting members 

participated in any decisions involving the present case, the court said that there was “no need to concern itself” with 

this argument.

FEC Requests Change in Civil Penalty

In its original order of November 15, the court had imposed a civil penalty in the amount of the FEC’s total costs in 

investigating and prosecuting the violation, the amount to be calculated by the FEC.

On December 2, the FEC fi led a motion asking the court to amend the civil penalty so that it refl ected the amount 

necessary to deter similar violations rather than the costs of the agency’s enforcement efforts, which the FEC viewed as 

unrelated to the violation at issue. The FEC also noted that such a penalty would be time consuming and burdensome 

to calculate.

In an amended opinion issued on December 10, the court ordered defendants to pay a $40,000 penalty. In imposing 

that amount, the court considered the defendants’ bad faith, the injury to the public, the defendants’ ability to pay 

and the need to vindicate the FEC’s authority. The court concluded: “Because of the deliberate nature of defendants’ 

actions, the Court must impose a substantial penalty in order to deter them from repeating this violation.” The court 

added that defendants could have accomplished their objective legitimately if they had used proper fi scal planning.

Appeals Court Ruling

On October 22, 1994, the U.S. Court of Appeals for the District of Columbia ruled that the composition of the 

Federal Election Commission “violates the Constitution’s separation of powers.”

Under the Federal Election Campaign Act (FECA), the President appoints the Commission’s six voting members, 

and Congress designates two non-voting ex offi cio members. The court found that “Congress exceeded its legislative 

authority when it placed its agents, the Secretary of the Senate and the Clerk of the House of Representatives, on the 

independent Commission as non-voting ex offi cio members.”

The court rejected the Commission’s contention that the ex offi cio members play an “informational or advisory 

role.” The court noted that “advice...implies infl uence, and Congress must limit the exercise of its infl uence...to its 

legislative role.” The court added that the “mere presence” of the Congressional representatives “has the potential 

to infl uence the other Commissioners.” Citing legislative history, the court concluded that Congress intended the ex 

offi cio members to “serve its interests while serving as commissioners.” Ultimately, the court said, “the mere presence 

of agents of Congress on an entity with executive powers offends the Constitution.”

Based on a severability clause in the FECA, the court concluded that “the unconstitutional ex offi cio membership 

provision can be severed from the rest of ” the statute, permitting a reconstituted Commission to continue to operate. 

The court added that Congress was not, in this instance, required to amend the statute.

The court rejected two other Constitutional challenges raised in the case; one regarding the Commission’s bipartisan 

composition and the other, its status as an independent agency. The NRA had argued that:

• The “FECA’s requirement that ‘[n]o more than 3 members of the Commission...may be affi liated with the 

same political party,’ 2 U.S.C. §437c(a)(1) (1988), impermissibly limits the President’s nomination power under 

the Appointments clause;” and
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• The FEC’s independence denies the President “suffi cient control over the Commission’s civil enforcement 

authority, a core executive function.”

The court found the fi rst of these challenges to be nonjusticiable because it is the Senatorial confi rmation process, 

and not the statute itself, that arguably restrains the President. Indeed, the court noted that “without the statute the 

President could have appointed exactly the same members” to the Commission.

The court also upheld the FEC’s status as an independent agency, citing a number of court cases that specifi cally 

sanction such entities.

The appeals court ruling reversed a district court decision that the NRA had violated 2 U.S.C. §441b(a) by contributing 

corporate funds to its separate segregated fund, the NRA Political Victory Fund. Having ruled on the Constitutional 

issue, the appeals court did not consider the merits of the case.

Commission Response

Following the appeals court’s decision, the Commission took several steps to ensure the uninterrupted enforcement 

of the federal election law. The agency:

• Reconstituted itself as a six-member body, comprising only those commissioners appointed by the President;

• Ratifi ed, in its reconstituted form, the regulations, forms, advisory opinions, audits, compliance matters and 

litigation issued and/or initiated by the former Commission; and

• Filed a petition for a writ of certiorari with the Supreme Court.

Supreme Court Decision

In December 1994, the Supreme Court ruled that the FEC lacked standing to independently bring Title 2 cases before 

the Court. As a result of the ruling, the FEC will have to seek authorization from the U.S. Solicitor General if it 

wishes to represent itself in Title 2 cases.

The FEC’s petition to the Supreme Court was fi led within the 90-day fi ling period mandated by law, but it was fi led 

without the authorization of the Solicitor General. The Court contrasted the language at 2 U.S.C. §437d(a)(6) with 

that of 26 U.S.C. §§9010(d) and 9040(d) to reach the conclusion that the FEC lacked standing to bring this case. 

The Title 2 statute empowers the FEC “to . . . appeal any civil action . . . to enforce the provisions of the” Federal 

Election Campaign Act. It fails, however, to explicitly provide the FEC with the authority to fi le a writ of certiorari 

or otherwise conduct litigation before the Supreme Court. By contrast, the Court stated, the Title 26 statute does 

specifi cally provide the FEC with the authority “to petition the Supreme Court for certiorari to review” judgments in 

actions to enforce the Presidential election fund laws. The Court interpreted the discrepancy in the language of these 

two statutes to indicate congressional intent to restrict the FEC’s independent litigating authority at the Supreme 

Court level to those matters involving the Presidential election laws.

The Court rejected the Commission’s argument that, in the past, it had represented itself before the High Court. The 

Court pointed out that none of those cases had challenged the FEC’s standing to petition the Court for a writ of 

certiorari. 

Although the Solicitor General authorized the FEC’s petition, this action came months after the 90-day fi ling period 

had closed—“too late in the day to be effective.”

The FEC’s petition for a writ of certiorari, therefore, was dismissed for want of jurisdiction. The action left standing 

the ruling of the court of appeals. 

Source: FEC Record, January 1992, page 7; December 1993, p. 2; and February 1995, p. 1. , January 1992, page 7; December 1993, p. 2; and February 1995, p. 1.

NRA Political Victory Fund: FEC v., 778 F. Supp. 62 (D.D.C. 1991), No. 90-3090 (D.D.C. Dec. 10, 1991), rev’d, 6 F.3d 821 (D.C. Cir. , 6 F.3d 821 (D.C. Cir. 

1993), cert. dismissed for want of jurisdiction, 115 S. Ct. 537 (Dec. 6, 1994).
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FEC v. ORTON

On April 27 and 28, 1997, the U.S. District Court for the District of Utah, Central Division, approved the parties’ 

settlement that required Utahns for Ethical Government (UEG) to pay a $9,000 civil penalty to the FEC for 

violations of the Federal Election Campaign Act (the Act) and to amend their termination report so that all of their 

expenditures would be reported as in-kind contributions to Orton for Congress. UEG also had to either refund $1,800 

in impermissible corporate contributions or remit that same amount to the U.S. Treasury.

The violations resulted from UEG’s involvement in the 1990 general election campaign for the 3rd Congressional 

District seat in Utah. UEG, a single-candidate political committee registered with the FEC, supported William Orton 

over his opponent, Karl Snow.

The settlement states that UEG accepted corporate contributions and contributions in the name of another, in 

violation of the Act. 2 U.S.C. §§441b(a) and 441f. The committee reported receipts of in-kind contributions of $1,000 

from Sherman Fugal and of $800 from Jayson Fugal. In fact, these contributions were actually from Fugal & Fugal, 

Inc., a corporation, d/b/a Peggy Fugal Advertising.

The settlement also states that, although UEG included disclaimers on its advertisements that opposed Mr. Orton’s 

opponent, the disclaimers failed to include a statement indicating whether the ads had been authorized by a candidate 

or candidate committee. Additionally, UEG failed to fi le a statement of organization with the Commission within 10 

days of becoming a political committee, as required by 2 U.S.C. §433(a).

The settlement includes no judicial determination as to whether expenditures of $11,452, made by UEG to pay 

for ads opposing Mr. Orton’s opponent, were in fact excessive contributions to Mr. Orton. The Commission, in its 

administrative proceedings, had found probable cause that UEG’s expenditure had been coordinated with the Orton 

campaign, based on the fact that a former Orton campaign volunteer had participated in some UEG activities. Under 

the law, any expenditure made in cooperation with or at the suggestion of a candidate or his campaign is considered a 

contribution. 2 U.S.C. §441a(a)(7)(B)(i). In prior enforcement matters, the Commission had interpreted this provision 

to cover situations where the spender’s activity was based on knowledge of offi cial campaign strategy, the source of 

which was the candidate or the campaign. The defendants disagreed with the fi nding, arguing that the Commission 

had no direct evidence of the alleged violation.

The claims against all the defendants, including Mr. Orton and his campaign committee, will be dismissed with 

prejudice once UEG pays the fi ne and amends its reports.

Source: FEC Record, June 1997, p. 6. , June 1997, p. 6.

FEC v. PARISI

On October 31, 1996, the U.S. District Court for the Southern District of New York assessed a $30,000 civil penalty 

against Angelo Parisi for exceeding the contribution limits of the Federal Election Campaign Act.

The lawsuit against Mr. Parisi grew out of an administrative complaint fi led with the FEC in 1994 by the Center for 

Responsive Politics.

Among the violations, the FEC uncovered the following transactions:

• Contributions in excess of the individual $25,000 annual limit. 2 U.S.C. §441a(a)(3). Mr. Parisi made $33,942 

in contributions in 1991, $66,262 in contributions in 1992 and $40,405 in contributions in 1993.

• Contributions in excess of the $20,000 per individual limit on contributions to a national political party 

committee. 2 U.S.C. 441a(a)(1)(B). Mr. Parisi gave $27,262 to the National Republican Senatorial Committee 

(NRSC) and $22,750 to the National Republican Congressional Committee in 1992. He also gave $24,655 to 

the NRSC in 1993.

• Contributions in excess of the $5,000 annual limit on contributions to a PAC. 2 U.S.C. §441a(a)(1)(C). In 1991, 

Mr. Parisi gave $6,200 to American Citizens for Political Action.

Because of unusual mitigating circumstances, all but $5,000 of the penalty was suspended. However, Mr. Parisi will 

be required to pay the remaining $25,000 if he violates the contribution limits again.

Source: FEC Record, January 1997, p. 4. , January 1997, p. 4.
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FEC v. PHILLIPS PUBLISHING 

On July 16, 1981, the U.S. District Court for the District of Columbia denied an FEC petition for court enforcement 

of two subpoenas the Commission had issued to Phillips Publishing, Inc. (FEC v. Phillips Publishing, Inc., Civil 

Action No. 81-0079). The court granted the respondent’s motion to enjoin any further FEC investigation of either 

Phillips Publishing, Inc. or its biweekly newsletter, The Pink Sheet on the Left (The Pink Sheet).

FEC’s Claim

The FEC had issued the subpoenas to the staff of Phillips Publishing, Inc. as part of an investigation into a complaint 

fi led by the Kennedy for President Committee on March 18, 1980. The Kennedy Committee claimed that the publishing 

company had distributed a promotional mailing for The Pink Sheet that expressly advocated the defeat of Senator 

Edward Kennedy (D-Mass.) in his bid for the 1980 Presidential nomination. The Kennedy Committee alleged that, in 

making expenditures for the mailing, the respondent had violated the following provisions of the Act:

• §433, by failing to register as a political committee;

• §434(c)(1), by failing to report independent expenditures for the mailing in excess of $250;

• §435(b),1 by failing to include a notice on the mailing indicating that committee reports were available at the 

FEC and could be purchased;

• §441(b), by making a prohibited corporate expenditure advocating the defeat of a candidate in a federal 

election; and

• §441(d), by failing to identify who had paid for and authorized the mailing.

In responding to these allegations, Phillips Publishing, Inc. contended that, since The Pink Sheet was a periodical and 

was not controlled by any political party, candidate or committee, the promotional mailing constituted a news activity 

exempted from the Act’s defi nition of contribution or expenditure. 2 U.S.C. §431(9)(B)(i). In fi nding reason to believe 

the alleged violations had occurred, the FEC concluded that this issue, as well as others, had to be investigated further 

to make a factual determination with regard to the respondent’s claim that the promotional mailing constituted 

an exempted news activity. Based on a facial comparison, the Commission noted, for example, that the title of the 

solicitation letter was not printed in the same format as that of the regular Pink Sheet newsletter, that the mailing 

did not contain legends normally carried on The Pink Sheet and that the respective contents of the mailing and 

The Pink Sheet were dissimilar. Moreover, the promotional mailing was not distributed through the facilities of a 

periodical publication. 

On April 8, 1981, after company offi cials to whom the subpoenas had been directed failed to respond, the Commission 

fi led its petition with the district court. On May 29, 1981, Phillips Publishing, Inc. fi led a motion to dismiss the FEC’s 

petition and a motion to bar any further investigation of The Pink Sheet and the promotional mailing.

District Court Ruling

In denying the FEC’s petition for enforcement of the subpoenas, the court found that the FEC had suffi cient 

information to determine that the mailing met the criteria for the news story exemption. “As early as April 1980, the 

FEC received responses from Phillips Publishing, through its counsel, stating that The Pink Sheet and its publisher 

‘are not political committees, do not solicit or receive any political contributions, or make any contributions to any 

candidate.... ’” Moreover, the court said, “...the solicitation letter was to publicize The Pink Sheet and to obtain new 

subscribers, both of which are normal, legitimate press functions.... ” The court concluded, therefore, that the FEC’s 

petition for further information should be denied. 

Motion to Appeal Withdrawn

On October 30, 1981, the U.S. Court of Appeals for the District of Columbia Circuit granted the FEC’s motion to 

withdraw its appeal of FEC v. Phillips Publishing, Inc. (Civil Action No. 81-2015). In a motion fi led on October 21, 

1981, the Commission stated that it was withdrawing the appeal “in the interest of judicial economy,” but that it 

continued to believe “the district court’s decision was erroneous.”

Source: FEC Record, September 1981, p. 2; and December 1981, p. 6. , September 1981, p. 2; and December 1981, p. 6.

Phillips Publishing, Inc.: FEC v., 517 F. Supp. 1308 (D.D.C. 1981). 1 This section was stricken from the Federal Election Campaign Act (the Act) by the 1979 Amendments to the Act (Pub. L. No. 96-187, 

January 8, 1980).
Selected Court Case Abstracts

166 Cases Through March 2004

FEC v.

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FEC v. POLITICAL CONTRIBUTIONS DATA

On August 21, 1991, the U.S. Court of Appeals for the Second Circuit ruled that Political Contributions Data, Inc., 

did not violate 2 U.S.C. §438(a)(4) by selling, for profi t, individual contributor information copied from FEC reports. 

(Civil Action No. 91-6084.) This ruling reversed the district court’s decision.

On June 17, 1993, the court of appeals also reversed the district court’s ruling on attorneys’ fees. The appellate court 

held the FEC liable for payment of PCD’s attorneys. On February 22, 1994, the Supreme Court denied the FEC’s 

petition for review of that decision.

Background

Section 438(a)(4) protects information on individual contributors (including names, addresses, occupations and 

employers) that is disclosed on reports fi led with the FEC. Under section 438(a)(4), information copied from such 

reports “may not be sold or used by any person for the purpose of soliciting contributions or for commercial 

purposes....” (The names and addresses of political committees, however, may be used for solicitation purposes.)

In AO 1986-25, issued to Public Data Access, Inc. (PDA), the Commission considered PDA’s proposed sale of 

information on individual contributors that was compiled from FEC reports. The Commission concluded that the 

proposed sale would be for “commercial purposes” and would therefore violate section 438(a)(4).

After the opinion was issued, PDA established Political Contributions Data, Inc. (PCD), a for-profi t corporation, 

which then sold lists of individual contributor information compiled from FEC reports. PCD marketed two standard 

reports: a list of contributions made by offi cers and upper-level employees of the 700 largest U.S. corporations; and 

a list of individuals contributing $500 or more, sorted by congressional district.

The Commission fi led suit in August 1989 alleging that PCD had violated section 438(a)(4).

District Court Decision

On December 19, 1990, the U.S. District Court for the Southern District of New York ruled that PCD’s sale of 

contributor lists violated the “commercial purposes” prohibition. (Civil Action No. 89-CIV-5238.) In reaching this 

decision, the district court found that the FEC’s determination in AO 1986-25 was reasonable. The Commission 

had concluded that PDA’s for-profi t status indicated a commercial purpose. The Commission also concluded that 

PDA could not claim the exception for media use of contributor information under 11 CFR 104.15(c) because 

PDA’s lists would have a commercial value to list brokers and because the FEC information contained in the lists 

was not incidental to the sale of the communication (as in a newspaper) but was instead the primary focus of 

the communication.

The court also considered but rejected PCD’s constitutional challenges to section 438(a)(4). The court imposed a 

$5,000 penalty against PCD but stayed payment pending the resolution of PCD’s appeal.

Court of Appeals Decision

The court of appeals rejected the Commission’s conclusion in AO 1986-25 as an unreasonable interpretation of 

section 438(a)(4) and 11 CFR 104.15(c). The court instead found that PCD’s sale of contributor lists was permissible 

under those provisions.

Under section 104.15(c), the use of information copied from FEC reports “in newspapers, magazines, books or other 

similar communications is permissible as long as the principal purpose of such communications is not to communicate 

any contributor information...for the purpose of soliciting contributions or for other commercial purposes.” [emphasis 

added]

The court found that PCD’s contributor lists qualifi ed as “other similar communications” and that PCD’s sale of 

FEC information did not violate the commercial purposes prohibition: “The absence from PCD’s reports of mailing 

addresses and phone numbers, as well as the caveat on each page against solicitation and commercial use, make it 

virtually certain that these reports will be used for informative purposes (similar to newspapers, magazines, and 

books...), not for commercial purposes (similar to soliciting contributions or selling cars).”

The court based this conclusion on its interpretation of the commercial purposes prohibition: “The §438(a)(4) 

prohibition is only violated by a use of FEC data which could subject the ‘public-spirited’ citizens who contribute 

to political campaigns to ‘all kinds of solicitations,’” such as commercial solicitations for magazine subscriptions or 

credit cards. The court said that this reading of the prohibition balances the need to protect the privacy of individual 

contributors with statutory intent to promote public disclosure of campaign fi nance information.

Finding the PCD did not violate section 438(a)(4), the court remanded the case to the district court with instructions 

to dismiss the FEC’s complaint.
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Application for Attorneys’ Fees

District Court

On December 19, 1991, PCD applied to the district court for an award of $55,022 in attorneys’ fees and other 

expenses pursuant to the Equal Access to Justice Act (EAJA). 28 U.S.C. §2412(d)(1)(A). To be considered by a court, 

an application for attorneys’ fees must be fi led within 30 days of the date the judgment has become fi nal. Citing 

judicial precedent, the district court said that “a judgment has been found to be fi nal when the ‘losing party asserts 

that no further appeal will be taken.’” The court found that the FEC provided “clear and unequivocal notice” that 

it would not appeal the court of appeals’ decision in a letter from the FEC’s attorney to PCD’s attorney. The letter, 

which stated the FEC’s reasons for not pursuing an appeal, was dated October 30, 1991; accordingly, the court found 

that the deadline expired 30 days later, on November 29, 1991, nearly a month before PCD fi led its application for 

attorneys’ fees. The court therefore denied the application because it was fi led late. 807 F. Supp. 311 (S.D.N.Y. 1992).

The district court also said that defendants’ application would have to be denied on the grounds that the FEC’s 

position was “substantially justifi ed.” 1 Applying criteria set forth by the Supreme Court in Pierce v. Underwood, 487 

U.S. 552 (1988), the court found that the FEC’s position had a “reasonable basis both in law and fact” and “could 

satisfy a reasonable person.”

Appeals Court

Reversing the district court decision, the U.S. Court of Appeals for the Second Circuit, on June 17, 1993, found that 

PCD had fi led its application for attorney’s fees within 30 days of the “fi nal judgment,” as required under the EAJA. 

(No. 92-6240.) The court said that, in this instance, the date of “fi nal judgment” was the last day the Commission 

could have applied for a writ of certiorari with the Supreme Court.

The appeals court also found that the FEC’s position on the “sale or use” restriction was not “substantially justifi ed.” 

The court found that the 1991 appeals court ruling, which had held the FEC’s interpretation to be “unreasonable,” 

precluded the current panel from fi nding the agency’s position “substantially justifi ed” under the EAJA. “This is so,” 

the court reasoned, “because the legal standards which governed the merits phase of this litigation are precisely those 

to be applied to the EAJA question.” The court also relied on Oregon Natural Resources Council v. Madigan, 980 F.2d 

1330 (9th Cir. 1992), a decision which was issued after this appeal had been fi led.

Supreme Court

On February 22, 1994, the U.S. Supreme Court denied the FEC’s petition to review the appellate court judgment. The 

FEC was required to pay PCD’s attorneys $54,610.

In its Supreme Court petition, the FEC argued that the Second Circuit’s ruling contradicted legislative intent as well 

as the Supreme Court’s own rulings and those of other appellate courts. The FEC’s brief quoted the Supreme Court in 

Pierce v. Underwood Pierce v. Underwood, where the Court observed that a court’s agreement or disagreement with the government “does , where the Court observed that a court’s agreement or disagreement with the government “does

not establish whether its position was substantially justifi ed. Conceivably, the Government could take a position that 

is not substantially justifi ed, yet win; even more likely it could take a position that is substantially justifi ed, yet lose.” 

(487 U.S. 552, 569 (1988).)

The Solicitor General, who fi led a friend of the court brief supporting the FEC’s petition, said that the PCD holding 

“seriously expands the government’s liability for attorney fees under EAJA.” 

Source: FEC Record, February 1991, p. 8; May 1991, p. 7; October 1991, p. 11; October 1992, p. 10; August 1993, p. 6; , February 1991, p. 8; May 1991, p. 7; October 1991, p. 11; October 1992, p. 10; August 1993, p. 6; 

 and May 1994, p. 4.

FEC v. Political Contributions Data, Inc., 753 F. Supp. 1122 (S.D.N.Y. 1990), rev’d, 943 F.2d 190 (2d Cir. 1991). , 943 F.2d 190 (2d Cir. 1991). 1 Attorneys’ fees must be awarded to the prevailing nongovernment party unless the court fi nds the position of the federal agency to 

have been substantially justifi ed. 28 U.S.C. §2412(d)(1)(A).
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168 Cases Through March 2004

FEC v.

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FEC v. POPULIST PARTY (88-0127)

On March 22, 1989, the U.S. District Court for the District of Columbia issued a fi nal consent order and judgement 

in FEC v. Populist Party (Civil Action No. 88-0127). By the terms of the consent order, the court declared that the 

Populist Party, a political committee, and Willis Carto, acting as treasurer, violated the election law and regulations 

by:

• Failing to fi le 1985 mid-year and year-end reports on time (2 U.S.C. §434(a)(4)(A)(iv));

• Failing to fi le, in a timely manner, amended Statements of Organization refl ecting Mr. Carto’s role as treasurer 

of the committee and a change in the committee’s campaign depository (2 U.S.C. §433(c));

• Failing to fi le, in a timely manner, quarterly reports for April, July and October 1986 (2 U.S.C. 

§434(a)(4)(A)(i));

• Failing to fi le in a timely manner, a 1986 post-general election report (2 U.S.C. §434(a)(4)(A)(iii));

• Failing to disclose in any report the purpose of approximately $8,000 in operating expenditures made to one 

payee (2 U.S.C. §434(a)(4)(A)(iii));

• Failing to disclose, in a timely manner, the receipt of a $500 contribution from an individual (2 U.S.C. 

§434(b)(3)(A));

• Failing to disclose and continuously report certain outstanding debts and obligations, amounting to 

approximately $299,817 (2 U.S.C. §434(b)(8), 11 CFR 104.11); and

• Knowingly accepting corporate contributions (2 U.S.C. §441b(a)).

The court also found that the corporations had violated the law in making contributions to the committee. The 

Spotlight, a weekly newspaper, and its owner, Cordite Fidelity, Inc., had made $10,479 in prohibited corporate 

contributions; Liberty Lobby, Inc., had contributed $7,500. The court also found that Mr. Carto, in his capacity as a 

director or offi cer of both corporations (in addition to being treasurer of the Populist Party), had violated 2 U.S.C. 

§441b(a) by consenting to the corporate disbursements. 

The consent order required the defendants Populist Party, Liberty Lobby, Inc., Cordite Fidelity, Inc., The Spotlight

and Mr. Carto, both personally and as treasurer of the Populist Party, to pay a civil penalty of $20,000 within 20 days; 

the defendants were jointly and severally liable for the payment. The court also permanently enjoined the defendants 

from similar future violations of the election law. 

Source: FEC Record, May 1989, p. 8. , May 1989, p. 8.
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FEC v. POPULIST PARTY (90-0229 and 90-7169)

On May 31, 1991, the U.S. Court of Appeals for the District of Columbia, in a per curiam decision, granted the FEC’s 

motion for summary reversal of a district court order that had imposed a date by which the Commission had to 

conclude its investigation of the Populist Party. (Civil Action No. 90-7169.) The appeals court said the district court 

had exceeded its jurisdiction by setting the deadline.

The FEC had fi led suit in the U.S. District Court for the District of Columbia seeking enforcement of subpoenas and 

orders the agency had issued to the Populist Party and other respondents in an internal enforcement case (Matter 

Under Review or MUR). The district court, on October 18, 1990, ordered the respondents to furnish the information 

to the Commission by November 15, 1990. The court, however, also ordered the agency to conclude its investigation 

by November 29, 1990. The FEC appealed this portion of the order, and the district court granted a stay of the 

deadline pending resolution of the appeal.

In its motion for summary reversal of the district court order, the FEC argued that the court had exceeded its limited 

jurisdiction under 2 U.S.C. §437d(b), the subpoena enforcement provision of the Federal Election Campaign Act 

(the Act). The FEC said: “Section 437d(b) bestows no license on the court to decide where the Commission’s limited 

resources will be directed or to determine how the underlying investigation should be run.”

The FEC also argued that the Act does not provide for judicial review of the length of a Commission investigation 

that arises from an agency-generated enforcement case, such as the case involving the Populist Party. But even in 

cases that originate from outside parties, only the complainants—not the respondents—have the right to seek judicial 

review of an investigation’s pace. 2 U.S.C. §437g(a)(8).

The appeals court found the merits of the Commission’s position “so clear as to justify summary action.”

Source: FEC Record, August 1991, p. 11. , August 1991, p. 11.

FEC v. POPULIST PARTY (92-0674)

On April 20, 1995, the U.S. District Court for the District of Columbia issued a consent order and judgment stating 

that defendants violated the Federal Election Campaign Act (the Act) by making and accepting corporate and 

excessive contributions in 1984, and ordering defendants to pay a $20,000 civil penalty for these violations.

Specifi cally, the court, by agreement of the parties involved, determined that:

• Liberty Lobby, Inc., and Cordite Fidelity, Inc., violated 2 U.S.C. §441b(a), which prohibits the use of corporate 

money in connection with federal elections, by providing services (in-kind contributions) to the Populist Party 

in the amount of $268,056 and $82,346, respectively;

• Willis A. Carto, the director of both corporations and treasurer of the Populist Party, violated 2 U.S.C. 

§441b(a) by consenting to the provision of the corporate services mentioned above;

• Blayne Hutzel, comptroller of both corporations, violated 2 U.S.C. §441b(a) by accepting corporate services, 

loans and payments valued at $352,903 on behalf of the Populist Party;

• The Populist Party violated 2 U.S.C. §441b(a) by accepting the above corporate contributions and other 

corporate contributions, for a total of $368,303 in illegal corporate money;

• The Populist Party violated 2 U.S.C. §441a(f), which prohibits committees from accepting contributions in 

excess of established limits, by accepting contributions from individuals in excess of their annual limit of 

$5,000 per party committee;

• The Populist Party violated 2 U.S.C. §441a(a)(1)(A) and (C) by making excessive contributions to the Maureen 

Salaman for Vice President Committee and the Bob Richards for President Committee; and 

• The Bob Richards for President committee violated 2 U.S.C. 441a(f) by accepting $9,756 in excessive 

contributions from the Populist Party.

Source: FEC Record, July 1995, p. 9. , July 1995, p. 9.

Populist Party: FEC v., No. 92-0674(HHG) (D.D.C. Apr. 20, 1995).
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170 Cases Through March 2004

FEC v.

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FEC v. PUBLIC CITIZEN, INC.

On October 10, 2001, the U.S. Court of Appeals for the Eleventh Circuit ruled that Public Citizen, Inc., and its 

separate segregated fund, Public Citizen’s Fund for a Clean Congress (the Fund), violated 2 U.S.C. §441d(a) by 

failing to include a disclaimer stating that their independent expenditures had not been authorized by any candidate 

or candidate’s committee. This ruling reversed the decision on this issue by the U.S. District Court for the Northern 

District of Georgia, which had granted summary judgment to the defendants in September 1999.

Background

Public Citizen, Inc. (Public Citizen) is an incorporated, nonprofi t membership organization. It created the Fund in 

1992. The Fund, in turn, sponsored several communications that opposed Newt Gingrich in the 1992 primary for 

Georgia’s Sixth Congressional District: a television ad, a direct mailing and a series of fl yers—all of which urged 

voters to “Boot Newt” in the upcoming primary.

District Court Decision

On September 15, 1999, the U.S. District Court for the Northern District of Georgia, Atlanta Division, dismissed an 

enforcement case brought by the Federal Election Commission against Public Citizen and the Fund. 

The Commission had alleged that the Fund had violated 2 U.S.C. §441b by making excessive in-kind contributions 

to Herman Clark, a 1992 primary opponent of former Representative Newt Gingrich. The Commission maintained 

that the contributions resulted from the fact that the Fund had coordinated several expenditures, made in opposition 

to Mr. Gingrich, with the Clark campaign. The court ruled that the expenditures were permissible independent 

expenditures—not coordinated expenditures.

The court also ruled in favor of the Fund on eight other charges brought against it, including charges that, in some 

or all cases, it failed to:

• Report expenditures as contributions;

• Indicate, in disclaimers, whether its television advertisement and fl yers were authorized by a candidate;

• Inform contributors about the political purpose of the fund;

• Inform contributors of their right to refuse to contribute without reprisal; and 

• Inform contributors that a checklist for donations, reading “$20, $40, $50, OTHER,” was merely a 

suggestion.

Coordination

The FEC alleged that the expenditures against Mr. Gingrich, totaling $59,200, were not independent expenditures 

but, rather, were coordinated expenditures, which resulted in excessive contributions on behalf of Mr. Gingrich’s 

opponent, Mr. Clark. 2 U.S.C. §441a(a)(1)(A). 

The Act defi nes independent expenditure as an expenditure which expressly advocates the election or defeat of a 

clearly identifi ed candidate and which is not made in concert with, or at the request or suggestion of, the candidate 

or the campaign. 2 U.S.C. §431(17).

FEC regulations elaborate on this defi nition. They add the following presumption:

“An expenditure will be presumed to be so made [in cooperation with the campaign] when it is based on information 

about the candidate’s plans, projects, or needs provided to the expending person by the candidate, or by the candidate’s 

agents with a view toward having an expenditure made.” 11 CFR 109.1(b)(4)(i)(A).

The Commission had argued that repeated contacts between the Fund and representatives of Mr. Clark’s campaign 

constituted coordination. The court disagreed.

The court held that, “even construed most favorably for the FEC,” the evidence did not support the allegation that the 

expenditures by the Fund were coordinated with the Clark campaign. Coordination, the court stated, implies “‘some 

measure of collaboration beyond a mere inquiry as to the position taken by a candidate on an issue.’”1 

The court ruled that, because the expenditures had not been coordinated with the Clark campaign, the Fund did not 

need to report them as contributions.

Disclaimers

The FEC alleged that the Fund failed to include the disclaimer required by 2 U.S.C. §441d(a) in the “Boot Newt” 

television advertisement or in the “Boot Newt” fl yers. 
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The statute states that, whenever a person makes an independent expenditure (see defi nition above), the communication 

must disclose both the name of the person who paid for the communication and the fact that the communication was 

not authorized by the candidate or his/her committee.

Although the Clark campaign identifi ed who paid for the ads, it did not include a disclaimer stating whether or not 

the communications had been authorized by a candidate.

Based on a 6th Circuit decision,2 the court found that the disclaimer requirement was broader than necessary to 

achieve the government’s interests in notifying the public of the source of campaign funds, in preventing actual and 

perceived corruption in the political process, and in creating a recordkeeping method to detect violations of the 

Act’s contribution limitations—interests identifi ed by the Supreme Court in Buckey v. Valeo. The court stated that 

the disclaimer used by the Fund, which stated that the ads were paid for by the Fund, was suffi cient to accomplish 

all three of the government’s objectives. The additional requirement that the disclaimer identify whether the 

communication was authorized by any candidate or candidate’s committee, the court said, violated the Fund’s First 

Amendment rights. 

Special Fundraising Notices by Corporations and Labor Organizations 

The FEC alleged that the Fund’s solicitation letters failed to make adequate disclosures required by the Act. First, 

two letters violated 2 U.S.C. §441b(b)(3)(B) and 11 CFR 114.5(a)(3) by failing to inform solicitees of the political 

purposes of the Fund. One solicitation stated that the Fund planned to vote out targeted incumbents by using 

“everything—T.V., radio, door-to-door canvassing—to let their constituents know what their members of Congress 

have been up to for the past few years.” In another solicitation, the Fund asked for solicitees’ help “to tackle nine 

other House members.” The court stated that it was uncertain how the Fund could have been more explicit in stating 

the political purpose of their solicitation, and concluded that the letter did not violate 2 U.S.C. §441b(b)(3)(B).

Additionally, the FEC alleged that both letters violated 2 U.S.C. §441b(b)(3)(C) and 11 CFR 114.5(a)(4) by failing 

to inform solicitees of their right to refuse to contribute to the Fund without reprisal. The court dismissed this 

charge, stating that the purpose of the notice was “to prevent organizations with economic leverage over employees 

or members from using that leverage to coerce involuntary donations.” It was nonsensical, the court stated, for Public 

Citizen, a purely voluntary, nonprofi t membership organization, to include such a disclaimer since it controlled no 

benefi ts that could be denied to its individual members. 

Lastly, the FEC alleged that the Fund violated 2 U.S.C. §441b(b)(3)(C) and 11 CFR 114.5(a)(2), which requires that, 

when a corporation suggests a contribution guideline in a solicitation for its separate segregated fund, the solicitees 

must be informed that the guidelines are merely suggestions and that solicitees are free to contribute more or less than 

the suggested amount. The court found that the Fund’s solicitation included an alternative called “other,” making 

it clear to the solicitee that the listed amounts were suggestions only. Therefore, the court stated, the letter was not 

violative of the Act.

Appeals Court Decision

The FEC appealed this case to the U.S. Court of Appeals for the Eleventh Circuit. On appeal, the FEC argued that 

2 U.S.C. §441d(a) served the governmental interest in protecting the integrity of the electoral process by immediately 

informing the voters whether a political advertisement was attributable to a candidate or to other persons, including 

the candidate’s supporters. The appeals court agreed and ruled that the statute was narrowly tailored to serve the 

stated governmental interest because it applied only to candidate elections and was limited to communications that 

expressly advocated the election or defeat of a clearly identifi ed candidate. As a result, the court found that the 

disclaimer requirements in 2 U.S.C. §441d(a) did not “impermissibly infringe on Public Citizen’s First Amendment 

rights to free speech.”

The appeals court vacated the district court’s grant of summary judgment for Public Citizen and remanded the case 

to the district court to grant summary judgment to the FEC on its §441d(a) claims and to determine appropriate relief 

for the violations.

Source: FEC Record, November 1999, p. 2; December 2001, p. 4. , November 1999, p. 2; December 2001, p. 4.

64 F. Supp. 2d 1327(N. D. Ga. 1999)

1 Clifton v. Federal Election Commission, 114, F.3d 1309, 1311 (1st Cir. 1997), citing Buckley V. Valeo, 424 U.S. 1, 46-47 and n.53 96 S.Ct. 

612, 647-48 and n. 53 46 L.Ed.2d 659 (1976).

2 Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 647-48 (6th Cir. 1997).

268 F.3d 1283.
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172 Cases Through March 2004

FEC v.

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FEC v. RHOADS FOR CONGRESS

On May 2, 1986, the U.S. District Court for the Northern District of Illinois approved a consent order between 

the Commission and the Rhoads for Congress Committee (the Committee), Mark Q. Rhoads’ principal campaign 

committee for his 1982 Illinois House race, and the Committee’s treasurer, William E. Naegel. Defendants 

acknowledged that they had violated section 441a(f) of the election law by accepting excessive contributions from:

• Mary G. Rhoads, the candidate’s mother, who made the excessive contributions by personally endorsing and 

providing security for two loans, portions of which (i.e., $17,000) were accepted by the Committee;1 and

• The Mid-America Conservative Political Action Committee (MAPAC), a nonconnected PAC. (At the time 

MAPAC made the excessive contributions, its per election limit was $1,000, rather than $5,000, because the 

PAC had not yet qualifi ed for multicandidate status.)

Defendants agreed to pay a $2,000 civil penalty within 30 days of the court’s order. 

Source: FEC Record, June 1986, p. 9. , June 1986, p. 9. 1 Under the election law and FEC regulations, endorsements and guarantees of loans, including those made by the candidate’s family, 

count as contributions to the extent of the outstanding balance of the loan. 2 U.S.C. §431(a)(A)(i) and 11 CFR 100.7(a)(1)(i)(C).

FEC v. RICHARDS FOR PRESIDENT (88-2832)

On March 22, 1989, the U.S. District Court for the District of Columbia issued a fi nal consent order and judgment 

in FEC v. Bob Richards for President Committee, Washington, D.C. (Civil Action No. 88-2832). The Richards 

(Washington) committee is a nonauthorized committee affi liated with the Waco, Texas, Bob Richards for President 

Committee, Mr. Richards’ principal campaign committee for his 1984 Presidential campaign. 

By the terms of the consent order, the court declared that the Richards (Washington) committee violated the election 

law and FEC regulations by:

• Failing to fi le an amended Statement of Organization (FEC Form(1) refl ecting its affi liation with the 

Richards (Texas) committee (2 U.S.C. §433(c));

• Using Mr. Richards’ name in its committee name (a nonauthorized committee may not use a candidate’s name 

in its committee name) (2 U.S.C. §432(e)(4));

• Knowingly accepting an excessive contribution in the form of a $60,000 loan from the Populist Party ( 2 U.

S.C. §441a(f));

• Transferring $5,000 to the Richards (Texas) committee from funds derived from excessive (i.e., 

prohibited) contributions (11 CFR 102.6(a)(1)(iv)); and

• Failing to include an authorization notice in a solicitation letter that expressly advocated Mr. Richards’ 

election (2 U.S.C. §441d(a)).

The consent order required the defendants to:

• File the amended Statement of Organization, refl ecting the Richards (Washington) committee’s affi liation 

with the Richards (Texas) committee, with the Commission within 20 days; and

• Pay a civil penalty of $15,000 within 20 days. 

The court also permanently enjoined the defendants from future similar violations of the election law. 

Source: FEC Record, May 1989, p. 9. , May 1989, p. 9.
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FEC v. RICHARDS FOR PRESIDENT (89-0254)

On June 29, 1989, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment in FEC v. Bob Richards for President Committee, Waco, Texas (Civil Action No. 89-0254). The court ordered 

the defendants to comply fully with the terms of a conciliation agreement entered into with the Commission a year 

before. Under that agreement, the defendant had admitted to several violations of the Federal Election Campaign 

Act and had agreed to pay a civil penalty of $12,000 and to fi le various reports and statements required under the 

election law. 

Source: FEC Record, September 1989, p. 8. , September 1989, p. 8.

Bob Richards for President Committee, Waco, Texas: FEC v., No. 89-0245 (D.D.C. June 29, 1989) (memorandum opinion).

FEC v. RODRIGUEZ

On October 28, 1988, the U.S. District Court for the Middle District of Florida granted the FEC’s motion for a 

default judgment in a case that the FEC had reopened against Cesar Rodriguez in June 1988 (Civil Action No. 86-

687-CIV-T-10).

In 1994, Mr. Rodriguez was held in contempt for failing to pay a $5,000 penalty imposed by the court.

Background

In its original complaint against Mr. Rodriguez, fi led in November 1986, the FEC asked the district court to declare 

that, during 1980, Cesar Rodriguez had violated §441f of the election law by accepting contributions for the Carter/

Mondale Presidential Committee which were made by one person in the names of other persons. Specifi cally, on 

behalf of Alan Wolfson, Mr. Rodriguez had solicited contributions to the Carter/Mondale Presidential Committee 

and had subsequently reimbursed each contributor for his or her contribution.

District Court Action

The Florida district court, on May 5, 1987, denied the Commission’s motion for summary judgment. The court 

held that the defendant had aided and abetted a violation of the fi rst clause of 2 U.S.C. §441f (“No person shall 

make a contribution in the name of another...”) rather than the last clause of §441f, as the Commission had alleged 

(“No person shall knowingly accept a contribution made by one person in the name of another...”). Based on this 

fi nding, the court directed the Commission to address the question of whether the agency “can effectively amend 

the complaint and go forward with this case, or whether it must begin again under the governing statute at the 

administrative level.”

On May 20, 1987, the FEC notifi ed the court that it had decided to reopen its own administrative proceedings 

in the case. Based on these proceedings, the Commission subsequently found probable cause to believe that Mr. 

Rodriguez had violated the election law by assisting in the making of contributions in the name of another. Failing 

to reach conciliation with the defendant, the Commission on March 15, 1988, again initiated a civil suit against 

Mr. Rodriguez. 

Rather than bringing a new complaint against Mr. Rodriguez for this violation, however, the FEC decided to ask the 

court to:

• Reopen the fi le on the FEC’s original complaint; and

• Accept an amended complaint refl ecting the agency’s new fi ndings. 

In its October 1988 default judgment, the court decreed that:

• Mr. Rodriguez violated 2 U.S.C. §441f by knowingly assisting in the making of contributions in the name 

of another. 

• Mr. Rodriguez was required to pay, within 15 days of the court’s entry of the judgment, a $5,000 civil penalty, 

together with $22.95, to cover costs incurred by the FEC in the suit.

Finally, the court enjoined Mr. Rodriguez from future, similar violations of the election law. 
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Contempt Ruling

Four years later, in November 1992, the penalty remained unpaId. At a December 1992 contempt hearing, the FEC 

and the defendant told the judge that they had reached a tentative settlement under which Mr. Rodriguez was to pay 

$300 per month while the FEC looked into his fi nancial position. But he later refused to make the payments or to 

provide information on his fi nances.

In February 1994, the FEC again requested that the court hold Mr. Rodriguez in contempt. In granting that request 

on March 31, 1994, the court ordered him to pay the $5,000 penalty, plus interest, and $100 per day until the penalty 

is repaid. The court also ordered him to reimburse the FEC for its costs in the contempt proceeding. 

Source: FEC Record, August 1988, p. 6; January 1989, p. 10; and June 1994, p. 5. , August 1988, p. 6; January 1989, p. 10; and June 1994, p. 5.

FEC v. Rodriguez, No. 86-687-CIV-T10 (M.D. Fla. Nov. 12, 1986).

FEC v. ROSE

ROSE v. FEC

First Suit

On February 22, 1984, the U.S. District Court for the District of Columbia issued an order granting Congressman 

Rose’s petition to dismiss a suit he had fi led against the Commission on June 13, 1983. (Charles E. Rose v. FEC; Civil 

Action No. 83-1687.) Pursuant to the election law’s procedures for obtaining administrative relief, Congressman Rose 

had asked the court to issue an order directing the FEC to take fi nal action on his administrative complaint within 30 

days. (See 2 U.S.C. §437g(a)(8)(A) and (C).)

In his suit, Congressman Rose stated that he had fi led an administrative complaint with the FEC alleging that:

• A marketing company had contributed to his opponent in the Democratic primary (in violation of 2 U.

S.C.§441b and 11 CFR 114.2). 

• The primary opponent had paid for political broadcasting time with a personal check (in violation of 2 U.S.C. 

§432(h)(1) and 11 CFR 102.10). 

• The principal campaign committee of Congressman Rose’s primary election opponent had made excessive 

in-kind contributions to the general election campaign of the Republican candidate opposing Congressman 

Rose (in violation of 2 U.S.C.§§441a(a)(1)(A) and 441b; and 11 CFR 110.1(a) and 114.2). 

• The Congressional Club, which owned the marketing company (cited above), had failed to report the election 

activities of the company (in violation of 2 U.S.C. §§434(b), 441a and 441b; and 11 CFR 104.3, 110 and 

114.2).

After the Commission petitioned the U.S. District Court for the Eastern District of North Carolina to enforce 

subpoenas issued as part of its investigation into Congressman Rose’s complaint, he requested that his suit 

be dismissed. 

Second Suit

Congressman Charles E. Rose repetitioned the U.S. District Court for the District of Columbia to issue an order 

requiring the FEC to take action on his administrative complaint fi led with the FEC in October 1982. On February 

22, 1984, Congressman Rose dismissed his fi rst petition because the FEC had fi led subpoena enforcement actions 

with the district court for the Eastern District of North Carolina as part of its investigation into his complaint. 

Claiming that the FEC had taken no subsequent action on his complaint, Congressman Rose had fi led a second 

petition with the D.C. district court (Civil Action No. 84-2278).1 Pursuant to 2 U.S.C. §437g(a)(8), he asked the 

court to:

• Declare that the FEC’s continued failure to act on his administrative complaint was contrary to law;

• Issue an expedited order directing the FEC to act on his complaint within 30 days; and 

• Retain jurisdiction over his petition in the event the FEC fails to take action on his complaint.

On October 4, 1984, the district court found that the FEC had acted contrary to law by failing to resolve the complaint. 

However, after reviewing the case on appeal, on October 24, 1984, the appeals court summarily reversed the district 

court’s original decision and remanded the case to the district court for reconsideration. 
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Upon reconsideration, the district court again granted the plaintiff’s motion for summary judgment. On October 31, 

1984, the court issued an order stating that the FEC’s delay in acting on Congressman Rose’s administrative complaint 

was contrary to law. The court concluded that a variety of factors had unreasonably delayed the conclusion of the 

investigation into Congressman Rose’s administrative complaint and ordered the FEC to conform its conduct to the 

decision within 30 days of the order. See 2 U.S.C.§437g(a)(8).

On July 24, 1984, the FEC appealed the district court’s determination that the agency was liable for these 

litigation expenses. 

Appeal by FEC

On December 2, 1986, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in FEC 

v. Congressman Charles E. Rose (Civil Action No. 85-1455), which reversed an earlier decision by the U.S. District 

Court for the District of Columbia. The appeals court determined that the FEC was not liable for litigation costs 

and attorney’s fees which Congressman Rose incurred in a suit he had brought against the FEC. The appeals court 

concluded that, under the statute governing such fee awards, the Equal Access to Justice Act, “the district court [had] 

erred in holding that the FEC’s position in the case was not ‘substantially justifi ed.’” The appeals court therefore 

remanded the case to the district court, with orders to dismiss Congressman Rose’s application to have the FEC bear 

his court costs.

Appeals Court Ruling

Initially, the appeals court noted that its determination concerning the FEC’s liability for Congressman Rose’s 

litigation costs and attorney’s fees should be based on the Equal Access to Justice Act (EAJA), as amended in 1985. 

Under the 1985 amendments to this statute, a government agency is not liable for litigation costs and attorney’s 

fees if the agency can show “that both its position in the litigation and its conduct that led to the litigation were 

substantially justifi ed.” To determine whether a government agency’s actions were “substantially justifi ed,” the court 

may not use the standard used to challenge an agency’s action on an administrative complaint (i.e., whether the action 

was “arbitrary and capricious”). Rather, in applying the EAJA standard, the court “is obliged to reexamine the facts 

under a different legal standard to determine whether that conduct is slightly more than reasonable.”

While the appeals court found that the district court had used the “correct legal standards” in making its determination 

with regard to the FEC’s liability, the appeals court nevertheless concluded that the district court “fell into error in 

applying those standards.” The court concluded that “the FEC’s handling of Congressman Rose’s administrative 

complaint was ‘substantially justifi ed.’ Far from suggesting unjustifi able delay, the record demonstrates prompt and 

sustained agency attention to Representative Rose’s complaint and thorough consideration of the issues it raised.”

The court also found that the FEC’s litigation position was substantially justifi ed. “The Commission, in truth, had no 

practical alternative to defending against Congressman Rose’s action. It cannot be forgotten that the Congressman 

was advancing interpretations of the Campaign Act that would have drastically altered the agency’s operations. and 

the arguments are dead wrong.” 

The appeals court rejected Congressman Rose’s argument that the Act required the FEC to act on his administrative 

complaint within a 120-day time frame. Instead, the court confi rmed the FEC’s argument that the FEC’s handling 

of the complaint should be judged under the deferential standard of review prescribed in the Administrative 

Procedures Act.

Source: FEC Record, August 1983, pp. 9-10; April 1984, p. 10; October 1984, p. 9; December 1984, p. 4; and February 1987, pp. , August 1983, pp. 9-10; April 1984, p. 10; October 1984, p. 9; December 1984, p. 4; and February 1987, pp. 

7-8.

Rose: FEC v., 608 F. Supp. 1 (D.D.C., rev’d, 806 F.2d 1081 (D.C. Cir. 1986). , 806 F.2d 1081 (D.C. Cir. 1986). 1 See also National Congressional Club v. FEC.
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FEC v. SAILORS’ UNION OF THE PACIFIC POLITICAL FUND

On January 6, 1986, the U.S. District Court, Northern District of California issued an opinion granting defendants’ 

motion for summary judgment in FEC v. Sailors’ Union of the Pacifi c Political Fund FEC v. Sailors’ Union of the Pacifi c Political Fund (Civil Action No. 84-7763-WWS). The (CivilAction No. 84-7763-WWS).The

court ruled that the separate segregated funds of three maritime unions, the Sailors’ Union of the Pacifi c Political Fund, 

the Maritime Firemen’s Union Political Fund and the Seafarers’ Political Donation, were not affi liated. Accordingly, 

the defendant committees were not subject to a single $1,000 limit on contributions they made to California Governor 

Jerry Brown’s 1982 Senate primary campaign. (Affi liated political committees, on the other hand, are subject to a single 

contribution limit on both contributions they make and receive. 2 U.S.C. §441a(a)(5).)

On September 15, 1987, the Court of Appeals for the Ninth Circuit affi rmed the district court’s ruling (Civil Action No. 

86-1775).

Background

On December 10, 1984, the FEC fi led suit against the defendant political committees in the district court. The 

Commission asked the court to:

• Declare that, by virtue of their affi liation, the committees had violated 2 U.S.C. §441a(a)(2)(A) by, together, 

contributing more than $5,000 to Governor Brown’s primary; and

• Order the three committees to disclose their affi liation by amending their respective statements of organization.

In its suit, the FEC argued that the three committees’ respective parent organizations were affi liated on two 

grounds:

• The parent organizations were parts of the Seafarers’ International Union (SIU). 

• The parent organizations were subject to SIU’s control. 

The defendant political committees contended, on the other hand, that the three unions were not controlled by SIU and, 

further, that the independent histories, structures and management of the unions demonstrated that they did not meet 

the criteria for affi liation. 

District Court Ruling

The district court ruled that the member unions of the Seafarers’ Union were an “association of independent unions” and, 

as such, were not affi liated. Accordingly, the unions’ separate segregated funds were not affi liated political committees. 

The court found that “the [Seafarers] constitution embodies the rules that govern the relationship of these unions and 

those rules preserve their independence, a fact confi rmed by the undisputed evidence of their past conduct.” The court 

said that “other than having the power to collect dues, Seafarers has no power over the affairs of its member unions.”

Appeals Court Ruling

The court decided that it would examine the organizational authority of Seafarers in order to determine whether its 

member unions were affi liated under 2 U.S.C. §441a(a)(5). The court, in making this decision, looked to the legislative 

history for guidance: “Various comments in the records of both the House and Senate suggest that...Congress intended 

to aggregate campaign contributions of locals of international unions but did not intend to aggregate contributions of 

member unions of labor federations.”

The court then examined the relationship between the Seafarers’ International Union and its member unions to 

determine whether the degree of control Seafarers exercised over them was closer to the highly intrusive authority 

of the United Steelworkers of America, the international union which the court had adopted as a model, or the less 

restrictive authority of a federation of unions, like the AFL-CIO. Acknowledging that Seafarers had powers beyond 

those of the AFL-CIO (the authority to regulate dues, audit members and appoint fi nancial custodians for members), 

the court nevertheless judged that “the level of authority exercised over locals by traditional international unions like the 

Steelworkers far exceeds the level of control that Seafarers may exercise under its constitution.” Noting that Seafarers’ 

authority was more like the limited power of the AFL-CIO, the court concluded that two of the member unions were 

independent of Seafarers and that their separate segregated funds were not, therefore, subject to a common contribution 

limit. 

The court pointed out that one might question the autonomy of the third union and Seafarers because one individual 

was president of both organizations. However, the court did not have to decide the question because the three member 

unions involved would still not be subject to a single contribution limit. 

Source: FEC Record, February 1986, p. 3; and November 1987, p. 6. , February 1986, p. 3; and November 1987, p. 6.

Sailors’ Union of the Pacifi c Political Fund: FEC v., 624 F. Supp. 492 (N.D. Cal. 1986), aff’d, 828 F.2d 502 (9th Cir. 1987). , 828 F.2d 502 (9th Cir. 1987).
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FEC v. AL SALVI FOR SENATE (98C-4933)

On February 26, 1999, the FEC appealed this case to the U.S. Court of Appeals for the Seventh Circuit. The U.S. 

District Court for the Northern District of Illinois, Eastern Division, had dismissed this case on the grounds that it 

was identical to a case the Commission had previously fi led in the court. That fi rst case (98-1321) was dismissed on 

technical grounds. In both suits, the FEC asked the court to fi nd that the Al Salvi for Senate Committee misreported 

or failed to report more than $1.1 million in contributions and loans during the 1996 election cycle. 

More specifi cally, the Commission alleged that the Committee:

• Reported bank loans to Mr. Salvi as personal loans from the candidate, never identifying the source of the 

funds;

• Failed to report debts to the candidate;

• Failed to fi le 48-hour notices for personal advances from the candidate; and

• Failed to disclose campaign-related payments by the candidate to vendors and a bank.

In addition to asking the court to fi nd that the Committee violated federal election law, the FEC asked the court to 

assess a civil penalty against the Committee and its treasurer and to enjoin them from committing further violation 

of the Federal Election Campaign Act.

Appeals Court Decision

On March 8, 2000, the U.S. Court of Appeals for the Seventh Circuit affi rmed a district court order dismissing a civil 

enforcement action the FEC had brought against the Al Salvi for Senate Committee and its treasurer.

Source: FEC Record, April 1998, p. 4; October 1998, p. 2, April 1999, p. 5; June 2000, p. 9. , April 1998, p. 4; October 1998, p. 2, April 1999, p. 5; June 2000, p. 9.

Al Salvi for Senate Committee: FEC v., 1999 WL 167009 (N.D. Ill. Mar. 23, 1999).

FEC v. SAVAGE FOR CONGRESS ’82 

On June 8, 1984, the U.S. District Court for the Northern District of Illinois entered a default judgment against 

Gus Savage for Congress ’82, the principal campaign committee of Congressman Gus Savage (D-IL), and Thomas 

J. Savage, the campaign’s treasurer. The Savage campaign had failed to answer the FEC’s suit against the campaign 

(FEC v. Gus Savage for Congress ’82 Committee; Civil Action No. 84-C1076; January 6, 1984).

Court Order

Pursuant to the FEC’s petition for a declaratory judgment, the court ordered the Savage campaign to fi le, within 30 

days, the following reports required by the election law:

• The July and October quarterly reports, the pre- and post-general election reports and the year-end report 

required during the 1982 election year (see 2 U.S.C. §434(a)(2)(A)(i)-(ii); and 

• The mid-year report required during the 1983 nonelection year (see U.S.C. §434(a)(2)(B)(i)). 

The court further ordered the Savage campaign to fi le all reports due in the future and assessed a $5,000 civil penalty 

against the campaign.

Denial of Contempt Petition

On April 12, 1985, the U.S. District Court, Northern District of Illinois, Eastern Division, denied the Commission’s 

petition to hold in civil and criminal contempt Gus Savage for Congress ’82 (the Committee), the principal campaign 

committee for Congressman Gus Savage’s 1982 reelection campaign, and Thomas Savage, the Committee’s treasurer. 

The court found that, after the Commission’s fi ling of the contempt petition, the Committee had brought itself into 

compliance with a default judgment entered against it on June 8, 1984. The Committee had fi led the reports required 

by the default judgment and had established a satisfactory schedule for repaying the $5,000 civil penalty imposed by 

the default judgment. 

Source: FEC Record, July 1984, p. 7; and June 1985, p. 3. , July 1984, p. 7; and June 1985, p. 3.

Gus Savage for Congress ’82 Committee: FEC v., 606 F. Supp. 541, (D. Ill. 1985).
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FEC v. FRIENDS OF SCHAEFER

SCHAEFER v. FEC

These suits arose from an FEC enforcement proceeding against Friends of Schaefer and J. Michael Schaefer, as 

treasurer. Mr. Schaefer was a 1986 Senatorial candidate in Maryland. The agency fi led suit against the respondents 

on May 15, 1991.

Penalty Claims Against Schaefer

On April 19, 1991 (after the FEC had notifi ed him of its intention to fi le suit), Mr. Schaefer fi led an adversary 

proceeding against the FEC in the U.S. Bankruptcy Court for the Southern District of California, where he had fi led 

for bankruptcy. In Schaefer v. FEC Schaefer v. FEC (No. 91-9024), he argued that the FEC had failed to fi le a proof of claim with the (No. 91-9024), he argued that the FEC had failed to file a proof of claim with the 

court and therefore could not make a claim against him with respect to the payment of any civil penalty that might 

result from the agency’s enforcement efforts.

The FEC asked the court to dismiss Mr. Schaefer’s adversary proceeding or, alternatively, to refer the matter to the 

federal district court, which was the proper forum to litigate campaign fi nance issues. On July 2, 1991, the bankruptcy 

court denied the FEC’s motion to dismiss and also denied the alternative motion, stating that it should be brought 

before the district court. The FEC then asked the U.S. District Court for the Southern District of California to take 

jurisdiction over this issue. (FEC v. Friends of Schaefer, No. 91-0650, was then pending in that court.)

The district court consolidated the two cases. On November 25, 1991, the court held that, because a civil penalty is a 

nondischargeable debt, the FEC could enforce a civil penalty against Mr. Schaefer, regardless of the agency’s failure 

to fi le a claim in bankruptcy court. (Judgment was entered April 3, 1992.)

Contempt Motion

On May 16, 1991, claiming that the Bankruptcy Code barred the FEC from fi ling suit against him, Mr. Schaefer 

moved that the bankruptcy court hold FEC Chairman John Warren McGarry in contempt of court and incarcerate 

him until the FEC’s district court case was dismissed. The FEC opposed the motion, arguing that the provision 

cited by Mr. Schaefer did not apply to a government agency enforcing its regulatory power. The bankruptcy court 

agreed with the FEC and, on October 28, 1991, ordered Mr. Schaefer to pay the FEC $750 in sanctions for fi ling a 

frivolous motion.

FECA Violations

On April 7, 1992, the district court entered a fi nal judgment in FEC v. Friends of Schaefer and ordered defendant 

Schaefer to pay a $3,000 civil penalty.

The court found that Mr. Schaefer and his committee had violated the Federal Election Campaign Act by:

• Failing to fi le a Statement of Candidacy and Statement of Organization on time;

• Accepting an excessive contribution (Mr. Schaefer received a $30,000 loan from an individual, deposited the 

money in his personal account and then loaned the money to his committee);

• Failing to continuously report the loan until it was extinguished;

• Knowingly accepting a $28,000 loan from a corporation (Mr. Schaefer obtained a $28,000 margin loan drawn 

on his account with Charles Schwab & Co. and then loaned the funds to his committee); and

• Failing to fi le three reports on time (they were fi led between two months and over one year late).

Based upon Mr. Schaefer’s continuing refusal to remedy several of the violations, the court enjoined him from 

committing similar violations for one year, unless the FEC demonstrates that an extension is necessary.

Source: FEC Record, June 1992, p. 6. , June 1992, p. 6.
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FEC v. ARLEN SPECTER ’96 (00CV3167)

On March 12, 2002, the U.S. District Court for the Eastern District of Pennsylvania granted the Commission’s 

request for declaratory and injunctive relief against Koro Aviation, Inc. (Koro). Pursuant to a stipulation between the 

Commission and Koro, the court held that Koro violated 2 U.S.C. §441b(a) by making in-kind corporate contributions 

to Arlen Specter ’96 in the form of air travel services charged at less than the usual and normal rate. The court 

permanently enjoined Koro from violating 2 U.S.C. §441b(a) by providing goodsor services to any federal candidate 

at less than the usual and normal charge. The court also ordered Koro to pay a $25,000 civil penalty.

Background

On June 22, 2000, the Commission asked the court to fi nd that Arlen Specter ’96, Senator Specter’s Presidential 

campaign committee, and Paul S. Diamond, as treasurer, accepted unlawful in-kind contributions from Koro. The 

Commission argued that since Koro was an FAA-licensed commercial charter service carrier, Specter ’96 should have 

paid the “usual and normal” rate for the air travel provided by Koro, rather than the fi rst-class fare actually paid by 

Specter ’96. Under Commission regulations, a campaign committee must pay the charter fare for travel on an FAAlicensed commercial charter carrier. 11 CFR. 114.9(e).1

 The difference between the usual and normal cost of a service 

and the amount paid by a candidate or committee represents an in-kind contribution. 11 CFR. 100.7(a)(1)(iii)(A). 

The Commission argued that Specter ’96’s payment of the fi rst-class fare rather than the charter rate resulted in an 

unlawful in-kind corporate contribution from Koro in the amount of $233,768. See the August 2000 Record, page 

14.

Decision

The order entered by the court stated that the fi rst-class fares that Specter ’96 paid for air travel were less than the 

charter fares charged to other Koro customers based on Koro’s published hourly rate, and, as a result, Koro made an 

in-kind contribution to Specter ’96 in violation of 2 U.S.C. §441b(a). Both the Commission and Koro stipulated to the 

entry of the court’s judgment, and Koro waived all rights of appeal. Koro was ordered to pay the civil penalty within 

10 days of the entry of the court’s order and judgment.

Source: FEC Record, August 2000, p. 14; and May 2002, p. 3. , August 2000, p. 14; and May 2002, p. 3. 

FEC v. SPEELMAN

On January 28, 1991, the U.S. District Court for the District of Maryland issued a consent order and judgment 

in which the FEC and Harry Speelman agreed that defendant Speelman exceeded the contribution limits of the 

Federal Election Campaign Act by making a total of $11,470 in contributions to American Citizens for Political 

Action during 1987. These contributions exceeded the $5,000 per year limit under 2 U.S.C. §441a(a)(1)(C). The court 

permanently enjoined Mr. Speelman from future similar violations of the Act. Because of extenuating circumstances 

that came to the agency’s attention after it had fi led this suit, the Commission agreed to drop its request for a civil 

penalty and court costs. (Civil Action No. 90-2190.)

Source: FEC Record, March 1991, p. 10. , March 1991, p. 10.
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FEC v. SURVIVAL EDUCATION FUND

In a January 12, 1994, decision, the U.S. District Court for the Southern District of New York ruled that communications 

paid for by Survival Education Fund, Inc. (SEF) and National Mobilization for Survival, Inc. (NMS) did not violate 

the prohibition on corporate expenditures or the disclaimer requirements.

The U.S. Court of Appeals for the Second Circuit, on September 12, 1995, affi rmed that the two nonprofi t corporations 

did not violate the corporate prohibition but reversed the district court’s ruling on the disclaimer violation.

On September 3, 1996, the district court issued a consent order imposing a $2,000 penalty against the SEF for failing 

to comply with the disclaimer rules of 2 U.S.C. §441d(a)(3). The parties agreed to the district court’s imposition of 

the $2,000 penalty and dismissal of the case.

Background

The defendant corporations paid $16,500 to distribute about 30,000 copies of two letters critical of President Reagan, 

who was up for reelection. The fi rst letter, mailed in July 1984—four months before the Presidential general election—

asked readers to complete and return a “special election-year ANTI-WAR BALLOT” seeking “your No vote for 

President Reagan” on several policies pursued by his administration. The ballots, which were to be forwarded to 

the President, ended with the statement: “My vote in the November election will be infl uenced by your response to 

these demands.” The second letter, a “1984 election survey,” was headed “Ronald Reagan: Four More Years?” and 

asked readers to express their views on predictions that a second Reagan term would bring arms escalation, war in 

Central America and “life-threatening cuts in human services.” The letter said that the survey results would be used 

“to educate Americans who will be voting.”

District Court Decision

In ruling that SEF did not violate the prohibition on corporate expenditures (2 U.S.C. §441b(a)), the district court 

relied on Supreme Court cases that interpreted §441b as applying only to communications that expressly advocate 

the election or defeat of a candidate in words such as “vote for,” “elect,” “support,” “cast your ballot,” “Smith for 

Congress,” “vote against,” “defeat,” and “reject.” 1

Based on those rulings, the district court concluded that “[b]oth letters fell short of expressly advocating how the 

readers should vote.” The court commented: “Obviously, the courts are not giving a broad reading of this statute.” 

In the court’s view, “...expressions of hostility to the positions of an offi cial, implying that offi cial should not be 

reelected—even when that implication is quite clear—do not constitute express advocacy which runs afoul of 

the statute.”

Appeals Court Decision

Corporate Expenditure

The appeals court declined to address the express advocacy question and instead used different grounds to affi rm the 

district court’s decision that defendants’ letter did not violate §441b. The appeals court accepted SEF’s argument that 

SEF was within the class of nonprofi t advocacy corporations whose independent campaign advocacy the Supreme 

Court has found to be exempt from the prohibition in §441b(a) because of the First Amendment. The appeals 

court relied on the Supreme Court’s ruling in FEC v. Massachusetts Citizens for Life (MCFL) to support this idea. 

In that case, the Supreme Court concluded that the prohibition on corporate expenditures could not be applied 

to independent political communications made by certain nonprofi t groups. The Court determined that MCFL, 

a nonprofi t corporation formed for antiabortion advocacy, had three characteristics that made it “more akin to 

voluntary political associations than business fi rms.” MCFL, 479 U.S. at 251. The Court ruled that a corporation was 

allowed to make independent expenditures if:

• Its purpose was promoting political activities as opposed to amassing capital;

• It lacked shareholders or other persons having a claim on its assets or earnings; and

• It was not formed by a labor or corporate organization and had a policy of refusing contributions from 

such entities.

The appeals court rejected FEC arguments that SEF did not qualify under these terms because, unlike MCFL, 

it did not have an express policy against accepting contributions from corporations or labor unions, and had in 

fact accepted corporate contributions. The court maintained that the core concerns of MFCL are the amount of 

for-profi t corporate funding a nonprofi t receives, rather than the establishment of a policy not to accept corporate 

contributions. Day v. Holahan, 34 f.3d 1356 (8th Cir. 1994), cert. denied, 115 S. Ct. 936 (1995). The court determined 

that the evidence did not show that SEF received a signifi cant amount of corporate contributions.
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Disclaimer

With regard to the disclaimer issue, the appeals court reversed the district court ruling and upheld the FEC’s arguments 

that SEF and NMS violated §441d(a)(3) in the July 1984 mailing. The court found that even if the communication 

itself did not expressly advocate the defeat of a candidate (Mr. Reagan), it was a solicitation for funds that “would be 

used to advocate President Reagan’s defeat at the polls, not simply to criticize his policies during the election year.” 

The letter read: “your special election-year contribution today will help us communicate your views to hundreds of 

thousands of members of the voting public (emphasis added), letting them know why Ronald Reagan and his antipeople policies must be stopped.”

Section 441d(a)(3) requires disclaimers in political communications that either expressly advocate election or defeat 

of a clearly identifi ed candidate, or solicit contributions. The appeals court only addressed the second category in this 

case and concluded that requiring disclosure of the identity of a group that is soliciting a contribution does not run 

afoul of the First Amendment.

The court concluded that §441d(a)(3) serves several compelling interests that justify any infringement on SEF’s 

First Amendment rights. The government has an interest, the court reasoned, in ensuring that contributors know 

whether they are donating their money directly to a candidate or, instead, to independent critics of another candidate. 

Further, disclosure of the identity of the sponsor of a solicitation helps private contributors determine whether a new 

contribution would cause them to exceed their aggregate contribution limit for that group.

Thus, the application of §441d(a)(3) to SEF and NMS does not confl ict with the Supreme Court’s recent decision in 

McIntyre v. Ohio Elections Commission. In that case, the Supreme Court ruled unconstitutional a state law banning 

the distribution of anonymous campaign literature. The Supreme Court determined that Ohio “had not shown 

that its interest in preventing the misuse of anonymous election-related speech justifi ed a prohibition of all uses of 

that speech.” 

Source: FEC Record, March 1994, p. 1; December 1995, p. 4; and November 1996, p. 6. , March 1994, p. 1; December 1995, p. 4; and November 1996, p. 6.

Survival Education Fund, Inc.: FEC v., No. 89 Civ. 0347 (TPG) (S.D.N.Y. Feb. 25, 1992); 1994 WL 9658 (S.D.N.Y. Jan. 12, 1994); 65 

F.3d 285 (2d Cir. 1995).

1 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-248 (1986); Buckley v. Valeo, 424 U.S. 1, 44 n. 52 (1976).

FEC v. TAYLOR CONGRESSIONAL COMMITTEE

On June 22, 1988, the U.S. District Court for the District of Columbia issued a default judgment in a suit that the 

FEC brought against the Taylor Congressional Committee, the principal campaign committee for Clarence Taylor’s 

1984 House campaign, and the Committee’s treasurer, Richard L. Smith. (FEC v. Taylor Congressional Committee; 

Civil Action No. 88-0453 (SSH).) 

In the default judgment, the district court decreed that:

• Defendants had violated the terms of a conciliation agreement that they had entered into with the FEC 

in February 1988. (In the agreement, the defendants had agreed to pay a $1,500 civil penalty in two equal 

installments.)

• Defendants had to pay the $1,500 penalty, an additional $500 penalty for violating the terms of the conciliation 

agreement and a small fee to cover the FEC’s court costs in the case. These penalties had to be paid within 15 

days from the date the court entered the default judgment against defendants. 

Finally the court enjoined defendants from future similar violations of the election law. 

Source: FEC Record, January 1989, p. 10. , January 1989, p. 10.
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FEC v. THORNTON TOWNSHIP REGULAR DEMOCRATIC 

ORGANIZATION

On September 19, 1988, the U.S. District Court for the Northern District of Illinois issued a fi nal consent order and 

judgment in a suit the FEC has fi led in July 1988 against the Thornton Township Regular Democratic Organization 

(TTRDO) and its treasurer. 

In its suit, the FEC claimed that defendants violated the election law when they sponsored a direct mail solicitation 

to approximately 18,000 registered Democratic voters at a costs of approximately $4,371. In the consent order, the 

district court decreed that TTRDO violated the election law by:

• Failing to register and report with the FEC as a political committee when its costs for the direct mail solicitation 

exceeded $1,000 (2 U.S.C. §433(a) and 434); and

• Failing to include on the solicitation a disclaimer notice stating that TTRDO had sponsored the solicitation 

and that the solicitation was not authorized by any candidate’s campaign committee. (2 U.S.C. §441d(a)(3)).

The district court further ordered defendants to pay a $2,000 civil penalty within 30 days of the court’s order.

Source: FEC Record, December 1989, p. 9. , December 1989, p. 9.

FEC v. TOLEDANO (01-56762)

On April 17, 2000, the FEC fi led suit asking the U.S. District Court for the Central District of California to fi nd 

that James Toledano, former Chair of the Orange County Democratic Central Committee (Orange County Party), 

violated 2 U.S.C. §432(b) by failing to forward two $5,000 contributions to the treasurer of the Orange County Party 

within 10 days after receiving them. 

On May 3, 2001, the U.S. District Court for the Central District of California granted the Commission’s request 

for summary judgment, ruling that James Toledano violated 2 U.S.C. §432(b)(2). On September 27, 2001, James 

Toledano appealed this case to the U.S. Court of Appeals for the Ninth Circuit.

On November 7, 2002, the U.S. Court of Appeals for the Ninth Circuit affi rmed the decision of the U.S. District 

Court for the Central District of California granting the Commission summary judgment in this case and imposing a 

$7,500 fi ne against James Toledano. The appeals court also ordered Mr. Toledano to pay the Commission’s attorney’s 

fees on this appeal as a sanction for his “bad-faith conduct and abuse of the judicial process.”

Background

The contributions in question were made by Debra and Paul LaPrade in early 1996. At the time, Ms. LaPrade’s brother, 

James M. Prince, was a candidate for the Democratic nomination for Congress in California’s 46th congressional 

district. 

The LaPrades, who had already given the maximum to the Prince campaign, contributed to the Orange County Party. 

Upon receipt of the funds, Mr. Toledano opened a new bank account in the name of the party, with only his own 

signature required for withdrawals, and deposited the LaPrades’ $10,000 check into the account. He then spent the 

money to fi nance a slate mailer that advertised the California Democratic Party’s endorsement of Mr. Prince. 

Unaware of the contributions and expenditures, the Orange County Party’s treasurer was unable to fulfi ll the Orange 

County Party’s registration and reporting obligations under the federal election law. The treasurer learned of the 

LaPrades’ contributions and the existence of the new bank account only one day before the primary.

The Commission learned of Mr. Toledano’s actions through a letter sent by the Orange County Party itself, and a 

complaint fi led by another individual. After fi nding probable cause to believe that Mr. Toledano had violated §432(b), 

the Commission attempted, but failed, to reach a conciliation agreement with him. Unable to resolve the matter, the 

Commission voted to authorize this suit.
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Appeals Court Decision

The appeals court found that Mr. Toledano violated 2 U.S.C. §432(b), which requires persons who receive contributions 

in excess of $50 to forward these contributions to the committee’s treasurer within ten days after receiving them. 

In 1996 Mr. Toledano, who was then the chairman of the Orange County Democratic Party (the Party), received 

a $10,000 contribution check made out to the Party, which he used to print and mail pamphlets supporting a 

Congressional candidate. Mr. Toledano did not forward the contribution to the committee treasurer within ten days 

or even inform him of it.

On appeal, Mr. Toledano argued, among other things, that his actions did not violate 2 U.S.C. §432(b) given that 

he “had de facto authority to act as treasurer” because he was convinced that the real treasurer was “incompetent 

and failed to discharge his duties responsibly.” The court found that Mr. Toledano was not a designated agent of the 

treasurer and could not exercise the treasurer’s authority under the statute or Commission regulations. The court 

further concluded that “to recognize unauthorized ‘de facto agents’ of the treasurer and thus open up multiple points 

of entry and exit through which campaign funds may fl ow is to create predictable confusion and unravel the whole 

statutory scheme.” The court concluded that by failing to forward the contribution to the Party’s treasurer, Mr. 

Toledano prevented the contribution, which turned out to be excessive, from being scrutinized by the Party’s treasurer 

for its legality.

The court affi rmed all aspects of the district court’s order granting the Commission summary judgment and imposing 

a $7,500 fi ne. The court also referred the case to the Appellate Commissioner for a determination of the Commission’s 

attorney’s fees and related expenses in defending this case on appeal. 

Source: FEC Record, June 2000, p. 9; July 2001, p. 8; December 2001, p. 4. June 2000, p. 9; July 2001, p. 8; December 2001, p. 4; , June 2000, p. 9; July 2001, p. 8; December 2001, p. 4. June 2000, p. 9; July 2001, p. 8; December 2001, p. 4; 

and January 2003, p. 20. 

FEC v. TRIAD MANAGEMENT SERVICES (02CV1237)

On June 21, 2002, the Commission asked the U.S. District Court for the District of Columbia to fi nd that Triad 

Management Services, Triad Management Services, Inc., (collectively Triad) and Carolyn Malenick violated the 

Federal Election Campaign Act (Act) during the 1996 federal election cycle. The Commission alleges that Ms. 

Malenick and Triad violated the Act by, among other things, failing to register and fi le as a political committee and 

accepting and making excessive and prohibited contributions. 2 U.S.C. §§ 433, 434, 441a(a)(1), 441a(f) and 441b.

Background

According to its 1996 promotional materials, Triad was a consulting fi rm devoted to keeping the Republican majority 

in Congress. From 1995 to 1996, Ms. Malenick operated Triad Management Services as a sole proprietorship, and 

she became the president, sole director and owner of Triad Management Services, Inc., when Triad incorporated in 

May 1996. The Commission began its investigation of Triad in response to a series of administrative complaints fi led 

between 1996 and 1998. After failing to reach a conciliation agreement with the defendants, the Commission fi led 

this court complaint.

Court Complaint

According to the Commission’s court complaint, before Triad incorporated it accepted $790,215 in federal election 

contributions—including $200,000 in 1995 and $465,000 in 1996 from a single individual. Once Triad became a 

corporation, it accepted an additional $746,971 in contributions, of which $726,621 came from a single individual 

and $10,000 came from other corporations. The Commission alleges that during the 1995-1996 election cycle, Triad 

also: 

• Made federal election expenditures totaling approximately $1.6 million;

• Solicited contributions for 1996 Congressional candidates; 

• Collected and forwarded 230 contribution checks made out to federal candidates or campaign committees, 

totaling $185,000; and

• Paid for the creation and distribution of publications that expressly advocated the election or defeat of federal 

candidates.
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Ms. Malenick and Triad did not register or report this alleged activity to the Commission.

The Commission contends that once Triad exceeded $1,000 in contributions or expenditures in a calendar year, it 

became a political committee under the Act and was required to register and fi le regular reports. 2 U.S.C. §§433 and 

434. Under the Act, Triad was also required to fi le disclosure reports once it made independent expenditures in excess 

of $250. 2 U.S.C. §434(c). The Commission alleges that Triad knowingly accepted prohibited corporate contributions 

and contributions in excess of the Act’s limits, and also made excessive contributions and in-kind contributions 

to federal candidates. 2 U.S.C. §441a(a). Moreover, the Commission alleges that after Triad incorporated, it made 

prohibited corporate contributions to and expenditures for and against federal candidates. 

Triad also allegedly organized a coalition of political committees that regularly met and agreed to consult on targeted 

candidates and campaigns. The Commission contends that Triad solicited contributions for these political committees 

and collected and forwarded contributions to them.

According to the Commission’s complaint, Triad was the sole source of funds for two committees, the American 

Free Enterprise PAC (AFE) and Citizens Allied for Free Enterprise (CAFE), which received $81,235 from Triad 

that was used to contribute to candidates it recommended. Triad established, fi nanced, maintained and controlled 

AFE and CAFE and was thus affi liated with them. Since affi liated committees share a single contribution limit, the 

Commission argues that the committees exceeded the contribution limits when they each contributed the maximum 

legal amount to the same federal candidates. 2 U.S.C. §441a(a) and 11 CFR 110.3(1). The Commission alleges that 

Triad directed and controlled contributions made by AFE and CAFE that resulted in excessive contributions. 

Relief

The Commission asks the court to:

• Find that the defendants committed these violations of the Act;

• Enjoin them from engaging in further similar violations;

• Order Triad Management Services and Triad Management Services, Inc., to register as political committees 

with the Commission and to fi le disclosure reports dating back to 1995; 

• Order the defendants to disgorge to the U.S. Treasury all excessive and prohibited contributions that they 

received during 1995 and 1996; and

• Assess appropriate civil penalties for each violation. See 2 U.S.C. §437g(a)(6)(B). 

Source: FEC Record, August 2002, p. 4. , August 2002, p. 4.

FEC v. WALSH FOR CONGRESS 

1985 Court Orders

On September 20, 1985, the U.S. District Court for the Eastern District of Michigan, Southern Division, issued 

an opinion which held the Kirk Walsh for Congress Committee (the Committee) and its treasurer, Kirk Walsh, in 

contempt for failing to comply with a default judgment entered against the Committee in April 1985. (Civil Action 

No. 84-9802.)

In the April 1985 default judgment, the court had ordered the Committee, Mr. Walsh’s principal campaign committee 

for his 1980 House campaign, to take the following actions within 30 days:

• File a 30 day post-general election report for 1980 and mid-year and year-end reports for 1981, 1982 and 

1983;

• Pay a $5,000 civil penalty to the U.S. Treasury; and

• Pay court costs incurred by the FEC in pursuing the action. 

In its contempt order, the court ordered the Committee and Mr. Walsh to comply with the default judgment by 

October 11, 1985. In the event the Committee failed to meet the deadline, the court would assess a fi ne of $2,000 and 

$100 per day until the Committee fully complied with the court’s orders. 

The court also ordered the Committee and Mr. Walsh to pay costs and attorney fees incurred by the Commission in 

bringing this action.
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July 1986 Court Order

On July 28, 1986, the district court issued another order after the Committee and Mr. Walsh had failed to comply 

with the court’s September 1985 contempt order. In its order of July 1986, the court required the Kirk Walsh for 

Congress Committee (the Committee) and its treasurer, Kirk Walsh, to:

• Provide the FEC with accurate reports of campaign fi nance activity from 1980 through 1986; and

• Pay a $5,000 civil penalty to the U.S. Treasurer, in addition to the $5,000 civil penalty the court had 

assessed against the Committee in September 1985. 

The court also ordered the Committee and Mr. Walsh to comply with its order by August 28, 1986. (Civil Action No. 

CA84-CV-9802) In the event that the Committee failed to meet the deadline, the court would assess a fi ne of $200 per 

day, beginning August 15, 1986, and continuing until the defendants had fully complied with the court’s order. 

Source: FEC Record, November 1985, p. 5; and September 1986, p. 7. , November 1985, p. 5; and September 1986, p. 7.

Kirk Walsh for Congress Committee: FEC v., No. 84-CV-9802-PH (E.D. Mich. August 5, 1986) (memorandum opinion and order, 

supersedes July 28, 1986).

FEC v. WEBB FOR CONGRESS

On January 2, 1991, the U.S. District Court for the Eastern District of North Carolina, Raleigh Division, granted 

the FEC’s motion for summary judgment against William Woodward Webb, a 1986 House candidate, his principal 

campaign committee and the committee treasurer. (Civil Action No. 89-664-CIV-5-BO.) The court found that 

defendants had violated 2 U.S.C. §441a(f) by knowingly accepting an excessive contribution in the form of a $19,000 

loan from the candidate’s mother. Defendants argued that the loaned funds were not subject to the contribution limits 

because they were Mr. Webb’s own funds under the defi nition of a candidate’s “personal funds” in FEC rules: “gifts 

of a personal nature which had been customarily received prior to candidacy.” 11 CFR 110.10(b)(2). 

The court ruled that, while Mrs. Webb’s loan to her son “may have been intended to be... similar to those gifts she 

had given to him prior to his candidacy, this gift was distinct in the fact that it was given to Mr. Webb’s election 

committee and not to Mr. Webb directly....Merely because Mr. Webb had received gifts in the past [from his mother] 

it does not follow that this particular loan was customary or of a personal nature as required by 11 CFR 110.10(b)(2). 

This gift was made at the request of Mr. Webb and as a direct result of his candidacy.” The court also found that 

defendants had violated 2 U.S.C. §434(b) by falsely reporting Mr. Webb, rather than his mother, as the source of the 

$19,000 loan.

The court fi ned the defendants $5,000 and permanently enjoined them from future violations of the Federal Election 

Campaign Act.

Source: FEC Record, February 1991, p. 10. , February 1991, p. 10.
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FEC v. WEINBERG

On September 14, 1989, the U.S. District Court for the District of Columbia issued a fi nal order and default judgment 

in FEC v. Mark R. Weinberg FEC v. Mark R. Weinberg (Civil Action No. 89-0416 RCL). The court found that Mr. Weinberg had violated the (Civil Action No. 89-0416 RCL). The court found that Mr. Weinberg had violated the 

terms of a conciliation agreement he had entered into with the Commission in 1988 (MUR 2073) and directed him 

to pay additional penalties.

Under the terms of the 1988 agreement, Mr. Weinberg had agreed to pay a $17,000 civil penalty for violations of 

sections 441a(a)(1)(A) and (3) of the election law. When the defendant failed to pay the fi rst installment on the 

penalty, the Commission fi led suit pursuant to 2 U.S.C. §437g(a)(5)(D). 

On August 15, 1990, the court granted the FEC’s petition to hold Mr. Weinberg in contempt of court after Mr. 

Weinberg had failed to pay the civil penalties included in the conciliation agreement and consent order. 

Under the terms of the 1990 order, Mr. Weinberg had to pay:

• An additional fi ne of $10,000 and $500 per day until he complies with the court’s prior order of 

September 1989;

• Post-judgment interest to the Commission (at a rate of 8.27 percent) until he complies with the 

September 1989 order; and

• Court costs and attorneys’ fees incurred by the Commission in prosecuting the contempt proceeding.

Source: FEC Record, November 1989, p. 5; and October 1990, p. 8. , November 1989, p. 5; and October 1990, p. 8.

FEC v. WEINSTEN 

On June 8, 1979, the U.S. District Court for the Southern District of New York issued a consent judgment in a suit 

which the FEC had fi led against Milton Weinsten and the Winfi eld Manufacturing Company on March 2, 1978. 

In its suit, the Commission alleged that Milton Weinsten, President of Winfi eld Manufacturing (a government 

contractor), used corporate funds to reimburse employees of Winfi eld Manufacturing Company for contributions 

they made to the 1976 Presidential primary campaign of Milton Shapp. 

The consent decree stated that use of corporate funds in this manner had violated the Act’s prohibitions against:

• The use of corporate funds in connection with Federal elections (2 U.S.C. §441b);

• Contributions by government contractors (2 U.S.C. §441c); and

• Contributions made in the name of another (2 U.S.C. §441f).

The court levied a civil penalty of $5,000, enjoined the defendants from future violation of the Act, and retained 

jurisdiction over the case for three years to ensure compliance with the provisions of the decree. 

Source: FEC Record, September 1979, p. 5. , September 1979, p. 5.

Weinsten: FEC v., 462 F. Supp. 243 (S.D.N.Y. 1978).
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FEC v. WEST VIRGINIA REPUBLICAN STATE EXECUTIVE COMMITTEE

On January 18, 1991, the U.S. District Court for the Southern District of West Virginia entered a judgment that 

was agreed to by the FEC and the defendant committee. (Civil Action No. 2:90-0898.) The parties agreed to the 

following points:

• In conducting a phone bank voter drive on behalf of the Presidential ticket—an exempt party activity—

the committee also mentioned the names of House and Senate candidates but failed to report any part of 

the phone bank expenditures as contributions allocated to the House and Senate candidates, in violation of 

2 U.S.C. §434(b).

• The committee incorrectly reported as “operating expenditures” certain disbursements for newspaper 

advertisements that advocated the defeat of a federal candidate, a second violation of 2 U.S.C. §434(b). 

• The committee used its nonfederal account to make the phone bank and newspaper ad expenditures described 

above, a violation of 11 CFR 102.5(a).

• The committee failed to itemize certain contributions and transfers it received and failed to disclose year-todate totals, a third violation of 2 U.S.C. §434(b).

The court issued a consent order imposing a $2,000 civil penalty against the committee and permanently enjoining it 

from future similar violations.

Source: FEC Record, March 1991, p. 10. , March 1991, p. 10.

FEC v. WILLIAMS

On January 31, 1995, the U.S. District Court for the Central District of California granted the FEC’s motion for 

summary judgment and denied the defendant’s motion for summary judgment. 1 The court ordered Larry R. Williams 

to pay $10,000 in civil penalties and enjoined him for 10 years from making contributions in the name of another and 

exceeding the $1,000 individual contribution limit to a federal candidate.

On December 26, 1996, the U.S. Court of Appeals for the Ninth Circuit reversed a district court ruling and dismissed 

this case.

On December 8, 1997, the U.S. Supreme Court denied the U.S. Solicitor General’s petition asking the Court to review 

this case. 

Background

Jack Kemp’s 1988 Presidential campaign had a fundraising program which enabled anyone who contributed $1,000 

to purchase a Super Bowl ticket for $100 from the Philadelphia Eagles. Mr. Williams, a campaign fundraiser at the 

time, purchased 40 tickets from the Eagles at the $100 special price and then offered them to employees and friends in 

exchange for a $1,000 contribution to the campaign. He then advanced or reimbursed 22 of his employees and friends 

$1,000 each to make a contribution to the Kemp campaign.

Additionally, Mr. Williams contributed $1,694 on his own behalf to the Kemp campaign.

District Court Decision

Mr. Williams argued that the FEC v. NRA Political Victory Fund FEC v. NRA Political Victory Fund ruling 2 precluded the FEC from pursuing this case 

because the structure of the agency violated the separation of powers doctrine.

The court denied the defendant’s motion because the court did not believe that the presence of the ex offi cio members 

on the Commission rendered the Commission’s actions unconstitutional under the separation of powers doctrine. 

The court reasoned that this doctrine was not violated because the ex offi cio members did not “hold an ‘Offi ce Under 

the United States’” and because the ex offi cios merely exercised an advisory role and could not vote on Commission 

action. In its opinion, the court disagreed with the reasoning in the FEC v. NRA Political Victory Fund FEC v. NRA Political Victory Fund decision, and decision, and

cited the decisions of the Court of Appeals for the Ninth Circuit in Lear Siegler, Inc. v. Lehman and Commodities 

Futures Trading Commission v. Schor in support of its conclusion. 3

Further, the court stated that even if the presence of the ex offi cio members were deemed unconstitutional, the de 

facto offi cer doctrine established in Buckey v. Valeo applied and the case could continue. In Buckey v. Valeo, the 

Supreme Court accorded validity to the FEC’s past actions even though the composition of the Commission in 1976 

violated the separation of powers doctrine. 
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Lastly, the court rejected the defendant’s arguments that the Act was unconstitutionally vague, that the FEC waived 

its right to impose a civil penalty by not pursuing its claims in bankruptcy court or that the defendant suffered 

prejudice as a result of an excessive delay in the prosecution of this action.

The court concluded that Mr. Williams committed the following violations of the Federal Election Campaign Act:

Contributions in the name of another

It is illegal to make a contribution in the name of another. Mr. Williams violated this provision of the law when he 

advanced or reimbursed $1,000 to 22 contributors. 2 U.S.C. §441f; and

Exceeding the $1,000 contribution limit for individuals

It is illegal for an individual to give more than $1,000 per election to any federal candidate. Mr. Williams made 

$28,694 in contributions to a single candidate, exceeding his legal limit (11 CFR 110.1(b)(1)).

Appeals Court Decision

In a split decision, the appeals court reversed the district court’s order. The appeals court held that the general fi veyear statute of limitations at 28 U.S.C. §2462 applied to the FEC’s action seeking to assess civil penalties against Mr. 

Williams.4 The court ruled that the time limit started running at the time the alleged offenses occurred—not at the 

time they were reported. The court also found that §2462 barred the FEC from seeking injunctive relief because the 

“claim for injunctive relief is connected to the claim for legal relief.”

The allegations involved acts that took place in 1987 and early 1988. The court found that the statute of limitations 

had run out in 1992 and early 1993. The FEC did not fi le a lawsuit against Mr. Williams until October 1993, though 

the Commission had begun to respond to the administrative complaint in late 1988 and had attempted to reach a 

conciliation agreement in 1993.

The FEC argued that the statute of limitations should be temporarily tolled (i.e., the clock stops ticking) any time 

before the agency receives a complaint and during mandated periods of review and conciliation attempts that generally 

must occur before a lawsuit can be fi led. However, the court was not moved by the FEC’s arguments. It said that, 

although the doctrine of “equitable tolling”5 applies in principle to §2462, it is not applicable to the Williams case. 

The Commission had ample opportunity through its normal disclosure and investigatory processes, the court stated, 

to learn of Mr. Williams’s alleged violations of the Act.

Supreme Court Action

On December 8, 1997, the U.S. Supreme Court denied the U.S. Solicitor General’s petition asking the Court to review 

this case. 

Source: FEC Record, April 1995, p. 5; February 1997, p. 3; November, 1997, p. 2; and January 1998, p. 3. , April 1995, p. 5; February 1997, p. 3; November, 1997, p. 2; and January 1998, p. 3.

Williams: FEC v., No. CV 93-6321-ER(BX) (C.D. Cal. Jan. 31, 1995), rev’d 104 F.3d 237 (9th Cir. 1996), 104 F.3d 237 (9th Cir. 1996), cert. denied 118 S. Ct. 600 118 S. Ct. 600 

(1997).

1 Previously, Mr. Williams had moved to dismiss this case pursuant to the 5-year statute of limitations in 28 U.S.C. §2462. The court 

dismissed this motion without issuing an opinion.

2 In the NRA case, the Court of Appeals for the District of Columbia concluded that the presence of the ex offi cio members on the 

Commission violated the separation of powers principle. The Commission has since reconstituted itself so as to exclude the ex offi cios 

from its body.

3 Citing Lear Siegler, the court found that Congress did not usurp an executive function by placing the ex offi cio members on the 

Commission because the ex offi cio members did not vote. Additionally, quoting the Schor decision, the court held that the presence of 

the ex offi cio members on the Commission did not impermissibly undermine the executive branch’s role. 4 The appeals court cited several cases to back up its claim that the Act is indeed subject to 28 U.S.C. §2462: 3M Co. v. Browner, 17 F.3d 

1453 (D.C. Cir. 1994); FEC v. National Republican Senatorial Comm., 877 F.Supp. 15 (D.D.C. 1995) and FEC v. National Right to Work 

Comm. Inc. 916 F.Supp. 10 (D.D.C. 1996). 5 Equitable tolling provides that “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of 

diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” Holmberg v. Armbrecht, 327 U.S. 

392, 397 (1946).
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FEC v. WOFFORD

On March 27, 1996, the U.S. District Court for the Middle District of Pennsylvania accepted the January 1, 1996, 

recommendation of the magistrate judge in this case; a $15,000 civil penalty was imposed on the Citizens for Wofford 

committee and its treasurer for accepting contributions in excess of the per-election limits. 2 U.S.C. §441a(f). 

This case involved an FEC enforcement action born out of the 1991 Pennsylvania special election to fi ll a U.S. Senate 

seat. The Democratic party nominated Harris Wofford on June 1, 1991. The party chose not to certify him to the 

state as the Democratic nominee until September 5, however, because the Republican party did not nominate his 

opponent, Richard Thornburgh, until then.

Mr. Wofford’s principal campaign committee, Citizens for Wofford, regarded contributions received after June 1 but 

before September 5 as primary election contributions. In doing so, contributors were able to give twice as much to Mr. 

Wofford’s general election effort; contributors gave up to their per-election limit for his primary election effort after 

the fact and again to his general election effort.

The court determined that contributions received after June 1 should have been treated as general election contributions. 

11 CFR 110.1(b)(2) and (3).

Although the amount of unlawful contributions received by the defendants was stipulated to have been $198,075, the 

court did not issue a higher civil penalty because “there is not a basis presented upon which one may reasonably infer 

that the defendants acted in bad faith” and because the committee had less than $15,000 in assets and was $70,000 in 

debt. The court concluded: “A fi ne in the amount of $15,000 would be adequate to vindicate all of the interests of the 

Commission and of the public in this case.”

Source: FEC Record, June 1996, p. 4. , June 1996, p. 4.

FEC v. WOLFSON

On February 6, 1986, the U.S. District Court for the Middle District of Florida, Tampa Division, issued an order 

granting the FEC’s motion for summary judgment in a suit which the FEC had brought against Allen Wolfson on 

October 7, 1985. (FEC v. Allen Z. Wolfson; Civil Action No. 85-1617-CIV-T-13.)

As requested by the FEC, the court found that Mr. Wolfson had violated the election law by making contributions to 

authorized candidate committees which exceeded the law’s monetary limits (2 U.S.C. §441a(a)(1)(A)) and which were 

made in the names of other persons (2 U.S.C. §441f). 

The court permanently enjoined Mr. Wolfson from further violations of the election law and imposed a $52,000 civil 

penalty on him. 

Source: FEC Record, April 1986, p. 8. , April 1986, p. 8.
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FEC v.

W

FEC v. CHARLES WOODS FOR U.S. SENATE

On January 16, 1998, the U.S. District Court for the District of Nevada ordered Charles Woods, two of his corporations, 

and Charles Woods for U.S. Senate (the Committee) to pay the FEC $50,000 for violating the Federal Election 

Campaign Act’s (the Act’s) ban on corporate contributions, and for failing to fi le 48-hour notices for $28,000 in 

contributions that came in during the waning days of the 1992 primary campaign. The court also issued a permanent 

injunction against future violations.

The court granted the FEC’s motion for summary judgment and imposed the civil penalty because of the extent of 

the violations and the unambiguous nature of the sections of the Act in question in this case. 

The Committee served as the principal campaign committee for Mr. Woods, who was seeking the 1992 Democratic 

nomination for the Senate in Nevada. During the election cycle, Quinn River Ranch, which was wholly owned by Mr. 

Woods, contributed $290,000 to the Committee. A subsidiary of another corporation that Mr. Woods owned, WTVYFM, also made an impermissible contribution when it used its American Express credit card to charge $1,426.23 in 

expenses for the Committee. 

The Act at §441b(a) prohibits corporations from making contributions in connection with a federal election, and 

prohibits political committees from accepting such contributions. Both Quinn River Ranch and WTVY were wholly 

owned by Mr. Woods. Nonetheless, the Act makes no distinction for closely-held corporations when applying 

the 441b(a) prohibition. The statute makes it unlawful for “any corporation whatever” to make contributions in 

connection with a federal election.

The law also provides for the timely fi ling of disclosure reports with the Commission for contributions received after 

the 20th day but more than 48 hours before an election. 2 U.S.C. §434(a)(6)(A).

Source: FEC Record, March 1998, p. 3. , March 1998, p. 3. 

FEC v. WORKING NAMES 

First Judgment

On May 19, 1988, the U.S. District Court for the District of Columbia granted the FEC’s motion for a default 

judgment against Working Names, Inc., a corporation that provides mailing list services, and the corporation’s 

president, Meyer T. Cohen. 

The FEC had fi led a motion for the default judgment in April 1988, after the defendants had violated the terms of a 

conciliation agreement entered into with the FEC in September 1986. Under the terms of the conciliation agreement, 

the defendants had agreed to pay a $2,000 civil penalty for violating 438(a)(4) of the election law and section 104.15 

of FEC regulations. Specifi cally, the defendants had rented to two organizations a mailing list containing a name 

obtained from a listing of contributors disclosed on an FEC report. Under the election laws names of contributors 

(other than political committees) that are disclosed on FEC reports may not be copied and used for commercial or 

solicitation purposes. 

The court ordered the defendants to comply with the terms of the conciliation agreement within 15 days of the 

court’s judgment. The court further decreed that the defendants pay $2,000 for violating the terms of the conciliation 

agreement and awarded the Commission its costs for the litigation. The court also permanently enjoined the defendants 

from future violations of the election law. 

FEC’s Contempt Petition

On May 10, 1990, after defendants had paid only $100 toward the $4,000 in assessed penalties, the court granted 

the FEC’s petition to hold the defendants in contempt of court for failing to pay the civil penalties assessed in the 

previous year’s default judgment. The court ordered defendants to pay the prior penalties plus $75 per day for each 

day the assessments remain unpaId. The late charge was to increase to $150 per day after June 17, 1990. Additionally, 

defendants had to pay interest on the unpaid civil penalties and court costs.

On February 28, 1991, the court issued a consent order in which defendants agreed to pay $15,000 to settle the 

dispute. The order declared that defendants had violated the sale and use restrictions and permanently enjoined 

them from further violations of the law. The Commission agreed to waive the accumulated contempt penalties and 

additional costs awarded in May 1990.

Source: FEC Record, July 1988, p. 6, July 1990, p. 4, and May 1991, p. 7. , July 1988, p. 6, July 1990, p. 4, and May 1991, p. 7.
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FEC 

v.

FEC v.

W

FEC v. WRIGHT

On November 12, 1991, a U.S. district court ordered James C. Wright, Jr., former Speaker of the U.S. House of 

Representatives, to answer the FEC’s questions in connection with an administrative complaint fi led against him. The 

court also ordered Mr. Wright to pay the FEC’s court costs. 

The former Speaker appealed the judgment on January 9, 1992. However, he later fi led a motion to dismiss the appeal 

as moot since he and the FEC had reached a settlement with respect to the administrative complaint (MUR 2649). 

The FEC did not object to the motion, and on May 1, 1992, the U.S. Court of Appeals for the Fifth Circuit dismissed 

the appeal. (Civil Action No. 92-1033.)

Background

In July 1988, Citizens for Reagan fi led an administrative complaint alleging that Speaker Wright violated 2 U.S.C. 

§441i. That provision, now repealed, prohibited a federal offi ceholder from accepting more than a $2,000 honorarium 

for a speech, appearance or article. The complaint specifi cally alleged that Speaker Wright, during 1985 and 1986, 

accepted excessive honoraria disguised as proceeds from the sale of his book, Refl ections of a Public Man. In January 

1990, the Commission found reason to believe Mr. Wright had violated §441i and opened an investigation into the 

matter. When he refused to comply with an FEC order seeking answers to questions about his appearances and the 

sale of his book, the agency asked the district court to enforce the order.

District Court Decision

In its November 12, 1991, judgment, the court concluded that the FEC’s order complied with a three-pronged test 

for validity: the investigation was for a lawful purpose; the information sought was relevant; and the agency’s demand 

was reasonable. The court therefore ordered Mr. Wright to answer the FEC’s questions. In reaching its decision, 

the court considered but rejected Mr. Wright’s arguments, which challenged the FEC’s authority to investigate 

his activities.

(Mr. Wright also fi led a motion asking the court to dismiss the lawsuit, arguing that, with the repeal of §441i in 

August 1991, the FEC lost jurisdiction to bring the action. On October 16, 1991, for the reasons discussed below, the 

court denied Mr. Wright’s motion.)

Speech or Debate Clause 

Former Speaker Wright relied on the speech or debate clause in the Constitution for several of his arguments. The 

clause states that “for any Speech or Debate in either House, they [Senators or Representatives] shall not be questioned 

in any other Place.” Article I, Section 6.

Mr. Wright contended that the clause nullifi ed the FEC’s authority to seek answers to questions on activities that took 

place when he was a House Member. The court, however, found that the clause did not apply to the FEC’s questions, 

which concerned activities that occurred “outside, and away from, the House” and which were “totally unrelated to 

anything done in the course of the legislative process....”

Mr. Wright also argued that the FEC violated the clause because, in deciding to pursue an investigation, the agency 

relied on “speech or debate” material, namely, a report prepared by an outside counsel at the request of the House 

Committee on Standards of Offi cial Conduct when that body was investigating the sale of the Speaker’s book. The 

court rejected the argument, pointing out that the report lacked any “speech or debate” content but merely contained 

fi ndings related to the Speaker’s fi nancial affairs. Moreover, the court said that the relevant fi ndings in the report 

(i.e., his alleged circumvention of the honoraria limit) were “independent of anything that occurred in any kind of 

House proceeding.”

The former Speaker again invoked the speech or debate clause with respect to his testimony before the House 

Committee, arguing that the clause immunized him from having to answer the FEC’s questions on the same matters. 

However, because he testifi ed before the Committee “in his capacity as a witness and not in his legislative capacity,” 

the court found no merit to this argument 

Finally, he argued that the Constitution’s self-discipline clause, when read with the speech or debate clause, effectively 

allocated to the House the sole authority to enforce violations of the honorarium limit by Members. The selfdiscipline clause states, in part: “Each House may determine the Rules of its Proceedings [and] punish its Members for 

disorderly Behavior....” Article I, Section 5. The court rejected this argument for two reasons. First, it “is tantamount 

to a contention that the relevant provisions of the Act are unconstitutional.” Second, it “fails to recognize that the 

standards of conduct and rules of enforcement found in the Act are, indeed, self-disciplinary rules—the combined 

votes of the two Houses created the statutory provisions in question.”
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Repeal of §441i 

In another line of argument, Mr. Wright claimed that the FEC no longer had authority to investigate or enforce §441i 

because of recent legislation: The Ethics Reform Act of 1989 (effective January 1, 1991), which prohibited House 

Members from accepting honoraria and amended §441i to remove House Members from its scope; and the repeal of 

§441i later that year, on August 14.

The court fi rst noted that the Ethics Reform Act effectively repealed §441i insofar as it applied to House Members. 

The court went on to point out that, if Congress had intended to eliminate the FEC’s authority to enforce §441i 

violations occurring before the repeal, the legislation would have expressed that intent. “Thus, to this day,” the court 

stated, “§441i is deemed to be in full force and effect as to any conduct of Wright occurring before the date of 

its repeal.”

Source: FEC Record, July 1992, p. 8. , July 1992, p. 8.

FEC v. Wright, 777 F. Supp. 525 (D.C.N.D. Tex. 1991).

SIMON C. FIREMAN v. USA

In October 1999, the parties in this case signed a settlement agreement, which did not constitute an admission of 

liability on the part of either party.

The plaintiffs, Simon C. Fireman and Aqua-Leisure Industries, Inc. (Aqua-Leisure), brought this action to recover 

from the government illegal campaign contributions they had made to the Dole for President Committee, which had 

disgorged the illegal contributions to the U.S. Treasury. 

In 1996, Mr. Fireman pleaded guilty to making contributions in the names of others and making excessive contributions 

to two 1996 Presidential campaign committees of former Senator Bob Dole. The U.S. District Court for the District 

of Massachusetts ordered him to pay a $1 million fi ne and sentenced him to one year of probation. Upon learning 

that the contributions were likely impermissible, Mr. Dole’s primary and compliance committees disgorged $69,000 

to the U.S. Treasury. 

Mr. Fireman alleged that FEC regulations mandate that a contribution that does not appear impermissible at the 

time it is made, but later is found to be from a prohibited source, be refunded to the contributor within 30 days. 11 

CFR 103.3(b)(2). He also alleged that Commission advisory opinions concluding that a campaign committee could 

also refund impermissible contributions to the U.S. Treasury are beyond the Commission’s authority and contrary 

to its regulations.

On October 26, the USA agreed to settle the matter in full by paying Mr. Fireman $69,000. The payment fully 

discharges the USA of all claims and demands made by Mr. Fireman. The parties entered into the agreement solely 

for the purpose of settling this action and all disputes between the parties involved. The agreement should not be 

cited or otherwise referred to, in any proceeding, whether judicial or administrative. 

Source: FEC Record, January 2000, p. 13 , January 2000, p. 13
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F

FIRST NATIONAL BANK OF BOSTON v. BELLOTTI

On April 28, 1978, the Supreme Court issued an opinion in First National Bank of Boston v. Bellotti.

1 The Court 

struck down a Massachusetts statute which severely restricted the participation of banks and corporations in state 

ballot measures.

Background

First National Bank of Boston and four other banks and corporations (hereafter referred to collectively as First 

National) wanted to make expenditures for advertisements criticizing a proposed constitutional amendment which 

authorized the state legislature to impose a graduated income tax on individuals. The proposal was to be submitted 

to voters in a referendum in November 1976. 

A Massachusetts law (chapter 55, 8 of the Massachusetts General Laws) prohibited contributions or expenditures by 

any bank or corporation for the purpose of “infl uencing or affecting the vote on any question submitted to the voters, 

other than one materially affecting any property, business or assets of the corporation.” The law further specifi ed that 

questions submitted to voters concerning the taxation of individuals did not materially affect the property, business 

or assets of the corporation. 

Massachusetts Attorney General Francis X. Bellotti notifi ed First National that the banks’s expenditures would be 

illegal and that he intended to enforce 8 against it. 

In April 1976 First National fi led a suit challenging §8’s constitutionality. The suit was subsequently submitted to the 

Supreme Judicial Court of the Commonwealth of Massachusetts. The plaintiffs claimed that the statute violated the 

First Amendment, the due process and equal protection clauses of the Fourteenth Amendment and similar provisions 

of the Massachusetts Constitution. They also claimed that §8, as it applied to their expenditures, was unconstitutional 

because the adoption of a graduated personal income tax would indeed materially affect their businesses in a number 

of specifi ed ways.2 

In September 1976 the Supreme Judicial Court of Massachusetts upheld the constitutionality of §8 and dismissed 

First National’s claims. The decision was appealed to the United States Supreme Court. 

The Federal Election Commission submitted an amicus curiae brief supporting the Massachusetts court’s decision. 

Supreme Court Decision

In ruling on First National Bank v. Bellotti, the Supreme Court fi rst determined whether the case was moot. The suit 

reached the Court in November 1977, by which time the referendum of November 1976 had already resulted in the 

defeat of the proposed constitutional amendment. The Court denied that, since the controversy surrounding 8 was 

likely to occur again (because the law remained in force in Massachusetts and because the proposed constitutional 

amendment authorizing the tax had already been presented as a referendum four times in that state), the case was 

not moot. 

On the merits, the Massachusetts court had asked whether corporations had First Amendment rights. “Instead,” 

the Supreme Court observed, the lower court should have asked “whether 8 abridge[d] expression that the First 

Amendment was meant to protect.” The Supreme Court maintained that it dId. 

Referring to the proposed advertisements, the Supreme Court said, “It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. 

The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of 

its source.”

The Supreme Court also faulted the lower court’s ruling that corporations could only claim a right to free speech on 

the subject of a referendum if they demonstrated that they would be materially affected by it. 

The Court said that freedom of expression for communications businesses had been protected because such protection 

was necessary to insure the free fl ow of information and ideas to the public. 

The Court also struck down the law’s proscription against corporate discussion of ballot questions concerning personal 

income taxes. The Justices held that “the legislature is constitutionally disqualifi ed from dictating the subjects about 

which persons may speak and the speakers who may address a public issue.” The Court then considered whether the 

restrictions in 8 were nonetheless justifi ed by a compelling state interest. Bellotti claimed that the restrictions on free 

speech by corporations were justifi ed by the state’s interest in: (1) “sustaining the active role of the individual citizen in 

the electoral process and thereby preventing diminution of the citizen’s confi dence in government” and (2) “protecting 

the rights of shareholders whose views differ from those expressed by management on behalf of the corporation.”
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The Court acknowledged that these interests were of the “highest importance,” but it found that there was no evidence 

to corroborate such claims in this case. 

Further, the Court maintained that “the risk of corruption perceived in cases involving candidate elections...simply is 

not present in a popular vote on a public issue.” 

As for the notion that the law’s restrictions protected shareholders by preventing corporate expenditures to further 

views with which shareholders disagreed, the Court said this alleged purpose was belied by other facts. For example, in 

Massachusetts a corporation could legally lobby on behalf of its interests in the legislature even though the corporate 

viewpoint on any legislative question might differ from that of some of its shareholders. On the other hand, the 

law forbade the corporation from spending money to oppose or support a referendum, “even if its shareholders 

unanimously authorized the contribution or expenditure.”

The Court deemed §8 to infringe on protected political speech without any compelling state interest supporting 

the regulation. 

First National Bank of Boston v. Attorney General, 371 Mass. 773, 359 N.E.2d 1262 (Mass. 1977), rev’d sub nom, First National Bank of 

Boston v. Bellotti, 435 U.S. 765 (1978). 1 The other complainants in this suit were New England Merchants National Bank, The Gillette Company, Digital Equipment 

Corporation and Wyman-Gordon Company. 

2 With regard to contributions and expenditures made to infl uence the election of candidates, the Court observed: “Appellants do not 

challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other 

means of infl uencing candidate elections.... The overriding concern behind the enactment of statutes such as the Federal Corrupt 

Practices Act [the forerunner of the Federal Election Campaign Act] was the problem of corruption of elected representatives through 

the creation of political debts.... The importance of the governmental interest in preventing this occurrence has never been doubted. 

The case before us presents no comparable problem, and our consideration of a corporation’s right to speak on issues of general public 

interest implies no comparable right in the quite different context of participation in a political campaign for election to public offi ce. 

(Footnote 26)”

FREEDOM REPUBLICANS v. FEC

On April 7, 1992, the U.S. District Court for the District of Columbia remanded this case to the FEC, ordering the 

agency “with all deliberate speed...[to] begin rulemaking proceedings designed to consider the means through which 

the FEC will ensure compliance with Title VI of the Civil Rights Act....” Title VI bars racial discrimination in any 

program receiving federal funds.1

On January 18, 1994, fi nding that Freedom Republicans lacked standing to bring suit, the U.S. Court of Appeals 

for the District of Columbia vacated the judgment of the district court and remanded the case with instructions to 

dismiss. On October 3, 1994, the Supreme Court refused to review that decision, and on December 7, 1994, the case 

was dismissed by the district court. (Civil Action No. 92-0153 (CRR).)

Background

The plaintiffs in this case—The Freedom Republicans, Inc., and its President, Lugenia Gordon—alleged that the 

Republican Party’s delegate selection process discriminated against African Americans in violation of Title VI. 

(Plaintiffs had made similar allegations in an administrative complaint, which FEC staff dismissed for lack of 

jurisdiction.) Claiming that the FEC was responsible for ensuring that the convention funding program complied 

with Title VI, plaintiffs asked the court to order the agency to conduct an investigation of the Republican Party’s 

delegate selection procedures and to adopt Title VI regulations on delegate selection.

Plaintiffs additionally claimed that Title VI prohibited the FEC from providing any public funds to the Republican 

Party for its 1992 national convention because of the Party’s alleged discriminatory delegate process. In moving for 

partial summary judgment, however, plaintiffs asked the court to consider only their request for a rulemaking.

The FEC asked the court to dismiss the case, arguing, among other things, that plaintiffs lacked standing to bring 

suit; that they had not exhausted administrative remedies; that Title VI did not apply to the public funding programs 

the FEC administers; and that the FEC did not have authority to issue delegate selection regulations under Title VI.

District Court Ruling

Finding that Title VI applies “to the FEC as well as to both major political parties and other recipients of federal 

funds,” the court granted plaintiffs’ motion for partial summary judgment and denied the FEC’s motion to dismiss. 

The court held that the FEC was obligated to adopt rules that would ensure enforcement of Title VI in the delegate 

selection process.
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F

Plaintiffs’ Standing to Bring Suit

The agency argued that plaintiffs lacked standing to bring suit. (The FEC contended that the jurisdiction of the 

courts can be invoked only when an individual plaintiff has suffered actual injury and that plaintiff Gordon made no 

such allegation. The FEC similarly argued that Freedom Republicans failed to allege injury to its members suffi cient 

to invoke the court’s jurisdiction.)

The court, however, held that Freedom Republicans had standing to sue on behalf of its members because 

the organization satisfi ed the three criteria set forth in Hunt v. Washington State Apple Advertising Commission.

2

First, the individual members of the group could themselves have brought action under Title VI, which “entitles the 

Plaintiffs to a private right of action against the agency for dereliction of its enforcement duties.” Second, the interests 

Freedom Republicans sought to protect were germane to its purpose, namely, “advancing the interests of African 

Americans through, and within, the Republican Party.” and third, “the presence of individuals who have actually 

been denied delegate status on the basis of racial discrimination is not necessary” when an organization challenges an 

agency’s interpretation of law, “such as the FEC’s interpretation of the applicability of Title IV.”

Administrative Remedies

The FEC also contended that the plaintiffs had failed to pursue an administrative remedy still open to them: to petition 

the agency to issue a rulemaking on Title IV. The court pointed out that the administrative complaint plaintiffs had 

fi led with the agency “put the FEC on suffi cient notice of Plaintiffs’ desire for a rulemaking.”

Application of Title IV

The FEC contended that Title IV 3 was not applicable to the public funding of national nominating conventions because 

of First Amendment concerns (i.e., government control over the selection of delegates to the party conventions). The 

court, however, said that there were numerous cases in which First Amendment rights were overridden “by the need 

to prevent state-sponsored discrimination.”

The court rejected the FEC’s argument that convention funding does not qualify as “federal fi nancial assistance” 

because Title VI applies only to programs where funding is provided to a nonfederal entity, which then provides 

the assistance to the ultimate benefi ciaries. In the court’s view, convention funding meets this test because the 

funds “enable the party to provide a platform for other, ultimate benefi ciaries, such as Republican candidates 

and party members.”

Responding to the FEC’s argument that Congress never intended for the agency to have any control over the internal 

workings of the parties, the court said that there was nothing in the legislative history suggestive of Congress’s desire 

to prevent the FEC from enforcing Title VI.

Court of Appeals Ruling

The U.S. Court of Appeals for the District of Columbia concluded that Freedom Republicans had no standing to 

bring suit against the Commission for the purpose of pressuring the Republican Party to change its delegate-selection 

rules. The court found that Freedom Republicans failed to meet two requirements for standing under Article III of 

the Constitution.

First, the organization failed to show that the allegedly discriminatory delegate-selection process was caused by the 

authorization of federal funding to the Republican convention. The court said that “the injury alleged in Freedom 

Republicans’ complaint is not fairly traceable to any encouragement on the part of the government, but appears 

instead to be the result of decisions made by the Party without regard to funding implications.” Second, Freedom 

Republicans failed to show that court action or action by the FEC would likely redress the injury. The court found 

no “adequate likelihood, as opposed to speculation, that the Party would choose to change its time-tested delegateselection mechanism rather than forego the convention funding.”

Accordingly, on January 18, 1994, the court vacated the judgment of the district court and remanded and remanded the case with the case with

instructions to dismiss.

Petition to Supreme Court; Dismissal

On October 3, 1994, the Supreme Court denied Freedom Republicans’ petition for a writ of certiorari. The district 

court dismissed the case on December 7, 1994.

Source: FEC Record, June 1992, p. 7; March 1994, p. 3; and February 1995, p. 6. , June 1992, p. 7; March 1994, p. 3; and February 1995, p. 6.

Freedom Republicans, Inc. v. FEC, 788 F. Supp. 600 (D.D.C. 1992), rev’d, 13 F.3d 412 (D.C. Cir.), , 13 F.3d 412 (D.C. Cir.), cert. denied, 115 S. Ct. 84 (1994). , 115 S. Ct. 84 (1994). 1 In response to the FEC’s motion to amend judgment, and over the objection of plaintiffs, the court revised its order on May 4, 1992, 

to make clear that the order referred to a rulemaking governing the delegate selection process of federally funded national party 

conventions. The amended order also made clear that the court did not impose a deadline for the promulgation of the rules. 

2 432 U.S. 333, 97 S.Ct. 2434 (1977).

3 Title VI states: “Each Federal agency... which is empowered to extend Federal fi nancial assistance to any program or activity, by 

way of grant, loan, or contract...is authorized and directed to effectuate the provisions of section 2000d of this title...by issuing rules, 

regulations or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the 

fi nancial assistance.” 42 U.S.C. §2000d-1.
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FROELICH v. FEC

The U.S. Court for the Eastern District of Virginia, Alexandria Division, dismissed this suit on May 27, 1994, ruling 

that Francis E. Froelich and two other plaintiffs, all residents of Virginia, lacked standing to bring suit.

On June 14, 1995, the U.S. Court of Appeals for the Fourth Circuit affi rmed the district court’s decision and found 

the appeal to be without merit.

In their suit, plaintiffs claimed that the Federal Election Campaign Act was unconstitutional to the extent that it 

allowed House and Senate candidates to accept out-of-state contributions. They argued that such contributions to 

the announced U.S. Senate candidates from Virginia (also named in the suit) allowed non-Virginians to participate 

in the process of electing a Senator and diluted the value of the plaintiffs’ participation. They further claimed that 

nonresident contributions created the appearance that an elected Senator is answerable to nonresident contributors. 

These alleged consequences of nonresident contributions, they argued, violated the 17th Amendment’s guarantee that 

two Senators from each state shall be “elected by the people thereof.”

The district court, however, ruled that plaintiffs’ claims were too general, lacking the factual specifi city necessary to 

establish standing for judicial review. The court said that the “abstract question of wide signifi cance” and “general 

grievances” presented by the plaintiffs were more properly addressed by Congress. The court commented that if it 

were to uphold plaintiffs’ claims, it would be “making legislative policy” and consequently “improperly interfering” 

with the legislative branch. The court of appeals affi rmed the district court’s decision.

Source: FEC Record, August 1994, p. 9; and August 1995, p. 5. , August 1994, p. 9; and August 1995, p. 5.

Froelich v. FEC, 855 F. Supp. 868 (E.D. Va. 1994); No. 94-1777 (4th Cir. May 27, 1994).

FULANI v. FEC (94-1593)

On February 9, 1995, the U.S. Court of Appeals for the District of Columbia dismissed this case.

Dr. Fulani and her principal campaign committee for the 1994 Presidential race had asked the court to review an 

FEC decision to conduct an investigation into the campaign’s fi nances pursuant to the public funding statute. 26 U.

S.C. §9039(b).

The court dismissed the case because the action in question was not a fi nal agency action and was therefore not 

subject to judicial review under 26 U.S.C. §9041(a), as previously construed by the court.

Source: FEC Record, October 1994, p. 9; and April 1995, p. 6. , October 1994, p. 9; and April 1995, p. 6.

Fulani v. FEC, No. 94-1593 (D.C. Cir. Feb. 9, 1995).

FULANI v. FEC (94-4461)

On April 12, 1995, the U.S. District Court for the Southern District of New York dismissed this case as moot.

Plaintiffs had sought to restrain the FEC from taking any action in an enforcement matter because the administrative 

complaint that originated the case included unsworn attachments.

When the complainant fi led a sworn statement verifying the attachments, plaintiffs’ arguments were rendered moot.

Source: FEC Record, August 1994, p. 11; and June 1995, p. 12. , August 1994, p. 11; and June 1995, p. 12.

Fulani v. FEC, No. 94-4461 (S.D.N.Y. Apr. 12, 1995).
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G

FULANI v. FEC (97-1466)

On June 23, 1998, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition from Dr. Lenora 

B. Fulani and the Lenora B. Fulani for President Committee to review the FEC’s fi nal repayment determination for 

the committee’s fi nancial transactions during the 1992 Presidential campaign. The FEC had determined that Dr. 

Fulani and her committee had to repay the U.S. Treasury $117,269 in public matching funds.

Dr. Fulani received about $2 million for the 1992 campaign, under the Presidential Primary Matching Payment 

Account Act. Under the Matching Payment Act, eligible candidates can use matching funds only for qualifi ed 

campaign expenses. Committees that receive such funds are also subject to an audit by the FEC and the requirement 

to make repayments to the U.S. Treasury if the audit reveals that they made nonqualifi ed campaign expenses or 

received payments in excess of their entitlement. Commission regulations allow a candidate to contest the initial 

repayment determination by submitting written materials and by requesting an oral hearing before the Commission 

issues a fi nal repayment determination. The regulations further state that, if the candidate does not contest an initial 

repayment determination, it becomes fi nal 30 days after a candidate is served written notice of the determination.

Dr. Fulani did not contest the Commission’s initial repayment determination, which concluded that Dr. Fulani 

owed the Treasury $1,394. Dr. Fulani had already repaid this amount. The Commission, however, held its fi nal 

determination in abeyance after a former Fulani campaign worker came forward to challenge the accuracy of some 

of the documentation on which the FEC had based its initial repayment determination. The FEC continued to 

investigate—though hampered by a lack of cooperation from committee staff and vendors—and issued a second 

initial repayment determination, this time, in the amount of $612,557. Dr. Fulani contested this determination, 

and, in its fi nal repayment determination, the Commission reduced the amount to $117,269. Dr. Fulani asked for a 

rehearing, which was denied by the Commission, and then brought the matter before the appellate court. Dr. Fulani 

challenged the FEC’s authority to issue a second repayment determination and, in the alternative, argued that the 

Commission’s fi ndings that she and her committee owed $18,768 in nonqualifi ed disbursements to a vendor and 

$73,750 in unsubstantiated payments to individuals by check were unreasonable. 

Dr. Fulani and the committee fi rst argued that the Matching Payment Act contemplates only one repayment 

determination and that the FEC had no authority to make a second one in their case. Commission regulations, 

however, allow additional repayment determinations after a fi nal determination has been made “where there exist facts 

not used as the basis for a previous fi nal determination.” 11 CFR 9038.2(f). The court agreed with the Commission 

that the statute is silent on this matter and the agency’s regulation is a reasonable construction of the Act.

Dr. Fulani also argued that the FEC had no authority to hold its fi rst repayment determination in abeyance because 

the determination became fi nal when Dr. Fulani did not object to it within the designated 30-day period. The court 

agreed with the Commission that it makes no difference whether the fi rst initial repayment determination had become 

fi nal or had been suspended because the FEC’s own regulation explicitly authorizes it to make additional repayment 

determinations on the basis of new facts.

Dr. Fulani also argued that, even if the Commission is authorized to make a second repayment determination, it 

did not issue that determination within the three-year period the statute requires. Although the Commission, in 

fact, did issue the second initial determination just before the three-year period ended, Dr. Fulani stated that the 

determination fi gure ($612,557) was drawn up just to meet the deadline and was not the product of a thorough 

examination and audit. But the court found that the obstacles the Commission encountered in investigating the 

committee understandably led it to draw all inferences against the committee. “When a candidate seeks to frustrate 

and delay a government investigation, it can hardly be heard to complain that the product is insuffi ciently thorough,” 

the court stated.

The court also affi rmed the Commission’s determination on the merits and its denial of Dr. Fulani’s petition for a 

rehearing. In regard to the payments to the vendor, the court stated that Dr. Fulani failed to offer a timely explanation 

of the payments. In regard to the Fulani committee’s payments by check to individuals, the court deferred to the 

Commission’s construction of its own regulations even when it found that the “FEC’s reading of its regulation 

admittedly is not obvious.”

Source: FEC Record, August 1998, p. 6. , August 1998, p. 6.

Fulani v. FEC, 147 F.3d 924 (D.C. Cir. June 23, 1998).
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LENORA B. FULANI v. FEC (00-1018)

On January 3, 2002, the U.S. District Court for the District of Columbia granted the Commission’s motion to dismiss 

this case, fi nding that Dr. Fulani lacked standing to bring the lawsuit.

Background

Dr. Fulani was a Presidential candidate in the 1988 and 1992 elections. In the summer of 1995, she planned to campaign 

against President Clinton in the 1996 Democratic primaries. However, in August of that year the Commission issued a 

repayment determination for approximately $612,000 against her 1992 Presidential campaign. Dr. Fulani alleged that 

as a result she lacked the fi nancial resources to run in the 1996 elections. Dr. Fulani then fi led a complaint with the 

Commission alleging, among other things, that President Clinton violated laws relating to primary spending limits. 

The Commission did not fi nd reason to believe that the violations had occurred and closed the matter, MUR 4713, 

in March 2000.

Court Case

In her court complaint, Dr. Fulani alleged that the Commission’s dismissal of MUR 4713 was arbitrary, capricious, 

an abuse of discretion and contrary to law. She argued that, based on the information developed by the Commission’s 

General Counsel’s offi ce, there was both reason to believe and probable cause to believe that President Clinton, his 

primary campaign committee and the Democratic National Committee violated the Presidential Primary Payment 

Account Act. She asked the court to compel the Commission to act on the complaint.

Standing

In order to have standing to bring such a lawsuit, a plaintiff must demonstrate:

1. An injury in fact;

2. A causal connection between the injury and challenged conduct; and

3. A likelihood that the injury will be redressed by a favorable decision of the court.

The plaintiff’s injury must be “concrete and particularized,” as well as “actual” or “imminent.” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992).

Decision

The court found that while Dr. Fulani did suffer a concrete injury when she was stopped from running for offi ce, the 

Commission’s failure to pursue her administrative complaint did not cause this injury. Dr. Fulani argued that the 

Commission’s repayment determination caused her injury, but that determination was not before the court in this 

case. Moreover, the Commission’s alleged failure to act on Dr. Fulani’s administrative complaint occurred well after 

her failure to run for the Presidency in 1996. Finally, the court found that Dr. Fulani could not demonstrate how her 

alleged injury could be redressed by the court. The court granted the Commission’s motion to dismiss the case.

Source: FEC Record, February 2003, p. 8. , February 2003, p. 8.

FUND FOR A CONSERVATIVE MAJORITY v. FEC (80-1609)

On October 19, 1983, the U.S. District Court for the District of Columbia issued an order denying the Fund for a 

Conservative Majority’s (FCM’s) petition for further relief in a consolidated suit originally decided by the court in 

September 1980. (Common Cause v. Harrison Schmitt [FEC Intervenor]; FEC v. Americans for Change;

1 Civil Action 

Nos. 80-1609 and 80-1754.) The court also denied a motion fi led by the National Congressional Club (NCC) and 

the National Conservative Political Action Committee (NCPAC) to intervene in FCM’s petition and dismissed the 

petition with prejudice. 

In FEC v. NCPAC and FCM 2 the U.S. District Court for the Eastern District of Pennsylvania on December 12, 

1983, refused to allow the FEC to implement 26 U.S.C. §9012(f). (Civil Action No. 83-2823.) The Federal Election 

Commission fi led an appeal with the Supreme Court on December 16.
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Background

In its September 1980 ruling, the U.S. District Court for the District of Columbia held that Section 9012(f) was 

unconstitutional as applied to Americans for Change, Americans for an Effective Presidency and FCM, three 

multicandidate political committees (not affi liated with any parent organization). They had planned to make 

expenditures in excess of $1,000 to support the Republican Presidential nominee’s general election campaign. 

On January 19, 1982, the Supreme Court voted 4 to 4 to affi rm the D.C. district court’s September decision, with 

Justice Sandra Day O’Connor not participating. However, since the high Court’s vote on the suit had been equally 

divided, its affi rmance had no precedential value. Subsequently, the FEC issued advisory opinions to NCPAC and 

FCM in which the FEC stated that Section 9012(f) may be enforced.3

District Court’s Ruling

On June 16, 1983, FCM fi led a petition with the D.C. district court. (Civil Action No. CA 80-1609) Citing the D.C. 

district court’s 1980 ruling in the fi rst suit, FCM asked the court to:

• Order the FEC to dismiss its suit against NCPAC and FCM in the Pennsylvania district court;

• Prohibit the FEC from fi ling suits in state and federal courts which seek to enforce or to construe Section 

9012(f)(1);

• Direct the FEC to withdraw an advisory opinion (AO 1983-11) issued to FCM on May 18, 1983, which stated 

that FCM would be subject to the $1,000 spending limit imposed by Section 9012(f)(1) should FCM make 

expenditures on behalf of the publicly funded Republican Presidential nominee in 1984; and

• Direct the FEC to issue an alternative advisory opinion to FCM stating that FCM’s proposed expenditures 

would not be subject to Section 9012(f)(1). 

In dismissing FCM’s petition, the D.C. district court judges found no merit to FCM’s contention that the FEC could 

not fi le suit in the Pennsylvania district court because the issues raised by the suit had already been resolved by the 

D.C. district court’s ruling in 1980.4 The D.C. district court found, to the contrary, that the FEC’s second suit raised 

new issues. “The controversy in the original suit decided by the [D.C. district] court stemmed from FCM’s planned 

expenditures for then-Presidential hopeful Reagan’s 1980 campaign, not from planned expenditures by other parties 

[i.e., NCPAC], and not from FCM’s planned expenditures for the 1984 presidential election.” The court also cited legal 

precedent which permitted federal agencies “to relitigate substantially legal issues raised by different transactions or 

events, after adverse decisions elsewhere.” Western Oil and Gas Association v. Environmental Protection Agency, 633 

F.2d 803, 808.

Furthermore, the D.C. district court found that, in fi ling its second suit with the Pennsylvania district court, the 

FEC had not intended to undermine the D.C. district court’s ruling in the fi rst suit. The court conceded that the 

“constitutional issues remained unsettled” as a result of the high Court’s evenly divided decision. 

Since the high Court has not yet resolved the constitutionality of Section 9012(f), the D.C. district court asserted 

that, as the federal agency charged with enforcing the provision, the “FEC must legitimately be permitted to retry the 

legal issue of section 9012(f)’s constitutionality” until “it is fi nally settled by the Supreme Court.” The district court 

maintained that Congress had placed a special importance “on FEC participation in actions construing the Fund 

Act, and on quick Supreme Court review.”

The D.C. district court also found that FCM had provided no evidence to indicate that the FEC’s second suit had 

caused it “unwarranted inconvenience or harm.” Moreover, the D.C. district court held that in attempting to enjoin 

the FEC from seeking a resolution of Section 9012(f)’s constitutionality in the Pennsylvania district court, FCM 

should directly petition the Pennsylvania district court. 

Source: FEC Record, January 1984, p. 8. , January 1984, p. 8. 1 See FEC v. Americans for Change. 2 See FEC v. National Conservative Political Action Committee and Fund for a Conservative Majority. 3 For a summary of AO’s 1983-10 and 1983-11, see p. 2 of the July 1983 Record. 

4 Under the doctrine of collateral estoppel, when an issue of ultimate fact has been determined by a valid judgment, that issue cannot 

be relitigated between the same parties.
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FUND FOR A CONSERVATIVE MAJORITY v. FEC (84-1342)

On February 26, 1985, the U.S. District Court for the District of Columbia granted summary judgment to the FEC 

in Fund for a Conservative Majority v. FEC. (Civil Action No. 84-1342.) The court held that the Commission was 

justifi ed in refusing to disclose documents pertaining to the agency’s audit and review procedures, which FCM sought 

under the Freedom of Information Act (FOIA). (FCM is a nonconnected political committee, which the FEC had 

proposed to audit based on the Commission’s review of FCM’s reports and its determination that FCM had not met 

the agency’s requirements for substantial compliance with the law’s reporting provisions.)

In its suit, FCM challenged the FEC’s refusal to disclose documents setting forth the agency’s threshold requirements 

for auditing committees, as well as FEC staff recommendations detailing FCM’s failure to meet them. In upholding 

the FEC’s action, the court noted that the agency had justifi ably withheld information exempt under section 552(b)(2) 

of the FOIA. Under this provision, “matters that are...related solely to internal personnel rules and practices” may 

be exempted from disclosure. The FEC’s action met the standards for applying this exemption, which were set 

forth in Crooker v. Bureau of Alcohol, Tobacco and Firearms, (670 F.2d 1051, D.C. Cir. 1981). First, the undisclosed 

information was “predominantly internal,” and did not constitute “secret law.” In this regard, the court noted 

“the Commission’s threshold requirements are not secret law because they made ‘no attempt to modify or regulate 

public behavior—only to observe it for illegal activity.’” Id. at 1075. “The information at issue here is simply used 

to review Commission reports for substantial compliance with [the reporting] rules” published in the U.S. Code and 

accompanying regulations. “The plaintiff’s argument that it is ‘in the dark’ as to how to pass that review is especially 

weak in light of the many letters it has received from the Commission, advising and pointing out apparent reporting 

inconsistencies and irregularities.” 

Under the second standard for applying the exemption for internal practices, the disclosed information must 

“signifi cantly risk circumvention of agency regulations and statutes.” (See Crooker at 1074.) In this instance, the court 

agreed with the Commission that disclosure of the threshold requirements “would enable unscrupulous political 

committees to tailor their reports to avoid being audited, and ignore statutory reporting requirements that are not 

central to the internal review procedures.”

The FEC had also invoked section 552(b)(7)(E) of the FOIA to justify withholding portions of agency documents 

pertaining to the compliance thresholds FCM had failed to meet. This provision exempts “ ‘investigatory records 

compiled for law enforcement purposes, but only to the extent that the production of such records would...disclose 

investigative techniques.’” The court found that the information withheld by the FEC met the requirements of this 

exemption, specifi cally, the information: (1) constituted an “ ‘investigative record’” and (2) had been “ ‘compiled 

for law enforcement purposes.’” Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). The court pointed out that the 

federal election law specifi cally requires the Commission to review Committee reports. 

Source: FEC Record, June 1985, p. 3. , June 1985, p. 3. 

Fund for a Conservative Majority v. FEC, No. 84-1342 (D.D.C. February 26, 1985). 
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GALLIANO v. UNITED STATES POSTAL SERVICE

On January 8, 1988, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in Ralph J. 

Galliano v. U.S. Postal Service, which reversed a decision by the U.S. District Court for the District of Columbia 

dismissing the plaintiff’s suit. The appeals court found that specifi c provisions of the Federal Election Campaign Act 

(FECA) control, in part, the application of 39 U.S.C. §3005 to political solicitations named in the plaintiff’s suit. The 

appeals court therefore returned the case to the district court with instructions for the court to remand it to the U.S. 

Postal Service. In light of the appeals court opinion, the Postal Service must reconsider its decision concerning the 

political solicitations named in the case.

Background

During 1983 and 1984 the Congressional Majority Committee (CMC), a multicandidate political committee, mailed 

out letters soliciting contributions to CMC’s independent expenditure project, Americans for Phil Gramm in ’84 

(APG), supporting then-Congressman Gramm’s candidacy for the U.S. Senate. The disclaimer notices in the fi rst 

mailing failed to state that the solicitation was not authorized by any candidate. 

In subsequent solicitation mailings, however, CMC did include such a disclaimer. 

Alarmed that the APG solicitations were potentially misleading contributors and diverting funds away from his own 

authorized campaign committee, Congressman Gramm, a Republican from Texas, fi led a complaint with the FEC 

against CMC, alleging that CMC had violated the election law by:

• Using Gramm’s name in the title of its independent expenditure project (2 U.S.C. §432(e)(4)); and

• Failing to clearly state in its solicitations that CMC had not been authorized by Congressman Gramm (2 U.

S.C. §441d(a)(3)). 

The Commission found probable cause to believe that CMC had violated the election law by failing to include a 

disclaimer notice in its fi rst solicitation mailings. The Commission was evenly divided, however, on the issue of 

whether CMC had violated the law by including Congressman Gramm’s name in the title of its independent 

expenditure project. In July 1985 the Commission entered into a conciliation agreement with CMC and closed the fi le 

on the case. 

After fi ling his complaint with the FEC, Congressman Gramm took two other steps: He fi led a suit with the District 

Court for the Eastern District of Virginia and a complaint with the U.S. Postal Service. 

In the suit he fi led with the Virginia district court,1 Gramm claimed that CMC’s use of his name in the title of 

the independent expenditure project had violated a Virginia law against unauthorized use of a person’s name. 

Nevertheless, the district court denied Congressman Gramm’s request for injunctive relief, stating that “the Federal 

Election [Campaign] Act arguably provides the exclusive remedy for the plaintiff’s allegation.... ”

In the complaint he fi led with the U.S. Postal Service, Congressman Gramm asserted that CMC’s solicitations 

contained false representations and thus violated 39 U.S.C. §3005, a provision governing postal fraud outside the 

purview of the FECA. 

The Postal Service found, among other things, that the committee’s solicitation mailings implicitly made the false 

representation that Americans for Phil Gramm in ’84 was authorized to collect funds for Congressman Gramm’s 

campaign, and that the funds would be spent by Gramm’s authorized committee. The Postal Service further concluded 

that the disclaimer notice required by the election law (Section 441d(a)(3)) did not adequately inform the recipients 

that the solicitation was not authorized by Congressman Gramm. 

District Court Ruling

On August 7, 1985, Ralph J. Galliano, chairman of CMC, along with CMC and APG (hereafter collectively referred 

to as APG), contested the Postal Service’s decision in the U.S. District Court for the District of Columbia. The district 

court affi rmed the Postal Service’s decision and dismissed APG’s suit. 

On November 13, 1986, Mr. Galliano appealed the district court decision. At the request of the U.S Court of Appeals 

for the District of Columbia Circuit, the FEC fi led a friend of the court brief, which addressed the issue of whether 

specifi c provisions of the FECA would displace the application of 39 U.S.C. §3005 to the political solicitations named 

in the suit.

FEC’s Amicus Brief

In its brief the FEC noted that Congress had enacted two provisions of the election law “to ensure the public is 

informed of the true source of political solicitations and whether they are authorized by a candidate.” First, Section 
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G

432(e)(4) requires committees authorized by candidates to adopt a name which includes the candidate’s name; it 

requires unauthorized committees to adopt a name which does not contain the name of any candidate. Second, 

Section 441d(a)(3) requires that fundraising solicitations by unauthorized committees state clearly the committee’s 

name and “that the communication is not authorized by any candidate or candidate’s committee.”

Further, the FEC argued, since Congress had granted the agency exclusive jurisdiction over provisions of the law, 

“matters covered by the Act must be brought before the Commission in the fi rst instance even if another statute might 

otherwise arguably be applicable.”

The FEC went on to note that “the courts have long recognized that tension between a statute of general application 

and a statute specifi cally addressed to a particular subject must be resolved in favor of the specifi c statute.” The 

Commission therefore argued that, while Section 3005 may be applied generally to protect the public from “fraudulent 

political fundraising schemes,” this provision cannot be applied “in a manner that overrides the exclusive jurisdiction 

of the Commission to deal with those matters Congress has specifi cally resolved in the FECA.” Thus, the Commission 

concluded that “the Postal Service’s decision should be reversed only to the extent that it interferes with the exclusive 

jurisdiction of the Commission and specifi c provisions of the FECA.”

Appeals Court Ruling

Reversing the district court ruling, the appeals court held “that the FEC is the exclusive administrative arbiter of 

questions concerning the name identifi cations and disclaimers of organizations soliciting political contributions. As 

to representations not specifi cally regulated by FECA, however,... nothing in or about the Act limits the 39 U.S.C. 

§3005 enforcement authority of the Postal Service.”

The court held that the FECA’s disclaimer requirements for political solicitations maintained a proper balance 

between protection of First Amendment rights of free speech and the public’s right to be protected from fraudulent 

solicitations. The court said that “a fi ne balance of interests was deliberately struck by Congress in the name and 

disclaimer requirements of FECA...We believe they were meant to provide a safe haven to candidates and political 

organizations with respect to those organizations’ names and sponsorship. If FECA requirements are met, then 

as we comprehend that legislation, no further constraints on names and disclaimers may be imposed by other 

governmental authorities.”

The court concluded, however, that solicitations for political contributions were not “entirely immune from Postal 

Service scrutiny under Section 3005. Apart from the name of a political organization and the presence or absence of 

sponsorship disclaimer, much may appear in a solicitation for political contributions that could materially deceive 

readers and thereby constitute a false representation under 3005.”

Source: FEC Record, January 1988, p. 7; and March 1988, p. 9. , January 1988, p. 7; and March 1988, p. 9.

Galliano v. United States Postal Service, 836 F.2d 1362 (D.C. Cir. 1988). 1 See Friends of Phil Gramm v. Americans for Phil Gramm in ’84, 587 F. Supp. 767 (E.D. Va. 1986). 

GELMAN v. FEC (80-1646)

On July 22, 1980, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion affi rming the 

FEC’s determination that Lyndon H. LaRouche had failed to reestablish his eligibility for primary matching funds in 

the Democratic Presidential primary held in Michigan on May 20, 1980. In its May 28, 1980, ruling, the Commission 

found that Mr. LaRouche had failed to receive at least 20 percent of all votes cast for Democratic contenders in the 

Presidential primary, the minimal amount necessary to reestablish eligibility. 

Felice M. Gelman and Citizens for LaRouche, Inc. had fi led a petition on June 11, 1980, contending that the 

Commission should have applied the defi nition of “candidate” provided by 26 U.S.C. §9033(2) in determining 

whether Mr. LaRouche had reestablished his eligibility for primary matching funds. That provision stipulates that, 

for purposes of establishing initial eligibility for primary matching funds, a Presidential primary candidate must 

be “actively conducting campaigns in more than one State.” In calculating total votes in the Michigan Democratic 

primary, Mr. LaRouche argued, this defi nition of “candidate” would have excluded votes cast for a candidate who 

had ceased to campaign actively in more than one state and votes cast for “uncommitted” delegates (i.e., those not 

pledged to any specifi c candidate). The FEC argued that the provisions of 26 U.S.C. §9033(c)(4)(B) required the 

Commission to count total votes cast for all Presidential primary candidates in a particular primary including all 

votes cast for inactive or write-in candidates or “uncommitted” delegates. 
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In upholding the FEC’s method of determining Mr. LaRouche’s reeligibility for primary matching funds, the court 

maintained “...petitioners’ narrow focus on the word ‘candidate’, to the exclusion of the phrase within which that 

word appears, results in a strained and artifi cial construction that is at odds with the Act’s underlying concern that 

federal matching funds should go only to those candidates who have demonstrated at least minimal public support 

for their candidacies.”

Source: FEC Record, September 1980, p. 8. , September 1980, p. 8. 

Gelman v. FEC, 631 F.2d 939 (D.C. Cir.), cert. denied, 449 U.S. 876 (1980). , 449 U.S. 876 (1980). 

GELMAN v. FEC (80-2471)

On March 11, 1981, the U.S. District Court for the District of Columbia denied plaintiffs’ motion to fi nd the 

FEC in contempt of court for failing to obey the court’s October 24, 1980, order in the suit, Felice M. Gelman 

and Citizens for LaRouche v. FEC Citizens for LaRouche v. FEC (Civil Action No. 80-2471). In that order, the court ruled that, although the (Civil Action No. 80-2471). In that order, the court ruled that, although the 

Commission had undertaken an investigation pursuant to 26 U.S.C. §9039(b), the FEC had to notify the Citizens for 

LaRouche Committee of any investigations conducted of contributors to Mr. LaRouche’s 1980 primary campaign, 

pursuant to 2 U.S.C. §437g(a)(2). Pursuant to the court’s order, the FEC undertook no further investigations into 

the Committee’s affairs. 

In denying plaintiffs’ motion, the court noted that the investigation cited by the LaRouche Committee in its contempt 

of court motion referred to a separate investigation the Commission had undertaken in March 1981, pursuant to 

2 U.S.C. §437g(a)(2). That investigation resulted from the Audit Division’s identifying a matching fund contribution 

that the LaRouche Committee may have submitted with false documentation. The court observed that the FEC had 

afforded plaintiffs the required notice before proceeding with this investigation. 

Source: FEC Record, May 1981, p. 7. , May 1981, p. 7.

Gelman v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9139 (D.D.C. 1980). 

GLENN PRESIDENTIAL COMMITTEE v. FEC

On June 23, 1987, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the FEC’s fi nal repayment 

determination of May 15, 1986, with respect to the John Glenn Presidential Committee, Inc. (the Committee), the 

principal campaign committee for Senator Glenn’s publicly funded 1984 Presidential primary campaign (Civil Action 

No. 86-1348.)

Background

The Committee had asked the appeals court to review the repayment determination, which found that the Committee 

had made nonqualifi ed campaign expenses (amounting to $248,004.62) as a result of exceeding its spending 

limits for the Iowa and New Hampshire primaries, and which required the Committee to repay $74,955.62 to 

the U.S. Treasury.1

The Committee had asserted that the state expenditure limits in 2 U.S.C. §441a(b)(1)(A) were unconstitutional. The 

Committee had also contested the FEC’s determination in three specifi c areas, involving the FEC’s allocation of the 

Committee’s expenditures for telephone calls, public opinion polls, and buttons and bumper stickers.

Appeals Court Ruling

The court found no constitutional infi rmity in the FEC’s actions taken under 26 U.S.C §9038(b)(2), the provision of 

the President Primary Matching Payment Account Act which authorizes the recoupment of federal funds. The court 

noted that 26 U.S.C. §9038(b) allows the recoupment of public monies only.

Regarding the FEC’s application of its regulations concerning the allocation of expenditures in three specifi c areas, 

the court found that the FEC ruled rationally and had not abused its authority. 

Source: FEC Record, September 1987, p. 6. , September 1987, p. 6. 

John Glenn Presidential Committee, Inc. v. FEC, 822 F.2d 1097 (D.C. Cir. 1987). 1 The public funding statutes require Presidential primary candidates to repay the U.S. Treasury for nonqualifi ed campaign expenses (26 

U.S.C. §9038(b)(2)). Under the statute, spending in excess of the state-by-state spending limits is considered one type of nonqualifi ed 

expense. When a campaign incurs nonqualifi ed expenses, the campaign must repay that portion of the nonqualifi ed expenses which 

represents public matching funds. 
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GOLAND v. UNITED STATES 

UNITED STATES v. GOLAND

On May 21, 1990, the U.S. Court of Appeals for the Ninth Circuit affi rmed the district court’s decision to dismiss the 

suit and to deny appellant’s motion to certify constitutional challenges to the Federal Election Campaign Act. (Civil 

Action No. 89-55422.) Appellant Michael R. Goland had claimed that the First Amendment guaranteed his right to 

make unlimited anonymous contributions to candidates.

Background (U.S. v. Goland)

On December 14, 1988, a federal grand jury in Los Angeles indicted Mr. Goland for violations of the Federal Election 

Campaign Act and criminal statutes stemming from his activities during the 1986 Senatorial election in California. 

According to the indictments, he advanced $120,000 to a media company to produce advertisements for Ed Vallen, a 

third-party candidate for the Senate seat. Mr. Goland actually wanted Democratic Senator Alan Cranston to win the 

election and fi nanced the last-minute Vallen effort in order to divert votes from the Republican candidate, Ed Zschau. 

Mr. Goland tried to conceal his identity as the donor of the $120,000 contribution by funneling the money through 

56 persons, who were later reimbursed by Mr. Goland. The Vallen campaign, uninformed of the true source of the 

contribution, reported the money as contributions from the 56 individuals.

The federal grand jury indicted Mr. Goland on criminal violations, charging that he had knowingly and willfully 

caused the treasurer of the Vallen campaign to make false statements to the FEC for the purpose of concealing his 

$120,000 contribution. 18 U.S.C. §§371 and 1001. Additionally, Mr. Goland was charged with violating the Federal 

Election Campaign Act (the Act) by exceeding the $1,000 contribution limit and by making a contribution in the 

name of another. 2 U.S.C. §§441a and 441f 1.

District Court Decision

On March 13, 1989, after the December 1988 criminal indictment, Mr. Goland fi led civil suit in the U.S. District 

Court for the Central District of California. (Civil Action No. 89-1480.) Pursuant to 2 U.S.C. §437h, he sought 

immediate certifi cation by the district judge of three constitutional challenges to the Act, as applied. He claimed that 

the Act’s contribution limits and disclosure provisions violated his constitutional rights. He further claimed that the 

First Amendment protected his right to make unlimited anonymous contributions to a third-party candidate. Mr. 

Goland also sought a stay of the pending criminal proceeding. On May 1, 1989, the court dismissed the suit with 

prejudice, fi nding that the Supreme Court had already addressed appellant’s constitutional questions in Buckey v. 

Valeo. Concluding that the constitutional claims were frivolous under Buckley, the court denied plaintiff’s motion for 

certifi cation and stay. Mr. Goland immediately fi led an appeal.

Appeals Court Decision 

On May 11, 1989, the appeals court denied his motion for a stay of the criminal trial but agreed to review the district 

court’s dismissal of the constitutional questions. In its opinion of May 21, 1990, the court affi rmed the district court’s 

judgment, denying appellant’s constitutional challenges and dismissing the suit. 

The appeals court fi rst considered whether Mr. Goland had standing to bring a constitutional challenge. The court 

found that “Goland satisfi es the traditional standing criteria: he has alleged an actual or threatened injury; that injury 

was caused by the challenged act; and that injury is apt to be redressed by a favorable decision.” The court observed 

that “[a] successful constitutional challenge to FECA provisions would give at least partial redress to Goland.”

The appeals court ruled that the district court was acting within its discretion by dismissing the suit once it found 

the constitutional issues were frivolous. A complaint is frivolous when none of the legal points are arguable on their 

merits. In this case, the issues raised by Mr. Goland had already been resolved by the Supreme Court in Buckey v. 

Valeo, 424 U.S. 1 (1976).

Appellant argued that Buckley did not resolve the issues he raised. He claimed that the reasoning the Supreme Court 

applied in upholding the contribution limits—to prevent quid pro quo corruption or the appearance of corruption—

did not apply to his claim. There was no opportunity for exacting a quid pro quo deal since he sought to keep his 

identity secret. Further, because the candidate (Vallen) had no chance of winning the election, he would not be in a 

position to exchange offi cial favors for money.

The court rejected this argument, pointing out that there is no assurance that a donor’s identity will remain secret 

forever and, even if there were, the Act’s disclosure provisions prohibit anonymous contributions exceeding $50. (See 

2 U.S.C. §432(c)(2).) Moreover, Buckley upheld the application of contribution limits to minor party candidates as 

well as to candidates likely to win. Id. at 30-31.
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Appellant Goland also argued that the Act’s disclosure requirements as they relate to anonymous contributions to a 

third-party candidate were unconstitutional on their face and as applied to him. He based his claim on the historic 

constitutional protection given to anonymous political speech, citing several Supreme Court cases.

The court found that Mr. Goland could not avail himself of this protection. The Supreme Court in Buckley

carefully considered the danger posed by compelled disclosure but held that state interests justifi ed the indirect 

burden imposed by the Act’s disclosure requirements on First Amendment interests. The appeals court concluded: 

“the [Supreme] Court carved out a narrow exception to the line of cases Goland relies on, and that exception 

encompasses Goland’s activities.”

In response to appellant’s emphasis on the minor party status of the recipient candidate, the court stated that the 

Buckley Court provided an exception to the disclosure provisions for those parties that could show a “reasonable 

probability” that disclosure would subject their contributors to “threats, harassment, or reprisals.” Id. at 74. The 

appeals court noted that appellant Goland “[did] not even attempt to make such a showing.” The court also observed 

that Mr. Goland “was not promoting a reviled cause or candidate.”

Finally, Mr. Goland argued that the substantial state interests that the Buckley Court found to justify the disclosure 

requirements did not apply to anonymous contributions made to a candidate with whom the donor disagrees.

The appeals court found no merit in this argument, observing that one purpose behind the disclosure provisions 

is “to keep the electorate fully informed of the sources of campaign funding....There is valuable information to 

be gained by knowing that Vallen took $120,000 from a Cranston supporter.” Another purpose behind the 

Act’s disclosure provisions is “to gather the data necessary to detect violations of the contribution limits.” The 

court said that if Goland’s position were adopted, one could avoid the contribution limits simply by making 

an anonymous contribution.

Source: FEC Record, August 1990, p. 9. , August 1990, p. 9.

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990). 1 The fi rst criminal trial, which concluded on July 10, 1989, resulted in a mistrial because of a hung jury. On September 19, 1989, a 

federal grand jury returned a superseding indictment charging additional violations of the Act’s contribution limits and of criminal 

statutes. The second trial ended on May 3, 1990. Mr. Goland was convicted on one misdemeanor count of making an excessive 

contribution. He was acquitted on four other counts of conspiracy and making false statements. The jury deadlocked on one felony 

count of making false statements. On July 16, 1990, Mr. Goland received a federal prison sentence of 90 days on the one conviction 

(excessive contribution).

GOTTLIEB v. FEC

On May 8, 1997, the U.S. District Court for the District of Columbia granted the FEC’s motion to dismiss this case in 

which Alan Gottlieb and others had asked the court to order the FEC to take action on an administrative complaint 

that the Commission had voted to dismiss.

On May 22, 1998, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the lower court ruling that 

dismissed this case for lack of standing. The appeals court rejected the arguments the appellants had presented in an 

effort to bring suit against the FEC after the agency had dismissed their administrative complaint.

Background

Alan Gottlieb, together with several other voters and organizations, had fi led an administrative complaint with the 

FEC in March 1995 alleging that President Clinton’s 1992 campaign received $1.4 million in excess entitlement allowed 

under the Presidential Primary Matching Payment Account Act. According to the complaint, the excess entitlement 

occurred because, following President Clinton’s nomination, his campaign transferred $1.4 million in private primary 

contributions to his General Election Legal and Accounting Compliance Fund (GELAC Fund) instead of using the 

funds to pay his primary debts. According to appellants, the transfer violated 11 CFR 9003.3(a)(1), as it was written 

at the time of the alleged violation, because the regulation permitted transfers of funds only in excess of amounts 

needed to pay primary debts.

The Commission dismissed the administrative complaint after deadlocking in a 3-3 vote. Mr. Gottlieb then fi led suit, 

asking the district court to fi nd that the FEC’s actions had been contrary to law. 

District Court Ruling

The district court found that the appellants did not have standing (under Article III of the U.S. Constitution) to 

pursue their claims in court because they had not been harmed by the Commission’s decision. 
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Appeals Court Ruling

In affi rming the lower court, the appellate court called Mr. Gottlieb’s claims of injury “speculative” and 

“amorphous.” 

Source: FEC Record, July 1997, p. 5; July 1998, p. 4. , July 1997, p. 5; July 1998, p. 4.

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. May 22, 1998).

GRAHAM v. FEC (01-CV-00635)

On April 25, 2002, the U.S. Court for the District for the Eastern District of Arkansas, Western Division, granted the 

plaintiffs’ motion to dismiss this complaint with prejudice. 

Background

On September 14, 2001, Plaintiffs fi led a complaint in the U.S. District Court for the Eastern District of Arkansas, 

Western Division. The complaint appeals a civil money penalty the Commission imposed on the Dewayne Graham 

for Congress Committee (the Committee) and Everett Martindale, as the Committee’s treasurer, for failure to fi le 

the Committee’s 2000 October Quarterly Report. According to the allegations of the complaint, the Committee 

attempted to fi le a termination report in July of 2000, but the Commission did not act on the termination report 

until November 2000.

In August 2001, the Commission found reason to believe that the Committee and Mr. Martindale had violated 2 

U.S.C. §434(a), which requires the timely fi ling of reports by political committees, by not fi ling an October 2000 

Quarterly Report. The Commission assessed a civil penalty in the amount of $900 in accordance with 11 CFR 

111.43. Plaintiffs claim that the Commission failed to act on the Committee’s termination request in a timely fashion 

and has taken an “arbitrary and unconscionable position” in assessing the civil penalty, thus violating the plaintiffs’ 

constitutional rights.

Plaintiffs ask the court to exempt them from the Commission’s rulings and fi nes based upon the plaintiffs’ 

extenuating circumstances.

Court Decision

On April 25, 2002, the U.S. District Court for the Eastern District of Arkansas, Western Division, granted 

the plaintiffs’ motion to dismiss this complaint with prejudice. The complaint, fi led September 14, 2001, had 

appealed a civil money penalty the Commission imposed on the Dewayne Graham for Congress Committee (the 

Committee) and Everett Martindale, as the Committee’s treasurer, for failure to fi le the Committee’s 2000 October 

Quarterly Report.

Source: FEC Record, December 2001, p. 3; , December 2001, p. 3; Record, July 2002, p. 5. 

GRAMM v. FEC

During October 1985, the U.S. District Court for the Northern District of Texas, Dallas Division, issued two rulings 

concerning an FEC audit of the Friends of Phil Gramm, the principal campaign committee for Texas Senator Phil 

Gramm’s 1984 Senate campaign. On October 18, the court granted the FEC’s motion to dismiss Friends of Phil 

Gramm v. FEC, a suit fi led by the Gramm Committee challenging the audit. (Civil Action No. CA3-85-1164-7.) On 

October 31, the court determined that the Committee must comply with the FEC’s audit. (FEC v. Friends of Phil 

Gramm; Civil Action No. CA3-1507-7.)

Background

In papers fi led with the court, Friends of Phil Gramm (the Committee) alleged that, based on a complaint fi led 

against the Committee and on information gathered through internal procedures, in March 1985 the Commission 

found “reason to believe” that the Committee had violated several provisions of the Federal Election Campaign Act 

(the Act). The agency then authorized an audit of the Committee to investigate whether the alleged violations had 

occurred. (The “reason to believe” fi nding is a statutory prerequisite to an investigation into possible violations.)
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On June 19, 1985, the Gramm Committee fi led a suit in the Northern District of Texas to enjoin the FEC from 

auditing the Committee. The Committee claimed that the Commission had to begin the audit within the time frame 

established under Section 438(b) of the Act. The Commission argued that Section 438(b) (including its time limits) 

was not applicable to the Gramm audit, which had been authorized under Section 437g(a)(2). The Gramm Committee 

also contended that the Commission was required to attempt conciliation before conducting the audit. 

Subsequently, the Commission subpoenaed certain materials necessary for the audit. When the Committee refused to 

comply, the Commission fi led a suit which asked the Texas district court to enforce the subpoena.

District Court’s Ruling

In its memorandum opinion of October 18, dismissing the Committee’s suit, the court noted that the time limit 

of Section 438(b) “is inapplicable to an audit scheduled under §437” and found the audit “well within its [§437’s] 

parameters.” Rejecting the Committee’s claim concerning conciliation, the court stated that “the FEC is entitled 

to conduct its audit and gather the necessary information...before it attempts to conciliate with the violator.” In its 

October 31 ruling, the court determined that the Gramm Committee must comply with the FEC’s subpoena. 

Source: FEC Record, January 1986, p. 10. , January 1986, p. 10.

GREENWOOD FOR CONGRESS v. FEC (03-0307)

On August 18, 2003, the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment in 

favor of Greenwood for Congress, Inc. (the Committee) in this case. Greenwood for Congress fi led suit against the 

Commission on January 22, 2003, appealing a civil money penalty assessed against it by the Commission under its 

administrative fi nes regulations for the Committee’s failure to timely fi le its 2001 Year-End Report. 11 CFR 111.30-

111.45. The Committee argued that the Commission’s determination that the Committee and its treasurer violated 2 

U.S.C. §434(a) and its assessment of a $3,100 civil money penalty were arbitrary, capricious, an abuse of discretion 

and otherwise not in accordance with law. 

Background

The Committee alleged that it sent an electronic version of its 2001 Year-End Report on a high-capacity ZIP disk, 

along with a paper copy version, to the Commission via overnight delivery on January 29, 2002. The Year-End 

Report was due on January 31. The Committee was required to fi le its report electronically under the Commission’s 

mandatory electronic fi ling regulations. 11 CFR 104.18(a)(1). Reports that are required to be fi led electronically but 

are instead submitted on paper do not satisfy a committee’s fi ling requirement. 11 CFR 104.18(a)(2).

While the Commission received a package containing the paper version of the report on January 30 (Initial Package), 

it subsequently informed the Committee that it had not received an electronic version of the report. The Committee 

then sent an electronic version of the report on a ZIP disk, which the Commission received on February 7. On 

that same day, a staff member in the Commission’s Electronic Filing Offi ce informed Eric Clare, the Committee’s 

campaign manager, by telephone that the Committee’s fi ling was rejected because it had not been submitted on a 

3.5 inch fl oppy disk and because it was not accompanied by the required summary page signed by the treasurer. Mr. 

Clare then sent another copy of the report, on a 3.5 inch fl oppy disk along with a signed summary page, which the 

Commission received and validated on February 8, 2002. 

On June 14, 2002, the Commission found reason to believe (RTB) that the Committee and its treasurer had violated 

2 U.S.C. §434(a), which requires the timely fi ling of reports by political committees like Greenwood for Congress. 

The Commission assessed a civil money penalty in the amount of $3,100 in accordance with 11 CFR 111.43. 

After reviewing the Committee’s response to the Commission’s RTB fi nding, the Commission’s reviewing offi cer 

recommended that the Commission make a fi nal determination that the Committee had violated 2 U.S.C. §434(a) 

by fi ling its 2001 Year-End report eight days late and that the $3,100 civil penalty assessed was appropriate. After 

reviewing the Committee’s submissions and the recommendations of the reviewing offi cer, on December 20, 2002, 

the Commission voted unanimously to make the fi nal determination recommended by the reviewing offi cer. The 

Committee fi led its petition for review of the Commission’s fi nal determination on January 22, 2003.

Court Decision

The granting of summary judgment by a court is appropriate where there is “no genuine dispute of material fact and 

the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Under the Administrative Procedure 

Act, a court can set aside an agency action it fi nds “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with the law.” 5 U.S.C. §706(2)(A); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971). 
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The court found that the FEC ignored relevant, although circumstantial, evidence presented by the plaintiffs during 

the administrative challenge. In his affi davit submitted to the Commission’s reviewing offi cer, Mr. Clare claimed to 

have sent the Committee’s report on a ZIP disk in the Initial Package. He indicated that he weighed the different 

items that the Committee alleged it sent to the Commission. He reported that a ZIP disk, a hard-copy version of the 

report with a binder clip, a copy of the cover letter and a manila envelope weighed 2 1/8 pounds. The same package 

weighed without the ZIP disk weighed 1 7/8 pounds, according to Mr. Clare. The Federal Express airbill for the Initial 

Package, as fi lled out by Mr. Clare, indicated a weight of 2.20 pounds, and Federal Express listed the weight of the 

package as three pounds. Because Federal Express will round up to the next whole number in calculating a package’s 

weight, the Committee argued that this was evidence that the Initial Package contained a ZIP disk. 

The Commission argued that its determination that the Committee fi led its report late was reasonable because:

• The Commission relied on statements by staff that the procedures followed indicated that no disk was contained 

in the Initial Package; and 

• Later searches of FEC fi les revealed no record of the Commission having received the disk in that package. 

Nevertheless, the court held that the Commission failed "to exercise independent judgment in arriving at its decision" 

in this matter and "arbitrarily and capriciously determined that the Committee had erred in failing to include a disk 

in the January 30, 2002 package."

Additionally, the Commission argued that it was immaterial whether the Initial Package contained a ZIP disk, because 

a ZIP disk is an improper medium and the report would have been rejected in any case. The court found, however, 

that it is not clear that a ZIP disk is an improper medium -- the language of the applicable regulation requires only 

the submission of the reports on “computerized magnetic media.” 11 CFR 104.18(a) and (d).

Thus, the court denied the Commission's motion for summary judgment and granted summary judgment in favor 

of the Committee.

Source: FEC Record, April 2003, p. 4; and October 2003, p. 13. , April 2003, p. 4; and October 2003, p. 13. 

GROVER v. FEC

On May 21, 1996, the U.S. District Court for the Southern District of Texas granted the FEC’s motion to 

dismiss this suit.

Henry C. Grover had fi led the suit on January 16, 1996, claiming that the $1,000 limit on contributions from 

individuals and Congress’s failure to pass laws to prevent “soft money”1 from infl uencing federal elections were 

unconstitutional impediments to his primary campaign efforts. (Mr. Grover eventually lost the March 12 Texas 

Republican Senatorial primary.) He asserted that the $1,000 contribution limit and alleged “soft money laundering” 

(i.e., the redistribution of soft money raised by party committees to favored federal candidates) gave incumbent 

offi ce holders such an overwhelming advantage that only independently wealthy challengers could run competitive 

campaigns against them.

The court, however, dismissed the case based on the FEC’s arguments that: (1) Mr. Grover’s claim was moot since the 

primary was over and relief no longer available; (2) the contribution limits had already been upheld by the Supreme 

Court in Buckey v. Valeo; and (3) the “soft money” issues were political and therefore outside judicial authority. The 

court said: “It is Congress that passed the laws and it is Congress that must engage in any necessary repairs.”

Source: FEC Record, July 1996, p. 6. , July 1996, p. 6. 1

 “Soft money” refers to funds raised and spent outside the limits and prohibitions of federal election law, including money that exceeds 

federal limits and money from corporate and labor treasury funds. Soft money may not be used in connection with federal elections but 

may be used for other purposes, such as nonfederal elections (subject to state law).
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HAWAII RIGHT TO LIFE, INC. v. FEC (1:02CV02313)

On November 26, 2002, the U.S. District Court for the District of Columbia granted the motions of Hawaii Right 

to Life, Inc., (HRTL) for a temporary restraining order and a preliminary injunction. The order and injunction bar 

the Commission from acting inconsistently with the court’s fi nding that HRTL is currently a so-called “MCFLcorporation,” and is thus exempt from the Federal Election Campaign Act’s (the Act) ban on corporate expenditures 

in connection with federal elections. On December 16, 2002, the court entered a fi nal order that effectively converted 

the preliminary injunction into a permanent injunction.

Court Complaint

In a complaint fi led on November 22, 2002, the plaintiff asked the court to fi nd that it qualifi es for a constitutionallymandated exception from the Act’s prohibition on corporate expenditures in connection with a federal election. 

See FEC v. Massachusetts Citizens for Life, Inc., (MCFL) 479 U.S. 238 (1986). In the alternative, HRTL challenged 

the constitutionality of the Commission’s defi nitions of “electioneering communication” and “expressly 

advocating.” 11 C.F.R. 100.29 and 100.22. HRTL planned, among other things, to air radio ads in advance of the 

Hawaii special elections to fi ll the remainder of the late Patsy Mink’s term in the current Congress and her seat in 

the next Congress. 

HRTL asserted that it could run these ads because it met the requirements of a protected nonprofi t corporation 

under MCFL, even though it did not meet the test of a “qualifi ed nonprofi t corporation” under the Commission’s 

regulations at 11 C.F.R. 114.10(c). HRTL also claimed that these ads would contain issue advocacy rather than express 

advocacy, and that it would be unable to participate in its planned activity unless the court enjoined the Commission 

from enforcing against HRTL the “electioneering communication” and “expressly advocating” regulations.

Qualifi ed nonprofi t corporations

Under Commission regulations a corporation is considered a “qualifi ed nonprofi t corporation” if it meets 

the following criteria:

• Its only express purpose is the promotion of political ideas;

• It cannot engage in business activities;

• It has no shareholders and no persons who are offered or receive any benefi t that is a disincentive to disassociate 

from the corporation on the basis of the corporation’s position on a political issue;

• It was not established by a business corporation and does not directly or indirectly accept donations or 

anything of value from business corporations ; and 

• It is described in the Internal Revenue Code at 26 U.S.C. §501(c)(4). 11 CFR 114.10(c).

HRTL alleged that it meets some but not all of these criteria because it engages in business activities, such as selling 

pins and T-shirts, and because it hopes to receive some contributions from business corporations. The plaintiff 

contended that the Commission’s criteria for identifying “qualifi ed nonprofi t corporations” are too narrow and that, 

because its business activities and corporate contributions are de minimis, it should qualify for the exemption under 

the Supreme Court’s decision in MCFL.

Requested Relief

HRTL asked that the court, among other things:

• Declare that HRTL is an “MCFL-corporation”;

• Declare the defi nition of a “qualifi ed nonprofi t corporation” at 11 CFR 114.10(c) is unconstitutional, unlawful 

and invalid; and

• Preliminarily enjoin the Commission from enforcing 11 CFR 114.10(c) with respect to broadcast communications 

by HRTL concerning federal candidates in the November and January Hawaii special elections.

In case the court did not fi nd that HRTL is an “MCFL-corporation,” HRTL asked the court to fi nd, in the alternative, 

that the Commission’s defi nitions of “electioneering communication” at 11 CFR 100.29 and “expressly advocating” 

at 11 CFR 100.22(b) are unconstitutional, unlawful, invalid and beyond the Commission’s statutory authority.

Based on the allegations in HRTL’s complaint and motions, the Commission conceded that HRTL should be treated as 

a “qualifi ed nonprofi t corporation” for 2002. Nonetheless, HRTL submitted an affi davit declaring that it had received 

contributions, or commitments for contributions, from business corporations in an amount not expected to exceed 

$50, which it claimed prevented it from qualifying under the regulations as a “qualifi ed nonprofi t corporation.”
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Preliminary Injunction and Final Order

The court ruled that HRTL currently is a nonprofi t organization that qualifi es under the MCFL decision (as interpreted 

in the D.C. Circuit) for the exemption from the ban on corporate expenditures, despite the fact that it engages in 

de minimis business activities and receives insubstantial sums from business corporations. In FEC v. National Rifl e 

Association, the court held that $1,000 in contributions from for-profi t corporations in a single year was de minimis, 

and therefore did not disqualify the NRA from treatment as an exempt “MCFL-corporation” during that year.1 254 

F.3d 173 (D.C. Cir. 2001). 

On December 16, 2002, at the request of the parties, the court entered a fi nal order, which declares that, as of the time 

of this ruling, HRTL qualifi es as an “MCFL-corporation,” and enjoins the Commission from acting inconsistently 

with the order. The court chose not to rule at any time on HRTL’s challenge regarding the constitutionality of 

Commission regulations.

Source: FEC Record, January 2003, p. 20. , January 2003, p. 20. 1

 See the August 2001 Record, page 3. , page 3.

HETTINGA v. FEC 

Pursuant to 2 U.S.C. §437g(a)(8), on July 12, 1984, Mr. Ralph M. Hettinga sought injunctive relief against the FEC 

for failing to act on his administrative complaint within 120 days. The suit was fi led in the U.S. District Court for 

the District of Columbia. (Civil Action No. 84-2082) In the complaint fi led with the FEC on March 6, 1984, Mr. 

Hettinga had alleged that eight unions had violated 2 U.S.C. §441b by making prohibited in-kind contributions to 

the Mondale Presidential campaign. The unions had allegedly provided telephone services and equipment and offi ce 

space to the Mondale campaign at less than fair market value. 

On July 24, 1984, the court issued an order requiring the FEC to submit information on its handling of Mr. Hettinga’s 

complaint (i.e., a chronology of events with regard to the FEC’s processing of the complaint). This submission, as 

well as all future submissions, was subject to a protective order issued by the court. By the terms of the protective 

order, plaintiff and defendant agreed that:

• Plaintiff’s counsel would share information or documents concerning the administrative complaint only with 

the plaintiff and his legal staff;

• Plaintiff’s counsel would explain the terms of the protective order to anyone with access to the information; 

and

• All court fi lings pertaining to the complaint would be fi led under seal. 

Stating that it could not determine whether plaintiff had met the burden for injunctive relief until after the court had 

examined the FEC documents, the court denied plaintiff’s motion for injunction, without prejudice. 

On August 8, 1985, the court granted the FEC’s motion to dismiss the suit and ordered the records unsealed. 

Source: FEC Record, September 1984, p. 11. , September 1984, p. 11.

HOLLENBECK v. FEC

On July 27, 1998, the U.S. District Court for the District of Columbia granted the FEC’s motion to dismiss this case 

for lack of standing.

Thomas Hollenbeck, a Pennsylvania resident, had fi led suit against the FEC after it had dismissed his administrative 

complaint alleging that a 1994 candidate for federal offi ce had accepted excessive loans. 

In order to show standing, a plaintiff must meet the requirements found in Article III of the Constitution—injury 

in fact, causation and redressability. The court concluded that Mr. Hollenbeck did not meet the requirements 

for standing because he failed to allege a “concrete and particularized injury” that came about as a result of a 

violation of the Federal Election Campaign Act. Mr. Hollenbeck, the court said, only vaguely alleged an injury, 

claiming violations of his First and Fourteenth Amendment rights and the need to protect the public from abuses 

by federal candidates.

Source: FEC Record, April 1998, p. 4; September 1998, p. 4. , April 1998, p. 4; September 1998, p. 4.
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HOOKER v. ALL CAMPAIGN CONTRIBUTORS

Hooker v. Sundquist

On June 7, 2000, John Jay Hooker fi led a lawsuit broadly challenging the constitutionality of all campaign 

contributions. Mr. Hooker alleged that campaign contributions are both a “backdoor property qualifi cation” for 

voting rights and bribes of public offi cials and are, thus, illegal.

On October 18, 2000, the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the 

defendants’ request to dismiss this case. The court found that:

• The Presidential Election Campaign Fund Act and the Matching Payment Act, 26 U.S.C. §9001-9043, are 

constitutional under Buckey v. Valeo;

• The plaintiff lacked standing to challenge Congress’s authority to regulate federal elections; 

• The plaintiff’s challenges to political contributions in federal elections failed to state a claim for relief; and

• The plaintiff’s claims challenging federal election statutes are precluded by the plaintiff’s prior lawsuits.

This case was subsequently argued as Hooker v. Sundqusit.

Hooker v. Sundquist

On November 9, 2000, Mr. Hooker appealed this case to the U.S. Court of Appeals for the Sixth Circuit. 

On September 25, 2001, the appeals court affi rmed the district court’s decision dismissing this case. The court of 

appeals agreed with the district court that: 

• John Jay Hooker was barred from challenging the constitutionality of the Presidential Election Campaign Fund 

Act and the Presidential Primary Matching Payment Account Act in this case because he had unsuccessfully 

challenged those statutes in previous litigation; and

• Mr. Hooker lacked standing to bring this case because he had not alleged that he himself had suffered a 

concrete, particularized injury.

Source: FEC Record, August 2000, p. 15; and January 2001, p. 10; April 2001 , p. 8; and December 2001, p. 3. , August 2000, p. 15; and January 2001, p. 10; April 2001 , p. 8; and December 2001, p. 3.

HOOKER v. FEC

On October 23, 1996, the U.S. District Court for the Middle District of Tennessee dismissed this case for 

lack of prosecution.

John Jay Hooker, who billed himself as a potential candidate for the presidency in 1996, had asked the court to declare 

it unconstitutional for candidates who seek federal offi ce to accept out-of-state contributions for their campaigns.

He also had asked the court to issue a permanent injunction against candidates who solicit, accept or use contributions 

from outside their home states; force the sitting Congress to address the situation; and notify states that they have a 

right to prohibit out-of-state contributions in federal elections.

Source: FEC Record, January 1997, p. 5. , January 1997, p. 5.
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HOOKER v. FEC (3-99-0794)

On April 12, 2000, the U.S. District Court for the Middle District of Tennessee granted the FEC’s motion to dismiss 

John Jay Hooker’s constitutional challenges concerning interstate campaign contributions and the Presidential 

Primary Matching Payment Act.

Mr. Hooker had alleged that the Federal Election Campaign Act preempts state laws that prohibit interstate campaign 

contributions, which he believes are unconstitutional. The court barred this challenge because Mr. Hooker had raised 

and litigated the same issue in prior cases that were dismissed.

Mr. Hooker had also contended that the Presidential Primary Matching Payment Act was unconstitutional because 

Congress lacked the power to enact it and because it violated the Guarantee Clause of the Constitution. The court 

dismissed this challenge for lack of standing.

Source: FEC Record, June 2000, p. 9 , June 2000, p. 9

92 F. Supp. 2d 740 (M. D. Tenn. 2000)

HOPFMANN v. FEC

Background

In fi ling the suit with the U.S. District Court for the District of Columbia in December 1982, Mr. Hopfmann petitioned 

the court to declare that the FEC’s dismissal of an administrative complaint, which he had fi led in September 1982 

against Senator Edward M. Kennedy (D-Mass.) and the Committee to Re-Elect Senator Kennedy, was contrary to 

law. See 2 U.S.C. §437g(a)(8)(A). Mr. Hopfmann also asked the district court to certify to a U.S. appeals court certain 

constitutional challenges involving FEC actions and the Federal Election Campaign Act (the Act). 2 U.S.C. §437h. 

In seeking the Massachusetts State Democratic Party’s endorsement as candidates for the U.S. Senate, both Mr. 

Hopfmann and Senator Kennedy participated in the Party’s May 1982 pre-primary convention. Under the Party’s 

“15 percent Rule,” only candidates receiving at least 15 percent of the votes cast at the Party’s pre-primary convention 

appear on the state’s primary ballot. Senator Kennedy obtained ballot access by receiving at least 15 percent of the 

votes cast at the convention. Mr. Hopfmann, on the other hand, failed to receive ballot access because he received less 

than 15 percent of the total votes cast.

In the administrative complaint he had fi led with the FEC, Mr. Hopfmann claimed that, since the convention vote 

had resulted in the Party’s exclusive endorsement of Senator Kennedy, the convention had the authority to nominate a 

candidate and therefore met the election law’s defi nition of an “election.”1 Based on this assumption, Mr. Hopfmann 

alleged that Senator Kennedy and his campaign committee had failed to fi le timely pre-election reports and may have 

received excessive contributions. See 2 U.S.C. §§434(a),(b) and 441a(f), respectively. 

District Court’s Ruling

On March 8, 1984, the U.S. District Court for the District of Columbia issued an opinion in Alwin E. Hopfmann v. 

FEC, which granted both the FEC’s motion for summary judgment and its motion to dismiss certain constitutional 

challenges brought by Mr. Hopfmann in the suit. (Civil Action No. 82-3667)

The district court found that the FEC’s decision to dismiss the complaint was “‘suffi ciently reasonable’ to merit [the] 

Court’s deference.” Specifi cally, the court held that the FEC General Counsel’s report on the complaint adequately 

set out the Commission’s reasons for dismissing the case. Moreover, the FEC’s determination was consistent with 

previous FEC decisions. 

With regard to constitutional challenges raised by Mr. Hopfmann, the court concluded that “plaintiff’s challenges do 

not raise substantial constitutional questions, are frivolous and are not based on any coherent legal theory.”

Appeals Court’s Ruling

On May 13, 1985, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the district court’s ruling 

that the FEC’s decision to dismiss an administrative complaint fi led by Alwin Hopfmann was not contrary to law 

(Civil Action No. 82-03667). The appeals court also affi rmed the district court’s decision to dismiss the constitutional 

questions involving FEC actions and the election law. The court found that Mr. Hopfmann’s “appeal was so meritless 

as to be frivolous” and, as a penalty, ordered him to pay the Commission’s attorneys’ fees. Moreover, the appeals 

court found that Mr. Hopfmann’s appeal “should properly be dismissed in view of appellant’s failure to comply with 

orders of this court.” The appeals court’s ruling followed a July 1984 ruling in which the court had denied expedited 

consideration of Mr. Hopfmann’s appeal. 
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In affi rming the district court’s decision that the FEC’s dismissal of Mr. Hopfmann’s complaint was “‘suffi ciently 

reasonable’ to merit [the] Court’s deference,” the appeals court noted that the agency “has consistently held that in 

order for a convention to constitute an ‘election’ under 2 U.S.C. §431(1)(B), the convention must actually nominate 

a candidate, rather than...narrow the fi eld of candidates on the primary ballot....Inasmuch as write-in candidates 

were permitted by state law in the 1982 Massachusetts primary, Senator Kennedy did not secure the Democratic 

nomination until he won the party’s primary. In consequence, the Massachusetts Democratic Convention of 1982 was 

not an ‘election’ under the FECA.” Consequently, there were no separate reporting requirements for the convention.

As to Mr. Hopfmann’s constitutional claims, the court found that “it is not within the FEC’s province to determine 

whether Massachusetts’ primary system satisfi es the federal Constitution. That is a claim that Mr. Hopfman must 

make, if at all, to the courts; we take note in this respect of an adverse decision in litigation brought by Mr. Hopfmann 

claiming that the Massachusetts system was unconstitutional. Hopfmann v. Connolly, 746 F.2d 97 (1st Cir. 1984).”

The court described one of Mr. Hopfmann’s court papers as “fi lled with invective and scurrilous comments....” Since 

he had failed to comply with two court orders, the court found dismissal of his appeal justifi able under court rules. 

The court stated that “having considered the merits of the case, we conclude that the appeal is in any event utterly 

without merit....We fi rmly admonish counsel for appellant to refrain in any future fi lings in this court from engaging 

in unprofessional, inappropriate comments and outrageous name-calling.” On July 19, 1985, the court denied Mr. 

Hopfmann’s petition for rehearing en banc.

Petition for Certiorari 

On December 26, 1985, the Supreme Court denied a petition for a writ of certiorari fi led by Mr. Hopfmann. He had 

sought Supreme Court review of the appeals court ruling.

On May 5, 1986, the Supreme Court denied Mr. Hopfmann’s petition for rehearing. 

Source: FEC Record, May 1984, p. 8; September 1984, p. 11; July 1985, p. 7; September 1985, p. 3; February 1986, p. 3; , May 1984, p. 8; September 1984, p. 11; July 1985, p. 7; September 1985, p. 3; February 1986, p. 3; 

 and June 1986, p. 9.

Hopfmann v. FEC, No. 84-5201 (D.C. Cir. May 13, 1985) (unpublished opinion), aff’d, 762 F.2d 138 (D.C. Cir.), , 762 F.2d 138 (D.C. Cir.), cert. denied, 474 U.S. , 474 U.S. 

1038 (1985).

1 The Act defi nes an election to include “a convention or caucus of a political party which has authority to nominate a candidate.” 2 U.

S.C. §431(1)(B).

FRIENDS FOR HOUGHTON v. FEC (01-6444)

On July 23, 2002, the U. S. District Court for the Western District of New York denied Plaintiff’s motion for summary 

judgment, granted the Commission’s motion for summary judgment and dismissed the case.

Background

On September 13, 2001, Friends for Houghton (the Committee) fi led a complaint in the U.S. District Court for the 

Western District of New York, appealing a civil money penalty for failure to timely fi le the Committee’s 2000 PrePrimary Report.

Section 437g(b) of the Federal Election Campaign Act (the Act) requires the Commission to notify any principal 

campaign committee of a House or Senate candidate that may have failed to fi le a required pre-election report or a 

quarterly report before an election of its failure to fi le such report, prior to taking action against that committee. If 

the committee does not fi le the report within four business days of the notifi cation, the Commission must publish, 

before the election, the name of that committee as having failed to fi le the report. If the committee demonstrates that 

the report had been timely fi led or fi les the report within the four business days, the Commission will not publish its 

name before the relevant election.

Additionally, under the Commission’s Administrative Fine program, election-sensitive reports1 are subject to the 

schedule of penalties for “late” reports if they are fi led after their due date, but more than four days before an election. 

Committees fi ling later than that, or failing to fi le at all, are subject to the schedule of penalties for reports that are 

“not fi led.”

According to the allegations in the complaint, Congressman Amo Houghton was a candidate in the New York 

primary held September 12, 2000. As a result, his campaign committee was required to fi le a pre-primary report on 

August 31. On September 1, the Commission sent a notice to the Committee indicating that it may have failed to fi le 

its pre-primary report, and that it would have four business days from the date of the notice to fi le the report. Because 

of the Labor Day holiday, the fourth business day after the Commission’s September 1, 2000, notice was September 

8. The Committee fi led the report on that day.
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On October 17, 2000, the Commission found reason to believe that the Committee and its treasurer had violated 2 

U.S.C. §434(a), which requires the timely fi ling of reports by political committees. Having fi led its pre-primary report 

less than fi ve days before the election, the committee was subject to the schedule of penalties for reports that are “not 

fi led.” The Commission assessed a civil money penalty in the amount of $9,000 in accordance with 11 CFR 111.43. 

In its complaint, the Committee asked the court to order the Commission to modify both its determination that the 

Committee was a nonfi ler and its assessment of the civil money penalty.

Decision

The court observed that while the Commission’s notice informed the Committee that the Commission was considering 

taking action against it and provided the Committee with a four business-day window to fi le its report and avoid the 

publication of its name, “Section 437g(b) does not . . . attach any additional signifi cance to the four business-day rule. 

More specifi cally, 437g(b) does not indicate that, by fi ling within four business days, the late fi ling is excused [and] that 

the person avoids a monetary penalty.”

Thus, while a committee has four additional business days to fi le a report in order to avoid the publication of its name 

before the election, neither the Act nor Commission regulations provide a grace period for calculating a penalty under 

the Administrative Fine program.

The court dismissed the case. 

Source: FEC Record, September 2002, p. 15. , September 2002, p. 15. 1

 Election sensitive reports are those fi led immediately before an election and include pre-primary, pre-special, pre-general, October 

Quarterly and October monthly reports.

INTERNATIONAL ASSOCIATION OF MACHINISTS and AEROSPACE 

WORKERS v. FEC

On December 16, 1980, the U.S. District Court for the District of Columbia dismissed International Association of 

Machinists and Aerospace Workers (IAM) v. FEC Machinists and Aerospace Workers (IAM) v. FEC (Civil Action No. 80-0354). The court’s decision upheld an FEC (Civil Action No. 80-0354). The court’s decision upheld an FEC 

determination dismissing an administrative complaint that IAM and six other parties had fi led with the Commission. 

The court granted, however, plaintiffs’ motion to have the court certify constitutional challenges raised in the suit to 

an en banc appeals court, pursuant to 2 U.S.C. §437h. Accordingly, on June 3, 1981, the district court certifi ed to the 

U.S. Court of Appeals for the District of Columbia Circuit three questions as to the constitutionality of 2 U.S.C. 

§441b(b)(3). The FEC fi led a motion to dismiss the claims on July 15, 1981.

Plaintiffs’ Claim

In their suit, plaintiffs claimed that the FEC had acted contrary to law in dismissing an administrative complaint 

fi led by plaintiffs on October 9, 1979. The complaint alleged that eleven corporations had systematically violated 2 U.

S.C. §441b(b)(3) by soliciting contributions to their separate segregated funds (political action committees or PACs) 

from “unprotected” administrative personnel under “inherently coercive” conditions. Citing the Supreme Court’s 

ruling in Civil Service Commission v. National Association of Letter Carriers (413 U.S. 548 (1973)), plaintiffs claimed 

that the corporate solicitation methods were coercive because immediate supervisors approached their employees 

for contributions at work. Plaintiffs cited a number of examples as evidence of coercion, including the fact that 

employees had made larger contributions, on the average, than members of the general public with comparable 

incomes and the fact that some of the PAC contributions were made to out-of-state candidates and to candidates 

whose party affi liation differed from that of the employees.

District Court Ruling: Merits of the Case

In reviewing plaintiffs’ claims, the district court recognized the deference to be accorded the FEC’s determination 

and concluded that the Commission’s dismissal of IAM’s complaint was not arbitrary, capricious or contrary to 

law. Applying the standard for permissible corporate solicitations set forth in Pipefi tters Local Union No. 562 v. U.S.

(407 U.S. 385 (1972)), and later codifi ed in §441b(b)(3) of the Act, the court stated: “[N]owhere does FECA [Federal 

Election Campaign Act] forbid corporate supervisors from asking their subordinates for contributions as long as 

they comply with the provisions of Section 441b(b)(3).”1 The court concluded that “[p]laintiffs’ presentation to the 

FEC, although detailed, is composed entirely of circumstantial evidence. Neither the administrative complaint nor 

the complaint in this Court, offers direct evidence of wrongdoing.”
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District Court Ruling: Constitutional Issues

Plaintiffs had also asked the district court to certify to the appeals court three constitutional challenges to Section 

441b(b)(3) if the court upheld the FEC’s determination to dismiss plaintiffs’ administrative complaint. Plaintiffs 

claimed that the corporate solicitations described in its complaint violated:

• First Amendment rights of free speech by sanctioning “coercive” solicitations of employees;

• Fifth Amendment rights of equal protection by denying labor unions “...comparable economic power over 

thousands of career employees.... “; and

• First Amendment rights of shareholders by compelling them to fi nance coercive political solicitations. 

The FEC moved that these challenges be dismissed on grounds that they failed to state a claim on which relief could 

be granted and plaintiffs lacked standing to raise the issues. The court found, however, that “...plaintiffs’ claims are 

neither frivolous nor so insubstantial as to warrant dismissal for failure to state a claim.” As to plaintiffs’ standing to 

raise the constitutional issues, the court held that “...the plaintiffs have made a threshold showing of a ‘distinct and 

palpable injury’ of a level suffi cient to satisfy Article III [of the Constitution].”

Appeals Court Ruling

On April 6, 1982, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, issued an 

opinion that rejected the three constitutional challenges to Section 441b(b)(3) of the election law. (Civil Action 

No. 81-1664) In separate decisions, the appeals court affi rmed the district court’s decision that the Commission’s 

dismissal of the complaint was not contrary to law, and also ruled on each of plaintiffs’ constitutional questions, 

as summarized below:

Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments [codifi ed at 2 U.

S.C. §441b(b)(3)] unconstitutional? Plaintiffs claimed that, in permitting corporate PACs to solicit their executive and 

administrative personnel in addition to their shareholders, the 1976 amendments had violated Fifth Amendment rights 

of equal protection and First Amendment rights of free speech by upsetting the long-standing balance in political 

power that had existed between corporations and labor organizations prior to enactment of the 1976 amendments. 

They argued that Congress had not intended to tip this balance in favor of corporations; rather, Congress had not 

foreseen the effect of the amendments, namely, the proliferation of corporate PACs and their disproportionate 

infl uence on federal elections. Since there are many more corporations than labor organizations, plaintiffs claimed 

the imbalance is institutional and, consequently, cannot be corrected by labor organizations. 

The appeals court found, however, that Congress had attempted to treat labor organizations and corporations in 

a comparable manner in both the 1971 and 1976 amendments, while taking into account the structural differences 

between them. By restricting corporate PAC solicitations to administrative and executive employees and shareholders 

in the 1976 amendments, Congress had restored a similar, if not identical, balance to that which had existed prior to the 

FEC’s 1975 ruling in the SUNPAC advisory opinion (AO 1975-23). (The SUNPAC opinion permitted corporations 

to solicit not only their shareholders but all their employees as well.)

By including executive and administrative personnel in a corporation’s solicitable personnel, Congress had taken into 

account the structural differences between labor organizations and corporations, while applying the standard for 

solicitable personnel even handedly. The appeals court noted that, in this regard, “it is...more likely that a corporation’s 

career employees will identify with the corporate direction, purpose, and welfare than will a shareholder who does not 

own a controlling interest.”

In affi rming Congress’ decision to shape the solicitation procedures of the election law to refl ect differences in 

organizational structure, the appeals court cited recent rulings of the U.S. Court of Appeals for the Seventh Circuit 

that upheld the constitutionality of other solicitation arrangements. For example, in Bread PAC v. FEC, the court 

rejected a Fifth Amendment challenge to restrictions placed on a trade association seeking to solicit the solicitable 

personnel of its member corporations. Similarly, in California Medical Association v. FEC, the court rejected an 

equal protection challenge to a provision which prohibits unincorporated associations, unlike corporations and labor 

organizations, from spending unlimited funds to establish and administer a political action committee. 

Furthermore, the appeals court cautioned that “the Constitution, as historically and currently interpreted, does not 

afford any guarantee against one person’s or group’s ability to fund more speech than can another. In fact, far from 

imposing on Congress an obligation to equalize the voices of corporate and labor PACs, the Constitution, as the 

Supreme Court now reads it, may forbid Congress to act in such a manner. See Buckey v. Valeo, 424 U.S. at 48-49.”

Plaintiffs alleged that, even though Section 441b(b)(3) sanctions corporate PAC solicitations of executive and 

administrative personnel, these solicitations are inherently coercive, in violation of First Amendment free speech 

rights. As evidence of this coercion, plaintiffs pointed out that executive and administrative employees “give to the 
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corporate political fund at rates and in amounts far beyond those which obtain when donors are not solicited to 

give to the institution that employs them.” The appeals court said, however, “One could argue with equal force that 

career employees contribute to their corporate PACs out of a desire to further what they perceive to be their own best 

interests or the best interests of the corporation, and because they have the wherewithal to do so, not because they 

are coerced or intimidated.”

Deferring to Congress’ judgment, the appeals court further held that the 1976 amendments extended the same 

protections against coercion to corporate executive and administrative personnel that had been provided to union 

members and shareholders in the 1971 amendments. It had no “evident reason to believe that protections... relied 

upon to secure union members against union pressure would be less adequate in securing career employees against 

corporate pressure.” The appeals court reasoned that a more important consideration was the risk of coercion that 

corporate solicitations posed for a corporation’s hourly wage earners. “The statutory language plainly demonstrates 

that concern: solicitation of hourly employees is severely restricted; solicitation of career employees is generally 

permitted, but is brigaded with protections designed to prevent overreaching.”

Nor did the court fi nd any merit to plaintiffs’ contention that the 1976 amendments constituted a form of governmentcompelled activism on the part of PAC contributors.

Does the use of general corporate assets to establish and support a corporate PAC violate the First Amendment rights of 

dissenting shareholders? Plaintiffs claimed that the FECA provision permitting corporations to use treasury funds to 

establish and administer a PAC abridge the free speech rights of shareholders who objected to such use of corporate 

assets. The court found that the chief case cited by plaintiffs in support of their claim, Abood v. Detroit Board of 

Education, was not applicable. The appeals court pointed out that “in Abood the [Supreme] Court had held that the 

First Amendment prohibited a public employee union from requiring any employee ‘to contribute to the support of 

an ideological cause he may oppose as a condition of holding a job.” A corporate shareholder, the court reasoned, is 

under no such compulsion. Citing the Supreme Court’s decision in First National Bank of Boston v. Bellotti, the appeals 

court said “[T]he shareholder invests in a corporation of his own volition and is free to withdraw his investment at any 

time and for any reason.” 435 U.S. at 794 n. 34.

Supreme Court Ruling

On November 8, 1982, the Supreme Court issued a summary judgment affi rming the April 6 decision by the U.S. 

Court of Appeals for the District of Columbia Circuit. (U.S. Supreme Court No. 82-284)

Source: FEC Record, September 1981, p. 3; September 1982, p. 4; and January 1983, p. 6. , September 1981, p. 3; September 1982, p. 4; and January 1983, p. 6.

International Association of Machinists v. FEC, 678 F.2d 1092 (D.C. Cir. 1982) (en banc), aff’d mem., 459 U.S. 983 (1982). 

1 Under this provision of the election law, solicitations are considered noncoercive if they inform employees of: (1) the political 

purposes for which contributions will be used and (2) of their right to refuse to contribute without reprisal.

JONES v. FEC

On April 30, 1997, the U.S. District Court for the Eastern District of Michigan granted the FEC’s motion to dismiss 

this case. The suit, seeking $249 trillion in damages, was fi led in February 1997, by Alfonzo Jones, a Detroit resident 

who said, among other things, that the FEC acted contrary to law in not certifying him for public fi nancing for the 

1996 presidential campaign.

The court found that Mr. Jones failed to allege any facts in his suit that indicated that the Commission had illegally 

failed to provide him with public funds.

Source: FEC Record, June 1997, p. 7. , June 1997, p. 7.
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JORDAN v. FEC

The U.S. District Court for the District of Columbia granted summary judgment to the FEC on May 27, 1994, 

upholding the agency’s dismissal of an administrative complaint fi led by Absalom F. Jordan, Jr., against Handgun 

Control, Inc.

On November 3, 1995, the U.S. Court of Appeals for the District of Columbia Circuit remanded the case to the 

district court. The court of appeals instructed the district court to dismiss the case for lack of jurisdiction because 

Mr. Jordan had failed to fi le suit within 60 days after the FEC dismissed his complaint.

The district court dismissed the case on January 23, 1996.

Background

In his complaint, Mr. Jordan claimed that Handgun Control, Inc. (HCI) had violated the law by soliciting 

contributions from individuals who did not qualify as “members” because they lacked suffi cient rights to participate 

in the governance of HCI.

Mr. Jordan’s complaint raised the same membership issue as a succession of complaints fi led against HCI by the 

National Rifl e Association (NRA) between 1983 and 1992. The fi rst NRA complaint resulted in a conciliation 

agreement requiring HCI to pay a civil penalty and to amend its bylaws to establish voting rights for its members.

Three more NRA complaints challenging HCI membership were dismissed by the FEC, which had already concluded 

that HCI members, under the new bylaws, had suffi cient governance rights through their ability to vote for an atlarge board member. The FEC’s dismissals of the third and fourth complaints were affi rmed by the D.C. Court of 

Appeals.

In dismissing the Jordan complaint, the FEC stated that his claims were “substantially similar” to those in the four 

NRA complaints, which had already been “conclusively resolved.”

Defi nition of Member

Until recently, FEC regulations defi ned member simply as a person who satisfi ed the requirements for membership, but 

FEC advisory opinions had refi ned the term to mean persons who had some right to participate in the organization’s 

governance and the obligation to pay regular dues.1 This reading was based on the Supreme Court’s decision in FEC 

v. National Right to Work Committee (NRWC), 459 U.S. 197 (1982). The agency determined that HCI member’s 

voting rights, under the new bylaws, were suffi cient to satisfy this defi nition when the issue arose in three more NRA 

complaints. 

Mr. Jordan challenged that interpretation, claiming that HCI’s members were not solicitable because they lacked the 

power to remove management. He based his argument on the NRWC holding that members should be defi ned “at 

least in part, by analogy to stockholders of a business corporation.”

District Court Ruling

Finding the FEC’s defi nition of member to be reasonable, the court pointed out that, while the NRWC Court said 

that there had to be “some” attachment between the organization and its membership, that Court “certainly did 

not require that members be provided with the opportunity to seize total control of the organization, as plaintiff 

argue[d].”

Furthermore, the court said the FEC’s refusal even to consider Mr. Jordan’s claims was neither arbitrary nor 

capricious but, instead, made “perfect sense,” considering that the agency had already conclusively resolved the HCI 

membership issue. The court said that a “scrupulous adherence to precedent is hardly arbitrary.”

Court of Appeals Ruling

The court of appeals noted that the FEC dismissed Mr. Jordan’s complaint on July 24, 1991, and that Mr. Jordan 

did not fi le suit with the district court until September 25, 1991. Under 2 U.S.C. §437g(a)(8)(B), a petition to review 

an FEC decision to dismiss an administrative complaint must be fi led within 60 days after the date of dismissal. The 

court ruled that the 60-day period began when the Commission voted to dismiss the complaint, and not on the date 

of the FEC’s letter informing Mr. Jordan of the dismissal. When Mr. Jordan received the FEC’s letter informing him 

of the dismissal, he had 53 days left on the 60-day limit in which to fi le a suit. He did not fi le suit with the district 

court until 63 days after the FEC voted to dismiss his complaint. As a result, the court of appeals ruled that the 

courts lacked jurisdiction to review this case. On January 23, 1996, the district court carried out the appeals court’s 

instructions to dismiss this case.

Source: FEC Record, August 1994, p. 9; and April 1996, p. 12. , August 1994, p. 9; and April 1996, p. 12.

Jordan v. FEC, No. 91-2428 (NHJ) (D.D.C. Feb. 25, 1993); (D.D.C. May 27, 1994) (opinion); No. 94-5216 (D.C. Cir. Nov. 3, 1995). 1 The FEC further clarifi ed the defi nition of member at revised 11 CFR 114.1(e), effective November 1993.
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JUDD v. FEC

Keith Judd, a Texas resident and registered Presidential candidate in 2000, asked the U.S. Court of Appeals for the 

District of Columbia Circuit to fi nd that the Presidential Primary Matching Payment Account Act is unconstitutional 

and to award him public funding for the election equal to that awarded President Bill Clinton during his 1996 reelection 

effort. On April 9, 1998, the court dismissed Mr. Judd’s petition for lack of prosecution.

On August 20, 1998, the appeals court denied Mr. Judd’s motion to have the court reexamine its decision to dismiss 

this case for lack of prosecution. 

On November 4, 1998, the court denied Mr. Judd’s request for a rehearing and a rehearing en banc of the court’s 

decision to dismiss the case.

On February 22, 1999, the court denied a motion by Mr. Judd to vacate its ruling in the case.

Source: FEC Record, June 1998, p. 5; October 1998, p. 2; January 1999, p. 3; and April 1999, p. 5. , June 1998, p. 5; October 1998, p. 2; January 1999, p. 3; and April 1999, p. 5.

JUDICIAL WATCH, INC. v. FEC

On July 2, 1998, the U.S. District Court for the District of Columbia denied the FEC’s motion to dismiss this lawsuit 

challenging the agency’s dismissal of an administrative complaint fi led by Judicial Watch, Inc. The court remanded 

the case to the FEC and ordered it to decide whether to pursue the administrative complaint within 120 days. 

On May 7, 1999, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court ruling and 

dismissed this case.

Background

In February 1998, Judicial Watch fi led this lawsuit after the Commission voted to take no action on its administrative 

complaint, which alleged that the White House, Democratic National Committee (DNC), Department of Commerce 

and Clinton administration had sold seats on foreign trade missions for large campaign contributions to the DNC 

and the Clinton/Gore 1996 reelection campaign. Judicial Watch contended that the contributions violated 18 U.S.C. 

§600, a criminal statute which makes it unlawful to promise any special benefi t or treatment as a reward for political 

activities in support of or opposition to a particular candidate, election or political event. 

District Court Decision

The FEC moved to dismiss this case for lack of standing. In order to establish standing, a plaintiff such as Judicial 

Watch must show that it has suffered an injury in fact, that there is a causal connection between the injury and the 

conduct being complained about and that it is likely that the injury will be redressed by a favorable decision. The FEC 

claimed that Judicial Watch failed to allege an injury fl owing from the Federal Election Campaign Act (the Act).

The court disagreed. It pointed out that, in FEC v. Akins, the U.S. Supreme Court concluded that, for purposes of 

standing, an injury was created when a plaintiff failed to obtain information that had to be publicly disclosed. Thus, 

affected voters who do not have access to such information have standing to sue. The district court held that, in this 

case, information that trade mission seats may have been exchanged for contributions to the DNC and Clinton/Gore 

committee was “important and useful to voters.”

The FEC also argued that Judicial Watch did not have standing because its administrative complaint failed to identify 

violations of the Act over which the Commission had jurisdiction. The complaint only made allegations of bribery, 

not of reporting violations. The court stated, however, that no plaintiff is required to supply the FEC with a “legal 

theory” under the Act in order for the agency to pursue an administrative complaint. “At minimum, the FEC, as an 

agency acting in the public interest, should not interpret complaints narrowly,” the court stated.

The court went on to note that the matters outlined in the administrative complaint could raise reporting issues. 

The court said a contribution in exchange for participation in trade missions could be classifi ed as an offset to a 

contribution, a refund of a contribution or a disbursement. The DNC and Clinton/Gore committee might have had 

an obligation to report such transactions.

The court further noted that the FEC failed to notify Judicial Watch that its administrative complaint was 

technically defi cient, as is required by 11 CFR 111.5. The court also stated that, “If ... the allegations were not 

within its prosecutorial jurisdiction, the FEC should have referred the matter to the Department of Justice or 

the appropriate agency.”
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The court also dismissed the FEC’s argument that a huge backlog of cases at the agency requires it to 

dismiss administrative complaints such as the one fi led by Judicial Watch without investigating them 

because of a lack of fi nancial and human resources. The court said the FEC should have raised this issue in 

the administrative proceedings.

Appeals Court Decision

The appeals court found that Judicial Watch lacked standing to challenge the FEC’s decision to dismiss an 

administrative complaint it fi led with the agency.

In its memorandum opinion, the appellate court concluded that Judicial Watch failed to show that it suffered an 

injury stemming from the FEC’s dismissal of its administrative complaint. The court said it was too late for Judicial 

Watch now to argue that its complaint should be read to allege reporting violations, and that the FEC’s dismissal 

deprived the group and its members of information to which they are entitled. In Common Cause v. FEC, the appeals 

court had found that, if an organization has simply been “deprived of the knowledge as to whether a violation 

of the law has occurred,” then its injury is no more than a general “interest in enforcement of the law” and not 

suffi cient for standing.1

The court noted that Judicial Watch failed to make even a nominal allegation of reporting violations in its complaint. 

If, however, Judicial Watch has a viable claim of reporting violations, the court stated that it should fi le a new 

complaint with the FEC asserting those violations.

The appellate court also agreed with the FEC that the district court erred in granting summary judgment for Judicial 

Watch on the merits before the FEC had answered the complaint.

Source: FEC Record, April 1998, p. 4; September 1998, p. 3; and July 1999, p. 8. , April 1998, p. 4; September 1998, p. 3; and July 1999, p. 8.

Judicial Watch, Inc. v. FEC, 10 F. Supp.2d 39 (D.D.C. July 6, 1998). 1 Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997)

JUDICIAL WATCH, INC. v. FEC (1:01CV01747)

On August 17, 2001, Judicial Watch, Inc., a nonprofi t, public interest organization, asked the U.S. District Court for the 

District of Columbia to fi nd that the Commission acted contrary to law when it failed to respond to the organization’s 

administrative complaint. The April 10, 2001, administrative complaint alleged that Representative Tom DeLay and 

the National Republican Congressional Committee (NRCC) sold meetings with top Bush Administration offi cials in 

exchange for campaign contributions to the NRCC. Judicial Watch contended that the NRCC was required to report 

these meetings to the Commission as “offsets to contributions.” 2 U.S.C. §434(b) and 11 CFR 104.3. Judicial Watch 

asked the Commission to investigate because it believed that the meetings had not been reported and would not be 

reported in the future.

In its request for declaratory relief, Judicial Watch alleges that the Commission did not act on the complaint within 

120 days, as required by the Federal Election Campaign Act. Judicial Watch asks that the court:

• Declare the Commission’s failure to act on the complaint contrary to law;

• Direct the Commission to act within 30 days; and

• Retain jurisdiction over this action. 

Source: FEC Record, October 2001, p. 3. , October 2001, p. 3. 
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JUDICAL WATCH, INC. and PETER F. PAUL v. FEC (1:01CV02527)

On August 30, 2003, the U.S. Court for the District of Columbia granted the Commission’s motion for summary 

judgment in this case.1 The court found that the plaintiff, Peter F. Paul, lacked standing to seek judicial relief in this 

instance because he had suffered no injury and that Judicial Watch, Inc., was precluded from bringing suit against the 

Commission because it was not a party to the administrative complaint underlying the court complaint.

Background

On December 7, 2001, Judicial Watch, a non-profi t, public interest organization, and Mr. Paul, an alleged donor 

to Hillary Rodham Clinton’s Senatorial campaign committee (the Committee), asked the court to fi nd that the 

Commission acted contrary to law when it failed to respond to an administrative complaint fi led by Mr. Paul, who was 

represented by Judicial Watch. The administrative complaint, fi led July 16, 2001, alleged that the Committee violated 

the Federal Election Campaign Act’s (the Act) contribution limits by accepting cash and in-kind contributions from 

Mr. Paul totaling nearly $2 million. 2 U.S.C. §441a and 11 CFR 110.1 and 110.9. The administrative complaint 

further alleged that the Committee failed to report the contributions. 2 U.S.C. §434(b) and 11 CFR 104.3. Before 

the court, Mr. Paul and Judicial Watch claimed that the Commission failed to act on the complaint within 120 

days, as required by the Act, and that this failure caused them “informational injury” because they were deprived of 

information they sought when the administrative complaint was fi led. See 2 U.S.C. §437g(a)(8)(A). See the March 

2002 Record, page 3. , page 3.

Court Decision

Parties to the complaint

Under the Act, a party that fi les an administrative complaint with the Commission may fi le a petition with the court 

if the Commission dismisses or fails to act on an administrative complaint. 2 U.S.C. §437g(a)(8)(A). Thus, while the 

Act provides for some judicial review of Commission administrative actions, the plain language of the statute also 

makes clear that this relief is only available to parties to the administrative complaint.

In this case, Mr. Paul was the only person listed as a party to the administrative complaint fi led with the Commission. 

The complaint was printed on Judicial Watch letterhead, but Judicial Watch identifi ed Mr. Paul as its “client” and 

did not mention that it was also a party to the complaint. Mr. Paul was the only party who signed the complaint. 

The court determined that Judicial Watch only acted as counsel to Mr. Paul and not as a party to the administrative 

complaint. As a result, Judicial Watch is barred from seeking judicial relief in this case.

Standing

In order to have standing to bring a case in federal court, the plaintiff must satisfy a three-part test. The plaintiff 

must:

1. Suffer an “injury in fact”—that is, an invasion of an interest that is concrete and particularized and also actual 

or imminent rather than just hypothetical; 

2. Show that the injury is fairly traceable to the defendant’s allegedly unlawful conduct; and

3. Show that the injury is likely to be redressed by the relief that the plaintiff requests.

Mr. Paul argued that he suffered injury in fact because:

• He was deprived of information regarding Senator Clinton’s alleged campaign fi nance reporting violations as 

they pertained to his contributions;

• He may be a future defendant in any possible FEC investigation of these alleged violations and has been 

deprived of information that might help him in his defense; and

• The Commission’s delay in acting on his administrative complaint is in itself an injury.

The court found that Mr. Paul did not, as a result of being denied this information, suffer an injury that granted him 

standing to bring suit against the Commission. The court determined that because Mr. Paul was already aware of the 

facts underlying his own alleged contributions to the campaign, he was really seeking a legal determination by the 

Commission that Senator Clinton violated the Act. In a previous court case, the D.C. Circuit Court determined that 

a plaintiff does not satisfy the standing requirement if the information withheld is only the fact that a violation of the 

Act has occurred. See Common Cause v. FEC, 108 F.3d 418. 

Moreover, the court disagreed with Mr. Paul’s claim that he suffered an informational injury because he is unable to 

use information from an FEC investigation to amass his defense against a possible future enforcement action. The 

court found that this purported injury was merely speculative, and Mr. Paul had “not suffered an injury in fact by 

being deprived of information that may assist his defense in a possible FEC investigation.” Finally, the court found 

that Mr. Paul had suffered only a procedural injury as a result of the Commission’s failure to meet the 120-day 

deadline.2
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Order

Having concluded that Judicial Watch was not a party to this case and that Mr. Paul did not have standing to bring 

suit in this matter, the court granted the Commission’s motion for summary judgment and dismissed the plaintiff’s 

case with prejudice.

Source: FEC Record, November 2003, p.7; March 2002, p. 3. , November 2003, p.7; March 2002, p. 3. 1

 The court may grant summary judgment when there is “no genuine dispute of material factî and ìthe moving party is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

2

 Having found that Mr. Paul lacked standing because he did not suffer an injury in fact, the court did not address the Commissionís 

argument that Mr. Paul was precluded from bringing suit under the fugitive disentitlement doctrine because he is a fugitive from justice 

from charges pending in federal court in New York.

KAY v. FEC

On April 21, 1981, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment in the suit Richard B. Kay v. FEC Richard B. Kay v. FEC (Civil Action No. 80-3081) and denied plaintiff’s cross-motion for (Civil Action No. 80-3081) and denied plaintiff’s cross-motion for

summary judgment.

Background

Plaintiff fi led this suit on December 2, 1980, seeking a declaratory judgment that the FEC had acted contrary to 

law in dismissing an administrative complaint that plaintiff had fi led against The Plain Dealer Publishing Company 

of Cleveland and several of its offi cers and employees. Plaintiff, who had been a Presidential primary candidate in 

Ohio, alleged that a full-page chart published in The Plain Dealer before the 1980 Ohio Presidential primary was a 

political advertisement by the publishing company. The chart carried photographs of three major party Presidential 

candidates and summaries of their positions on nine campaign issues ranging from infl ation to federal funds for 

abortions. Plaintiff alleged the ad constituted either a corporate expenditure or a corporate in-kind contribution both 

prohibited under the Act. 

After investigating the complaint pursuant to the enforcement procedures of Section 437g(a) of the Act, the 

Commission, acting on a recommendation from the General Counsel to dismiss the complaint, found no reason to 

believe the Act had been violated. In his report to the Commission, the General Counsel observed that the “contents 

of this chart merely constitute an effort on the part of The Plain Dealer to report in an orderly manner for the benefi t 

of its readers the issue stands and activities of the major candidates in the Ohio primary. In essence, The Plain Dealer

was printing a news story in chart form.” The General Counsel noted that the Act and Commission regulations 

specifi cally exempt such news stories from the defi nitions of “contribution” and “expenditure,” provided the news 

corporation is not controlled by any political party, political committee or candidate. The General Counsel noted that 

there was no indication of such ownership or control of The Plain Dealer. 

District Court Ruling

Holding that no material facts were in dispute and that applicable law was clear, the court found that: “The 

Commission’s action, based on the General Counsel’s recommendation that the publication be treated as a newspaper 

story, was plainly consistent with the law. The Plain Dealer was doing the main business of a newspaper: in its own 

way, it informed the public about issues which the public would decide.”

As to plaintiff’s claim that he did not receive reasonably equal news coverage in The Plain Dealer’s circulation area, 

the court noted that a newspaper had no duty under the Act to give “equal time” to candidates. The court said, “To 

the extent that this ‘equal time’ concern was an element of plaintiff’s complaint, the Commission quite properly 

ignored it.” Plaintiff appealed the decision. 

Appeals Court Ruling

On December 1, 1981, the U.S. Court of Appeals for the District of Columbia Circuit issued a judgment in Richard 

B. Kay v. FEC B. Kay v. FEC (Civil Action No. 80-3081), which upheld the district court’s decision that the FEC’s dismissal had not (Civil Action No. 80-3081), which upheld the district court’s decision that the FEC’s dismissal had not

been contrary to law. 

Source: FEC Record, June 1981, p. 6; and February 1982, p. 9. , June 1981, p. 6; and February 1982, p. 9.

Kay v. FEC, No. 80-3081 (D.D.C. April 20, 1981) (unpublished opinion), aff’d mem., 672 F.2d 894 (D.C. Cir. 1981). 
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KEAN FOR CONGRESS v. FEC

On September 18, 2001, the Kean for Congress Committee (the Committee) asked the U.S. District Court for the 

District of Columbia to fi nd that the Commission’s failure to act on the Committee’s administrative complaint was 

contrary to law. 

The Committee’s administrative complaint, fi led on June 1, 2000, alleged that the Council for Responsible Government 

(CRG), a Virginia corporation, had secretly funded campaign mailings in an attempt to infl uence the New Jersey 

Congressional Seventh District Republican primary. The Committee contended that the campaign mailings violated 

the Federal Election Campaign Act’s prohibition on corporate contributions and also lacked the disclaimer required 

on public communications. 2 U.S.C.§§ 441b and 441d. The Committee also asked the Commission for injunctive relief 

to prevent the CRG from continuing to engage in the alleged prohibited activity. 

In the court complaint, the Committee contended that, as of September 18, 2001, the FEC had not taken any action 

on its complaint, and asked that the court:

• Declare the FEC’s failure to act within 120 days of the fi ling of the complaint contrary to law;

• Order the FEC to bring itself into compliance with the law within 30 days; and

• Grant any further relief as the court deems just and proper.

Source: FEC Record, December 2001, p. 4. , December 2001, p. 4.

KEAN FOR CONGRESS COMMITTEE v. FEC (1:04CV00007)

On January 5, 2004, the Kean for Congress Committee (the Committee) asked the U.S. District Court for the District 

of Columbia to fi nd that the Commission acted contrary to law when it dismissed the plaintiff’s administrative 

complaint dated May 31, 2000, and subsequently failed to provide a Statement of Reasons. The administrative 

complaint alleged that a Virginia corporation known as the Council for Responsible Government and its so-called 

“Accountability Project” (collectively, CRG) funded mailings which attempted to infl uence a New Jersey Congressional 

Seventh District Republican primary, in violation of federal law. On November 4, 2003, the Commission dismissed 

the administrative complaint, splitting 3-3 on whether to fi nd reason to believe the CRG violated the Federal Election 

Campaign Act (the Act).

Background

The Act prohibits corporations from making contributions or expenditures in connection with federal elections 

and requires that any communication advocating the election or defeat of a clearly identifi ed candidate contain 

a disclaimer stating whether the communication was authorized by any candidate. The Act also requires that 

independent expenditures in support of, or in opposition to, a federal candidate and costing in excess of $250 be 

publicly disclosed in a fi ling with the FEC. 11 CFR 109.2. Additionally, the Act requires any group of persons that 

raises or spends more than $1,000 and whose principal purpose is to infl uence federal elections to register with the 

FEC as a federal political committee and disclose its contributions and expenditures. 2 U.S.C. §431(4).

In 2000, Tom Kean ran in the New Jersey Congressional Seventh Republican primary against Mike Ferguson, among 

other candidates. The New Jersey primary election was held on June 6, 2000. Mike Ferguson won the election and 

presently holds the Congressional seat sought by Mr. Kean, who is currently a state Senator. The Kean for Congress 

Committee was Mr. Kean’s principal campaign committee in the 2000 election.

Court complaint

The Committee alleges that, on May 31, 2000, it fi led an administrative complaint and supporting documents with 

the FEC alleging that the campaign mailings disseminated by the CRG violated numerous provisions of the Act. 

According to the Committee, in May 2000 the CRG disseminated numerous advertisements advocating the defeat 

of Tom Kean and the election of Mr. Ferguson. In addition, Gary Glenn, a CRG board member, was quoted in a 

newspaper as stating that, “[t]he very purpose of our group is to infl uence the outcome of elections...” The plaintiff 

asserted that the Committee, its candidate and supporters suffered direct political injury by the actions of the CRG 

which targeted Tom Kean’s campaign and palpably impaired his ability to compete on equal footing in the 2000 

election. The CRG’s failure to include the required disclaimer under 2 U.S.C. §441d in its challenged campaign 

communications and its failure to publicly disclose its contributions and expenditures under 11 CFR 109.2 allegedly 

deprived the Committee of information to which it is entitled under the Act.
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By letter dated November 10, 2003, the FEC advised the Committee that the Commission was “equally divided” on 

whether to fi nd reason to believe the CRG violated the Act, and closed the fi le on November 4, 2003. The plaintiff fi led 

a court complaint on January 5, 2004, seeking to have the Commission’s dismissal of the administrative complaint 

declared contrary to law. The complaint also alleges that the FEC had failed to provide a Statement of Reasons 

setting forth a basis for its decision.1

Relief 

The plaintiff asks the court to declare that the Commission’s dismissal of the Kean Committee’s administrative 

complaint and failure to provide a Statement of Reasons for its decision was based on an impermissible interpretation 

of the Act, was arbitrary and capricious, was an abuse of discretion and was otherwise contrary to law. 

Source: FEC Record, March 2004, p. 7. , March 2004, p. 7. 1

 11 CFR 5.4(a)(4) requires that Commissioners’ opinions be placed on the public record no later than 30 days from the date on which 

respondents were notifi ed that the Commission has voted to close an enforcement fi le. After the Committee fi led its court complaint, 

the FEC issued and publicly released a Statement of Reasons for its decision to dismiss the Committee’s administrative complaint.

KENNEDY FOR PRESIDENT v. FEC (81-2552)

On December 21, 1981, the U.S. District Court for the District of Columbia issued a consent order resolving claims 

brought by the Kennedy campaign against the Commission in Kennedy for President Committee v. FEC Kennedy for President Committee v. FEC (Civil Action (Civil Action

No. 81-2552). The court dismissed with prejudice all other pending judicial claims between the Kennedy Committee 

and the Federal Election Commission.

Plaintiff ’s Claims

In the suit, fi led on October 21, 1981, the Kennedy Committee claimed that the FEC had violated the Government 

in the Sunshine Act (5 U.S.C. §552b) by:

• Considering the fi nal audit report on Senator Edward Kennedy’s Presidential primary campaign in executive 

sessions, which are closed to the public; and

• Failing to indicate in public notices announcing these executive sessions that the FEC would consider the 

Kennedy audit report. The Kennedy Committee had asked the district court to order the FEC to make 

available to the Kennedy campaign and the public a tape recording or written transcript (as well as any other 

documents) pertaining to the FEC’s discussion of the audit report.

Resolution of Claims

In the consent order, the FEC agreed to make available to plaintiff and the public portions of the transcript involving 

the FEC’s consideration of the fi nal Kennedy audit report at Commission meetings held on August 25 and 26 and 

September 15 and 16, 1981. The Commission also agreed to make available documents pertaining to those meetings. 

Both parties agreed, however, that the Commission could delete from these transcripts discussions related solely to 

FEC personnel matters, enforcement actions, litigation strategy and matters exempted from public disclosure by the 

Freedom of Information Act (FOIA). Similarly, the parties agreed that portions of the documents pertaining to those 

meetings could be withheld pursuant to various exemptions under the Freedom of Information Act.

The consent order expressly conditioned release of the transcripts on the parties’ compliance with the following 

requirements:

• Within 15 days of the order, the FEC would make available an index of deletions in the transcripts and 

documents to be released. The Kennedy Committee could then object to any deletions in the transcript within 

10 days of the index’s release. Disputed deletions could not, however, delay release of the transcripts or 

documents. 

• Fifteen days after the Committee received the index, the FEC would make available copies of those portions 

of the transcripts and documents which the FEC determined were not exempt from disclosure. 

• Within 20 days of receiving the transcripts and documents, the Kennedy Committee would present to the 

Commission any objections to deletions in writing. The FEC, in turn, would notify the Committee of its fi nal 

determination on any disputed deletions within 20 days. 

• The Kennedy Committee could ask the court to review any deletions still in dispute within 15 days of receiving 

the FEC’s fi nal determination on them. In reviewing such claims, the court would limit its consideration to 

whether the FEC had improperly withheld material from the transcripts. 

Source: FEC Record, February 1982, p. 8. , February 1982, p. 8.
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KENNEDY FOR PRESIDENT v. FEC (83-1521)

On May 15, 1984, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in Kennedy for 

President Committee v. FEC President Committee v. FEC (Civil Action No. 83-1521), which reversed a repayment determination that the FEC had (Civil Action No. 83-1521), which reversed a repayment determination that the FEC had

made with regard to the Kennedy for President Committee. The committee was established by Senator Edward M. 

Kennedy (D-Mass.) as his principal campaign committee for the 1980 Presidential primaries. On the same day, for 

reasons set forth in the Kennedy opinion, the court also vacated an FEC repayment determination with regard to the 

Reagan for President Committee, President Reagan’s principal campaign committee for his 1980 Presidential primary 

campaign. The Reagan campaign had challenged an $87,708 repayment determination made by the FEC in June 

1983. (Reagan for President Committee v. FEC; Civil Action No. 83-1666.)1 The appeals court then remanded both 

cases to the Commission for further proceedings consistent with its opinion in the Kennedy case.

Background to the Court’s Ruling on the Kennedy Case

On April 14, 1983, based on fi ndings of statutorily mandated audits of the Kennedy campaign, the Commission 

determined that the campaign had exceeded the 1980 state-by-state spending limits for publicly funded candidates by 

$14,889 in New Hampshire and by $40,611 in Iowa. 2 FEC regulations require publicly funded Presidential primary 

candidates to repay to the U.S. Treasury nonqualifi ed expenditures that are made with primary matching funds 

or private contributions. 3 11 CFR 9038.2(b)(2)(i). Consequently, the Commission determined that the Kennedy 

campaign had to repay the full amount of nonqualifi ed campaign expenditures incurred by the campaign (i.e., 

$55,500).

In its December 21, 1983, petition to have the court review the FEC’s repayment determination, the Kennedy 

campaign had not challenged the FEC’s determination with regard to the amount of nonqualifi ed expenditures the 

campaign had incurred. Rather, the Kennedy campaign contended that the repayment formula spelled out in the 

FEC’s regulations exceeded the Commission’s statutory authority because it required the repayment of the entire 

amount of nonqualifi ed expenditures. The Kennedy campaign argued that the election law required publicly funded 

campaigns to repay only the portion of their nonqualifi ed expenditures made with primary matching funds. As an 

alternative to the FEC’s repayment formula, the Kennedy campaign proposed that its repayment be calculated by 

“multiplying the total amount of [non]qualifi ed expenditures by the proportion of matching funds to total campaign 

funds.”

Appeals Court Ruling

The appeals court noted that Section 9038(b)(2) of the Presidential Primary Matching Payment Account Act did 

not provide a specifi c formula for determining repayments resulting from nonqualifi ed campaign expenditures. 

Nevertheless, the court held that “the statute gives rise to a repayment obligation only when the FEC determines that 

federal matching funds were used for nonqualifi ed purposes.” The court reasoned that “if Congress had intended the 

total amount of every unqualifi ed expenditure to be repaid, the statute would not have expressly limited the repayment 

obligation to unqualifi ed expenditures paid out of matching fund sources.” The court maintained, however, that the 

FEC should not be bound by the Kennedy campaign’s proposed repayment formula but should have discretion 

“in formulating a proper method for calculating the amount of unqualifi ed campaign expenditures attributable to 

matching fund sources.”

The court noted that, in promulgating the repayment regulation that implements the statutory provision, the FEC 

had reasoned that “if a candidate spends private campaign contributions...on nonqualifi ed campaign expenditures, 

those private funds would obviously not be available to defray the candidate’s qualifi ed campaign expenditures. The 

net result would be that the candidate would subsequently require more public funding to meet his or her qualifi ed 

expenses. In essence, this additional public funding would restore private campaign funds diverted by the candidate 

to nonqualifi ed campaign purposes.” The court maintained, however, that the “Commission’s regulation ...indulges 

the unreasonable presumption that all unqualifi ed expenditures are paid out of federal matching funds.” The court 

concluded that “the true ‘net result’ of the depletion of the overall campaign fund will be either an increase in the 

campaign’s fi nal defi cit or a decrease in the campaign’s fi nal surplus. In the case of a defi cit, the total federal funds 

would have been spent regardless of the unqualifi ed expenditures. In the case of a surplus, the government is entitled 

to recover only its pro rata share of the fi nal campaign surplus.”

Source: FEC Record, July 1984, p. 6. , July 1984, p. 6.

Kennedy For President Committee v. FEC, 734 F.2d 1558 (D.C. Cir. 1984). 1 Reagan For President Committee v. FEC, 734 F.2d 1569 (D.C. Cir. 1984). 2 Presidential primary campaigns that receive public funds must agree to limit spending to both a national limit and a separate limit for 

each state. 

3 Nonqualifi ed campaign expenditures include noncampaign-related expenses, certain expenditures made before or after candidacy and 

expenditures exceeding the limits for publicly funded Presidential primary campaigns. 
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KHACHATURIAN v. FEC

On May 17, 1993, the U.S. District Court for the Eastern District of Louisiana dismissed this case, ruling that Jon 

Khachaturian failed to raise a substantial constitutional challenge to the $1,000 contribution limit as applied to his 

independent candidacy. The district court had previously certifi ed the constitutional questions to the U.S. Court 

of Appeals for the Fifth Circuit. The appeals court, however, concluded that the certifi cation was premature and 

remanded the case to the district court with instructions to determine whether certifi cation was merited. The district 

court found that it was not. 

Mr. Khachaturian appealed that decision but, on October 13, 1993, the U.S. Court of Appeals for the Fifth Circuit 

dismissed his appeal at his own request.

Background

Mr. Khachaturian was an independent candidate for the U.S. Senate in Louisiana’s 1992 open primary. His suit, fi led 

shortly before the election, contended that the $1,000 limit on contributions from individuals (2 U.S.C. §441a(a)(1)(A)) 

discriminated against his candidacy because it prevented him from raising suffi cient funds to compete effectively 

against the incumbent major-party candidate.1 He said that he had contribution pledges of $200,000 but could only 

accept $75,000 under the limit.

The district court certifi ed his constitutional questions to the court of appeals in accordance with 2 U.S.C. §437h.2

(Mr. Khachaturian also asked the court to prohibit the FEC from enforcing the $1,000 limit against him and to order 

Louisiana’s Secretary of State to place his name on the general election ballot even if he lost the primary. The court 

denied the motion.)

Remand by Court of Appeals

The court of appeals remanded the case to the lower court with instructions to determine whether Mr. Khachaturian’s 

challenge was frivolous in light of Buckey v. Valeo. In that decision, the Supreme Court upheld the $1,000 contribution 

limit as constitutional on its face and rejected claims that it discriminated against independent and minor-party 

candidates. In order for Mr. Khachaturian to present a plausible challenge to the $1,000 limit as applied to his 

candidacy, the court of appeals said that he would at least have to provide factual support for his argument that “the 

$1,000 limit had a serious adverse effect on the initiation and scope of his candidacy.”

Dismissal by District Court

The district court said that Mr. Khachaturian “fail[ed] to come even close” to alleging facts suggesting that amounts 

in excess of the $1,000 limit would have affected the outcome of the election. The court concluded: “The law is clear...

that the $1,000 campaign contribution limit applies to minor party candidates....As a matter of law, the plaintiff fails 

to raise a colorable constitutional claim.” The court therefore granted the FEC’s motion to dismiss. (Civil Action No. 

92-3232, Section F.) 

Source: FEC Record, August 1993, p. 5; and December 1993, p. 3. , August 1993, p. 5; and December 1993, p. 3.

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) (en banc); No. 92-3232 (E.D. La. May 10, 1993), on remand. 1 Mr. Khachaturian had made similar claims in an advisory opinion request in which he asked for an exemption from the $1,000 

limit on constitutional grounds. In its response, AO 1992-35, the Commission said that it did not have jurisdiction to rule on the 

constitutionality of the limit but noted that the Supreme Court had upheld the limit in Buckley v. Valeo. 2 Section 437h states: “The district court immediately shall certify all questions of constitutionality of this [Federal Election Campaign] 

Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.”

KIEFFER v. FEC

On April 23, 2001, the plaintiffs fi led a complaint in the U.S. District Court for the Central District of Illinois. The 

complaint appeals a civil money penalty the Commission imposed on Bayne for Congress (the Committee) and Ms. 

Kieffer, as treasurer, for failure to fi le the Committee’s 2000 October Quarterly Report. The Committee attempted to 

fi le a termination report in June of 2000.

In December 2000, the Commission found reason to believe that the Committee and Ms. Kieffer had violated 2 U.S.C. 

§434(a), which requires the timely fi ling of reports by political committees, by not fi ling the Committee’s October 2000 

Quarterly Report. The Commission assessed a civil money penalty in the amount of $4,500 in accordance with 11 

CFR 111.43.

Source: FEC Record, July 2001, p. 7. , July 2001, p. 7.
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KOCZAK v. FEC

On February 14, 1984, the U.S. Court of Appeals for the District of Columbia Circuit denied Mr. Stephen A. Koczak’s 

petition for a writ of mandamus compelling certain FEC actions. (Stephen A. Koczak v. FEC, No. 84-5086, February 

9, 1984.) In his suit, Mr. Koczak had asked the appeals court to order the FEC to:

• Complete, by February 17, 1984, its investigation of a complaint Mr. Koczak had fi led with the FEC on 

January 17, 1984;

• Report fi ndings of the investigation to the court by February 21, 1984; and 

• Assess for each Democratic primary candidate who participated in the Dartmouth College debate the amount 

of expenditures permissible in New Hampshire, once services and facilities provided by various groups had 

been counted against the candidate’s New Hampshire spending limit.1

Source: FEC Record, April 1984, p. 10. , April 1984, p. 10. 1 Presidential primary candidates receiving public funds must agree to limit spending to a prescribed amount in each state. 11 CFR 

110.8(a)(2).

KRIPKE v. FEC

On October 26, 1990, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment, thereby dismissing Dr. Daniel F. Kripke’s suit against the agency. Dr. Kripke alleged that the FEC had 

acted contrary to law by failing to act on his administrative complaint within 120 days. See 2 U.S.C. §437g(a)(8)(A). 

The court stated that “[t]here is no statutory requirement that the Commission act within 120 days.” The court went 

on to say that, in ruling on an action such as Dr. Kripke’s, the court “must presume valid action, act deferentially and 

withhold its hand unless it appears that the Commission has been arbitrary and capricious. [citations deleted.]”

In this case, the court found that there had been no unreasonable delay and that the agency had not acted arbitrarily 

or capriciously in its handling of the matter. Accordingly, the court granted summary judgment to the FEC.

Source: FEC Record, December 1990, p. 4. , December 1990, p. 4.

Kripke v. FEC, No. 90-1597 (D.D.C. Oct. 26, 1990) (memorandum).

LaROUCHE v. FEC (92-1100)

On July 2, 1993, the Court of Appeals for the District of Columbia Circuit 1 directed the Commission to certify 

matching funds to Lyndon LaRouche, Jr., for his 1992 Presidential primary campaign. The court held that the 

Commission did not have statutory authority to deny matching funds based on its conviction that Mr. LaRouche 

would fail to keep his promise to comply with the law.

The Supreme Court, without comment, refused to review the appeals court decision.

In February 1992, the agency determined that Mr. LaRouche’s written agreement and certifi cation to comply with 

the law—a requirement for receiving matching funds—were not made in good faith, based on his long record of 

noncompliance with the federal campaign law and his criminal indictments and convictions for fraud. The Commission 

therefore found he was not eligible for matching funds. Mr. LaRouche immediately challenged the decision in a suit 

fi led with the D.C. Circuit.2

The court reversed the FEC’s decision, holding that the statute did not grant the agency the authority to evaluate the 

reliability of a candidate agreement.

Mr. LaRouche had argued that the law’s enforcement provisions, which grant the FEC the authority to take action 

with respect to past or ongoing violations of the law, implied a Congressional intent to withhold FEC authority to 

assess a candidate’s future likelihood of violating the law. The court agreed, observing that the voters should be the 

ones to judge a candidate’s integrity.

The court further noted that Congress intended public funds to be dispensed on a nondiscriminatory basis: “Any 

inquiry into the bona fi des of candidates’ promises would take the Commission into highly subjective territory that 

would imperil the assurance of even-handed treatment.”
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The FEC had argued that its position was supported by the court’s decision in Committee to Elect Lyndon LaRouche v. 

Federal Election Commission (CTEL),

3 where the court allowed the agency to consult reports fi led by the candidate’s 

past campaign when deciding whether to accept his current threshold submission for matching funds. The court, 

however, said that CTEL stressed the need to apply objective standards when evaluating a matching fund submission, 

quite different from the use of subjective criteria “to evaluate a candidate’s character.”

The court also rejected the FEC’s claim that its position was upheld in another suit, In re, Carter-Mondale Reelection 

Committee, Inc.4 “We fi nd nothing in Carter-Mondale to undermine CTEL’s general view that in the absence of an 

explicit authorization by Congress the Commission may not deny funds on the basis of its view of a candidate’s 

subjective intent.”

The majority opinion was fi led by Judge Williams; an opinion concurring in part and dissenting in part was fi led 

by Judge Wald. She said that the Commission had exceeded its statutory authority only in its consideration of Mr. 

LaRouche’s criminal convictions (mail fraud and conspiring to defraud the IRS), since they were not directly related 

to his campaign. However, she also said: “I do not believe that the statute requires that the FEC, in determining a 

candidate’s eligibility for public monies, disregard evidence in its own fi les that indicates that a candidate may well 

intend to defraud the Commission—and the American taxpayer.” 

Source: FEC Record, September 1993, p. 3; and January 1994, p. 12. , September 1993, p. 3; and January 1994, p. 12. 

LaRouche & Democrats for Economic Recovery ’92 v. FEC, 996 F.2d 1263 (D.C. Cir.), cert. denied, 114 S. Ct. 550 (1993). , 114 S. Ct. 550 (1993). 1 The three-judge panel consisted of Judges Wald, Buckley and Williams. 2 Commission actions under the Presidential public funding law are directly reviewable by this court. 2 U.S.C. §9041.

3 613 F.2d 834 (D.C. Cir. 1979).

4 642 F.2d 538 (D.C. Cir. 1980).

LaROUCHE v. FEC (92-1555)

On July 8, 1994, the U.S. Court of Appeals for the District of Columbia Circuit 1 upheld an FEC determination 

ordering the 1988 LaRouche Presidential campaign to return $109,149 in federal matching funds to the U.S. Treasury.2 

The court had previously denied the FEC’s motion to dismiss this case. (Civil Action No. 92-1555.)

Background

On May 26, 1988, after receiving less than 10 percent of the vote in two consecutive primaries, Lyndon LaRouche 

became ineligible to receive matching funds to continue his campaign but was still entitled to matching funds to 

help defray preexisting net campaign debts of about $330,000. On that basis, the campaign continued to receive 

matching fund payments through October 1988. However, an FEC audit later found that, by July 22, the campaign 

had suffi cient matching funds and private contributions received after the date of ineligibility (DOI) to satisfy the 

debt. The agency therefore ordered the campaign to return $109,149 in matching fund payments made after that date. 

This repayment determination was based on an FEC regulation, 11 CFR 9034.1(b), which states that a candidate 

can receive post-DOI matching funds to the extent that, on the date of payment, the sum of matching funds and 

contributions “received on or after the date of ineligibility” [emphasis added] does not exceed remaining net debts.

The LaRouche campaign challenged the FEC regulation as unreasonable and contrary to the intent of the public 

funding statute to encourage participation in the political system. Specifi cally, the campaign argued that, under a fair 

reading of the statute and FEC regulations, the campaign was entitled to collect matching funds for contributions 

received after the DOI without having to credit the contributions against the net debts fi gure. Otherwise, the campaign 

said, the candidate would be limited in his ability to continue the campaign.

Ruling on Repayment Determination

In its July 1994 ruling, the court upheld the contested repayment determination, fi nding that the FEC’s interpretation 

of its own regulation was “compelling” and its interpretation of the statute, reasonable. The statute “make[s] 

clear,” the court said, “that Congress wished to restrict the availability of matching payments to candidates 

it considered viable.”

The court rejected several other arguments made by the LaRouche campaign, including the claim that the FEC’s 

repayment determination had improperly created a new rule to address post-DOI matching fund entitlements 

when the candidate continues to campaign. The court said that the Commission had merely concluded that “the 

existing rule was not affected by Mr. LaRouche’s decision, in 1988, to continue the good fi ght rather than to wind 

up his campaign....” 
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Ruling on Motion to Dismiss

In an earlier ruling on April 20, 1993, the court rejected the FEC’s argument that the case should be dismissed because 

the LaRouche campaign was late in fi ling its petition for review with the court.

Under the statute, petitions for review of repayment determinations must be fi led “within 30 days after the agency 

action by the Commission for which review is sought.” 26 U.S.C. §9041(a).

The FEC made its fi nal repayment determination with respect to the 1988 LaRouche campaign on September 17, 

1992, and notifi ed the campaign in a letter dated September 22. The petitioners fi led their petition with the court on 

October 22, 30 days after the September 22 letter date but 35 days after the September 17 determination.

The FEC argued that the statutory “agency action” language referred to the date the agency made the repayment 

determination. Because the petition was fi led 35 days after that date, the FEC contended, it should be dismissed. 

The court, however, stated that “[b]oth the [Matching Payment Account] Act and the Commission’s regulations lead 

us to conclude that the 30-day review period...runs from the notice date....” The court noted that, under 26 U.S.C. 

§9038(b)(1), “a candidate’s repayment obligation matures only upon notice from the Commission” and that FEC 

regulations “repeatedly provide that a limitation period begins after the FEC gives notice of its decision....”

Holding that the 30-day period for fi ling a review petition began on September 22, the court found that the petition 

was fi led on time and therefore refused to dismiss the case. 

Source: FEC Record, June 1993, p. 8; and September 1994, p. 7. , June 1993, p. 8; and September 1994, p. 7.

LaRouche Democratic Campaign ’88 v. FEC, 990 F.2d 641 (D.C. Cir. 1993) (denying motion to dismiss); 28 

F. 3d 137 (D.C. Cir. 1994) (affi rming fi nal repayment determination).

1 Petitions challenging FEC repayment determinations are fi led with this court.

2 The entire repayment was $151,260; only $109,149 was contested.

LaROUCHE v. STATE BOARD OF ELECTIONS

On April 4, 1985, the U.S. Court of Appeals for the Fourth Circuit issued an opinion in LaRouche v. State Board of 

Elections which reversed a ruling by the U.S. District Court for the Western District of North Carolina concerning 

Mr. LaRouche’s eligibility for the ballot. The district court had ruled that Lyndon H. LaRouche, a publicly funded 

Presidential primary candidate in 1984, had met the ballot access requirements for the state’s 1984 Presidential 

primary. The appeals court found that the district court had erred in issuing a preliminary injunction to bar holding 

the primary election without Mr. LaRouche’s name on the ballot. Finally, the appeals court noted that, although 

its ruling came after the 1984 Presidential primary and general elections had been held, the appeal was “not moot 

because it present[ed] facts which [were] ‘capable of repetition, yet evading review.’” See 758 F.2d 998 (1985).

Background

To qualify for Presidential primary ballot access under North Carolina law, an individual must meet the eligibility 

requirements for Presidential primary matching funds spelled out in 26 U.S.C. §9033. Under this section, among 

other requirements, the candidate must agree to repay any funds which, based on an FEC audit of the candidate’s 

campaign, are owed to the U.S. Treasury. 11 CFR 9033.1 and 9033.2. 

On January 26, 1984, the Commission made an initial determination that Mr. LaRouche had not established matching 

fund eligibility for the 1984 election because he had failed to live up to this agreement to repay funds) in his 1980 

campaign.1 Pursuant to the FEC’s decision, the North Carolina State Board of Elections decided that Mr. LaRouche’s 

name could not be placed on the state’s 1984 Presidential primary ballot. 

In response to the elections board’s decision, Mr. LaRouche fi led suit with the federal district court seeking an 

injunction to bar the primary election, unless the elections board placed his name on the ballot. 
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District Court Ruling

The district court found that the state’s adoption of the federal matching fund eligibility requirements as part of the 

requirements for access to the state’s Presidential primary ballot did not violate due process of law. Nevertheless, 

the court found that the board had erred in denying Mr. LaRouche ballot access. The court was persuaded by Mr. 

LaRouche’s argument that the FEC’s refusal to certify his eligibility for matching funds was erroneous. The court 

therefore issued a preliminary injunction barring the primary election. (Subsequently, the appeals court stayed the 

district court’s injunction, and the primary election was held without Mr. LaRouche’s name on the ballot.)

Appeals Court Ruling

The appeals court agreed with the district court’s conclusion that the state could lawfully adopt the federal criteria. 

However, the appeals court found that “the record discloses that LaRouche had not complied with 26 U.S.C. 

§9033(a)(3), providing that the candidate agree to pay amounts owed based on FEC audits. Due to LaRouche’s failure 

to honor his §9033(a)(3) agreement concerning the 1980 Presidential election, the FEC legitimately concluded that 

LaRouche’s §9033(a)(3) agreement for the 1984 Presidential election was inadequate.” Consequently, “since LaRouche 

did not fulfi ll all the federal criteria, the district court erred in enjoining the primary election from proceeding without 

LaRouche’s name on the ballot.”

Source: FEC Record, August 1985, p. 7. , August 1985, p. 7. 1 On April 12, 1984, after Mr. LaRouche’s 1980 campaign made the required repayments, the Commission certifi ed that Mr. LaRouche 

was eligible for Presidential primary matching funds. 11 CFR Parts 9033 and 9036.

CITIZENS FOR LaROUCHE v. FEC

FEC v. LaROUCHE

On January 31, 1984, the U.S. Court of Appeals for the District of Columbia Circuit issued an order dismissing a 

petition that Lyndon H. LaRouche, Jr., a publicly funded candidate for the Democratic Party’s Presidential nomination 

in 1980, and Citizens for LaRouche, his principal campaign committee, had fi led with the court on January 11, 1983. 

(Citizens for LaRouche v. FEC; Civil Action No. 83-1050.) Pursuant to 26 U.S.C. §9041, the LaRouche campaign had 

asked the appeals court to review a fi nal repayment determination that the FEC had made on December 16, 1982. 

The court’s action affi rmed the FEC’s determination that the LaRouche campaign had to repay $54,671.84 in primary 

matching funds to the U.S. Treasury. 

On May 8, 1984, the Commission entered into a stipulation dismissing with prejudice FEC v. LaRouche (Civil Action 

No. 83-3743), a suit that the FEC had brought in the U.S. District Court for the District of Columbia against Lyndon 

LaRouche and Citizens for LaRouche, his principal campaign committee. In this suit, fi led on December 15, 1983, the 

FEC had sought a court ruling that would require the LaRouche campaign to repay the $54,672 in primary matching 

funds. Since the LaRouche campaign subsequently made the repayment during April 1984, the Commission fi led the 

stipulation dismissing the case as moot. 

Source: FEC Record, June 1984, p. 11; and July 1984, p. 7. , June 1984, p. 11; and July 1984, p. 7. 

Citizens for LaRouche v. FEC, 725 F.2d 125 (D.C. Cir. 1984). 

Citizens for LaRouche: FEC v., 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9214 (D.D.C. 1984).
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COMMITTEE TO ELECT LYNDON LaROUCHE v. FEC

FEC v. COMMITTEE TO ELECT LYNDON LaROUCHE 

JONES v. FEC

Committee to Elect Lyndon LaRouche v. FEC

On August 23, 1979, the U.S. Court of Appeals for the District of Columbia upheld the Commission’s action in 

denying primary matching fund payments to Lyndon LaRouche, candidate of the U.S. Labor Party, during the 1976 

Presidential primary campaign. 

In October 1976, Mr. LaRouche “certifi ed” to the Commission that he had met the eligibility requirement to receive 

primary matching funds by having raised at least $5,000, in contributions of $250 or less, in each of at least 20 states. 

Because this “certifi cation” was in the form of a one-page notarized statement, the Commission requested further 

fi nancial information to support this statement. Later that month, the candidate’s principal campaign committee, the 

Committee to Elect Lyndon LaRouche (CTEL), submitted a computer printout listing contributions in excess of the 

threshold. Once again, however, the Commission received no supporting documentation of the listed contributions. 

A subsequent Commission audit, initiated to verify Mr. LaRouche’s eligibility, raised substantial questions as to 

whether many contributions had been made by residents of the States to which they were attributed. After further 

investigation and an expanded audit, the Commission determined on February 10, 1977, that Mr. LaRouche had not 

met the threshold requirement in at least two States. Accordingly, the Commission ruled that Mr. LaRouche was not 

entitled to primary matching funds. On February 14, 1977, CTEL fi led suit challenging the Commission’s decision. 

CTEL argued that the Commission had overstated both the candidate’s burden in establishing eligibility and its own 

role in certifying eligibility. As a result, CTEL maintained, the Commission had violated the Act by denying matching 

funds to Mr. LaRouche. To establish eligibility, CTEL asserted, the candidate need only “attest authoritatively” in 

good faith and with knowledge that he has met the threshold. The Commission’s role in the certifi cation process 

is limited to ensuring that the candidate has so attested. CTEL also objected to the Commission’s investigative 

procedures in determining Mr. LaRouche’s ineligibility. 

The Commission argued that the candidate must not merely attest, but demonstrate to the Commission’s satisfaction 

that he has adequate documentation to support his contention that the threshold has been met. Furthermore, the 

Commission maintained it is empowered not only to review documentation supplied by the candidate, but also to 

audit records or campaign contributions and to verify reported contributions by interviewing individual contributors, 

if necessary. 

To properly determine the respective roles of the candidate and the Commission in the certifi cation process, the 

court focused on two relevant concerns: Congress’s intent, on the one hand, to withhold public funds from frivolous 

candidates and its desire, on the other, to provide prompt payment to serious candidates. The best way to accommodate 

these two objectives, the court determined, is to construe the Act as the Commission had. Since Congress established 

eligibility thresholds, it could also impose reasonable procedures to ensure that those thresholds were met. The 

Commission’s approach, the court pointed out, involves an objective standard, which ensures that eligibility criteria 

will be applied to all candidates in an equitable manner. 

Although the Commission acted ultra vires in conducting a premature audit, the court found the Commission’s actions 

reasonable and nonprejudicial. Therefore, since Mr. LaRouche’s submissions fell far short of the documentation 

required to establish his eligibility, the court concluded that the Commission had acted properly in not approving 

matching funds. 

FEC v. Committee to Elect Lyndon LaRouche and Jones v. FEC

Also on August 23, 1979, the U.S. Court of Appeals for the District of Columbia upheld three actions of the District 

Court for the District of Columbia in an appeal which had been fi led on September 28, 1977, by the Committee 

to Elect Lyndon LaRouche, the National Caucus of Labor Committees, the New Solidarity International Press 

Service, Inc., and Campaigner Publications, Inc. This was an appeal from an order of the district court enforcing 

subpoenas issued by the FEC during the investigation of Lyndon LaRouche’s eligibility for primary matching funds. 

In upholding the district court’s action, the court of appeals maintained that:

1. The district court had jurisdiction to determine this case despite appellants’ argument that the District of 

Columbia was not the place where the Commission’s inquiry took place. The court maintained that the 

Commission was conducting a nationwide investigation from its national offi ce in the District of Columbia 

and should be afforded broad discretion, “within the bounds of reasonableness,” in selecting this jurisdiction 

as its place of inquiry.
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2. The district court had personal jurisdiction over the appellants despite the fact that they were served in New 

York rather than in the District of Columbia. The court pointed out that the scope of the Commission’s 

responsibilities is nationwide and its power is suffi ciently broad to warrant an implied grant of authority for 

extraterritorial service of process under 2 U.S.C. §437(b). 

3. The district court had not denied the appellants an opportunity to demonstrate that the Commission had issued 

the subpoenas in retaliation for two suits which the appellants had brought against the Commission. The court 

of appeals pointed out that the appellants could not have been denied such an opportunity since they had 

never requested it. 

The above appeal was argued with Leroy B. Jones v. FEC. In Jones, the appellants repeated numerous constitutional, 

statutory and common law claims originally stated in their initial suit. The claims arose from the Commission’s 

fi eld interviews of LaRouche contributors, the manner in which the interviews were conducted and the scope of 

the questions asked. The district court had granted summary judgment to the FEC. The court of appeals upheld 

the district court’s action with respect to all but two of the allegations. The court of appeals determined that the 

district court had erred in granting summary judgment with regard to the appellants’ claim that the Commission had 

inquired during fi eld interviews into issues bearing no relation at all to the subject matter of an otherwise legitimate 

investigation into a candidate’s eligibility to receive primary matching funds; and appellant Jones’ claim that he was 

subjected to a warrantless seizure of certain fi nancial documents and bank records. These allegations were remanded 

to the district court for factual determinations. In all other respects, the court affi rmed the decision under review.

Supreme Court Action

On February 19, 1980, the Supreme Court denied a petition for certiorari in these three cases. The Federal Election 

Commission had fi led a brief opposing the petition. 

Source: FEC Record, October 1979, p. 6; and April 1980, p. 7. , October 1979, p. 6; and April 1980, p. 7. 

Committee to Elect Lyndon LaRouche v. FEC, 613 F.2d 834 (D.C. Cir. 1979), cert. denied, 444 U.S. 1074 (1980). , 444 U.S. 1074 (1980). 

Committee to Elect Lyndon LaRouche: FEC v., 613 F.2d 849 (D.C. Cir. 1979), cert. denied, 444 U.S. 1074 (1980). , 444 U.S. 1074 (1980). 

Jones v. Unknown Agents of the Federal Election Commission, 613 F.2d 864 (D.C. Cir. 1979), cert. denied, 444 U.S. 1074 (1980). , 444 U.S. 1074 (1980).

LEAGUE OF WOMEN VOTERS v. FEC

The League of Women Voters of the United States (LWVUS) fi led a complaint in the U.S. District Court for the 

District of Columbia against the FEC asking that the court declare null and void that portion of the Commission’s 

Policy Statement on Presidential Debates issued August 30, 1976, which prohibited contributions from corporations 

and labor organizations to the League of Women Voters Education Fund (the Fund) for purposes of defraying 

expenses related to the 1976 televised Presidential debates between Jimmy Carter and Gerald Ford, sponsored by 

the Fund. Such corporate and union contributions, the FEC had said in its statement, would be “in connection 

with” a federal election and would therefore be prohibited under the Act. The Policy Statement had expressed the 

Commission’s view, however, that the Fund could accept funds from political action committees established by 

corporations or labor organizations to pay for the debates. 

The Commission argued that the “court has no jurisdiction over this action because the Commission’s policy statement 

is not a fi nal agency action.” The policy statement “expresses its view of what interpretation of the law it would 

seek to enforce...” and “...represents an attempt by the Commission to give informal advice in an unchartered area 

of the law.”

The court denied the Commission’s motion to dismiss, after which the Commission fi led its answer to 

the original complaint. 

Source: FEC Annual Report 1977, p. 20.
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LOVELY v. FEC

On March 9, 2004, the U.S. District Court for the District of Massachusetts, having denied both the defendant’s and 

the plaintiffs’ motions for summary judgment, vacated this case and remanded it to the FEC for further proceedings 

in accordance with the court’s order. The court found that the FEC erred in not interpreting the Federal Election 

Campaign Act’s (the Act) “best efforts” provision to apply to the submission of reports and that the Commission 

should have issued a statement of reasons with it’s fi nal determination, under the administrative fi nes regulations, that 

the plaintiffs fi led their 2001 Year-End report late.

Background

The Committee to Elect Bill Sinnott (the Committee) and its treasurer, William A. Lovely, III, fi led a complaint 

in the district court on December 31, 2002, challenging the Commission’s fi nal determination that the Committee 

fi led its 2001 Year-End report late and its assessment of a $1,800 civil money penalty under the administrative fi nes 

regulations. 11 CFR 111.30-111.45.

According to that complaint, the plaintiffs were unable to fi le the report over the internet on the January 31, 2002, 

deadline because of computer problems. At FEC staff’s suggestion, they fi led the report by sending the Commission 

a diskette postmarked on January 31. The Commission informed the plaintiffs on February 13, the day the disk 

was received, that this disk was not in an acceptable electronic format and did not pass the Commission’s validation 

program.1 On February 26, the plaintiffs sent the report on diskette in an acceptable electronic format via courier. The 

Commission received the diskette the following day.

On June 14, 2002, the Commission found reason to believe that the plaintiffs violated 2 U.S.C. §434(a) by failing 

to fi le the report on time and made an initial determination to assess a $3,100 civil penalty. An FEC Reviewing 

Offi cer, after considering objections fi led by the plaintiffs, determined that, because the disk mailed January 31 was 

incorrectly formatted and did not pass the Commission’s validation program, the report was not considered to have 

been fi led until February 27, when the Commission received a properly formatted report. On November 25, 2002, the 

Commission made a fi nal determination that the plaintiffs had failed to fi le timely. However, the Commission lowered 

the civil penalty assessed to $1,800 “based on the fi ling, which was postmarked on the fi ling date, being fourteen days 

late, after counting for the irradiation process which resulted in mail delays.” See the March 2004 Record, page 4. , page 4.

Court Decision

Best efforts

The plaintiffs alleged that they made “best efforts” to fi le their report on time. The Act provides that a committee’s 

report is in compliance with the statute “when the treasurer of a political committee shows that best efforts have been 

used to obtain, maintain, and submit the information required by this Act.” 2 U.S.C. §432(i). See also 11 CFR 104.7 

and 102.9(d). The FEC argued that it has long interpreted the “best efforts” provision as only creating a limited safe 

harbor regarding a committee’s failure to provide substantive information that may be beyond its ability to obtain, 

such as a contributor’s occupation and employer, and that the “best efforts” provision does not therefore apply to a 

committee’s obligation to fi le its reports on time. Under the administrative fi nes regulations, challenges to civil money 

penalties may only be based on three grounds set out in the regulations, and they may not be based on a committee’s 

computer failure. 11 CFR 111.35.

The court found that the FEC’s interpretation that the “best efforts” provision does not apply to the submission of 

reports “confl icts with the plain statutory language.”2 According to the court, “While the Commission can refi ne by 

regulation what best efforts means in the context of submitting a report, it cannot defi ne it away by providing that 

submission of reports is governed by a ‘strict liability’ standard.”

Rationale for Commission decision

The court also noted that in its fi nal determination the Commission “did not make fi ndings of fact, make a statement 

of reasons, incorporate the reviewing offi cer’s recommendation by reference, or issue any opinion at all.” As a result, 

the court found that it is not clear “how the Commission evaluated the plaintiffs’ ‘best efforts’ arguments, or whether 

it applied the correct legal standard.” In addition, the court noted that neither the Commission nor the Reviewing 

Offi cer investigated the alleged unavailability of technical support from the FEC or whether the formatting error on 

the disk resulted despite Mr. Lovely’s best efforts to follow advice from FEC staff, or from his own negligence or last 

minute compliance efforts. 
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Order

The court vacated this case and remanded it to the FEC, fi nding that “the lack of clarity in the administrative 

decisions and a possible error of law compel a reversal and remand.”

Source: FEC Record, March 2003, p.4; and May 2004, p. 12. , March 2003, p.4; and May 2004, p. 12. 1

 Under the Commission’s electronic fi ling regulations, electronic fi lers who instead fi le on paper or submit a report that does not pass 

the validation program are considered not to have fi led that report. 11 CFR 104.18.

2

 In Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Supreme Court found that courts must give 

effect to the unambiguously expressed intent of Congress if it has spoken “to the precise question at issue.” If the statute is silent or 

ambiguous with respect to the precise question at issue, the court should defer to an agency’s interpretation if it is reasonable.

LYTLE v. FEC

On December 13, 1994, the U.S. District Court for the Middle District of Tennessee dismissed this case without 

prejudice due to plaintiff’s failure to attend the December 9 initial case management conference. (Civil Action No. 

3-94-0946.)

Terry L. Lytle, an independent U.S. Senate candidate, had asked the court to fi nd it unconstitutional for U.S. Senate 

candidates in Tennessee to accept contributions from out-of-state sources. 

The plaintiff argued that:

• Senators who have received out-of-state money compromise the constitutional rights of residents of every 

state to elect and have the undivided loyalty of two U.S. Senators;

• Citizens of wealthier and more populous states can achieve greater infl uence in Congress at the expense of the 

citizens of less affl uent and less populous states by making out-of-state contributions; and

• By accepting out-of-state contributions, Senators dilute the concept of a legislative body that represents 

50 unique state constituencies, and create a possible convergence of interests at several levels of the federal 

government in violation of the principles of checks and balances and the separation of powers.

The plaintiff also had asked the court to remove the defendant candidates from the Senate race or postpone the 

Senate election and order them to refund all out-of-state contributions.

Source: FEC Record, January 1995, p. 10; and February 1995, p. 7. , January 1995, p. 10; and February 1995, p. 7.

Lytle v. FEC, No. 3-94-0946 (M.D. Tenn. Oct. 25, 1994).
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MAINE RIGHT TO LIFE COMMITTEE v. FEC

On February 15, 1996, the U.S. District Court for the District of Maine ruled that the FEC’s regulation at 11 CFR 

100.22(b) exceeded the FEC’s statutory authority because it broadened the defi nition of express advocacy beyond the 

Supreme Court’s interpretation. Buckey v. Valeo and Massachusetts Citizens for Life v. FEC. This court case marked 

the fi rst judicial review of the FEC’s defi nition of express advocacy.

On October 18, 1996, the U.S. Court of Appeals for the First Circuit upheld the district court decision. The appeals 

court said it made its ruling “for substantially the reasons set forth in the district court opinion.” The appeals court also 

cited FEC v. Christian Action Network, where a district court, in a decision summarily affi rmed by the U.S. Court of 

Appeals for the Fourth Circuit, ruled that CAN’s television and newspaper ads purchased as independent expenditures 

with corporate funds were not prohibited by 2 U.S.C. §441b because they contained no express advocacy.

On October 6, 1997, the Supreme Court denied the Solicitor General’s request for it to hear this case. 

Background

The Maine Right to Life Committee (MRLC) is a nonprofi t membership corporation established for the purpose of 

advocating pro-life stances. MRLC uses its funds to create and distribute a newsletter that includes discussions of 

federal candidates’ stances on pro-life issues.

Legal Analysis

The Federal Election Campaign Act (the Act) contains a broad prohibition against using corporate and labor 

organization money in connection with a federal election. 2 U.S.C. §441b. 

The Supreme Court, citing First Amendment concerns, explicitly limited the scope of §441b in its Buckley and MCFL

decisions. The Court held that the ban on corporate and labor organization money could only be constitutionally 

applied in instances where the money is used to expressly advocate the election or defeat of a clearly identifi ed 

candidate for federal offi ce. The Buckley decision listed examples of specifi c phrases that the Court said constituted 

express advocacy. The FEC incorporated this list in its defi nition of express advocacy at 11 CFR 100.22(a).

However, subpart (b) of 11 CFR 100.22 is based, inter alia, on the decision of the U.S. Court of Appeals for the Ninth 

Circuit in FEC v. Furgatch. The Furgatch case involved a communication that criticized President Carter and included 

the phrase: “Don’t let him do it.” The court held that this communication contained express advocacy and supported 

this conclusion by noting that the timing of the message coincided with the eve of the 1980 Presidential general 

election. The Court of Appeals reasoned that language may be said to expressly advocate a candidate’s election 

or defeat if, when taken in context and with limited reference to external events, it can have no other reasonable 

interpretation.

District Court Decision

The court held that the Supreme Court’s MCFL decision and a decision of the First Circuit in Faucher v. FEC

supported using Buckley’s list of phrases as a bright-line test to detect express advocacy. The rigid approach of a 

bright-line test, noted the court, avoids the chilling of free speech that occurs when the communicator is uncertain 

about whether or not his or her message contains express advocacy. Further, the idea that a message’s content might 

become express advocacy as an election nears adds to the chilling effect of 11 CFR 100.22(b) on free speech. 

The court recognized the diffi culty the FEC faces in crafting a regulation that effectively defi nes express advocacy, 

but noted that the Buckley, Faucher and MCFL decisions required it to safeguard First Amendment interests over the 

interest of keeping corporate and labor organization money out of the electoral process. Based on these precedents, 

therefore, the court ruled that 11 CFR 100.22(b) was invalid because it defi ned express advocacy in broader terms 

than the Buckley, MCFL and Faucher decisions.

The court dismissed MRLC’s other claims for injunctive and declaratory relief.

Appeals Court Decision

The U.S. Court of Appeals for the First Circuit upheld the lower court ruling that part of the FEC’s regulation 

defi ning express advocacy (11 CFR 100.22(b)) was invalId. 

Supreme Court Action

On October 6, 1997, the Supreme Court denied the Solicitor General’s request for it to hear this case. 

Source: FEC Record, April 1996, p. 9; December 1996, p. 1; and November 1997, p. 2. , April 1996, p. 9; December 1996, p. 1; and November 1997, p. 2.

Maine Right to Life Committee, Inc. v. FEC, 914 F. Supp. 8 (D.Me. 1996), aff’d, 98 F.3d 1 (1st Cir. 1996), , 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S. Ct. 52 , 118 S. Ct. 52 

(1997).
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RENATO P. MARIANI v. USA

On May 18, 2000, the U.S. Court of Appeals for the Third Circuit rejected constitutional challenges to the Federal 

Election Campaign Act’s (the Act’s) prohibitions on corporate contributions and contributions in the name of 

another. 2 U.S.C. §§441b and 441f. 

Renato P. Mariani brought the challenges under 2 U.S.C. §437h, which permits individual voters to challenge the 

constitutionality of any provision of the Act in district court. The district court certifi es the constitutional questions 

to the circuit court of appeals, which hears the cases sitting en banc.

Mr. Mariani is currently the subject of criminal prosecution concerning the very provisions he challenged 

in this case.

Corporate Contributions

Mr. Mariani argued that the development of issue advocacy and the increasing role of unregulated “soft money” in 

the electoral process “has so eroded the theoretical distinction between hard and soft money” that §441b’s prohibition 

against corporate contributions has become “fatally underinclusive.” As such, he asserted, it should be struck down. 

He also challenged the ban as a violation of corporations’ First Amendment rights.

In response, the court acknowledged that “[t]he practical distinctions between hard and soft money may have 

diminished in the past decade with the rise of issue advocacy, but not to such an extent that there is no practical 

distinction between the two.” The court went on to note, “If hard and soft money were equivalent, it would be hard 

to imagine why Mariani would have gone to the lengths he allegedly went to in order to give hard money instead of 

soft.” Noting that Congress can act incrementally—and referencing legal precedents—the court concluded that the 

corporate ban “is not fatally underinclusive.”

The court also rejected the First Amendment challenge, citing the U.S. Supreme Court’s decisions in FEC v. National 

Right to Work Committee, FEC v. National Conservative PAC FEC v. National Conservative PAC andAustin v. Michigan Chamber of Commerce. Though 

the court stated that none of these cases directly addressed the constitutionality of the corporate ban, their “strong 

implications” led the court “to reject Mr. Mariani’s facial challenge to §441b(a).”

Contributions in the Name of Another

Mr. Mariani argued that §441f’s ban on contributions in the names of others violates the First Amendment 

by failing to advance a compelling government interest and is underinclusive because it does not apply to 

soft money donations.

The appeals court found the 441f challenges “patently without merit.” The court noted that the Supreme Court, 

in Buckey v. Valeo, specifi cally held that the Act’s disclosure requirements were constitutional absent a “reasonable 

probability” that disclosure would result in “threats, harassment, or reprisals” for contributors. Since contributions in 

the names of others undermine disclosure, the court rejected Mr. Mariani’s First Amendment challenge.

The court also rejected Mr. Mariani’s underinclusiveness argument. The court concluded that “Congress was free 

to determine that disclosure of hard money donations was the most important form of disclosure, and to limit the 

regulation to that area.”

Source: FEC Record, July 2000, p. 7. , July 2000, p. 7.
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236 Cases Through March 2004

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MARTIN TRACTOR CO. v. FEC

This suit, fi led on July 7, 1978, challenged the constitutionality of Section 441b of the Act, which limits solicitations 

by corporations and their separate segregated funds (PACs) of voluntary contributions to the PACs.

Plaintiffs’ Arguments

Three corporations and their affi liated PACs, three executives and one hourly employee of one of the corporations 

were the plaintiffs in this suit. They sought injunctive relief and a declaratory judgment that 441b of Title 2 is 

an unconstitutional violation of plaintiffs’ rights under the First and Fifth Amendments of the United States 

Constitution. Specifi cally, plaintiffs alleged that:

• The limitations on the corporate solicitation of hourly employees for contributions to the corporate 

PAC unconstitutionally impinge upon plaintiffs’ rights to free speech, assembly and association and the 

right to hear, under the First Amendment. (Under Section 441b, corporations and their PACs may use 

corporate funds to solicit employees twice a year; the solicitations must be in writing and delivered to 

the employee’s residence.)

• The limitations on the solicitation of hourly employees violate plaintiff employee’s right to associate with the 

other plaintiffs.

• These same limitations, by arbitrarily dividing employees into two classes and restricting free fl ow of 

information between such classes, discriminate against plaintiff employee in violation of his Fifth Amendment 

right to due process of law. 

• The term “solicitation” as used in 441b is impermissibly vague, causing plaintiffs to be uncertain as to 

the extent and application of the prohibitions of 2 U.S.C. §441b. When combined with the treatment 

of criminal sanctions, plaintiffs asserted, this vagueness restrains their activity, in violation of the First 

and Fifth Amendments.

Plaintiffs argued that the harm brought about by Section 441b was actual, not hypothetical, because plaintiffs have 

limited their solicitation activities, fearing the imposition of the civil and criminal sanctions contained in the Act.

Commission’s Arguments

The FEC petitioned the court to dismiss the suit, arguing fi rst that the court lacked jurisdiction because:

• Special statutory judicial review mechanisms, such as Section 437h of the Act, are the exclusive avenues for 

judicial review. 

• Under Section 437h of the Act, the Commission, the national committee of any political party, or any 

individual eligible to vote may bring appropriate actions to challenge the constitutionality of the Act. The 

Commission argued that none of the plaintiffs were eligible to bring such an action under Section 437h. 

• Challenges brought by any other person or entity must be raised during the ordinary course of enforcement 

procedures provided in Section 437g of the Act.

The Commission also argued that the complaint did not present a “case or controversy” because plaintiffs can make 

no showing of present, direct injury resulting from Section 441b. The Commission made the additional argument that 

plaintiffs failed to state a complaint upon which relief could be granted. In response to the plaintiffs’ contention that 

the term “solicitation” is impermissibly vague, the FEC argued that the term has been employed in a wide variety of 

federal statutes without further defi nition and with no apparent need to “guess at its meaning.”

District Court Ruling

On November 18, the U.S. District Court for the District of Columbia granted the Commission’s motion to dismiss 

the suit. The court said that the special provision of 2 U.S.C. §437h(a), expediting judicial review of constitutional 

issues, is inapplicable to the plaintiffs. The individual plaintiffs sue “not in their individual capacities but rather to 

vindicate the rights of the corporate entities. That derivative right was not the constitutional right of an ‘individual 

eligible to vote’ which Congress considered ‘appropriate’ for vindication in a declaratory judgment action under this 

section [437h].” Moreover, the court held that the plaintiffs presented no case or controversy suffi ciently ripe for 

decision by a federal court. Plaintiffs fi led an appeal.

Appeals Court Ruling

On May 8, 1980, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the opinion of the 

district court (No. 78-2080). 

Source: FEC Record, February 1979, p. 3. , February 1979, p. 3.

Martin Tractor Co. v. FEC, 460 F. Supp. 1017 (D.D.C. 1978), aff’d, 627 F.2d 375 (D.C. Cir.), , 627 F.2d 375 (D.C. Cir.), cert. denied, 449 U.S. 954 (1980). , 449 U.S. 954 (1980).
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McCONNELL v. FEC 

On December 10, 2003, the Supreme Court issued a ruling upholding the two principal features of the Bipartisan 

Campaign Reform Act of 2002 (BCRA): the control of soft money and the regulation of electioneering communications. 

The Court found unconstitutional the BCRA’s ban on contributions from minors and the so-called “choice provision,” 

which provides that a party committee cannot make both coordinated and independent expenditures on behalf of 

a candidate after that candidate’s general election nomination.1 The Supreme Court’s decision affi rmed in part and 

reversed in part the U.S. District Court for the District of Columbia’s decision in this matter. See the June 2003 

Record page 1.

Background

Congress passed the BCRA in order to eliminate soft money donations to national parties and to ensure that 

electioneering communications immediately before election day are fi nanced with regulated money and properly 

disclosed to the public. The BCRA, among other things:

• Bans national party committees from raising or spending money outside the limits and prohibitions of the 

Federal Election Campaign Act (FECA);

• Limits state and local party committees’ use of such funds for activities affecting federal elections;

• Prohibits solicitations and donations by national, state and local party committees for §501(c) tax exempt 

organizations that make expenditures in connection with federal elections and §527 organizations that are not 

federal political committees or state or local party or candidates’ committees;

• Prohibits federal candidates and offi ceholders from soliciting, receiving, directing, transferring or spending soft 

money in connection with federal elections and limits their ability to do so in connection with state elections;

• Bans state and local candidates and offi cers from raising and spending nonfederal funds for public communications 

that promote, attack, support or oppose a federal candidate;

• Defi nes and regulates “electioneering communications;”

• Implements the party “choice provision;”

• Increases the hard money contribution limits;

• Permits even higher contribution limits for candidates opposed by “millionaires” who use their own funds for 

campaign expenditures;

• Defi nes coordination with a candidate or party committee; and

• Bans minors from making contributions to federal candidates and political party committees.

Most provisions of the BCRA took effect on November 6, 2002. As soon as the BCRA was enacted in March 2002, 

however, a number of parties fi led challenges to the constitutionality of several BCRA provisions, including those 

listed above. These cases were consolidated around McConnell v. FEC and heard by a three-judge panel of the U.S. 

District Court for the District of Columbia. On May 2, 2003, the District Court determined that certain provisions 

were constitutional, while a number of others were unconstitutional or nonjusticiable. The District Court issued a 

stay of its ruling on May 19, 2003, while the case received an expedited appellate review by the Supreme Court.

Supreme Court Decision

National party committees’ use of soft money

The BCRA bans national party committees and their agents from soliciting, receiving, directing or spending any 

funds that are not subject to the FECA’s limits, prohibitions and reporting requirements. 2 U.S.C. §§441(a)(1) and 

(2). The Court found that this provision did not violate the Constitution because the governmental interest in 

“preventing the actual or apparent corruption of federal candidates and offi ceholders” was suffi ciently important to 

justify contribution limits. The Court noted that the “record is replete with examples of national party committees’ 

peddling access to federal candidates and offi ceholders in exchange for large soft-money donations.” The Court was 

also not persuaded by the plaintiffs’ argument that this provision unconstitutionally interferes with national party 

committees’ ability to associate with state and local committees. The Court found that nothing on the face of the 

provision “prohibits national party offi cers from sitting down with state and local party committees or candidates to 

plan and advise how to raise and spend soft money, so long as the national offi cers do not personally spend, receive, 

direct, or solicit soft money.”
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238 Cases Through March 2004

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State and local party committees’ use of soft money

The Court also upheld the BCRA’s limits on state and local party committees’ use of soft money for activities affecting 

federal elections, fi nding that this provision was closely drawn to match the governmental interest of preventing 

corruption and the appearance of corruption. 2 U.S.C. §441i(b). This provision of the BCRA provides that state and 

local party committees cannot use nonfederal funds to fi nance “federal election activity” (FEA), which is defi ned as:

1. Voter registration activity during the 120 days before an election;

2. Voter identifi cation, get-out-the vote and generic campaign activity “conducted in connection with an election 

in which a [federal] candidate. . . appears on the ballot;”

3. A public communication that refers to a clearly identifi ed federal candidate and promotes, attacks, supports or 

opposes that candidate; and

4. The services of a state committee employee who spends more than 25 percent of his or her compensated time 

on activities in connection with a federal election.

Instead, party committees must fi nance these activities with federal funds or, in some cases, they may fi nance them 

with a combination of federal and Levin funds, which are a new category of funds defi ned in the BCRA.2 The Court 

found that Congress had “concluded from the record that soft money’s corrupting infl uence insinuates itself into 

the political process not only through national party committees, but also through state committees, which function 

as an alternate avenue for precisely the same corrupting forces.” The Court concluded that preventing “corrupting 

activity from shifting wholesale to state committees and thereby eviscerating the FECA clearly qualifi es as an 

important governmental interest.”

The Court further determined that the fact that FEA captures some activities that affect campaigns for nonfederal 

offi ce is not suffi cient to render the provision unconstitutionally overbroad. Activities that are considered FEA under 

the BCRA were also covered by the pre-BCRA allocation rules, and the Court concluded that “[a]s a practical matter, 

BCRA merely codifi es the FEC’s allocation regime principles while justifi ably adjusting the applicable formulas in 

order to restore the effi cacy of FECA’s longstanding restriction on contributions to state and local committees for 

the purpose of infl uencing federal elections.” The Court determined that the fi rst two types of FEA listed above 

substantially benefi t federal candidates by encouraging like-minded voters to go to the polls. The third type of 

FEA, involving public communications that support or oppose a federal candidate, directly affects the election in 

which the candidate is running, and the regulation of funds used for these communications is “closely drawn to the 

anticorruption interest it is intended to address.” Similarly, the fi nal FEA, regarding the payment of party committee 

staff, is justifi ed by Congress’ interest in preventing circumvention of the law.

Moreover, the Court found the Levin amendment to be constitutional insofar as the associational burdens created by 

its restrictions on transfers of Levin funds between party committees are far outweighed by the need to prevent the 

circumvention of the overall scheme. Additionally, the Court determined that evidence suggesting that the Levin fund 

restrictions might prevent parties from amassing the funds needed to make themselves heard was merely speculative.

Party solicitations for and donations to §501(c) and §527 organizations

The BCRA bans national, state and local party committees and their agents from soliciting funds for or making or 

directing donations to:

• §501(c) tax-exempt organizations that make expenditures in connection with federal elections; and

• §527 organizations, unless they are federal political committees or state or local party or candidate committees. 

2 U.S.C. §441i(d).

The Court found the restriction on solicitations to be a valid anticircumvention measure: “Absent this provision, 

national, state, and local party committees would have signifi cant incentives to mobilize their formidable fundraising 

apparatuses, including the peddling of access to federal offi ceholders, into the service of like-minded tax exempt 

organizations that conduct activities benefi ting their candidates.” The Court also found that the restrictions on 

donations were not unconstitutionally overbroad so long as the prohibition was not construed to prevent party 

committees from donating funds already raised in compliance with the FECA.

Federal candidates and offi ceholders

The BCRA additionally bars federal candidates and offi ceholders from soliciting, receiving, directing, transferring or 

spending soft money in connection with federal elections, and it limits their ability to do so for state and local elections. 

2 U.S.C. §§441i(e)(1)(A) and (B). The Court found that these restrictions were closely drawn to prevent the corruption 

or the appearance of corruption of federal candidates and offi ceholders while at the same time accommodating these 

individuals’ speech and associational rights.
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Cases Through March 2004 239

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State and local candidates and offi ceholders

The BCRA bars state and local candidates and offi ceholders from raising or spending nonfederal funds to pay for 

public communications that promote or attack federal candidates. 2 U.S.C. §442i(f). The Court found this to be 

a valid anticircumvention measure because, rather than limiting the amounts the state candidate/offi ceholder can 

spend, it merely places restrictions on the contributions that they can draw on to fund communications that directly 

affect federal elections. Moreover, by regulating only public communications, the provision “focuses narrowly on 

those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of 

federal candidates and offi ceholders.”

Electioneering communications

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court construed the FECA’s disclosure requirements for certain 

entities’ independent expenditures as limited to communications expressly advocating the election or defeat of a 

clearly identifi ed federal candidate. However, the BCRA defi nes a new category of communication— “electioneering 

communications”— that encompasses any broadcast, cable or satellite communication that clearly identifi es a federal 

candidate, airs within 30 days of a federal primary or 60 days of a federal general election and is targeted to the 

relevant electorate. 2 U.S.C. §434(f)(3)(A)(i). The BCRA requires persons who fund electioneering communications 

to disclose the source of the funds in certain circumstances and bars the use of corporate and union moneys to fund 

the communications. 

The plaintiffs argued that Buckley v. Valeo drew a constitutionally mandated line between express advocacy, which 

contains “magic words” such as “vote for” or “vote against,” and issue advocacy. The Court, however, found that the 

express advocacy restriction is not a constitutional command: “Both the concept of express advocacy and the class 

of magic words were born of an effort to avoid constitutional problems of vagueness and overbreadth in the statute 

before the Buckley Court.” The Court found that the components of the defi nition of electioneering communication 

are objective and easily understood and, thus, “the vagueness objection that persuaded the Buckley Court to limit 

FECA’s reach to express advocacy is inapposite here.”

The Court upheld the restrictions on the use of corporate or union treasury funds to fi nance electioneering 

communications. Corporations and unions may still fi nance such communications through their separate segregated 

funds, and thus the provision does not result in an outright ban on expression. The Court rejected the plaintiffs’ claims 

that arguments in support of the longstanding ban on express advocacy communications fi nanced by corporations and 

unions cannot be applied to the larger quantity of speech captured in the defi nition of electioneering communication. 

The Court found instead that “issue ads broadcast during the 30- and 60-day periods preceding federal primary 

and general elections are the functional equivalent of express advocacy.” The Court further explained that the 

“justifi cations for regulating express advocacy apply equally to those ads if they have an electioneering purpose, 

which the vast majority do.”

The Court also upheld the BCRA’s requirement for the disclosure of the names of persons who contributed $1,000 or 

more to the individual or group paying for the communication, fi nding that “the evidence here did not establish the 

requisite reasonable probability of harm to any plaintiff group or its members resulting from compelled disclosure.” 

The Court was also not persuaded by the plaintiffs’ arguments against the requirement to disclose executory contracts 

for communications that have not yet aired.3 The Court determined that the probability that harm might result from 

requiring such disclosure was outweighed by the public’s interest in obtaining full disclosure prior to the election.

“Choice provision” 

The Court found that the BCRA’s provision requiring political parties to choose between coordinated and independent 

expenditures on behalf of a candidate once he or she receives the party’s nomination places an unconstitutional 

burden on the parties’ right to make unlimited independent expenditures. 2 U.S.C. §441a(d)(4). The Court explained 

that “[a]lthough the category of burdened speech is limited to independent expenditures for express advocacy—and 

therefore is relatively small—it plainly is entitled to First Amendment protection. . . . The fact that the provision is 

cast as a choice rather than an outright prohibition on independent expenditures does not make it constitutional.”4

Coordination

The BCRA extended the FECA’s coordination rules governing expenditures coordinated with a candidate to 

those coordinated with a party committee and directed the Commission to promulgate rules that did not require 

“agreement or formal collaboration” in order to establish coordination. 2 U.S.C. §441a(a)(7)(B)(ii). The Court 

found this provision to be constitutional, noting that the absence of an agreement requirement does not render the 

provision unconstitutionally vague and that the plaintiffs had provided no evidence to suggest that this defi nition of 

coordination has chilled political speech.
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240 Cases Through March 2004

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Contributions from minors

The Court found the BCRA’s ban on political contributions from individuals under 18 years old unconstitutional 

because it violates the First Amendment rights of minors.

Source: FEC Record, May 2002, p. 3; June 2002, p. 4; June 2003, p. 1; and January 2004, p 1. , May 2002, p. 3; June 2002, p. 4; June 2003, p. 1; and January 2004, p 1. 1Source: FEC 

 The Court additionally ruled on a number of other challenges from the plaintiffs, including fi nding their challenge to the so-called 

Millionaire’s Amendment to be nonjusticiable.

2

 The limitations, restrictions and reporting requirements for raising Levin funds differ from those for raising federal funds. See 11 CFR 

300.31 and 300.32(a)(4). Each state, district and local party committee has a separate Levin fund donation limit, and such committees 

are not considered to be affi liated for the purposes of determining Levin fund donation limits. Levin funds spent by a given state or 

local party committee must be raised solely by that particular committee, and these committees cannot raise Levin funds through joint 

fundraising efforts or accept transfers of Levin funds from other committees. Additionally, these committees cannot accept or use as 

Levin funds any funds that come from, or in the name of, a national party committee, federal candidate or federal offi ceholder. 11 CFR 

300.31 and 300.34(b). For more information, see the April 2003 Record page 5, and the September 2003 page 5, and the September 2003 Record, page 1. , page 1. 3300.31 and 300.34(b). For more information, see the April 2003 

 The Court made a similar determination in response to the plaintiffs’ challenge of the BCRA’s requirement for the disclosure of 

certain executory contracts for independent expenditures. 2 U.S.C. §434.

4

 The Court also voiced concerns about the fact that for the purposes of the choice provision all political committees established and 

maintained by a national party and all committees established and maintained by a state party are considered a single committee. 2 

U.S.C. §441a(d)(4)(B). The Court determined that as a result “it simply is not the case that each party committee can make a voluntary 

and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on 

coordinated spending under §§315(d)(1)-(3). Instead, the decision resides solely in the hands of the fi rst mover, such that a local party 

committee can bind both state and national parties to its chosen spending option.”

McDONALD v. FEC

Background

Mr. George T. McDonald, a 1984 candidate for a House seat representing New York’s 15th Congressional district, 

fi led suit in the U.S. District Court for the District of Columbia seeking review of the FEC’s dismissal of an 

administrative complaint (Civil Action No. 84-2710). In his complaint, fi led with the FEC on May 9, 1984, Mr. 

McDonald claimed that Andrew Stein, a state offi cial opposing him for the House seat, had used funds from his 1981 

campaign committee for state offi ce (Stein ’81) to fi nance his 1984 Congressional campaign (Stein for Congress ’84). 

Specifi cally, Mr. McDonald alleged that Mr. Stein had illegally used state campaign funds (consisting of corporate 

contributions and unrepaid loans) to make media expenditures for his Congressional candidacy. 

On May 4, 1984, the respondent had submitted a request to the FEC for an investigation into specifi c expenditures 

made by the 1981 state campaign on behalf of Mr. Stein. The FEC then merged the respondent’s request (i.e., a preMUR) with Mr. McDonald’s administrative complaint.

Mr. McDonald asked the court to declare that:

• The FEC’s dismissal of his administrative complaint was contrary to law; 

• The FEC’s merger of his administrative complaint with the respondent’s request limited the scope of the 

FEC’s investigation, resulting in an arbitrary dismissal of Mr. McDonald’s complaint; and 

• The FEC must comply with these declarations within 30 days.

District Court Ruling

On October 5, 1984, the U.S. District Court for the District of Columbia granted the FEC’s motion to dismiss George 

T. McDonald v. FEC T. McDonald v. FEC on grounds that Mr. McDonald had failed to pursue his legal claims and to meet the statutory on grounds that Mr. McDonald had failed to pursue his legal claims and to meet the statutory 

deadline for fi ling his suit. See 2 U.S.C. §437g(a)(8)(B). 

Source: FEC Record, October 1984, p. 9; and December 1984, p. 4. , October 1984, p. 9; and December 1984, p. 4.

McDonald v. FEC, No. 84-2710, (D.D.C. October 5, 1984).
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Cases Through March 2004 241

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McINTYRE v. OHIO

On April 19, 1995, the U.S. Supreme Court ruled that an Ohio regulation prohibiting anonymous political literature 

violated the First Amendment. This decision reversed the judgment of the Ohio Supreme Court.

[Although the FEC was not a party to this case, which involves state election law, the opinion is summarized here 

because the Court’s holdings and rationale may have future relevance to aspects of federal election law.]

Background

In April 1988, Margaret McIntyre distributed leafl ets she produced to persons attending a public meeting to discuss a 

referendum on a proposed school tax levy. These leafl ets expressed Mrs. McIntyre’s opposition to the levy. Ohio Code, 

§3599.09(A), requires political literature to include the name and address of the issuer. Some of Mrs. McIntyre’s 

leafl ets were anonymous, yet she continued to distribute them even after she was made aware of §3599.09(A).

The Ohio Elections Commission fi ned Mrs. McIntyre $100 for violating §3599.09(A). On review, the case climbed to 

the Ohio Supreme Court, which upheld the $100 fi ne.

The First Amendment and Overriding State Interests

In arriving at its decision to overturn the Ohio court’s ruling, the U.S. Supreme Court fi rst determined that anonymous 

political speech is protected under the First Amendment. In support of this notion, the Court stated that:

“ . . . anonymous pamphleteering . . . [has] an honorable tradition of advocacy and of dissent. Anonymity is a shield 

from the tyranny of the majority. . . . It thus exemplifi es the purpose behind the Bill of Rights, and of the First 

Amendment in particular: to protect unpopular individuals from retaliation and their ideas from suppression at the 

hand of an intolerant society.”

The Court recalled, for example, that the Federalist Papers, which favored the ratifi cation of the Constitution, were 

published under fi ctitious names.

The Court’s analysis focused on evaluating the state’s interest in curbing anonymous speech. The Court cited First 

National Bank of Boston v. Bellotti National Bank of Boston v. Bellotti as a precedent for applying the following test: A government-imposed infringement as a precedent for applying the following test: A government-imposed infringement

on the First Amendment is tolerable if the infringement serves an overriding public interest. Additionally, 

Talley v. California requires that laws must be narrowly tailored so as to impact only on speech that threatens 

the public interest.

In the case at hand, Ohio maintained that §3599.09(A) served the state’s interest in preventing the dissemination of 

fraudulent and libelous statements.

The Court, however, found that Ohio has a number of other regulations aimed at preventing fraud and libel. While 

acknowledging that §3599.09(A) may help to enforce the other prohibitions against the dissemination of false political 

information, the Court did not believe this justifi ed the broad prohibition at §3599.09(A).

Ohio also argued that the regulation, by requiring political messages to include the issuer’s name and address, provided 

voters with information on which to evaluate the message’s worth. The Court dismissed this argument by noting that 

in the case of a leafl et written by a private citizen who is not known by the recipient, the name has no signifi cance.

The Court thus reasoned that Ohio’s interests were not suffi cient to justify an infringement upon 

the First Amendment.

Reconciling McIntyre with Buckley v. Valeo

In closing, the Court distinguished this case from its 1976 landmark decision in Buckey v. Valeo, which dealt with 

the constitutionality of the Federal Election Campaign Act. The Court explained that Buckley addressed the 

issue of mandatory disclosure of campaign-fi nance expenditures; it did not involve a prohibition of anonymous 

campaign literature.

The Court stated that: “Though . . . mandatory reporting undeniably impedes protected First Amendment activity, 

the intrusion is a far cry from compelled self-identifi cation on all election-related writings.”

The Court pointed out that the law addressed in the Buckley decision is narrowly tailored to serve the public interest 

of campaign fi nance disclosure. The law regulates only candidate elections, and not referenda and other issue-based 

ballots. The Court stated, “In candidate elections, the government can identify a compelling state interest in avoiding 

the corruption that might result from campaign expenditures.”

Source: FEC Record, June 1995, p. 12. , June 1995, p. 12.

McIntyre v. Ohio, No. 93-986 (U.S. Supreme Court, Apr. 19, 1995).
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242 Cases Through March 2004

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MILES FOR SENATE v. FEC

On January 17, 2001, the Miles for Senate Committee, Steven H. Miles and Barbara Steinberg (the plaintiffs) fi led 

suit against the Commission, appealing a civil money penalty the Commission assessed under the administrative fi ne 

regulations against Miles for Senate (the Committee) and its treasurer, Barbara Steinberg, LTD. The U.S. District 

Court for the District of Minnesota granted judgment in favor of the Commission on January 9, 2002. 

The plaintiffs had argued, among other things, that Commission regulations that distinguish between certifi ed or 

registered mail and regular mail for the purpose of determining when a report is fi led are arbitrary and capricious 

and in excess of the Commission’s rulemaking authority. 11 CFR 104.5(e). The court found that Mr. Miles and Ms. 

Steinberg lacked standing to request judicial review, and that the plaintiffs’ arguments were untimely because they did 

not raise them during the Commission’s administrative process. Moreover, the court found that, even if the plaintiffs 

had raised their arguments in a timely manner, the arguments were unpersuasive and failed as a matter of law.

Background

The Commission found reason to believe (RTB) that the Committee and its treasurer failed to fi le a July 15, 2000, 

Quarterly Report by the deadline, and proposed a $2,700 civil penalty against the Committee and its treasurer under 

the Administrative Fine regulations. 2 U.S.C. §437g(a)(4)(C) and subpart B of 11 CFR 111. Ms. Steinberg had sent 

the Committee’s report via fi rst class mail on the due date, and the Commission did not receive it until six days later. 

Under Commission regulations, if a report is sent registered or certifi ed mail, it is considered fi led on the date of the 

U.S. postmark. However, if a report is sent by fi rst class mail, it is considered fi led on the date it is received by the FEC 

or the Secretary of the Senate. 11 CFR 104.5(e). As a result, the Committee’s fi ling was considered six days late.

Commission regulations provide for an administrative process through which respondents can challenge the RTB 

fi nding and the proposed civil money penalty. The plaintiffs responded to the Commission’s RTB determination to 

assess the civil money penalty, but failed to respond to the Commission’s reviewing offi cer’s recommendations within 

the 10-day response period. 11 CFR 111.36(f). On December 14, 2000, the Commission made a fi nal determination 

that the plaintiffs violated the Federal Election Campaign Act (the Act) by fi ling the report late and assessed the civil 

money penalty. The plaintiffs petitioned the court for review of this determination.

Court Decision

Standing

The court found that Mr. Miles and Ms. Steinberg lacked standing to request judicial review of the matter because 

they were not respondents in the Commission’s determination. The Commission assessed the penalty against the 

Committee and the incorporated entity Barbara Steinberg, LTD, which was on record as the Committee’s treasurer. 

Under the Act, only a “person against whom an adverse determination is made” may ask for judicial review of an 

FEC determination. 2 U.S.C. §437g(a)(4)(C)(iii). 

Timeliness of Arguments

Under Commission regulations, if respondents fail to raise an argument with the Commission during the 

administrative process, they waive their right to make that argument in a petition to the court. 11 CFR 111.38. The 

court found that the plaintiffs had waived the arguments made in their petition by not fi rst making the arguments 

to the Commission.

Plaintiffs’ Motion

In their motion to the court, the plaintiffs argued that the Commission regulation that distinguishes between fi rst 

class mail and registered or certifi ed mail exceeds the Commission’s rulemaking authority and draws an arbitrary 

distinction. 11 CFR 104.5(e). The court, however, did not fi nd that the regulation exceeded the Commission’s authority 

to make regulations to implement the Act: “Because the regulation merely incorporates the same distinction as that 

made by the statute, it is impossible to fi nd that the regulation is inconsistent with the statute.” 2 U.S.C. §434(a)(5). 

The court also concluded that it could not respond to the plaintiffs’ arguments concerning whether distinguishing 

among postmarks was a “bad policy.” Such arguments, the court explained, should be addressed to legislators and 

administrators rather than to the courts.

The court dismissed Mr. Miles’s and Ms. Steinberg’s claims and granted summary judgment to the FEC on 

the Committee’s claims.

Source: FEC Record, March 2002, p. 1. , March 2002, p. 1.

 
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MILLER v. FEC

On June 29, 1989, the U.S. District Court for the District of Columbia denied the plaintiff’s motion for summary 

judgment in Harry P. Miller, Jr. v. FEC Harry P. Miller, Jr. v. FEC (Civil Action No. 89-0094). (Civil Action No. 89-0094). 

Mr. Miller fi led suit in January 1989 claiming that the Commission had acted contrary to law in dismissing an 

administrative complaint that he had fi led the previous October against Bush-Quayle 88, the 1988 Republican 

Presidential general election campaign committee. The complaint had alleged that several Texas state offi cials had 

conducted fraudulent activities on behalf of the Bush-Quayle campaign. Informed of the charges by the Commission, 

the respondents denied any knowledge of the alleged violations. The Commission subsequently voted to fi nd “no 

reason to believe” that the violations alleged by Mr. Miller had occurred and dismissed the matter. 

Finding that the Commission’s dismissal of Mr. Miller’s complaint was reasonable, the court said that the plaintiff 

failed to show that the FEC had before it any evidence of illegal activity. The court concluded, “Considering the 

unfocused allegations...and respondents’ reply [indicating no knowledge of criminal activity], the FEC’s decision to 

dismiss Mr. Miller’s complaint was clearly not ‘contrary to law.’”

On April 25, 1990, the U.S. Court of Appeals for the District of Columbia Circuit granted the FEC’s motion for 

summary affi rmance of the district court’s decision in favor of the FEC. (Civil Action No. 89-5394.)

For the reasons stated in the district court opinion, the appeals court granted the FEC’s motion for summary 

affi rmance of the lower court decision, stating: “The merits of the parties’ positions are so clear as to 

justify summary action.”

Source: FEC Record, September 1989, p. 8; and October 1990, p. 7. , September 1989, p. 8; and October 1990, p. 7.

Miller v. FEC, No. 89-0094. (D.D.C. 1989) (memorandum opinion), aff’d mem., 923 F.2d 201 (Table) (D.C. Cir. 1990) (unpublished 

disposition).

MINNESOTA CITIZENS CONCERNED FOR LIFE v. FEC

On April 19, 1996, the U.S. District Court for the District of Minnesota ruled that the FEC’s regulations defi ning and 

governing qualifi ed nonprofi t corporations (11 CFR 114.10) were unconstitutional on First Amendment grounds.

On May 7, 1997, the U.S. Court of Appeals for the Eighth Circuit affi rmed the district court’s decision.

Legal Analysis

The Federal Election Campaign Act (the Act) contains a broad prohibition against using corporate and labor 

organization money in connection with a federal election. 2 U.S.C. §441b. 

In FEC v. Massachusetts Citizens for Life (MCFL) 479 U.S. 238 (1986), the Supreme Court, citing First Amendment 

concerns, concluded that §441b could not constitutionally prohibit certain nonprofi t corporations from making 

independent expenditures.1 In that case, the Supreme Court ruled that independent expenditures made by MCFL 

were exempt from the ban at §441b because MCFL had the following essential features:

• It was formed to promote political ideas and did not engage in business activities;

• It did not have shareholders or other persons who had a claim on its assets or earnings, or who had other 

disincentives to disassociate themselves from the organization; and

• It was not established by a business corporation or labor union and had a policy of not accepting donations 

from such entities.

The FEC promulgated the regulations at 11 CFR 114.10 to incorporate the MCFL decision into its regulatory 

framework. These regulations established a test to determine whether a corporation qualifi ed for exemption from the 

Act’s prohibition against corporate independent expenditures.

Minnesota Citizens Concerned for Life (MCCL), a nonprofi t corporation, brought suit to challenge the constitutionality 

of the FEC’s new regulations. MCCL alleged that it does not qualify to make independent expenditures under the 

FEC’s regulations because:

• It engages in business activities (sells advertising space in its newsletter, rents its membership list and engages 

in fundraisers that are not expressly described as requests for donations to be used for political purposes);

• It issues affi nity credit cards to its members (impermissible under 11 CFR 114.10(c)(3)(ii) because it creates a 

disincentive for members to disassociate themselves from MCCL); and

• It accepts corporate contributions.
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District Court Ruling

The court noted that the U.S. Court of Appeals for the Eighth Circuit, in addressing a similar Minnesota state law, 

rejected the argument that MCFL had created a bright-line test for exemption from the Act’s prohibition against 

corporate independent expenditures. Day v. Holohan (34 F.3d 1356 (8th Cir., 1994). Since the judicial district of 

Minnesota is in the eighth circuit, Day constituted controlling law in this district court. The court also noted the 

decision of the U.S. Court of Appeals for the Second Circuit in FEC v. Survival Education Fund FEC v. Survival Education Fund, 65 F.3d 285 (2nd , 65 F.3d 285 (2nd

Cir., 1995).

The Day decision concluded that, by disqualifying from the independent-expenditure exemption those nonprofi t, 

membership corporations that engaged in some business activities and/or accepted corporate donations, Minnesota’s 

regulations were too restrictive and not narrowly tailored to serve a compelling governmental interest. Relying on 

Day, the district court ruled that these aspects of the FEC’s regulations at 11 CFR 114.10(c) were unconstitutional.

The Day decision, however, did not address other aspects of the FEC’s regulations, which plaintiffs had challenged 

in this suit, including: the imposition of reporting requirements on those corporations that make independent 

expenditures under the MCFL exemption (11 CFR 114.10(e)); and the requirement that exempt corporations disclose 

to their contributors that their donations may be used for political purposes (11 CFR 114.10(f)).

Instead of deciding whether these parts of the regulation were independently unconstitutional, the district court 

found that the unconstitutional provision was not severable under the severability doctrine: A regulation that contains 

unconstitutional provisions must be stricken in its entirety unless that which remains after the unconstitutional 

provisions are excised is fully operative as law and the body enacting the regulation would have enacted the 

constitutional provisions even in the absence of those which are unconstitutional. Because the court found that 

the FEC’s defi nition of a qualifi ed nonprofi t corporation at 114.10(c) was fl awed and that that provision was not 

severable from the rest of 114.10, the court concluded that the entire provision at 114.10 was void.2

Appeals Court Ruling

The appeals court found that, contrary to the FEC’s arguments, MCCL had standing to bring this case to court. It also 

found that MCCL’s challenge to the regulations was “ripe” for judicial resolution, and, on the authority of the Day 

decision, the court then affi rmed the district court’s declaratory judgment voiding the Commission’s regulations.

Article III standing requires that a party show actual injury, a casual relationship between that injury and the 

challenged conduct and the likelihood that a favorable decision by the court will redress the alleged injury.3 The 

FEC argued that MCCL lacked standing because voiding the statute would not redress its alleged injury. The FEC 

maintained that, even without the regulation, MCCL would have to prove that it was entitled to make independent 

expenditures under MCFL and Day. The appeals court found that MCCL had either to make signifi cant changes 

to its operations or risk sanctions for violating FEC regulations and concluded that MCCL did not need to show 

that a favorable decision would relieve “every” injury. According to the appellate court, the district court redressed 

an injury for MCCL by declaring that it could continue to make independent expenditures if it met the exemptions 

defi ned in Day.

While the courts have been wary of pre-enforcement challenges—such as MCCL’s challenge to the Commission’s 

regulations before the organization has actually been alleged to have violated them—this stance is not always 

applicable. The Supreme Court has held that “the Administrative Procedure Act authorizes a pre-enforcement 

challenge to agency regulations if the issue is ‘fi t’ for prompt judicial decision and if failure to review would cause 

signifi cant hardship to the parties.” In this case, the appeals court said that the legal issue—whether the Eighth 

Circuit’s interpretation of MCFL in Day invalidates portions of the Commission’s regulations—was “fi t for prompt 

determination.” Moreover, the court said, court action in this case would also relieve MCCL of a hardship because 

its representatives would now know that MCCL’s methods of operation would be tested under Day, rather than under 

the Commission’s regulations.

On the merits, the appellate court agreed with the district court that Day required voiding 11 CFR 114.10 (c)(2) and 

(c)(4). Only the court of appeals sitting en banc, the court noted, could overturn Day’s interpretation of the Supreme 

Court’s MCFL decision. Furthermore, because the district court found the remainder of 11 CFR 114.10 not to be 

severable from the invalid portions—a ruling the Commission had not appealed—11 CFR 114.10 as a whole was 

properly declared void.

Source: FEC Record, June 1996, p. 3; and July 1997, p. 2. , June 1996, p. 3; and July 1997, p. 2.

Minnesota Citizens Concerned for Life: FEC v., 936 F. Supp. 633 (D. Minn. 1996), aff’d, 113 F.3d 129 (8th Cir. 1997). , 113 F.3d 129 (8th Cir. 1997). 1 An independent expenditure is an expenditure made without any coordination with a candidate’s campaign for a communication 

which expressly advocates the election or defeat of a clearly identifi ed candidate for federal offi ce.

2 Although the court voided 11 CFR 114.10 in its entirety, the court noted that the FEC had the authority to impose certifi cation and 

reporting requirements and to require qualifi ed nonprofi ts to inform potential donors that their donations could be used for political 

purposes. These provisions, had they not been inextricably linked to the unconstitutional provisions, would have been entitled to 

deference.

3 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
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MISSOURI REPUBLICAN PARTY v. CHARLES F. LAMB 

On September 11, 2000, the U.S. Court of Appeals for the Eighth Circuit reversed the district court’s judgment and 

ruled that Missouri’s limitations on political party contributions to candidates were unconstitutional. The court 

concluded that this case differed from the Buckey v. Valeo and Nixon v. Shrink Missouri Government PAC cases

because it involved limits on contributions from a political party whereas the other two involved contributions from 

individuals.

In Buckley, the Supreme Court ruled that individual contribution limits were constitutional because they imposed 

“only a marginal restriction upon the contributor’s ability to engage in free communication.” The circumstances are 

different in this case, however, because the contributor is a political party, the court said. The court noted that the 

relationship between candidates and individuals is not nearly as close as that between candidates and parties. The 

identities of candidates and parties are often “virtually indistinguishable from each other.” Whereas an individual can 

potentially corrupt a candidate with a contribution, parties and candidates have such “a unity of purpose” that the 

threat of corruption is “not a very realistic one.” In addition, the court said that “a party’s contribution provides an 

ideological endorsement and carries a philosophical imprimatur that an individual’s contribution does not, and thus 

it cannot properly be called a ‘contribution’ in the same sense that the individual contributions in Buckley were.”

The court also maintained that, in this case, there was no evidence that limiting parties’ contributions would reduce 

corruption or measurably decrease the number and instances when individuals circumvented their own contribution 

limits. Finally, the court held that its ruling also applied to Missouri’s limits on party in-kind contributions.

Source: FEC Record, November 2000, p. 8 , November 2000, p. 8

227 F. 3d 1070 C.A., 8 (Mo.) 2000

MOTT v. FEC

District Court Ruling

On June 30, 1980, the U.S. District Court for the District of Columbia dismissed a suit in which Stewart R. Mott, 

Rhonda K. Stahlman and the National Conservative Political Action Committee (NCPAC) had sought declaratory 

and injunctive relief against the FEC. In its motion to dismiss the suit (Mott v. FEC, Civil Action No. 79-3375), the 

FEC argued that some of the claims presented in the suit were not ripe for consideration by the court while others 

failed to state a claim on which relief could be granted. In its role as amicus curiae, Common Cause had also fi led a 

brief arguing dismissal of the suit. 

Plaintiffs had challenged the constitutionality of provisions of the Act, FEC regulations, advisory opinions and 

other written interpretations which regulate independent political activity by prescribing limits on contributions 

from individuals, groups and political committees to other individuals, groups and political committees which make 

independent expenditures. Plaintiffs claimed that these provisions defi ne the terms “contribution” and “expenditure” 

in overly broad and vague language. 

Mr. Mott proposed that, together with other “like-minded individuals,” he would purchase advertising space in The 

New York Times to express his views on political issues and expressly advocate the election or defeat of several clearly 

identifi ed federal candidates. Specifi cally, he claimed that the First Amendment rights of those purchasing the ad 

would be restricted by provisions of the Act illegally requiring that:

• This group of individuals register with the FEC as a political committee when their expenditures for the 

advertising exceed $1,000; and

• The amount spent in the joint advertising purchase count against the limits imposed on individual contributions 

to political committees.

The district court determined that the constitutional issues raised by Mr. Mott were not ripe for judicial decision 

in the absence of a more fully developed factual record. The claim that Mr. Mott wished to “join with others” in 

purchasing the advertising was broad enough to encompass a single purchase of advertising space as well as a series 

of advertisements and solicitations by a full-fl edged political committee. Further, the court noted that Mr. Mott 

should have requested an advisory opinion from the FEC on the application of the Act to this proposed activity 

before seeking a review by the court. Both NCPAC and Ms. Stahlman challenged the constitutionality of limits 

on contributions by individuals to political committees which make independent expenditures. Ms. Stahlman’s and 

NCPAC’s claims raised three constitutional issues:
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• Whether the defi nition of “contribution” in 2 U.S.C. §431(8) abridges First Amendment rights since it limits 

contributions which individuals may make to political committees undertaking independent expenditures;

• Whether 2 U.S.C. §441a(a)(3), which limits total contributions by an individual within any calendar year to 

$25,000, is unconstitutional under the First and Fifth Amendments; and

• Whether 2 U.S.C. §441a(a)(1)(C), which limits contributions by a person to a political committee to $5,000 in 

any calendar year, is unconstitutional under the First and Fifth Amendments.

The district court pointed out that, in the Buckey v. Valeo decision, the Supreme Court had upheld the constitutionality 

of the contribution limits. (Buckey v. Valeo, 424 U.S. 1 at 38 (1976).) The district court said that, although the 

Supreme Court had not specifi cally addressed the $5,000 limit on individual contributions to political committees, its 

“reasoning...clearly indicated that the restriction is constitutional.” The Supreme Court had reasoned that a limit on 

contributions infringed far less on First Amendment rights than did a limit on expenditures, because the contribution 

limits involved restrictions on indirect, rather than direct, political expression. Further, whatever infringement did 

occur was justifi ed by the need to curb the “actuality and appearance of corruption” fl owing from large individual 

contributions. (Buckey v. Valeo, 424 U.S. 1 at 26 (1976).)

Appeal

In appealing the district court’s decision, NCPAC and Ms. Stahlman reasserted their constitutional challenges. 

They also asked the appeals court to fi nd “erroneous” the district court’s refusal to certify their challenges to 

the appeals court.

Appeals Court Ruling

On December 8, 1981, the U.S. Court of Appeals for the District of Columbia Circuit issued a memorandum decision 

in National Conservative Political Action Committee (NCPAC) and Rhonda K. Stahlman v. FEC National Conservative Political Action Committee (NCPAC) and Rhonda K. Stahlman v. FEC (Civil Action No. 80- (Civil Action No. 80-

1949). Citing as precedent the Supreme Court’s June 1981 decision in California Medical Assoc. (CMA) v. FEC, the 

appeals court rejected plaintiffs’ constitutional challenges and affi rmed the district court’s disposition of the case. 

The appeals court rejected plaintiffs’ assertion that NCPAC was not subject to the CMA decision because it not only 

made contributions but made independent expenditures as well. The court said the CMA decision did apply because 

NCPAC’s activity was not limited to independent expenditures. Moreover, the court held that limits on NCPAC 

contributors did not impermissibly infringe on their free speech rights because the contributions constituted “speech 

by proxy” since contributors had no voice in NCPAC’s decisions concerning independent expenditures. 101 S.Ct. at 

2721-22. 

The appeals court also followed precedent set by the CMA decision in rejecting plaintiffs’ assertion that unlimited 

contributions earmarked for NCPAC’s independent expenditures would not “risk corrupting or appearing to corrupt 

the political process in the manner Congress sought to prohibit.” 101 S.Ct. at 2723 n. 19; 494 F. Supp. at 137. 

Source: FEC Record, September 1980, p. 7; and February 1982, p. 8. , September 1980, p. 7; and February 1982, p. 8.

Mott v. FEC, 494 F. Supp. 131 (D.D.C. 1980), aff’d mem. sub. nom. NCPAC v. FEC, 672 F.2d 896 (D.C. Cir. 1981). 

NATIONAL CHAMBER ALLIANCE FOR POLITICS v. FEC

This suit challenged the constitutionality of Section 441b of the Act, which limits solicitations by corporations (and 

their separate segregated funds (PACs)) of voluntary contributions to the PACs.

Plaintiff ’s Arguments

On July 20, 1978, the National Chamber Alliance for Politics fi led suit against the Federal Election Commission 

challenging the constitutionality of the PAC solicitation provisions and asking for injunctive relief. The plaintiffs 

included the Chamber of Commerce (a nonprofi t corporation), its separate segregated fund, three executives of the 

two organizations and one board member of the Chamber of Commerce. Plaintiffs argued that, by enumerating those 

whom the corporation or PAC may solicit, 441b of the Act:

• Limits the plaintiffs’ First Amendment right to communicate to a more broadly based audience for the purpose 

of “soliciting” their fi nancial assistance;

• Limits the plaintiffs’ ability to associate with those not enumerated in the Act as potential solicitees;

• Violates the First Amendment right of the potential solicitees (not enumerated in the Act) to associate 

with the plaintiffs;

• Discriminates against plaintiffs, in violation of their Fifth Amendment rights, by permitting candidates and 

their committees to solicit funds from any PAC but denying this same right to corporations and their PACs.
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The plaintiffs argued that the harm brought about by Section 441b was actual, not hypothetical, because the 

plaintiffs have limited their solicitation activities, fearing the imposition of the civil and criminal sanctions contained 

in the Act.

Commission’s Arguments

The Federal Election Commission petitioned the court to dismiss the suit, arguing, fi rst, that the court lacked 

jurisdiction because:

• Special statutory judicial review mechanisms, such as Section 437h of the Act, are the exclusive avenues 

for judicial review. 

• Under §437h of the Act, the Commission, the national committee of any political party, or any individual 

eligible to vote may bring appropriate actions to challenge the constitutionality of the Act. The Commission 

argued that none of the plaintiffs were eligible to bring such an action under §437h. 

• Challenges brought by any other person or entity must be raised during the ordinary course of enforcement 

procedures provided in Section 437g of the Act.

The Commission also argued that the complaint did not present a “case or controversy” because the plaintiffs can 

make no showing of present, direct injury resulting from Section 441b. The FEC further argued that the plaintiffs 

failed to state a claim upon which relief could be granted because §441b did not violate the plaintiffs’ First or Fifth 

Amendment rights. The Commission’s arguments are summarized below:

• The plaintiffs failed to see that §441b grew out of (and was, in fact, an exception to) a long series of 

Congressional efforts, dating back to 1907, to prevent actual corruption or the appearance of corruption 

arising from the infl uence of corporate general treasury funds on federal elections. The Commission explained 

that subsequently Congress also recognized that the individuals who comprise a corporation may have an 

interest in combining their funds for direct use in candidates’ campaigns. Thus, with the passage of the Federal 

Election Campaign Act of 1971, Congress wrote a special exception to the general ban on corporate election 

spending. It permitted the use of corporate funds to establish, administer and solicit contributions to a 

separate segregated fund. 

• The challenged subsection puts restrictions only on the solicitation of contributions. The plaintiffs are free to 

engage in discussion of general political issues; the Act does not restrict such activity. 

• Section 441b does not restrict the plaintiffs’ ability to associate with potential solicitees not enumerated in the 

Act. Such persons, including other PACs, can freely contribute to a corporate PAC and associate with it. 

• Section 441b does not invidiously discriminate against corporations. The Commission said, “the notion of equal 

protection does not prevent Congress from classifying for different treatment those persons in distinguishable 

circumstances.” Since corporations, through their PACs, are in a unique position to exert infl uence on many 

candidates throughout the entire nation, they are treated differently. In this case, the Commission added, 

the Chamber of Commerce had chosen to establish its PAC under §441b to take advantage of the provision 

permitting corporations to use their treasury funds to administer a PAC and solicit contributions to it. The 

Commission added that individual plaintiffs could establish their own PAC; under those circumstances, the 

law would permit the plaintiffs to solicit anyone, including other corporate PACs. 

District Court Ruling

On November 22, the court dismissed the suit. The court said that the special provision of 2 U.S.C. §437h(a), 

expediting judicial review of constitutional issues, is inapplicable to the plaintiffs. The individual plaintiffs sue “not 

in their individual capacities but rather to vindicate the rights of the corporate entities. That derivative right was not 

the constitutional right of an ‘individual eligible to vote’ which Congress considered ‘appropriate’ for vindication in a 

declaratory judgment action under this section (437h).” Moreover, the court held that the plaintiffs presented no case 

or controversy suffi ciently ripe for decision by a federal court. 

Appeals Court Ruling

The plaintiffs fi led an appeal. On June 10, 1980, the U.S. Court of Appeals for the District of Columbia Circuit 

denied the appeal, holding that the plaintiffs’ claims were not ripe for judicial review.

Supreme Court Action

On November 13, 1980, the Supreme Court denied a petition for a writ of certiorari writ of certiorari fi led by the National Chamber filed by the National Chamber

Litigation Center (a legal arm of the Chamber of Commerce of the U.S.) in the suit, National Chamber Alliance for 

Politics v. FEC Politics v. FEC (Civil Action No. 78-1333). (Civil Action No. 78-1333). 

Source: FEC Record, February 1979, p. 3; and January 1981, p. 5. , February 1979, p. 3; and January 1981, p. 5. 

National Chamber Alliance for Politics v. FEC, 627 F.2d 375 (D.C. Cir.), cert. denied, 449 U.S. 954 (1980). , 449 U.S. 954 (1980).
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NATIONAL COMMITTEE OF THE REFORM PARTY v. FEC

On February 27, 1998, the U.S. District Court for the Northern District of California dismissed this case after agreeing 

with the FEC that the plaintiffs had failed to state a claim upon which relief could be granted.

On February 9, 1999, the U.S. Court of Appeals for the Ninth Circuit affi rmed the district court’s decision. 

The district court had declined to certify claims brought by the National Committee of the Reform Party (the 

Committee) to an en banc panel of the appeals court. The district court had determined that the Committee lacked 

standing in regard to some of its claims and failed to state a claim on which relief could be granted with respect to 

its remaining claims.

Background

In this case, the Committee, the Reform Party of California, campaign committees of former Reform Party 

Presidential candidate Ross Perot and an individual voter who supported Mr. Perot in the 1996 Presidential 

election alleged that:

• The issue ads paid for by the 1996 Democratic and Republican presidential campaigns caused the Reform 

Party monetary damages by reducing the number of votes its Presidential candidate received and thereby 

reducing the amount of federal funding the party nominee would be entitled to in the 2000 election.

• The statutory composition of the FEC at 2 U.S.C. §437c(a)(1), which states that no more than three members 

of the six-member Commission may be affi liated with the same political party, is unconstitutional.

• The Presidential Election Campaign Fund Act (Fund Act) is unconstitutional because it denies equal 

protection by providing greater funding to major party candidates than it does to minor party candidates. 

In addition to these claims, the Committee contended the Republican and Democratic defendants owed it damages 

under California and federal laws.

Appeals Court Decision

Issue Advertisements

The appellate court found that neither California nor federal law authorized the Committee’s suit for damages related 

to issue advertisements produced by the Republican and Democratic committees. The FEC’s power to sue alleged 

violators of the Federal Election Campaign Act (the Act) is the “exclusive civil remedy” for enforcement of the Act. 2 

U.S.C. §437d(e). (Entities may, however, seek judicial review of the agency’s dismissal of an administrative complaint 

alleging violations of the Act.) The Committee argued unsuccessfully that the FEC’s “exclusive civil remedy” did not 

preclude the Reform Party Committee from acting as a private party and suing for damages.

Legislative history is instructive here, the court found. Before the1976 amendments to the Act, there was confusion 

over just which agency should enforce the statute. In those amendments, Congress added the word “exclusive” to 

prohibit enforcement suits by other agencies. There is no indication that Congress was, at the same time, approving 

private suits. The U.S. Supreme Court has also noted that there is no authority supporting the contention that 

Congress intended to have anyone other than the government enforce the Act (FEC v. National Conservative Political 

Action Committee, 470 U.S. 480 (1985)).

In addition, the Commission has a process in place by which entities can pursue their charges that the Act or FEC 

regulations have been violated.

Commission Composition

The Act states that no more than three members of the Commission may be affi liated with the same political party. 

2 U.S.C. §437c(a)(1). Commission seats historically have been equally divided between Democrats and Republicans 

only. Appellants claimed that this provision violates the Appointments Clause and their rights to free speech and 

equal protection. The court said that they lacked standing to raise this claim because they did not explain how the 

relief they requested—the invalidation of the party affi liation provision—would make minority party representation 

on the Commission more likely.
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Fund Act

The Committee’s facial challenge to the Fund Act, based on First Amendment and equal protection arguments, is 

foreclosed by Buckey v. Valeo, the court found. The Supreme Court held that the Fund Act “is a congressional effort, 

not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and 

participation in the electoral process.” Buckley went on to say that the public funding system does not discriminate 

against minor parties. “[T]he inability, if any, of minor-party candidates to wage effective campaigns will derive not 

from lack of public funding but from their inability to raise private contributions.”

The Committee also argued that, as applied, the Fund Act “invidiously” discriminates against the Reform 

Party. The appellate court rejected this claim, concluding that the types of complaints expressed by the Reform 

Party were understood and taken into account by the Supreme Court when it rejected the claims of invidious 

discrimination in Buckley. 

Source: FEC Record, January 1998, p. 2; April 1998, p. 4; and April 1999, p. 4. , January 1998, p. 2; April 1998, p. 4; and April 1999, p. 4. 

NATIONAL CONGRESSIONAL CLUB v. FEC

On February 14, 1985, the National Congressional Club (NCC), a multicandidate political committee, and Jefferson 

Marketing, Inc. (JMI), a North Carolina corporation that provides media services to political committees, voluntarily 

dismissed a suit they had fi led against the FEC. Plaintiffs had fi led their suit with the U.S. District Court for the 

District of Columbia on January 29, 1985. (Civil Action No. 85-0299.)

In their suit, NCC and JMI sought action against the FEC with regard to the agency’s processing of two compliance 

actions (i.e., matters under review or MURs). The compliance actions were fi led against NCC and JMI by Congressman 

Charles E. Rose (MUR 1503) and the Democratic Party of North Carolina (MUR 1792). In his complaint, fi led in 

October 1982, Congressman Rose alleged that, among other things, JMI had provided media services to his 1982 

primary election opponents at less than fair market value, resulting in a prohibited corporate contribution from JMI 

to the candidates.1 In the ensuing investigation, the General Counsel’s offi ce also found that a special relationship may 

have existed between NCC and JMI. In MUR 1792, the Democratic Party of North Carolina included, among its 

claims, an allegation concerning the NCC/JMI relationship. 

NCC and JMI asked the court to fi nd that the FEC’s actions with regard to MURs 1503 and 1792 violated the 

election law, as well as the First and Fifth Amendments, and were contrary to law. Plaintiffs based these claims on 

the following allegations:

• The FEC refused to consolidate MURs 1503 and 1792, as requested by plaintiffs NCC and JMI. 

• The FEC failed to give NCC and JMI adequate notice of the factual and legal bases for the agency’s “reason 

to believe” determinations in MUR 1503. 

• Before fi nding “reason to believe” that NCC and JMI were related, the FEC found “probable cause to believe” 

that, based on their relationship, the two organizations had violated the election law’s ban on corporate 

contributions. 

• The FEC refused to give NCC and JMI an opportunity to respond to the General Counsel’s position on the 

FEC’s authority to fi nd “probable cause to believe” NCC and JMI were related before fi nding “reason to 

believe” they were related. 

• The FEC took fi nal action on MUR 1503 despite NCC’s and JMI’s allegations that the agency had violated 

the election law in processing the complaint.

NCC and JMI also sought an injunction requiring the Commission to comply with provisions of the election law and 

the Constitution. 

Source: FEC Record, March 1985, p. 3. , March 1985, p. 3. 1 See also Rose v. FEC.
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NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE v. FEC

(96-2295)

On November 18, 1996, the U.S. District Court for the District of Columbia issued an order instructing the FEC 

to supply the National Republican Congressional Committee (NRCC) with regular updates of its progress on the 

committee’s administrative complaint against the actions of labor organizations during the 1996 election cycle. The 

order, which had been submitted by the parties involved in the suit, also dismissed this case without prejudice.

The NRCC had asked the court to force the FEC to take action, before the election, on three administrative complaints 

that it had fi led with the FEC concerning the AFL-CIO and allied labor organizations. The NRCC had alleged 

that the labor groups were making massive expenditures coordinated with Democratic candidates, in violation of 

2 U.S.C. §441b(a).

The NRCC had fi led its administrative complaints with the FEC in February, March and April 1996 and had alleged 

that the FEC had not acted on those complaints by October 3, 1996, when the Republican committee fi led its lawsuit. 

The NRCC said the FEC’s delay could cause it irreparable injury and asked the court to order the FEC to take action 

before the election.

The settlement agreement requires the FEC to provide NRCC lawyers with confi dential updates on the complaint 

until it is resolved or there is further action by the court.

Source: FEC Record, January 1997, p. 2. , January 1997, p. 2.

NATIONAL REPUBLICAN SENATORIAL COMMITTEE v. FEC (94-0332)

On March 14, 1995, the U.S. Court of Appeals for the District of Columbia vacated the district court’s decision 

of May 11, 1994, and ordered the court to dismiss the complaint against the FEC as moot. The district court had 

dismissed the case on the grounds that it was not ripe for adjudication.

District Court Decision

 On May 11, 1994, the U.S. District Court for the District of Columbia dismissed this suit in which the National 

Republican Senatorial Committee (NRSC) had asked the court to stop the FEC from proceeding in an internal 

enforcement matter opened in 1991, MUR 3204. The NRSC claimed that the FEC’s vote to fi nd “reason to believe” 

that the committee had violated the law and the ensuing investigation were invalid because they took place when the 

composition of the FEC was unconstitutional. The court ruled that the case was not ripe for adjudication since the 

FEC had not yet taken “‘concrete’ action” in MUR 3204. But the court was doubtful whether NRSC would have 

succeeded on the merits even if its case had been ripe for review.

NRSC had relied on the October 1993 appellate court ruling in FEC v. NRA Political Victory Fund (NRA). In that 

case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FEC lacked authority to bring 

action against the NRA because the composition of the agency was unconstitutional.1

The court said that NRSC’s reliance on NRA was “misplaced” because, in that case, the court of appeals was 

confronted with an otherwise fi nal district court judgment obtained by an unlawfully constituted Commission against 

a respondent. By contrast, the court pointed out, in this case, NRSC had fi led suit before the FEC had taken fi nal 

action. The agency had not even voted on whether to fi nd “probable cause to believe” that NRSC had violated the 

law, the next step in the enforcement process. The court said that the impending vote “will either confi rm and ratify 

what was thought suffi cient to warrant an investigation” in 1991, or the FEC will terminate the matter.

Concluding that the NRSC had fi led its case prematurely, the court observed that, even had the case been ripe for 

judicial review, NRSC would have failed to satisfy the standards for a preliminary injunction to stop the FEC from 

proceeding in the MUR.

Appeals Court Decision

The NRSC’s suit became moot because, after the district court’s decision, the FEC closed MUR 3204 without fi nding 

probable cause to believe the NRSC had violated federal election law. The court of appeals therefore ordered the 

district court to dismiss the case as moot.

Source: FEC Record, July 1994, p. 2; and May 1995, p. 4. , July 1994, p. 2; and May 1995, p. 4.

National Republican Senatorial Committee v. FEC, No. 94-0332 (TJP) (D.D.C. May 11, 1994); No. 94-5148 (D.C. Cir. Mar. 14, 1995). 1 6 F.3d 821 (D.C. Cir. 1993). The court found that the presence of the Clerk of the House and the Secretary of the Senate as nonvoting, 

ex offi cio Commission members violated the Constitution’s separation of powers doctrine. After the October 1993 NRA ruling was 

handed down, the FEC immediately reconstituted itself by excluding the ex offi cio members. 
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NATIONAL RIGHT TO WORK COMMITTEE v. FEC (84-2955)

On September 21, 1984, the National Right to Work Committee (NRWC) and Mr. Ralph M. Hettinga fi led suit in the 

U.S. District Court for the District of Columbia asking the court to declare that the FEC had acted contrary to law 

in failing to act on an administrative complaint within 120 days (Civil Action No. 84-2955). 

In their administrative complaint fi led with the FEC on May 18, 1984, plaintiffs had alleged that the Mondale 

for President Committee (the Mondale Committee) and numerous Mondale delegate committees were affi liated 

committees, subject to a single, shared contribution limit, and that they had violated 2 U.S.C. §441a by accepting 

excessive contributions. The complaint had further alleged that several union political action committees were also 

affi liated with each other and had also violated Section 441a by making excessive contributions to the Mondale 

Committee through the delegate committees. 

On October 31, 1984, the district court ruled that the Commission had not acted contrary to law in its handling of the 

complaint. The court rejected plaintiffs’ argument that 2 U.S.C. §437g(a)(8) requires the agency to resolve a complaint 

within 120 days. Rather, the court held that the time period “is jurisdictional in nature, marking the time at which 

judicial intervention is permissible if appropriate.” The court further remarked that, after the 120-day period, “a 

court may declare agency inaction to be contrary to law...but has discretion to conclude otherwise.”

Although plaintiffs wanted the court to order the FEC to resolve the complaint before the November 6 election day, 

the court denied the request, fi nding that the law “does not provide for pre-election resolution of every complaint...

implicating the campaign of a candidate for offi ce. Especially in an election year, the FEC workload exceeds its 

resources, and a decision to expedite the consideration of plaintiffs’ complaint would necessarily delay resolution of 

other pending matters. The Commission’s judgment as to the priority each case deserves...should not be ignored.”

Source: FEC Annual Report 1984, p. 22.

National Right to Work Committee and Hettinga v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9225 (D.D.C. 1984). 

NATIONAL RIGHT TO WORK COMMITTEE v. 

THOMSON CHAMBERLAIN v. THOMSON

On July 21, 1977, the U.S. District Court for the District of Columbia consolidated the two above-mentioned cases. 

The order stated that the cases “involve common questions of law and that consolidation will reduce cost and delay.” 

Both suits alleged that the FEC had failed to act on complaints fi led with the Commission against the National 

Education Association. 

After oral hearings in the consolidated cases, on August 31, 1977, the court denied the Commission’s motion to 

dismiss the complaints and granted the plaintiffs summary judgment. The court also ordered the Commission to 

proceed to a formal resolution of the complaints within 30 days. 

After considering the context of this case, the court agreed with the plaintiffs’ argument that the 90-day time 

period established by law must serve as a time limit for the formal resolution of complaints. The Federal Election 

Campaign Act (2 U.S.C. §437g(a)(9)(A))1 allows an “aggrieved party” to fi le suit against the FEC in district court 

if the Commission “fails to act” on a complaint within 90 days of its fi ling. The court stated that otherwise “the 

complaint process would be subverted through indefi nite delays,” and plaintiffs will be left “without any way of 

knowing whether any action at all has been taken on their complaints.”

The court also stated that the delay by the Commission was unnecessary since the Commission’s regulations specifi cally 

prohibit the acts cited in the complaints. 

The Commission had thirty days in which to bring about a formal resolution of the complaints: dismissal, entry into 

a conciliation agreement or institution of a formal enforcement action. 

Source: FEC Record, June 1977, p. 3; and October 1977, p. 3. , June 1977, p. 3; and October 1977, p. 3. 

National Right to Work Committee v. Vernon W. Thomson; Paul E. Chamberlain v. Vernon W. Thomson, 2 Fed. Elec. Camp. Fin. Guide 

(CCH) ¶9042 (D.D.C. 1977). 

1 The 1979 Amendments to the Federal Election Campaign Act extended the time limit from 90 days to 120 days. See 2 U.S.C. 

§437g(a)(8)(A).
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NATURAL LAW PARTY OF THE UNITED STATES OF AMERICA v. FEC

On September 21, 2000, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment in this case, ruling against the Natural Law Party of the United States of America, Dr. John Hagelin and 

John Moore (the plaintiffs). The court held that, although the plaintiffs had standing to challenge the FEC’s dismissal 

of their administrative complaint against the Commission on Presidential Debates (CPD), they failed to show that 

the FEC’s interpretation of the debate regulations at 11 CFR 110.13 was arbitrary and capricious.

The plaintiffs appealed. After expedited briefi ng on the issue of whether the 15 percent electoral support requirement 

in CPD’s selection criteria is illegal, the Court of Appeals affi rmed the district court’s order on this issue on 

September 29, 2000.

Dismissal of Case

On November 30, 2000, the U.S. Court of Appeals for the District of Columbia Circuit granted the appellant’s 

unopposed motion to dismiss the appeal.

Source: FEC Record, November 2000, p. 10; January 2001, p. 10; and March 2001, p. 2. , November 2000, p. 10; January 2001, p. 10; and March 2001, p. 2.

111 F. Supp. 2d 33 (D. D .C. 2000)

NCPAC v. FEC

On February 15, 1978, the National Conservative Political Action Committee (NCPAC) fi led suit against the 

Federal Election Commission challenging the legality of the Commission’s regulation (11 CFR 110.1(g)(1)) and the 

Commission’s Advisory Opinion 1978-1 which provide that the contribution limitations (2 U.S.C. §441a) do not apply 

to pre-1975 campaign debts. In the case of AO 1978-1, the Commission allowed the Democratic National Committee 

to retire pre-1975 debts without regard to the contribution limitations. 

On April 28, 1978, the court granted the Commission’s motion to dismiss with respect to AO 1978-1 and granted 

summary judgment with respect to 11 CFR 110.1(g)(1). The court cited the following reasons:

• The court lacks jurisdiction with respect to the activities of the DNC because NCPAC did not use the statutorily 

established compliance procedures (2 U.S.C. §437g) prior to fi ling suit in district court. 

• AO 1978-1 and its effect on NCPAC does not present an issue “ripe for review” by the court. 

• Nothing in the Act or legislative history of the Act provides for the extension of the contribution limits to pre1975 election debts. 

• The regulation does not “deny equal protection of the laws to persons and entities subject to the contribution 

limitations.. .. “

• The regulations were promulgated in accordance with the Administrative Procedures Act. 

Source: FEC Record, June 1978, p. 7. , June 1978, p. 7. 

National Conservative Political Action Committee v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9057 (D.D.C. 1978), aff’d, 626 F.2d , 626 F.2d 

953 (D.C. Cir. 1980).
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NIXON v. SHRINK PAC

On January 24, 2000, the Supreme Court issued a ruling reaffi rming the distinction set out in Buckey v. Valeo between 

expenditures and contributions, and upholding the constitutionality of contribution limits. Furthermore, the Court 

rejected the argument that the Missouri government was required to provide concrete evidence substantiating a need 

for limits to curtail corruption or the appearance of corruption. The Court concluded that the threat of corruption, 

and public concern about that threat, were suffi cient.

Shrink Missouri Government PAC (Shrink PAC) and Zev David Fredman, a candidate for Missouri’s Republican 

nomination for state auditor in 1998, fi led suit alleging that Missouri contribution limits (ranging from $275 to $1075 

to candidates for state offi ce) violated their First and Fourteenth Amendment rights. The district court, relying on 

Buckey v. Valeo, sustained the statute in a summary judgment, fi nding that limits on political contributions were 

based on the belief that large contributions raise suspicions of infl uence peddling, which tend to undermine citizens’ 

confi dence in government integrity.

The district court rejected the respondents’ claim that infl ation since the Buckley decision had rendered the state limit 

unconstitutional today.

In reversing the district court’s decision, the Eighth Circuit Court of Appeals held that Missouri had to demonstrate 

that it had a compelling interest and that the contribution limits at issue served that interest. Missouri claimed a 

compelling interest in avoiding corruption or the perception of corruption caused by large campaign contributions. 

The appeals court, however, found this insuffi cient and required Missouri to provide demonstrable evidence that 

genuine problems resulted from contributions that exceeded the statutory limits. It ruled that the state’s evidence was 

inadequate for this purpose.

The Supreme Court, in its opinion delivered by Justice Souter, reversed the Eight Circuit’s decision and held that 

Buckey v. Valeo, a 1976 Supreme Court decision, was the authority for comparable state limits on contributions to 

state political candidates.

The Buckley court struck down the Act’s $1,000 limit on independent expenditures made by individuals on behalf 

of candidates for federal offi ce, maintaining that the limits infringed upon the free speech and association guarantee 

of the First Amendment and the Equal Protection Clause of the Fourteenth. By contrast, the Buckley Court upheld 

provisions limiting individual contributions to a candidate to $1,000 per election. The Court drew a line between 

independent expenditures and contributions, treating expenditure restrictions as direct restraints on speech but 

saying, in effect, that limiting contributions to candidates did not violate an individual’s right to free speech. The 

Buckley Court found the prevention of corruption and the appearance of corruption to be constitutionally suffi cient 

justifi cation for the contribution limits at issue.

In this case, the Supreme Court rejected the appeals court’s requirement that the government demonstrate that 

corruption among public offi cials is real, and not merely conjectural. Acknowledging that confl icting academic 

studies both assert and deny that large contributions to candidates change candidates’ positions, the Court concluded 

that there is little reason to doubt that sometimes large contributions will corrupt our political system and no reason 

to doubt a corresponding suspicion among voters. 

Further, the Court found no support for the respondents’ arguments that Missouri’s contribution limits were so 

different from those sustained in Buckley as to raise a new issue about the adequacy of the Missouri limits. In fact, 

the Court found no indication that contribution limits had a dramatic adverse effect on the funding of campaigns and 

political associations and, thus, no evidence that the limitations had prevented candidates from raising the resources 

necessary for effective advocacy. 

Justice Stevens fi led a concurring opinion. Justice Breyer fi led a concurring opinion, in which Justice Ginsburg 

joined. Justice Kennedy fi led a dissenting opinion. Justice Thomas also fi led a dissenting opinion, in which 

Justice Scalia joined.

Source: FEC Record, March 2000, p. 7. , March 2000, p. 7.

120 S. Ct. 897 (2000)
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NRA v. FEC (84-1878 and 86-2285)

On July 31, 1984, the U.S. District Court for the District of Columbia granted the FEC’s motion to dismiss as moot a 

suit fi led by the National Rifl e Association (NRA) on June 19, 1984 (Civil Action No. 84-1878). In the suit, NRA had 

asked the court to declare that the FEC’s failure to act within 120 days on an administrative complaint NRA had fi led 

on December 1, 1983, was arbitrary, capricious, an abuse of power and contrary to law. (See 2 U.S.C. §437g(a)(8)(A).) 

The FEC had petitioned the court to dismiss the suit as moot because, on July 31, 1984, the Commission had entered 

into a conciliation agreement with the respondent, Handgun Control, Inc. (HCI), thereby resolving the claims in 

NRA’s administrative complaint. 

On October 19, 1987, the district court dismissed a second suit in which NRA challenged the FEC’s dismissal 

of a subsequent administrative complaint alleging further violations of the election law by HCI (Civil Action 

No. 86-2285). 

Background

At the time of the district court’s decision in the second suit, NRA had fi led a total of three administrative complaints 

with the FEC against HCI, an incorporated membership organization that supports restrictions on gun ownership. 

All three of NRA’s complaints challenged HCI’s status as a membership organization under the election law. 

The fi rst administrative complaint resulted in a conciliation agreement between the FEC and HCI in which the 

latter was required to reconstitute itself as a membership organization and to pay a $15,000 civil penalty. NRA 

had alleged that HCI at that time a nonprofi t corporation without members and its separate segregated fund, HCIPAC, had unlawfully solicited contributions from individuals beyond their solicitable class (i.e., the executive and 

administrative employees and their families). NRA’s fi rst lawsuit, charging that the FEC had violated the law by failing 

to act within 120 days of NRA’s fi ling of the administrative complaint, was dismissed as moot after the conciliation 

agreement was achieved. 

In its second and third administrative complaints, NRA alleged that HCI had not complied with the conciliation 

agreement and had violated §441b(b)(4)(A)(i) of the election law by soliciting contributions to its separate segregated 

fund from individuals who were not HCI members. 

In dismissing NRA’s second administrative complaint, the FEC found that HCI qualifi ed as a membership 

organization, even though it had improperly applied the membership requirements retroactively to past contributors. 

With respect to NRA’s third administrative complaint, the FEC found that the allegations were virtually identical to 

those raised in NRA’s second complaint. Consequently, the agency dismissed the third complaint. 

In its second suit NRA asked the court to declare that the FEC’s dismissal of its third administrative complaint was 

contrary to law and to issue an order directing the FEC to initiate enforcement proceedings against HCI within 30 

days of the court’s order. 

The FEC argued that, under §437g(a)(8)(B) of the election law, a party challenging the agency’s dismissal of an 

administrative complaint must fi le suit within 60 days after the date of the dismissal. NRA did not petition for 

review of the FEC’s dismissal of its second administrative complaint within the statutory time period. Instead, NRA 

reasserted its previously dismissed claim in a third administrative complaint, which the FEC contended amounted to 

nothing more than an attempt to obtain review beyond the 60-day period. 

In dismissing NRA’s suit, the court concurred with the FEC: “Regardless of how one would characterize the record 

herein, it is apparent that the issues and facts in all three complaints are substantially similar. More importantly, 

however, it is clear that the plaintiff failed to appeal the defendant’s decision in the second complaint within the time 

period allowed by law.”

On October 26, 1987, NRA fi led an appeal of the district court decision with the U.S. Court of Appeals for the 

District of Columbia Circuit. 

Source: FEC Record, September 1984, p. 11; and December 1987, p. 6. , September 1984, p. 11; and December 1987, p. 6. 

National Rifl e Assn. v. FEC, No. 86-2285 (D.D.C. Oct 19, 1987) (unpublished opinion), aff’d, 854 F.2d 1330. , 854 F.2d 1330.
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NRA v. FEC (87-5373)

On August 5, 1988, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in National Rifl e 

Association of America (NRA) v. FEC Association of America (NRA) v. FEC (Civil Action No. 87-5373), which affi rmed an October 1987 decision by the (Civil Action No. 87-5373), which affirmed an October 1987 decision by the 

U.S. District Court for the District of Columbia. In its decision, the district court found that a petition for review of 

the Commission’s dismissal of an administrative complaint that NRA had fi led against Handgun Control, Inc. (HCI) 

constituted an untimely appeal of an earlier FEC dismissal of another administrative complaint also fi led by NRA 

against HCI. See 2 U.S.C. §437g(a)(8)(B).

Background

NRA’s suit challenged the FEC’s dismissal of NRA’s third administrative complaint against HCI. NRA’s third 

administrative complaint had alleged violations of the election law by HCI, an incorporated membership organization 

that supports restrictions on gun ownership. All three of NRA’s administrative complaints challenged HCI’s status as 

a membership organization under the election law. 

The fi rst administrative complaint resulted in a conciliation agreement between the FEC and HCI. In dismissing 

NRA’s second administrative complaint, the FEC found that HCI had qualifi ed as a membership organization 

by taking the steps specifi ed in the conciliation agreement resulting from the fi rst complaint, even though it had 

improperly applied the membership requirements retroactively to past contributors. With respect to NRA’s third 

administrative complaint, the FEC found that the allegations were virtually identical to those raised in NRA’s second 

complaint. Consequently, the agency dismissed the third complaint. 

District Court Ruling

In a brief fi led with the district court, the FEC argued that, under section 437g(a)(8)(B) of the election law, a party 

challenging the agency’s dismissal of an administrative complaint must fi le suit within 60 days after the date of 

dismissal. NRA did not petition for review of the FEC’s dismissal of its second administrative complaint within the 

statutory time period. Instead, NRA reasserted its previously dismissed claim in a third administrative complaint 

which, the FEC contended, amounted to nothing more than an attempt to obtain review beyond the 60-day period. 

In dismissing NRA’s suit, the court concurred with the FEC’s argument. On October 26, 1987, NRA fi led an appeal 

of the district court’s decision with the U.S. Court of Appeals for the D.C. Circuit. 

Appeals Court Ruling

In affi rming the district court’s dismissal of NRA’s suit, the appeals court found that “the second and third NRA 

complaints [were] substantially similar by virtue of the fact that the legal question posed by both was the same: 

whether an organization that does not provide for an annual meeting at which members may participate in the conduct 

of corporate business may qualify as a membership organization under section 441b(b)(4)(C).... Having raised that 

issue in the second complaint and [having] failed to appeal the Commission’s order, the NRA cannot obtain judicial 

review of the issue by the expedient of bringing it (albeit in a more concrete context) before the FEC once again.”

The appeals court concurred with NRA’s argument that, because it had dismissed the merits of NRA’s argument in 

rejecting its third administrative complaint, the FEC had effectively reopened the issue and had rendered a decision 

that was, in principle, subject to court review. Nevertheless, the appeals court noted that NRA had failed to make this 

argument with the district court when the FEC moved to dismiss NRA’s suit on grounds that the court lacked subject 

matter jurisdiction over it. The appeals court concluded that, “having failed to raise the reopening argument as the 

basis for jurisdiction in the District Court, the NRA is not at liberty to raise it for the fi rst time on appeal.”

Source: FEC Record, October 1988, p. 9. , October 1988, p. 9. 

National Rifl e Association v. FEC, No. 86-2285 (D.D.C. Oct. 19, 1987) (unpublished opinion), aff’d, 854 F.2d 1330 (D.C. Cir. 1988). , 854 F.2d 1330 (D.C. Cir. 1988).
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NRA v. FEC (89-3011)

On February 27, 1992, the U.S. District Court for the District of Columbia rejected NRA’s challenge to the FEC’s 

dismissal of an administrative complaint. The court ruled that the statutory time bar removed its jurisdiction to 

review the FEC’s decision, since the same issues were considered and dismissed in a previous complaint and NRA 

failed to challenge that decision within the 60 days allowed by law.

On February 25, 1993, the U.S. Court of Appeals for the District of Columbia Circuit, in a per curiam judgment, 

affi rmed the district court’s ruling (No. 92-5078).

NRA had fi led several administrative complaints against Handgun Control, Inc. (HCI), an incorporated membership 

organization. The fi rst complaint challenged HCI’s status as a membership organization, alleging that it illegally 

solicited nonmembers for contributions to its separate segregated fund. This fi rst complaint resulted in a conciliation 

agreement in which HCI paid a civil penalty and amended its bylaws to qualify as a membership organization with 

solicitable members.

NRA’s second complaint, MUR 1891, alleged that HCI’s membership still did not have suffi cient rights to qualify as 

members. The Commission dismissed the complaint, concluding that HCI’s amended bylaws satisfactorily established 

the rights of members by allowing them to participate in annual meetings and to elect a board director. NRA did not 

seek judicial review of the Commission’s dismissal of MUR 1891.

The Commission also dismissed NRA’s third complaint against HCI, MUR 2115, because the allegations were 

“virtually identical” to those raised in the second complaint. This time, NRA sought judicial review of the dismissal. 

Ruling on this suit, the district court held that NRA’s petition constituted an untimely challenge to the FEC’s dismissal 

of MUR 1891, since the issues in both MURs were substantially similar. A court of appeals affi rmed that decision. 

National Rifl e Association of America v. FEC, 854 F.2d 1330 (D.C. Cir. 1988).

NRA’s most recent administrative complaint, the subject of the present suit, again challenged the status of HCI 

members. The FEC dismissed this fourth complaint, MUR 2836, because the issues had already been resolved 

in MUR 1891.

In this court case, NRA argued that the two MURs raised different issues, MUR 1891 dealing with member 

participation, and MUR 2836 focusing on member control. The court, however, found that “[d]espite the change in 

language, there remains no material variance between NRA’s allegations in MUR 1891 and MUR 2836.” The court 

therefore ruled that, because NRA did not appeal the FEC’s decision in MUR 1891 within the 60 days allowed by law, 

it was barred from doing so in the present case.

The court also rejected NRA’s argument that the FEC’s dismissal of MUR 2836 qualifi ed for judicial review because 

the FEC had considered the substantive merits of the complaint. The court found that the FEC did not consider the 

merits but simply stated that the issues had been resolved in MUR 1891.

The court ruled that it lacked jurisdiction by virtue of the 60-day time bar and accordingly granted the FEC’s motion 

to dismiss the suit.

In affi rming the lower court’s decision, the appeals court found that the district court had “correctly concluded 

that appellant’s fourth administrative complaint raised issues ‘substantially similar’ to those resolved in a previous 

complaint, and that appellant’s petition for judicial review was therefore untimely.”

Source: FEC Record, April 1992, p. 8; and April 1993, p. 10. , April 1992, p. 8; and April 1993, p. 10.
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OHIO DEMOCRATIC PARTY v. FEC (98-0991)

RNC v. FEC (98-1207 and 98-5263)

On June 25, 1998, the U.S. District Court for the District of Columbia denied motions by the Ohio (ODP) and 

the Republican National Committee (RNC) for a preliminary injunction to prevent the FEC from enforcing its 

allocation regulation found at 11 CFR 106.5 and interpreted in AO 1995-25. The regulation and advisory opinion 

require the plaintiffs to pay a portion of their federal election-related advertisement costs with hard money, or 

funds that comply with the law’s contribution limits and prohibitions. Both committees fi led suits charging that 

application of the allocation regulation to issue advocacy advertisements was unconstitutional. The two suits were 

subsequently consolidated.

On November 6, 1998, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed the lower court ruling 

that denied the RNC’s and the ODP’s motion for a preliminary injunction.

On August 27, 2002, in light of the recent enactment of the Bipartisan Campaign Reform Act of 2000 (BCRA), the 

plaintiffs and defendants agreed to the dismissal of this case. 

Background

The ODP and RNC charged that the FEC’s allocation regulation violates the First and Fifth Amendments to the 

Constitution, and that the FEC lacks the authority to promulgate rules such as this. The ODP and RNC further 

alleged that the allocation regulation exceeds the FEC’s authority because it regulates issue advocacy communications, 

not merely communications that expressly advocate the election or defeat of a federal candidate. The plaintiffs told 

the court that they would suffer irreparable harm if the injunction was not granted. 

Rules for Preliminary Injunction

A preliminary injunction may be granted when:

• There is a substantial likelihood that the plaintiffs will succeed on the merits of the case;

• The plaintiffs will suffer irreparable harm if an injunction is not issued;

• An injunction will not substantially injure others; and

• An injunction will serve the public interest.1

District Court Decision

In denying the motion for a preliminary injunction, the court stated that the ODP and RNC were not likely to 

prevail on the merits of their claims and that the plaintiffs would not suffer irreparable injury if the injunction 

was not issued.

First Amendment Challenge

The plaintiffs argued that no compelling interest supported the FEC’s allocation regulations, but the court recognized 

that the regulation prevents the appearance of corruption that could result if soft money was spent to infl uence 

federal elections. As the court explained: “The FEC is not seeking a spending cap on advertisements that infl uence 

federal campaigns, but rather is attempting to ensure that political parties do not facilitate any impression that wealth 

can buy access to our important federal decision makers.”

Fifth Amendment Challenge

The ODP argued that it and other party committees are being treated differently than other types of organizations 

since they must fund issue advertising with a mix of hard and soft money. Organizations that are not political 

committees, such as corporate and labor organizations, may fund issue advertising completely with nonfederal 

funds. The court recognized the party committees’ “unique burden,” but noted that party committees also have 

“special benefi ts” under the Act. The court concluded that the FEC should be given the opportunity to develop 

evidence of “special corruption problems” associated with the parties’ use of soft money to fi nance ads that 

infl uence federal elections.

Regulatory Powers

The plaintiffs also argued that the FEC lacked the authority to promulgate the allocation rules. The court, however, 

pointed out that Congress gave the Commission extensive rulemaking and enforcement powers. Further, the court 

noted that the Commission had submitted the regulation in question to Congress for review, and neither chamber 

had disapproved it.
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The court dismissed the plaintiffs’ claims that they would suffer irreparable injury if the injunction was not granted. 

The court stated that: “Instead, it is the public who would be harmed if the FEC was enjoined from enforcing (its 

allocation regulations). If the public were to conceive that each Congressperson elected in the 1998 elections were 

improperly infl uenced by large donations to their political parties which were later funneled into issue advertisements 

with a clear electioneering message, public confi dence in our system of government is likely to be further eroded.”

Appeals Court Decision

On November 6, 1998, the appeals court affi rmed the lower court ruling that denied the RNC’s and the ODP’s motion 

for a preliminary injunction. In September 1998, the appellate court had denied the parties’ emergency motion for an 

injunction pending appeal of the district court decision.

In taking up the matter on a nonemergency basis, the appellate court stated that the RNC and ODP had failed to 

show that they were likely to be successful on the merits of the case or that they would suffer irreparable harm if an 

injunction were not granted.

The court found “scant” evidence the RNC and ODP would suffer irreparable harm, citing the two parties’ own 

affi davits fi led in this case. The RNC had stated that, if forced to follow the FEC’s regulation, it would have “to divert 

hard money from federal, candidate support.” Likewise, the ODP strategized that it would be able to spend more on 

issue advocacy advertisements and free up federal funds to support the election of federal candidates if it did not 

have to follow the allocation rule. In light of such “weak evidence,” the court stated that the RNC and ODP had to 

show an exceptional likelihood that they would succeed in this case on its merits. This they did not do. Thus, the court 

denied the injunction.

Agreed to Dismiss

On August 27, 2002, in light of the recent enactment of the Bipartisan Campaign Reform Act of 2000 (BCRA), the 

plaintiffs and defendants agreed to the dismissal of this case. The Republican National Committee (RNC) had asked 

the U.S. District Court for the District of Columbia to enjoin the Commission from applying its allocation regulation 

at 11 CFR 106.5 to the RNC’s “issue ads.” The RNC claimed that the regulation was unconstitutional because it 

required party committees to allocate expenses between their federal and nonfederal accounts for communications 

that did not expressly advocate the election or defeat of a clearly identifi ed candidate.

The BCRA bars national party committees from raising and spending nonfederal funds. As a result, the Commission 

has promulgated a new regulation at 11 CFR 106.5, which states how national party committees may spend nonfederal 

funds for limited purposes during the transition period between November 6, 2002, when the BCRA took effect, and 

December 31, 2002, after which national party committees may no longer spend nonfederal funds.2

Source: FEC Record, August 1998, p. 5; November 1998, p.1; and January 1999, p. 2. August 1998, p. 5; November 1998, p.1; , August 1998, p. 5; November 1998, p.1; and January 1999, p. 2. August 1998, p. 5; November 1998, p.1; 

and January 1999, p. 2; Record, December 2002, p. 13. , December 2002, p. 13. 1 Citifed Fin. Corp. v. Offi ce of Thrift Supervision, 58 F. 3d 738, 746 (D.C. Cir. 1995). 2

 The Commission’s new regulations, “Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money,” were published in 

the July 29, 2002, Federal Register (67 FR 49064). See the September 2002 Record, p.1, for a summary. , p.1, for a summary. 
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ORLOSKI v. FEC

Background

On June 11, 1983, Mr. Orloski fi led a complaint with the Commission concerning a picnic sponsored by a senior 

citizens group to allegedly infl uence the election of Mr. Orloski’s general election opponent, Congressman Donald L. 

Ritter. Mr. Orloski claimed that the picnic was a political event and thus: (1) corporate funding of the picnic constituted 

prohibited contributions to Mr. Ritter’s reelection campaign and (2) the senior citizens group’s sponsorship of the 

event caused it to become a political committee subject to the Act. 

The Commission had dismissed a similar complaint from Mr. Orloski a year earlier. While challenging the FEC’s 

dismissal of his fi rst complaint in the district court (Civil Action No. 83-0026), Mr. Orloski made factual allegations 

that were not contained in the original complaint. Accordingly, in May 1983, the district court issued an order and 

stipulation which dismissed the case but which allowed Mr. Orloski to fi le a second complaint with the FEC. The 

FEC considered Mr. Orloski’s second complaint and, on October 4, 1983, once again found no reason to believe that 

the respondents named in the complaint had violated the election law. As a result of the FEC’s action, Mr. Orloski 

decided to fi le a second suit against the Commission (Civil Action No. 83-3513). 

Second Suit, District Court’s Ruling

On December 6, 1984, the U.S. District Court for the District of Columbia granted the FEC’s motion for summary 

judgment in Orloski v. FEC. The court found that the Commission’s decision to dismiss Mr. Orloski’s second 

administrative complaint was not arbitrary or capricious. 

The district court concluded that the FEC had not acted contrary to law in fi nding “no reason to believe” that the 

respondents named in Mr. Orloski’s second administrative complaint had violated the election law. The court held 

that the FEC had properly concluded that the picnic sponsored by the senior citizens was not a political event and 

therefore not subject to the prohibitions and requirements of the election law. Specifi cally, the court confi rmed the 

FEC’s determination that: (1) there were no communications at the picnic that expressly advocated Congressman 

Ritter’s election or Mr. Orloski’s defeat (e.g., name tags worn by Congressman Ritter’s staff); and (2) there was no 

evidence to indicate that contributions to Congressman Ritter’s campaign were either solicited or accepted at the 

picnic. The court concluded, “Orloski does not offer any compelling reason to believe the FEC was arbitrary in 

applying the two part test discussed above. Instead, Orloski attempts to convince the Court to apply a new test of 

holding any event not funded from funds appropriated to a congressional offi ce to be a political event....There is 

simply no support in the statute, legislative history, or judicial decisions construing the Act to support this broad test 

of political events.”

Nor did the court fi nd merit in Mr. Orloski’s contention that the election law requires the FEC to investigate a 

complaint unless the complaint fails to allege violations of the election law. The court found that “rather than requiring 

the Commission to investigate all facially valid complaints...the Commission may consider all the information before 

it and exercise its own informed discretion.... Thus the task of a court reviewing a Commission determination not 

to investigate a facially valid complaint is to determine whether on the basis of all the information available to the 

Commission, the decision not to investigate was arbitrary or capricious. Here it is clear....that the Commission’s 

decision met this standard.”

On January 9, 1985, Mr. Orloski appealed the district court’s ruling. 

Appeals Court’s Ruling

On July 11, 1986, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed a district court decision 

that the Commission’s dismissal of an administrative complaint fi led by Mr. Richard Orloski in June 1983 was not 

arbitrary or capricious. (Civil Action No. 85-5012)

To determine whether the picnic sponsored by the senior citizens group was a political event, subject to the prohibitions 

and requirements of the election law, the FEC had applied a two-part test, i.e., (1) whether any communications at the 

picnic expressly advocated Representative Ritter’s election and (2) whether contributions to Representative Ritter’s 

campaign were either solicited or accepted at the picnic. 

In deferring to the FEC’s use of this two-part test for determining whether such events are political, the appeals 

court held that:

• “The FEC’s interpretation represents a ‘reasonable accommodation’ between the Act’s objectives and 

administrative exigencies.”

• “The FEC has consistently adhered to this interpretation without Congressional objection, for at least 

eight years.”
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• “The recent history of the Act leads us to believe that Congress would approve of the line drawn by the FEC” 

between political and nonpolitical events. In particular, in amending the election law in 1979, Congress did not 

modify the FEC’s interpretation of a campaign-related event. 

The court then affi rmed as reasonable the FEC’s use of this two-part test to dismiss Mr. Orloski’s administrative 

complaint. While noting that one part of the test (i.e, whether contributions were solicited) was not relevant to the 

picnic, the court held that the respondents had “strictly adhered to the FEC’s narrow guidelines” for the second part 

of the test. None of the communications made in conjunction with the picnic expressly advocated Congressman 

Ritter’s reelection. Accordingly, since the FEC properly determined that the picnic was not a political event, the 

court also confi rmed the FEC’s determination that corporate funding of the picnic did not constitute prohibited 

contributions to Mr. Ritter’s reelection effort. 

Finally, the court rejected Mr. Orloski’s procedural challenges to the FEC’s dismissal of his complaint. Specifi cally, 

Mr. Orloski claimed that, after giving the respondents an opportunity to reply to the allegation in his administrative 

complaint, the FEC should either have: (1) allowed Mr. Orloski to answer the respondents’ replies or (2) made its 

“reason to believe” determination solely on the basis of Mr. Orloski’s allegations. 

The court rejected these procedural challenges on grounds that:

• “Section 437g(a)(1) requires the FEC to notify parties charged in a complaint and to give them the opportunity 

to respond”;

• Since none of the facts of the case were in dispute, the FEC’s conclusion would not have been affected by Mr. 

Orloski’s replies; and

• Finally, before fi ling his fi rst district court suit, Mr. Orloski did, in fact, have an opportunity to respond to the 

respondent’s replies concerning the allegations in his administrative complaint. 

Source: FEC Record, February 1984, p. 8; February 1985, p. 5; and September 1986, p. 5. , February 1984, p. 8; February 1985, p. 5; and September 1986, p. 5.

Orloski v. FEC, No. 83-3513 (D.D.C. Dec. 6, 1984) (mem. opinion), aff’d, 795 F.2d 156 (D.C. Cir. 1986). , 795 F.2d 156 (D.C. Cir. 1986). 

CITIZENS FOR PERCY ’84 v. FEC (84-2653)1

On November 19, 1984, the U.S. District Court for the District of Columbia issued an opinion in Citizens for Percy 

’84 v. FEC ’84 v. FEC (Civil Action No. 84-2653) stating that the FEC’s delay in acting on an administrative complaint fi led on (Civil Action No. 84-2653) stating that the FEC’s delay in acting on an administrative complaint filed on

April 26, 1984, by Citizens for Percy ’84 (the Committee) was contrary to law. (The Committee was former Senator 

Charles H. Percy’s principal campaign committee for his 1984 reelection campaign.) The court also ordered the FEC 

to conform its conduct to the decision within 30 days of the court’s order. See 2 U.S.C. §437g(a)(8). 

Background

On August 26, 1984, the Committee had petitioned the district court to declare that the FEC’s failure to act on its 

administrative complaint was contrary to law. See 2 U.S.C. §437g(a)(8)(A). In the complaint, the Percy campaign had 

claimed that media expenditures made by Michael Goland on behalf of Rep. Thomas Corcoran, Senator Percy’s 

opponent in the Illinois Senate primary, were coordinated with the Corcoran campaign. The Percy campaign had 

alleged that, since the expenditures were not independent, Mr. Goland had violated the election law by making 

excessive in-kind contributions to the Corcoran campaign. See 2 U.S.C. §441a(a)(1)(A). Moreover, the Corcoran 

campaign had violated the law by accepting the contributions. See 2 U.S.C. §441a(f). 

Court’s Ruling

Noting that the FEC had not found reason to believe the respondent had violated the election law until October 

2, 1984, more than fi ve months after the Committee had fi led its administrative complaint, the court concluded 

that the FEC had acted contrary to law. The court reasoned that, since Senator Percy’s reelection campaign had 

been the “focus...of tremendous national interest,” the agency did not have the discretion to give the complaint 

routine treatment. 

Source: FEC Record, January 1985, p. 6. , January 1985, p. 6. 

Citizens for Percy ’84 v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9215 (D.D.C. 1984). 1 Citizens for Percy ’84 v. FEC (85-0763) was dismissed. See Antosh v. FEC (85-1410). (85-0763) was dismissed. See Antosh v. FEC (85-1410).
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PEROT ’96 and NATURAL LAW PARTY v. 

FEC and THE COMMISSION ON PRESIDENTIAL DEBATES

On October 4, 1996, the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court ruling that 

dismissed lawsuits against the FEC and the Commission on Presidential Debates (CPD). The suits had been fi led by 

two Presidential hopefuls who, among other things, sought to participate in the Presidential debates.

The Complaints

One suit was fi led by Ross Perot and Pat Choate, the Presidential and Vice Presidential candidates for the Reform 

Party, and Perot ’96. A similar suit was fi led by the Natural Law Party (NLP) and its Presidential and Vice Presidential 

candidates, John Hagelin and Mike Tompkins.

The two campaigns fi led the suits in U.S. District Court for the District of Columbia after the CPD excluded the 

candidates from a list of participants for three nationally televised debates. Previously, in September, Perot ’96 and the 

NLP had fi led administrative complaints with the FEC, but, because of procedures set forth in the Federal Election 

Campaign Act (the Act), resolution of those complaints was not expected before the debates started in October.

Both suits contended that the CPD had violated FEC rules governing nonpartisan candidate debates at 11 CFR 

113.10 and the Perot suit alleged that the CPD’s acceptance of corporate donations to pay for the debates violated the 

Act’s ban on corporate contributions at 2 U.S.C. §441b.

The Perot suit asked the court:

• To instruct the FEC to order the CPD to invite the Reform Party nominees to the scheduled debates or to 

cancel all the debates being staged by the CPD;

• To fi nd that the CPD does not qualify for the exemption permitting certain corporations to use corporate 

money to conduct candidate debates, and that the CPD failed to fi le as a political committee and accepted 

excessive contributions;

• To prevent any additional corporate contributions to or expenditures by the CPD for the purpose of intervening 

in the 1996 Presidential campaign by sponsoring Presidential debates;

• To fi nd that the CPD violated 11 CFR 110.13(c) by making party affi liation the sole criterion for selecting 

participants and for failing to use “objective criteria” as required by the FEC rules in selecting participants;

• To fi nd that the CPD violated 11 CFR 110.13(a) by selecting only the two major parties’ political candidates;

• To fi nd that the FEC unlawfully delegated authority to the CPD to establish the criteria for selecting participants 

in the debates;

• To fi nd that the FEC’s regulations governing candidate debates at 11 CFR 110.13 are outside the scope of the 

agency’s authority; and

• To fi nd that the FEC and CPD violated Mr. Perot’s and Mr. Choate’s Constitutional rights under the First, 

Fifth and Fourteenth Amendments.

The NLP suit asked the court:

• To enter a temporary restraining order and issue preliminary and permanent injunctions, preventing the 

CPD from staging the debates unless it selects debate participants using pre-existing, objective criteria and to 

provide the court with a list of those criteria; or, in the alternative,

• To order the FEC, prior to the debates, to take action on the administrative complaint that contended that the 

CPD had violated FEC regulations.

District Court Decision

The court combined the suits for oral argument and dismissed both cases on October 1, 1996.

The court concluded that it had no jurisdiction in the matter. First, as mandated by Congress, the FEC has exclusive 

jurisdiction to hear complaints alleging violation of the Act, and the plaintiffs have no private right of action against 

the CPD. Second, the FEC has 120 days to act on an administrative complaint before the court may become involved. 

2 U.S.C. §437g.1
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In addition, the court weighed the potential damage to Mr. Perot, Dr. Hagelin and their running mates from not 

participating in the debates and found that such damage could be partially remedied in later court proceedings—for 

example, before the next Presidential election four years from now—and that the damage they incurred did not 

“outweigh the public interest in allowing the debates to go forward without interference.”

Specifi cally as to Mr. Perot’s arguments, the court also found no likelihood of success on the merits of the claim that 

the CPD had violated the candidate’s Constitutional rights because he had not shown that the CPD is a state actor 2 

or that the FEC had delegated any of its authority to the CPD. Also, the court upheld the FEC regulations at 11 

CFR 110.13(a) that allow nonprofi t, nonpartisan corporations to stage debates in certain circumstances and, under 

11 CFR 114.4(f), to accept contributions from corporations to put on such events without the funds being considered 

illegal campaign contributions or expenditures.

Appeals Court Decision

Because of expedited procedures, the appeals court heard the case two days after the district court handed down 

its ruling. The appeals court affi rmed the lower court’s decision that it lacked jurisdiction to take action on the 

alleged violation of the Act or to order the FEC to resolve the complaints prior to the CPD-sponsored debate on 

October 6. In explaining this decision, the court said, “Congress could not have spoken more plainly in limiting the 

jurisdiction of federal courts to adjudicate claims under the FECA.” The court said, “We assume that in formulating 

these procedures Congress...knew full well that complaints fi led shortly before elections, or debates, might not be 

investigated and prosecuted until after the event.”

The NLP’s arguments that the delay would cause “irreparable harm” to its candidates and that the impending debates 

constituted extraordinary circumstances, requiring a waiver of the Act’s procedures, were rejected by the court. 

Further, the court said that if it were to enjoin the CPD from carrying off the debates or selecting participants, it 

might risk violating the CPD’s First Amendment rights.

The court also rejected Mr. Perot’s allegation that the FEC had delegated its authority to the CPD by prescribing 

regulations that allow organizations that are staging debates to create their own “objective criteria” to determine 

who may participate. See 11 CFR 110.13(c). The court said, “A regulation’s use of a term that may be susceptible 

to differing interpretations does not automatically result in a delegation of authority to entities that it governs.” 

The court also observed that even if the FEC were to immediately revise its debate regulations (in response to the 

complaint), the agency could not complete the task in time for the debates. Under the Act, new regulations do not 

become effective until 30 legislative days after the FEC transmits them to Congress.

With regard to Mr. Perot’s challenge to the debate regulations themselves, the appeals court observed that the district 

court had not had the benefi t of the administrative record and that the issue had not been fully briefed. Consequently, 

the appeals court vacated the district court’s decision upholding the regulation and remanded and remanded the claim to the district the claim to the district

court with instructions to dismiss without prejudice. (Mr. Perot would then be free to fi le a new suit on the same issue.) 

In all other respects, the appeals court affi rmed the district court’s order.

Source: FEC Record, November 1996, p. 1. , November 1996, p. 1.

Perot v. Federal Election Commission, 97 F.3d 553 (D.C. Cir. 1996). 1 Section 437g(a)(8) allows a complainant to fi le suit against the FEC only for dismissing his complaint or for failing to act on it within 

120 days after the complaint was fi led.

2 Only government entities (or state actors), not private groups, are subject to the Constitutional violations alleged by Mr. Perot.
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PEROT ’96 v. FEC (98-1022)

On April 12, 1999, the U.S. District Court for the District of Columbia dismissed this case with prejudice at the 

plaintiff’s request.

Perot ’96, the 1996 committee of former Reform Party Presidential candidate Ross Perot, had asked the court to fi nd 

that the FEC acted contrary to law in dismissing an administrative complaint that Perot ’96 had fi led against the 

Commission on Presidential Debates (CPD). The CPD had sponsored the 1996 Presidential debates to which Mr. 

Perot was not invited to participate.

Perot ’96 had asked the court to order the FEC to take action on the complaint or to fi nd that the agency’s regulations 

governing nonpartisan candidate debates were unconstitutional. 11 CFR 110.13 and 114.4(f). 

Perot ’96 contended—as it did in previous litigation—that the FEC lacked the authority to promulgate such 

regulations, and that the regulations constitute an illegal exception to the statutory ban on corporate contributions 

and expenditures under 2 U.S.C. §441b. While the law generally prohibits corporations from making contributions or 

expenditures in connection with federal elections, Commission regulations make an exception for bona fi de nonprofi t 

corporations to sponsor public debates among candidates, provided they follow rules for conducting such debates. 11 

CFR 110.13 and 114.4(f). Perot ’96 stated that, if the court fi nds that these regulations are unconstitutional, it should 

then declare that all expenditures made or contributions received by the CPD are unlawful under the Federal Election 

Campaign Act (the Act).

In September 1996, Perot ’96 fi led an administrative complaint alleging that the CPD had violated Commission 

regulations in the formulation of its debate participant selection criteria. Specifi cally, Perot ’96 charged that the CPD 

had used subjective criteria to select debate participants, contrary to the Commission’s regulations that state that 

objective criteria must be used in the selection process. It stated that such criteria as polling results and the opinions 

of journalists were too subjective. Perot ’96 also charged that the Democratic and Republican national committees 

had colluded with the CPD, ensuring that their nominees would be debate participants and violating the debate 

regulations’ proscription against CPD’s selecting debate participants solely by their party affi liations.

In February 1998, the Commission voted to reject the FEC General Counsel’s recommendation that the CPD 

had violated Commission regulations on debates and that, as a result, the CPD had made prohibited corporate 

contributions to the Clinton/Gore and Dole/Kemp committees, that those committees had accepted prohibited 

contributions, and that the CPD was a political committee that had failed to register or report.

Prior to the Commission’s vote, in October 1997, Perot ’96 had fi led another lawsuit, charging the FEC with delaying its 

investigation of the administrative complaint (Perot ’96 v. FEC, 97-2554). After the FEC dismissed the administrative 

complaint in February, both Perot ’96 and the Commission agreed to the dismissal of that case. 

Source: FEC Record, June 1998, p. 3; and June 1999, p. 1. , June 1998, p. 3; and June 1999, p. 1.
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READER’S DIGEST ASSOCIATION v. FEC

On March 19, 1981, the U.S. District Court for the Southern District of New York denied a preliminary injunction 

sought by the Reader’s Digest Association, Inc. (RDA) to bar an FEC investigation of RDA. The FEC had initiated 

the investigation as the result of a complaint brought against plaintiff in August 1980. The complaint alleged that 

RDA had violated 2 U.S.C. §441b(a) by making an “illegal corporate expenditure to negatively infl uence” the 1980 

Presidential elections. On November 11, 1980, the Commission found “reason to believe” that RDA may have violated 

441b(a) by distributing a video tape to major media outlets that provided a computer reenactment of Senator Edward 

Kennedy’s automobile accident at Chappaquiddick. RDA had produced the tape in connection with the publication 

of an article on the accident, which appeared in Reader’s Digest in February 1980. The court noted that the FEC’s 

fi nding did not mention expenditures for researching and publishing the article itself. 

The FEC sent the publishing company a letter requesting answers to 15 questions concerning the content of the video 

tapes, how RDA had obtained the tapes and what use RDA had made of them. The FEC did not order a reply to its 

questions; nor did it issue a subpoena.

RDA’s Claims

In its suit asking the court to bar the FEC investigation, RDA contended that responding to the FEC’s investigation 

would have a “chilling effect” on its First Amendment right to comment freely on newsworthy events. Plaintiff 

asserted that publishers would be more reluctant to take on controversial political stories if they resulted in costly, 

time-consuming FEC investigations. Moreover, plaintiff claimed that expenditures for the tapes were news story 

expenditures explicitly exempted from the defi nition of “contribution” or “expenditure” by 2 U.S.C. §431(9)(B)(i). As 

such, the tapes constituted a type of press activity beyond the scope of FEC regulation.

FEC’s Argument

The FEC, on the other hand, contended that its investigation was still in the preliminary stage, a fact that precluded 

any detrimental effect on RDA’s news operations. Moreover, the FEC pointed out that since the Act’s enforcement 

procedures provided RDA with an opportunity to respond to FEC fi ndings at each stage of the investigation, the 

issues raised by plaintiff were not ripe for court action. The FEC further contended that the investigation was lawful 

and should not be barred.

District Court Ruling

The district court said that, “There should be no question that the FEC is authorized by statute to pursue its 

investigation at least for the limited purpose of determining whether the press exemption is applicable.” Specifi cally, 

the court noted that the FEC’s investigation must fi rst determine “whether the press entity is owned by a political 

party or candidate and whether the press entity [was] acting as a press entity in making the distribution complained 

of ...or whether it was acting in a manner unrelated to its publishing function.”

The court noted that the FEC had limited the scope of its investigation to distribution of the video tapes, suggesting 

to the court the FEC’s recognition that the research and publication of the article were on their face exempt functions. 

The court therefore concluded that there was “no basis to grant the injunction sought by RDA” as long as the 

FEC investigation asked “the limited question of whether RDA was acting in its magazine publisher capacity in 

distributing the tape, so as to determine whether the press exemption is applicable, and so long as the investigation 

does not address itself to issues beyond this proper subject.”

Pending a determination of whether RDA’s distribution of the tapes is covered by the news story exemption, the 

court believed that certain types of questions would be beyond the permissible scope of an FEC investigation as, 

for example, inquiries into the information sources for the tape or what uses others made of the tape. The court did, 

however, approve the Commission’s questions concerning distribution of the tape and its request for a copy of the 

tape. 

The court noted that RDA could reapply for an injunction if the FEC pursued its investigation beyond the permissible 

scope outlined in its opinion. 

Final Action by FEC and Court

In the ensuing investigation, the Commission did not uncover any evidence to suggest that the distribution was 

outside the scope of RDA’s functions as a publisher. In August 1981, therefore, the Commission found no probable 

cause to believe RDA had violated 2 U.S.C. §441b. 

On October 30, 1981, the U.S. District Court for the Southern District of New York issued a stipulation and order 

dismissing Reader’s Digest Assoc., Inc. v. FEC Reader’s Digest Assoc., Inc. v. FEC (Civil Action No. 81 Civ. 596 (PNL)). (Civil Action No. 81 Civ. 596 (PNL)). 

Source: FEC Record, May 1981, p. 5; and February 1982, p. 9. , May 1981, p. 5; and February 1982, p. 9. 

Reader’s Digest Association, Inc. v. FEC, 509 F. Supp. 1210 (S.D.N.Y. 1981). 
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REAGAN-BUSH COMMITTEE v. FEC

On December 10, 1981, the U.S. Court of Appeals for the District of Columbia Circuit denied an injunction barring 

the FEC from releasing an interim audit report of the Reagan-Bush Committee’s (the Committee’s) publicly funded 

general election campaign. The Committee had sought the injunction pending its appeal of an earlier decision by the 

district court, which had also denied its motion for an injunction (Reagan-Bush Committee v. FEC; Civil Action No. 

81-1893). The appeals court found no merit in the Committee’s argument that release of the interim audit report would 

cause the Committee “irreparable harm,” especially “in the absence of clear Congressional intent that interim audit 

reports are not to be made public.” Moreover, the court held that appellant’s motion was “particularly inappropriate 

in the light of the well established policy that courts should not interfere in an interim agency action when Congress 

has enacted special statutory procedures for review of the fi nal result.”

Background

In fi ling its suit with the district court on August 10, 1981, the Committee had asked the court to issue an order:

• Preliminarily enjoining the FEC from releasing an interim audit report dealing with the Committee’s campaign; 

and

• Requiring disclosure of certain materials under the Freedom of Information Act (FOIA). The plaintiff had 

also asked the court to enjoin the FEC from taking any further action with respect to the Committee’s “alleged 

violations” of the Act or repayments of public funds recommended by the FEC, until the Commission:

• Made available all the documents requested by the Committee under the FOIA;

• Provided the Committee with a further opportunity to respond to the alleged violations and recommended 

repayments; and

• Conducted a hearing on these disputed matters. 

District Court Ruling

In granting the FEC’s motion for summary judgment in the suit, the district court ruled that the interim audit report was 

not a fi nal FEC determination on repayments and that the “FEC audit process leading to repayment determinations 

is replete with procedural protections” that would allow the Committee to dispute any FEC audit fi ndings before the 

Commission made a fi nal repayment determination. Moreover, the court pointed out that repayment determinations 

and the procedure for enforcing violations of the election law are treated as two different functions under the statutory 

scheme and by the FEC in practice. The court concluded, therefore, that the Committee’s “fears of disclosure of 

information relating to alleged violations are groundless.. .. “

Plaintiff further claimed that public disclosure of the interim audit report was barred by 2 U.S.C. §437g(a)(12). 

The court found, however, that this provision applied only to enforcement proceedings initiated under the Act (i.e., 

investigations into alleged violations of the Act); separate provisions spelled out procedures for conducting audits 

and making repayment determinations with regard to publicly funded Presidential candidates. (See 26 U.S.C. §9007(a) 

and (b).)

Refuting plaintiff’s claim that the Presidential audit information could be disclosed only to Congress, the district 

court affi rmed the FEC’s argument that such reports must be made public by law. 26 U.S.C. §9007 and 9009(a). “The 

public has a right to know, and promptly, how its monies are spent by Presidential campaign committees.” Moreover, 

the court affi rmed the FEC’s position that the audit report was subject to disclosure under the FOIA. 

The district court also dismissed without prejudice plaintiff’s petition for a court order requiring the FEC to disclose 

certain information the Committee had requested under the FOIA. The court found that the Committee had “never 

specifi ed to the court which documents should be disclosed” and had “not challenged the FEC’s assertion” that the 

FEC had substantially complied with the Committee’s requests for information available under the FOIA. 

The Commission released the fi nal audit report for the Reagan-Bush campaign on December 11, 1981. 

Source: FEC Record, February 1982, p. 7. , February 1982, p. 7. 

Reagan-Bush Committee v. FEC, 525 F. Supp. 1330 (D.D.C. 1981). 
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REFORM PARTY OF THE USA v. JOHN J. GARGAN

On March 27, 2000, the U.S. District Court for the Western District of Virginia, Lynchburg Division, resolved a 

Reform Party leadership dispute. 

The court previously had ordered the Reform Party to transfer to the registry of the court approximately $2.5 million 

in public funds—funds that the Party had received to fi nance its 2000 Presidential nominating convention. Once the 

court determined the rightful leadership of the Party, the funds were to be returned to the Reform Party. 

In its decision, the court concluded that members of the National Committee of the Reform Party had duly removed 

John J. Gargan and Ronn Young as Party Chairman and Treasurer, respectively, at a Nashville, Tennessee, meeting 

on February 12, 2000. The members voted to replace them with Pat Choate and Tom McLaughlin as Interim Party 

Chairman and Treasurer, respectively. As a result, the court enjoined Mr. Gargan and Mr. Young from acting as 

offi cers or authorized representatives of the Reform Party, including its Convention Committee. 

Having resolved the leadership dispute, the court ordered that the public funds for the Party’s Presidential nominating 

convention should be released to Gerald Moan, the duly appointed Chairman of the Party’s convention committee. 

Based on an amicus brief fi led by the Federal Election Commission (FEC), which took no position on the leadership 

dispute, the court conditioned the release of the funds on the Party’s written acknowledgment of its obligations to 

comply with the agreements it had fi led with the FEC pursuant to 11 CFR 9008.3(a)(1). The court required the Party 

to deposit and maintain the public funds in an account registered with the FEC, and to notify the Commission of any 

changes to the information the Party provided in its original application for public funds. 

The court also ordered Mr. Gargan and Mr. Young to turn over all documentation regarding convention funding 

and disbursements made by the Convention Committee (or on its behalf) to the Reform Party in anticipation of the 

required post-convention audit by the FEC.

On March 29, 2000, the court received the Party’s written acknowledgment of its obligations, and the court 

subsequently released the public funds.

Mr. Gargan and Mr. Young appealed this case to the U.S. Court of Appeals for the Fourth Circuit.

Source: FEC Record, April 2000, p. 9; and July 2000, p. 8. , April 2000, p. 9; and July 2000, p. 8.

89 F. Supp 2d 751 (W.D. Va. 2000)

REFORM PARTY OF THE UNITED STATES v. JOHN HAGELIN

REFORM PARTY OF THE UNITED STATES v. GERALD M. MOAN

On September 15, 2000, the Superior Court of the State of California for the County of Los Angeles, South District, 

enjoined John Hagelin and his agents from representing Dr. Hagelin and Nat Goldhaber to the public as the Reform 

Party (the Party) Presidential and Vice-Presidential nominees. The court found that the votes taken fi rst to remove 

Gerald Moan as the Chair of the Party and to nominate James Mangia to that position, and subsequently to nominate 

John Hagelin as the Party’s Presidential candidate, violated the requirements of the Party’s constitution. The court 

further found that Patrick J. Buchanan and Ezola Foster were the properly nominated candidates of the Reform 

Party. 

The court granted a preliminary injunction enjoining Dr. Hagelin and his agents from:

• Soliciting donations on behalf of the Party, either from party members or from the general public;

• Distributing press releases or making any communications on behalf of the Party;

• Operating a web site on behalf of the Party;

• Making expenditures on behalf of the Party;

• Undertaking any effort or committing any act to promote John Hagelin and Nat Goldhaber as the offi cial 

candidates of the Reform Party; and

• Using the name of the “Reform Party of the United States” or any of the Party’s logos.

The U.S. District Court for the Western District of Virginia had previously dismissed a similar complaint fi led by 

the Party against Dr. Hagelin and Sue Harris DeBauche. That court found that the complaint did not fall within its 

jurisdiction.

Source: FEC Record, November 2000, p. 10. , November 2000, p. 10.
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REILLY v. FEC

On October 18, 1996, the U.S. District Court for the Northern District of California, Oakland Division, dismissed 

this case.

Clinton Reilly, doing business as California Democratic Voter Checklist, asked the court to stop the FEC’s investigation 

of him because he believed the Commission had no jurisdiction over his for-profi t operation.

Mr. Reilly’s slate mail business distributes lists of federal, state and local candidates and advocates their election 

or defeat. Mr. Reilly sold and donated space to candidates and initiative committees who wished to appear on a 

slate card that he distributed to voters. He said Checklist was not a political committee under the Federal Election 

Campaign Act (the Act).

As an alternative, Mr. Reilly asked the court to fi nd that his business had no reporting obligations under the Act other 

than reporting free or reduced-cost space on the voting slate as independent expenditures.

In a related case, FEC v. California Democratic Voter Checklist, the court resolved many of the same issues raised in 

Reilly in the Commission’s favor. Accordingly, both Mr. Reilly and the FEC agreed to the dismissal of this case.

Source: FEC Record, January 1997, p. 4. , January 1997, p. 4.

REPUBLICAN PARTY OF KENTUCKY v. FEC

On October 26, 1992, the U.S. District Court for the District of Columbia dismissed this suit without prejudice, as 

stipulated by both parties. (Civil Action No. 91-1064 (SSH).) The Republican Party of Kentucky had fi led suit alleging 

that the FEC had failed to act on the administrative complaint the Party had fi led in October 1990. The complaint 

alleged that the Democratic Party of Kentucky had exceeded the limits on contributions and party expenditures.

In stipulating to the dismissal of the suit, both parties agreed to the following terms:

• During the next 18 months, the Republican Party of Kentucky will not fi le a new action alleging that the FEC 

failed to act on the administrative complaint.

• Every six months, the Party will have access to a chronology of actions the FEC has taken on the complaint.

• The court’s September 1991 protective order will remain in effect until the FEC has taken fi nal action on the 

complaint. Under the protective order, any information on the complaint that is released to the Party must 

remain confi dential, and all court fi lings related to the complaint must be retained under seal.

Source: FEC Record, December 1992, p. 7. , December 1992, p. 7.

RIGHT TO LIFE OF DUTCHESS COUNTY, INC. v. FEC

On June 1, 1998, the U.S. District Court for the Southern District of New York determined that the Commission’s 

regulation at 11 CFR 100.22(b), which defi nes “express advocacy,” violates the First Amendment and enjoined the 

FEC from enforcing it. The court found that the regulation is “unconstitutionally overbroad” and beyond the scope 

of the Commission’s statute limiting corporate contributions.

On July 20, 1998, the court granted the FEC’s motion to clarify that its June ruling enjoined the FEC only from 

enforcing 11 CFR 100.22(b) against Right to Life of Dutchess County, Inc.

Background 

Right to Life of Dutchess County, Inc., (RLDC) is a not-for-profi t, membership corporation that advocates pro-life 

positions. RLDC said it does not intervene in political campaigns on behalf of or in opposition to any candidate for 

public offi ce; nor does it support or oppose federal candidates. However, the group intended, especially in the lead-up 

to the federal primary and general elections, to produce and distribute communications to the general public—using 

newsletters, voter guides, fl iers and other methods—that would comment favorably or unfavorably on the positions, 

qualifi cations and voting records (if applicable) of candidates running in 1998 primary and general elections. The 

court said there was little dispute that these publications were timed to infl uence voters when they went to the polls. 

RLDC contended that its proposed communications are permissible under the defi nition of “express advocacy” set 

forth in Buckey v. Valeo and Massachusetts Citizens for Life v. FEC (MCFL), but would violate 11 CFR 100.22(b).1
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In MCFL, the Supreme Court held that the Federal Election Campaign Act’s ban on corporate independent 

expenditures only applies when the money is used to “expressly advocate” the election or defeat of a clearly identifi ed 

candidate for federal offi ce. The Buckley decision lists examples of phrases that constitute express advocacy: “vote for,” 

“elect,” “support,” “vote against,” “defeat,” “reject.” These examples are codifi ed in subsection (a) of 11 CFR 100.22. 

However, in subsection (b), the Commission further defi nes express advocacy as a communication that, when taken 

as a whole and with limited reference to external events (such as proximity to an election), can only be interpreted 

by a reasonable person as unambiguously advocating the election or defeat of a clearly identifi ed candidate. This 

defi nition tracks the language of the U.S. Court of Appeals for the Ninth Circuit in FEC v. Furgatch.

2

RLDC stated that its proposed communications would not contain any of the phrases listed in Buckley and that 

it intended to pay for them with corporate funds. The group contended that the threat of FEC enforcement action 

against it for exercising what it considers its constitutional rights has chilled the First Amendment guarantee of free 

expression. 

District Court Decision

As a preliminary step, the court found that RLDC had standing to litigate this case. The court said that, in cases 

involving possible limits on First Amendment rights, a credible threat of prosecution is suffi cient injury to confer 

standing.

The court held that the Commission’s regulation is constitutionally invalid because it “encompasses substantially 

more communication than is permissible” under 2 U.S.C. §441b, as narrowed by the Supreme Court in Buckley and 

MCFL. It stated that the Supreme Court requirement of express or explicit words of advocacy (of the election or 

defeat of a candidate) is necessary to avoid prohibitions on “issue advocacy,” which is not regulated by the FEC and 

is protected by the First Amendment. The court also enjoined the FEC from enforcing part (b) of the regulation.

The court dismissed the Commission’s argument that RLDC could not bring a facial challenge against 11 CFR 

100.22(b) and instead had to wait until it had actually been injured by the regulation. The court stated that a facial 

challenge may be brought when (1) a statute or regulation is substantially overbroad and (2) there is a realistic danger 

that the statute or regulation will signifi cantly chill protected speech.

The court also rejected RLDC’s argument that the New York district court was bound by the decision from the 

First Circuit appellate court in Maine Right to Life Committee, Inc., v. FEC,

3 which found 11 CFR 100.22(b) to be 

unconstitutional. It is a well-settled principle in federal court that a decision in one circuit is not binding on federal 

courts in another circuit. 

Source: FEC Record, July 1998, p. 3; September 1998, p. 3. , July 1998, p. 3; September 1998, p. 3.

Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp.2d 248 (S.D.N.Y. June 1, 1998). 1 Buckley v. Valeo, 424 U.S. 1 (1976), and Massachusetts Citizens for Life v. FEC, 479 U.S. 238 (1986). 2 Furgatch v. FEC, 807 F.2d 857, (9th Cir. 1987). 3 Maine Right to Life Committee, Inc., v. FEC, 98 F.3d 1 (1st Cir. 1996) (per curiam).

RNC v. DNC and FEC

On November 1, 1996, the U.S. District Court for the District of Columbia dismissed a lawsuit brought by the 

Republican National Committee (RNC) against the FEC and the Democratic National Committee (DNC). The suit 

was triggered by the DNC’s initial decision not to fi le a pre-general election report.

The RNC fi led the suit on the same day it fi led an administrative complaint with the FEC alleging violations of the 

election law by the DNC.

In the lawsuit, the RNC claimed that the DNC had violated the law by failing to fi le the pre-general election report. 

The DNC responded that it had not made any contributions or expenditures on behalf of federal candidates that had 

not already been disclosed, so that, in its view, no report was required.

In the RNC’s view, a political committee must fi le a pre-general election report if it receives contributions or makes 

expenditures on behalf of federal candidates during an election cycle and not just if it receives a contribution during 

the reporting period. Moreover, the RNC said that the DNC had, in fact, made contributions during the time period 

covered by the pre-general report—October 1-16—because it had transferred thousands of dollars to the Democratic 

Congressional Campaign Committee and Democratic state committees.
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The RNC asked the court to:

• Require the DNC to fi le its pre-general election report prior to November 5, 1996,

• Direct the FEC to take expedited measures to require such fi ling, and

• Enjoin the DNC from making any expenditures until the report was fi led.

In a ruling from the bench, the court granted the FEC’s motion to dismiss the case on the grounds that the court did 

not have jurisdiction in the matter. The court based its decision on the recent appellate court decision in lawsuits fi led 

against the FEC by Presidential contenders Ross Perot and John Hagelin.

The Act gives the FEC exclusive jurisdiction to hear complaints alleging violations of the laws governing elections. In 

2 U.S.C. §437g(a)(8), the law allows complainants to fi le suit against the FEC only for dismissing their complaint or 

for failing to act within 120 days after the complaint is fi led. The RNC fi led its lawsuit in district court the same day 

that it fi led its administrative complaint with the FEC, falling well short of the 120-day period.

The court also dismissed the DNC from the complaint, saying that a private party had no right of action against 

another private party for alleged violations of the Act.

Thus, the court denied the RNC’s request for injunctive relief against the DNC and the FEC.

Source: FEC Record, December 1996, p. 4. , December 1996, p. 4.

RNC v. FEC (78-2783)

On June 16, 1978, the Republican National Committee (RNC) fi led a suit against the Commission challenging the 

constitutionality of certain provisions of the Presidential Election Campaign Fund Act which affect Presidential 

candidates who accept public funds for the general election. (The RNC also requested injunctive relief and the 

convocation of a three-judge district court to hear the case, in accordance with 26 U.S.C. §9011(6).) The provisions 

which the RNC challenged stipulate that, in order to receive any federal funds, Presidential candidates of a major 

party must agree not to make qualifi ed campaign expenses in excess of the amount of public funds they receive. 

Candidates must also certify that neither they nor any of their authorized committees will accept private contributions 

to defray qualifi ed campaign expenses, except to the extent necessary to make up any defi ciency in public funds. The 

RNC challenged these provisions on the following grounds:

• The statutory scheme (described above) violates the First Amendment because it restricts the ability of 

candidates, their political parties, supporters and contributors to communicate their ideas. 

• The RNC claimed that, because of legal and practical considerations, the Republican candidate must accept 

public fi nancing and thereby agree to comply with unconstitutional requirements. 

• The statutory scheme, according to the RNC, unconstitutionally discriminates against challenging candidates 

because incumbent Presidents have the advantage of free publicity and signifi cant resources attached to the 

executive branch (e.g., speechwriters, jet planes, etc.). 

• According to the RNC, the statutory scheme discriminates against candidates not politically allied with labor 

organizations, in violation of the First and Fifth Amendments. Under 2 U.S.C. §441b, labor organizations 

may spend unlimited funds to communicate with their members on political matters. Candidates without 

such labor support are disadvantaged, alleged the RNC, because no other group is in a position to expend 

such large sums for communication with voters and any expenditures which candidates make to communicate 

directly with voters count against their expenditure limits. 

• The RNC argued that the statutory scheme is overbroad. 

• The RNC asserted that the statutory scheme violates the people’s retained rights under the Ninth Amendment 

of the Constitution. 

The FEC fi led a motion to dismiss the suit, arguing that plaintiffs’ constitutional objections had been rejected by the 

Supreme Court in Buckey v. Valeo. Secondly, the Commission argued, plaintiffs’ description of how the statutory 

scheme of the Act would impact on the 1980 Presidential campaign is speculative and does not present a “ripe” 

controversy necessary to the exercise of judicial power. Further, the suit presents political questions not subject to 

judicial resolution. 
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The U.S. District Court for the Southern District of New York denied without prejudice the Commission’s motion to 

dismiss on November 30, 1978, and granted the RNC’s motion to convene a three-judge district court to hear the case. 

It also denied the motion of Common Cause to intervene, but permitted them to fi le briefs amicus curiae.

Supreme Court Ruling

On April 14, 1980, the U.S. Supreme Court unanimously affi rmed decisions by a three-judge court of the U.S. District 

Court for the Southern District of New York and the en banc United States Court of Appeals for the Second Circuit 

upholding the constitutionality of the Presidential Election Campaign Fund Act challenged in Republican National 

Committee v. FEC, originally fi led on June 16, 1978. The Court also denied a petition for certiorari seeking review of 

the suit’s dismissal by a single district judge. 

Source: FEC Record, February 1979, p. 5; and June 1980, p. 7. , February 1979, p. 5; and June 1980, p. 7. 

Republican National Committee v. FEC, 461 F. Supp. 570 (S.D.N.Y. 1978) (motion for the convening of a three-judge court granted D.C. 

Cir.), 487 F. Supp. 280 (S.D.N.Y. 1979) (three-judge court), 616 F.2d 1 (2d Cir.) (en banc), aff’d mem., 445 U.S. 955 (1980). 

RNC v. FEC (94-1017)

On February 20, 1996, the U.S. Court of Appeals for the District of Columbia Circuit affi rmed most of the district 

court’s decision upholding the FEC’s “best efforts” regulations. 11 CFR 104.7(b). The only part of the district court’s 

decision that the court of appeals did not affi rm was the FEC’s requirement that specifi c language accompany 

solicitations and follow-up requests for contributor information. The court of appeals found the mandatory language 

prescribed in the regulation to be misleading and therefore contrary to law.

The challenge to the “best efforts” regulations was fi led by the Republican National Committee (RNC), the National 

Republican Senatorial Committee and the National Republican Congressional Committee.

The “Best Efforts” Rules

The Federal Election Campaign Act (the Act) requires political committees to show best efforts to obtain and report 

the name, address, occupation and employer of any individual who makes contributions of more than $200 in a single 

year to the committee. 2 U.S.C. §§431(13), 432(i) and 434(b)(3)(A).

In 1994, due to low rates of disclosure of contributor information, the FEC implemented a regulation that defi ned 

“best efforts” to obtain contributor information. 11 CFR 104.7(b). This regulation required committees to place the 

following statement conspicuously on solicitation materials: “Federal law requires political committees to report the 

name, mailing address, occupation and name of employer for each individual whose contributions aggregate in excess 

of $200 in a calendar year.”

Additionally, this regulation required committees to send a stand-alone, follow-up request for contributor information 

in instances where the contributor failed to respond to the original request or provided incomplete information. The 

follow-up request also had to include the statement noted above. Committees were allowed to include an expression 

of gratitude for the contribution in this follow-up request, but no other extraneous information was permitted.

District Court Decision

Granting summary judgment to the FEC on July 22, 1994, the U.S. District Court for the District of Columbia 

rejected the RNC’s challenge to the “best efforts” regulations.

The RNC and the other plaintiffs had argued that the “best efforts” requirements violated free speech rights by 

impermissibly limiting the language and subject matter of solicitations. The court said that the committees’ arguments 

failed because the best efforts regulations are not compulsory but “merely [provide] a ‘safe harbor’ for any committee 

that is unable to obtain all of the required information.”

In a related argument, the RNC contended that the requirement for a follow-up request would curtail free speech 

by imposing additional costs on committees, leaving less money for political speech. The RNC claimed that this 

infringement was not justifi ed by a compelling government interest because compliance with the disclosure 

requirements had been suffi ciently high under the old rules.

Noting that the RNC did not introduce any evidence on the overall level of compliance, the court said that the 

added costs to the plaintiff committees—estimated at $1.50 to $6.00 per letter—was a “minimal burden” given the 

strong government interest in disclosure of contributor information. “This information,” the court said, “provides 

an ‘essential means’ to uncover violations of the FECA [Federal Election Campaign Act}, is critical to informing the 

electorate..., and deters corruption or even the appearance of corruption in the political system.”
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In another line of argument, the RNC claimed that the revised regulations contradicted legislative intent, citing a 

statement in a 1979 House committee report that the best efforts provision in the Act (2 U.S.C. §432(i)) did not require 

committees to make multiple requests for information. Describing the 1979 report as merely one Congressional 

committee’s post-enactment opinion that provided little assistance on how to interpret the intent of Congress in 1976, 

the court found it insuffi cient to overturn the FEC’s interpretation of best efforts.

Appeals Court Decision

The Legality of a Stand-Alone, Follow-Up Request

The court of appeals found the FEC’s “best efforts” regulations reasonable because nothing in the statute or its 

legislative history precluded the FEC from requiring committees to make more than one request for contributor 

information. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

The court also concluded that the regulations were based on a reasoned analysis. Motor Vehicle Mfrs. Ass’n v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983). The court noted that the FEC was concerned about the number 

of committees submitting reports with a low rate of complete contributor information. The FEC held a public 

comment period and drafted 11 CFR 104.7(b) based on the public comments it received. The court concluded, “the 

Commission’s new regulation results from exactly the kind of agency balancing of various policy considerations to 

which courts should generally defer.”

The Trouble With the Mandatory Language

The court did not question the FEC’s authority to require specifi c language on a follow-up request for 

contributor information. However, the court found that the mandatory language at 11 CFR 104.7(b) was 

inaccurate and misleading.

The language was inaccurate, the court said, because the Act does not require committees to report full contributor 

information for each donor; rather, it only requires them to undertake “best efforts” to obtain it. The court found that 

11 CFR 104.7(b) had the effect of forbidding a more accurate paraphrasing of the law, such as: “Federal law requires 

us to use our best efforts to collect the information.”

Additionally, the mandatory language was misleading, the court said, because it led readers to infer that federal 

law required contributors to disclose this information. In fact, neither the Act nor any other federal law requires 

contributors to do so.

For these reasons, the court ruled that the mandatory language at 11 CFR 104.7(b) was unreasonable and 

contrary to law.

First Amendment Issues

The RNC and the other plaintiffs posed First Amendment issues with regard to both the stand-alone, follow-up 

notice and the specifi c mandatory language at 11 CFR 104.7(b). Having invalidated the specifi c mandatory language 

on statutory grounds, the court only addressed the constitutional arguments put forth by the RNC with respect to 

the follow-up notice.

The RNC had argued that the requirement to incur additional costs to send out additional messages was not narrowly 

tailored to the interests the Supreme Court had identifi ed in Buckey v. Valeo. The court of appeals, however, found 

that the best efforts provision was essentially a safe harbor for political committees that was added to the Act after 

the Supreme Court upheld a more stringent and absolute FEC requirement in Buckley. As an optional safe harbor, 

it was thus less burdensome than the absolute disclosure requirement that had previously been found consistent with 

the First Amendment.

The court also noted that the stand-alone request was a content-neutral restriction on speech and that the RNC 

had other avenues, besides the follow-up notice, for communicating with donors. The court found unconvincing the 

RNC’s argument that the follow-up requirement sapped the committee’s resources. The court noted that: “Even at 

the [RNC’s] estimate of up to $6 per follow-up request, the cost is only about three percent of a $200 contribution, an 

amount not likely to inhibit political committees from ‘speaking.’”

Source: FEC Record, September 1994, p. 8; and April 1996, p. 10. , September 1994, p. 8; and April 1996, p. 10.

Republican National Committee v. FEC, No. 94-1017 (JHG) (D.D.C. July 22, 1994); No. 94-5248 (D.C. Cir. Feb. 20, 1996).
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RNC v. FEC (97-1552)

On April 7, 1998, the parties to this suit agreed to dismiss this case with prejudice and to pay their own legal expenses. 

The Republican National Committee (RNC) had asked the U.S. District Court for the District of Columbia to fi nd 

that the FEC’s dismissal of an administrative complaint it had fi led with the agency was contrary to law.

In its initial administrative complaint, fi led in 1995, the RNC had charged that the Democratic National Committee 

(DNC) had used impermissible nonfederal funds to pay all the expenses of a nationwide media campaign that 

highlighted the party’s legislative proposals for health care reform. Commission regulations require that if a political 

committee has both federal and nonfederal accounts, then it must allocate its administrative and generic expenses 

between those two accounts. 11 CFR 102.5. The Commission did not have four votes to proceed against the DNC 

and, therefore, voted unanimously to close the case. The RNC had fi led this lawsuit in response to that vote. 

Source: FEC Record, June 1998, p. 4. , June 1998, p. 4.

ROBERTSON v. FEC

On February 3, 1995, the U.S. Court of Appeals for the District of Columbia partially denied the petitioner’s request 

for review of the FEC’s fi nal repayment determination; the court did grant the petition with respect to one of four 

disputed expenditures. The court also rejected petitioner’s constitutional and statutory challenges.

Petitioner Marion (Pat) Robertson was an unsuccessful candidate for the 1988 Republican Presidential 

nomination. Petitioner’s campaign received more than $10 million from the FEC-administered Presidential public 

funding program. 

The FEC audits all campaigns which receive public funding and may seek a pro rata repayment for any expenditures 

that are in excess of statutory limits, that are not qualifi ed campaign expenses, or that lack suffi cient documentation 

to verify their campaign-related purpose.

After an audit and a public hearing, the FEC determined that petitioner was obligated to repay $290,793 in public 

funds. At issue were:

• Expenditures made in excess of the limit for the Iowa primary;

• Expenditures made in excess of the limit for the New Hampshire primary;

• Funds claimed to have been transferred between the campaign’s national and state accounts; and

• Expenditures made in connection with the candidate’s attendance at the 1988 Republican 

National Convention.

The FEC’s Repayment Determination

The court examined the four expenditures in question and arrived at the following decisions with respect to each.

Iowa Limit

Petitioner argued that $14,000 of a $20,000 deposit for telephone service in Iowa should not be counted against 

his Iowa expenditure limit because it was later refunded to the committee. The court found, however, that the FEC 

had reasonably concluded that the evidence provided by Robertson’s campaign committee did not establish that the 

refund was attributable to this Iowa deposit.

Transfer of Funds

Petitioner claimed that $17,000 purportedly transferred from the campaign’s national account to its state accounts 

was incorrectly characterized as nonqualifi ed expenditures. Petitioner did not present any supporting documentation 

to verify that this money actually had been deposited in the campaign’s state accounts or had been spent on qualifi ed 

campaign expenses. The court found the FEC’s demand for such documentation to be reasonable.

Attendance at the 1988 Republican National Convention

Petitioner argued that $74,000 in costs associated with his attendance at the convention, after he had withdrawn from 

the campaign, constituted valid winding down costs for which he could receive public funding. In support of this 

position, he argued that video and audio recordings of his speech at the convention were offered as an inducement in 

a fundraising mailing to retire his campaign debt. The FEC rejected this line of reasoning and the court concurred.
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New Hampshire Limit

Petitioner claimed that a $120,000 fundraising mailing was incorrectly allocated to the state’s limit. FEC regulations 

provide that fundraising expenses need not be allocated to a state’s expenditure limit unless incurred within 28 days 

of the state’s primary. Petitioner presented dated checks showing that the postage had been purchased more than 28 

days before the primary, and an affi davit from a campaign offi cial asserting that the mailing had preceded the 28-day 

period. The Commission concluded that it could not be determined that the mailing had actually been sent before 

the 28-day period and therefore attributed its cost to the New Hampshire limit. The court reversed the Commission’s 

fi nding on this issue because the Commission did not address what the court deemed to be unopposed evidence 

presented by plaintiff.

The Constitutional Challenge: Ex Offi cios

Petitioner’s challenge was based on the court’s decision in FEC v. NRA Political Victory Fund. In that case, the 

court held that the Commission’s composition violated the principle of separation of powers because it included two 

nonvoting, ex offi cio members appointed by Congress. Petitioner argued that despite the Commission’s subsequent 

removal of those members from its body and its ratifi cation of all actions it had undertaken in petitioner’s case up to 

that point, the FEC’s proceedings in this case remained unconstitutional.

The court concluded that petitioner was estopped from challenging the constitutionality of the Commission’s 

composition because he had already accepted $10 million in public funds authorized by the very Commission he now 

argued was unconstitutional. 

“[A] party wishing to make such a challenge must do so before it accepts and spends federal funds—not after, as a 

ploy to avoid its part of a bargain,” the court stated in its opinion.

Statutory Challenge: Statute of Limitation

Petitioner based this challenge on a provision of the statute that required the Commission to issue petitioner a notice 

of a repayment determination within 3 years of the 1988 Republican nomination. Within that time frame, petitioner 

received a preliminary repayment calculation (contained in the FEC’s interim audit report), which an FEC regulation 

says is suffi cient to satisfy the 3-year requirement.

The court declined to resolve petitioner’s challenge to the adequacy of the notifi cation he received within 3 years. 

The FEC had concluded that petitioner had waived his right to address this issue because he had not raised it until 

his public hearing. Under the Commissions rules, such an issue must be raised in a candidate’s written comments 

submitted to the Commission before the public hearing. 

The court found that the FEC was within its rights in enforcing its own procedures in this manner. The court “cannot 

conclude that . . . the Commission’s interpretation [of its regulations] is unreasonable.”

Source: FEC Record, April 1995, p. 6. , April 1995, p. 6.

Robertson v. FEC, No. 93-1698 (D.C. Cir. Feb. 3, 1995).

ROVE v. THORNBURGH

On November 30, 1994, the U.S. Court of Appeals for the Fifth Circuit ruled that the Federal Election Campaign 

Act (the Act) does not immunize a federal candidate, under state law, from personal liability for the debts of his 

unincorporated campaign committee. Karl Rove & Company may, under the laws of Pennsylvania and Texas, pursue 

monetary redress for unpaid campaign debts from Richard Thornburgh, a candidate for the U.S. Senate in a 1991 

special election.

Background

In the course of his 1991 campaign, Mr. Thornburgh’s unincorporated committee contracted with Rove & Company 

for mail solicitation services. A balance of $169,732 for these services remained outstanding after the election. Rove & 

Company brought suit against Mr. Thornburgh, his committee and the committee’s treasurer. The district court found 

Mr. Thornburgh and his committee jointly and severally liable for breach of contract under the laws of Pennsylvania 

and Texas, but dismissed the claim against the committee treasurer for lack of personal jurisdiction.

Court of Appeals Decision

Mr. Thornburgh brought this appeal, arguing that the Act preempts state law and immunizes federal candidates from 

personal liability. He cited 2 U.S.C. §453 in support of this motion:
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“The provisions of this Act, and the rules prescribed under this Act, supersede and preempt any provision of State 

law with respect to election to Federal offi ce.”

In rejecting this argument, the court noted that: §453 has had a historically narrow reading; that the FEC, in Advisory 

Opinion 1989-2, has deferred to state law in matters concerning liability for campaign debts; and that the Act does not 

address the issue of candidate liability for campaign debts anywhere in its provisions.

The court stated, “Although we recognize that Congress has constructed a somewhat analogous—and anomalous—

legal regime to shield candidates from liability for violations of [the Act], absent express direction from that branch, 

we decline to extend further such an apparently inequitable rule.”

The court noted that federal candidates can protect themselves from personal liability in most states by incorporating 

their principal campaign committees, by stipulating in contracts that the candidate is not personally liable or by 

taking both steps.

Source: FEC Record, April 1995, p. 7. , April 1995, p. 7.

Rove v. Thornburgh, No. 93-8451 (5th Cir. Nov. 30, 1994).

SATELLITE BUSINESS SYSTEMS v. FEC

On March 15, 1983, the U.S. District Court for the District of Columbia granted Satellite Business Systems’ (SBS’s) 

motion to dismiss, without prejudice, its suit against the FEC. 

In its suit, fi led in October 1982, SBS had claimed that the FEC had misconstrued section 441b(a) of the Act in an 

advisory opinion issued to SBS in March 1982. In that opinion (AO 1981-56), the Commission had stated that the 

Act barred SBS (a partnership of three corporations) from either establishing a separate segregated fund or making 

direct contributions for federal elections. SBS had asked the court to declare that:

• The Commission’s decision in AO 1981-56 was erroneous and that SBS should have been allowed to participate 

in federal elections; and

• Section 441b(a), as construed by the Commission in AO 1981-56, had violated SBS’s First and Fifth 

Amendment rights. 

SBS and four of its managerial personnel fi led the motion to dismiss on March 4, 1983, stating that SBS was “not now 

in a position to commit the additional personnel and fi nancial resources that it currently appears would be necessary 

to litigate...” the suit. In asking the court to dismiss its suit without prejudice, SBS argued that the FEC would not 

“suffer plain legal prejudice other than the mere prospect of a second lawsuit.” 

Source: FEC Record, May 1983, p. 6. , May 1983, p. 6.
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SEGERBLOM v. FEC

Pursuant to 2 U.S.C. §437g(a)(8)(A), Mr. Richard Segerblom asked the court to declare that the FEC acted contrary 

to law by failing to act on his administrative complaint within 120 days after he fi led it.1 The complaint concerned 

potential violations of the election law by James Santini and the Santini for Senate Committee (the Committee), Mr. 

Santini’s principal campaign committee for his 1982 Senate bId. 

In the complaint, Mr. Segerblom claimed that the respondents had used contributions for Mr. Santini’s general 

election campaign to pay expenses of his primary campaign. Mr. Segerblom further alleged that the Committee had 

fraudulently reported: (1) refunds of these general election contributions and (2) a zero balance for both the primary 

and general election accounts of the Committee. 

Mr. Segerblom therefore asked the court to order the FEC to:

• Complete an investigation of these alleged violations within 30 days; and

• Issue certain discovery requests attached to the complaint. 

(U.S. District Court for the District of Columbia, Civil Action No. 86-2843, October 16, 1986.)

On December 15, 1986, an order of dismissal was fi led by Mr. Segerblom and on the next day the case was 

dismissed. 

Source: FEC Record, December 1986, p. 5. , December 1986, p. 5. 1 Mr. Segerblom fi led his original complaint with the FEC on March 28, 1986. On April 11, 1986, he fi led a supplement to the 

complaint. 

SCHAEFER v. FEC (02-1255)

On July 8, 2002, Michael Schaefer, a 2002 Congressional primary candidate in Arizona, asked the U.S. District Court 

for the District of Arizona to fi nd unconstitutional the Federal Election Campaign Act’s (the Act):

• Defi nition of “contribution;”

• Limits on individual contributions; and

• Prohibition on corporate contributions.

Mr. Schaefer alleges that these provisions of the Act favor incumbent candidates and violate Article I of the 

Constitution and the First and Tenth amendments.

Background

Under the Act, a contribution includes “any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of infl uencing any election for Federal offi ce.” 2 U.S.C. §431(8)(A)(i). A 

bank loan made in the ordinary course of business is not a contribution. However, the endorsement or guarantee of 

a loan is considered a contribution in the amount that each endorser or guarantor is liable. 2 U.S.C. §§431(8)(B)(vii) 

and 431(8)(B)(vii)(I). The Act limits contributions from individuals to candidates to $1,000 per election and prohibits 

corporations from making any contribution or expenditure to infl uence a federal election. 2 U.S.C. §§441a(a)(1) 

and 441b.

Court Complaint

Mr. Schaefer claims that he is unable to obtain a suffi cient loan for his campaign because the endorsement or guarantee 

of the loan would be considered a contribution from each individual endorser or guarantor and thus subject to the 

Act’s contribution limits. Moreover, his family’s corporation cannot endorse or guarantee the loan because of the 

ban on corporate contributions. In his complaint, Mr. Schaefer alleges that these provisions of the Act “appear to be 

protection of the incumbents, by the incumbents and for the incumbents,” because, he asserts, incumbent candidates 

have greater access to funds from other sources, such as political action committees and party committees.

Mr. Schaefer asks the court for declaratory judgment that:

• He has the right to fi nance his campaign with personal or borrowed funds from any source; and

• A guarantor of a loan is not a contributor in a case where there is no evidence that the loan is intended to be 

forgiven rather than repaid.

Source: FEC Record, September 2002, p. 16. , September 2002, p. 16. 
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SHAYS and MEEHAN v. FEC (1:02CV01984)

On October 8, 2002, Representatives Christopher Shays and Martin Meehan fi led a complaint in the U.S. District 

Court for the District of Columbia challenging Commission regulations that implement the “soft money” provisions 

of the Bipartisan Campaign Reform Act of 2002 (BCRA).

The complaint charges that the FEC regulations “contravene the language” of the BCRA and “will frustrate the 

purpose and intent of the BCRA by allowing soft money to continue to fl ow into federal elections and into the federal 

political process.” The plaintiffs ask that the court invalidate the FEC regulations on the grounds that they are:

• Arbitrary and capricious;

• An abuse of discretion;

• In excess of the FEC’s statutory jurisdiction or authority; and

• Otherwise not in accordance with law.

Court Complaint

 On May 20, 2002, the FEC published for public comment draft regulations implementing Title I of the BCRA, which 

contains the statutory ban on soft money. The fi nal rules were published in the July 29, 2002, Federal Register (67 FR 

49064). The plaintiffs allege that these rules contain amendments that were not made available for public comment 

and that “undermined the letter and [the] purpose of the BCRA.” The plaintiffs contend that these regulations 

contravene the BCRA’s soft money ban in each of the three areas that, according to the complaint, Congress legislated 

to address:

• The activities of the national parties;

• The activities of the state parties; and

• The activities of federal candidates and offi ceholders.

“Sham Party Entities” 

The BCRA prohibits national party committees and any entity “directly or indirectly established, fi nanced, maintained 

or controlled” by a national party committee from raising or spending soft money. 2 U.S.C. §323(a)(1) and (2). 

The plaintiffs charge that “without any basis” the Commission created a “grandfather” provision in its regulations. 

According to the plaintiffs, the “grandfather” or “safe harbor” provision in the regulations will take into account the 

relationship between the party committee and other entities only after November 6, 2002. The plaintiffs claim that 

this provision will permit the creation of “sham party entities” that can raise and spend soft money after the effective 

date of the BCRA, notwithstanding their establishment by, and affi liation with, the national party committee prior 

to that date.

Defi nitions of “Solicit and Direct” and “State Party” Fundraisers

The BCRA prohibits federal candidates and offi ceholders from soliciting, directing or receiving soft money. 2 

U.S.C.§323(a) and (e). According to the complaint, Commission regulations narrow the defi nitions for the terms 

“solicit” and “direct” to mean “ask.” 11 CFR 300.2(m). These defi nitions, the plaintiffs allege, will permit federal 

candidates and offi ceholders, as well as the national party offi cials, to continue to solicit and direct soft money as long 

as they do not explicitly “ask” for soft money contributions. The plaintiffs further contend that the FEC regulations 

allow federal candidates and offi ceholders to explicitly solicit and direct soft money at state fundraising events 

“without regulation or restriction,” contrary to the intent of the BCRA. 11 CFR 300.64.

Defi nition of Agent

The BCRA prohibits any “agent” acting on behalf of a national party committee or federal candidate or offi ceholder 

from raising or spending soft money. The complaint describes FEC regulations as limiting the defi nition of “agent” to 

those who have “actual” authority to act on behalf of the party, and excluding those who have “apparent” authority. 

11 CFR 300.2(b). The plaintiffs argue that the regulation creates the opportunity to circumvent the BCRA by allowing 

national or state party agents, or agents of a federal candidate or offi ceholder, with apparent authority to engage in 

activities that are otherwise prohibited under BCRA.

Leadership PACs

The BCRA prohibits any entity “directly or indirectly” controlled by a federal candidate or offi ceholder from raising 

or spending soft money. The plaintiffs claim that this prohibition was intended to prohibit “Leadership PACs” from 

raising and spending soft money. According to the complaint, the FEC has adopted regulations, contrary to the 

intent of the law, that allow Leadership PACs established and controlled by federal offi ceholders to continue raising 

and spending soft money. 11 CFR 300.2(c)(2).
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Defi nition of “Federal Election Activity”

Under the BCRA, state parties are prohibited from using soft money for “federal electionactivities.” The plaintiffs 

argue that FEC regulations constrict the defi nition of “federal election activity” to allow the continued spending of 

soft money. The complaint contends that the FEC departed signifi cantly from its past regulatory defi nitions of “getout-the- vote activity,” “voter identifi cation,” “generic campaign activity,” “voter registration” and other key terms to 

allow activities that infl uence federal elections to be paid for with soft money.

Other Provisions

The plaintiffs additionally allege, among other things, that FEC regulations:

• Allow the solicitation costs for raising so-called “Levin funds” to be paid with those funds, while the BCRA 

stipulates that those costs must be paid with federal funds;

• Extend the use of state party building funds to offi ce equipment and furniture, while the BCRA meant to limit 

the use of such funds to the purchase or construction of an offi ce building; and

• Improperly defi ne “state,” “district” or “local” party committees by requiring that such committees be part of 

“the offi cial party structure.” 11 CFR 100.14.

Relief

The plaintiffs ask the court to declare the referenced soft money regulations contrary to law, arbitrary and capricious 

and otherwise unlawful, and to enjoin the Commission from enforcing them.

Source: FEC Record, December 2002, p. 13. , December 2002, p. 13.

SIERRA CLUB v. FEC

Background

On July 31, 1984, the Sierra Club and its separate segregated fund, the Sierra Club Committee on Political Education 

(SCCOPE), fi led suit against the FEC in the U.S. District Court for the District of Columbia (Civil Action No. 84-

2354). The plaintiffs challenged the FEC’s construction and application of 2 U.S.C. §441b in an advisory opinion the 

agency had issued to the Sierra Club on July 13, 1984. In the opinion, AO 1984-24, the Commission rejected the two 

fi nancing methods proposed by the Club for selling its goods and services to SCCOPE as part of SCCOPE’s in-kind 

contribution program for federal candidates. 

The Sierra Club asked the court to declare that:

• The election law permits the Club to provide goods and services to SCCOPE for use in SCCOPE’s in-kind 

contribution program, provided: a) SCCOPE makes payments in advance to an escrow account or reimburses 

the Club within a commercially reasonable time, and b) the goods and services are purchased at fair market 

value. 

• Section 441b, both on its face and as applied to plaintiff’s activities, violates the First Amendment by abridging 

plaintiff’s freedom of association and by being unconstitutionally vague. 

• Advisory Opinion 1984-24 is contrary to law and to the First and Fifth Amendments. 

Plaintiff also asked the court to enjoin the FEC from commencing or continuing any enforcement proceedings 

designed to prevent SCCOPE from using Sierra Club goods and services for its in-kind contribution program. 

District Court’s Initial Ruling

On August 11, 1984, the district court issued an order dismissing the suit. The court ruled that the case was not ripe 

for its consideration became the Club had not exhausted the administrative remedies available to it before fi ling suit. 

Appeals Court Remand to District Court

The Sierra Club appealed this ruling to the U.S. Court of Appeals for the District of Columbia Circuit. The appeals 

court treated the Club’s motion to expedite the appeal as a motion for summary reversal. In its order of September 

7, 1984, the appeals court granted this motion, reversing the district court’s dismissal, and remanded the case to the 

district court for further consideration. 
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District Court’s Second Ruling

On October 31, 1984, the district court granted the FEC’s motion to dismiss the suit. In its November 5 opinion, the 

court upheld AO 1984-24 as a reasonable interpretation of the law’s prohibition on corporate contributions, noting 

that “the Federal Election Commission is the type of agency to which considerable weight and deference should 

presumptively be accorded.... ” The court also rejected the Club’s claim that the opinion violated its First Amendment 

rights, which, the court stated, were “overborne by the interests Congress has sought to protect in enacting Section 

441b.” 

Source: FEC Record, September 1984, p. 10; and FEC , September 1984, p. 10; and FEC Annual Report 1984, p. 26. 

Sierra Club v. FEC, 593 F. Supp. 166 (D.D.C.), rev’d mem. (D.C. Cir. 1984), on remand on remand (D.D.C. Nov 5, 1984) (unpublished opinion). (D.D.C. Nov 5, 1984) (unpublished opinion). 

SOCIALIST WORKERS PARTY v. FEC

On January 2, 1979, a three-judge panel in the U.S. District Court for the District of Columbia approved a consent 

decree in a suit by the Socialist Workers Party (SWP) against the FEC and Common Cause (which had intervened 

as co-defendant). In the consent decree the three parties agreed that, for a limited time, SWP would not be required 

to comply with certain disclosure provisions of the Act. Until the close of the FEC’s reporting period for 1984, SWP 

will not be required to report the names, addresses and occupations of individuals who contributed $100 or more to 

SWP, or to identify recipients of SWP expenditures. 

SWP had fi led suit against the Commission in July 1976, alleging that specifi c sections of the Act deprived SWP 

and its supporters of certain First Amendment rights. The decree noted that SWP and those connected with it “had 

been subjected to systematic harassment.” Citing the standard for the potential unconstitutional application of the 

disclosure provisions set forth in a 1976 Supreme Court decision (Buckey v. Valeo, 424 U.S.(1), the decree states that 

SWP had demonstrated at least “a reasonable probability that the compelled disclosure” of names of its contributors 

and recipients of its expenditures would continue to “subject them to threats, harassment, or reprisals from either 

government offi cials or private parties.” (Buckey v. Valeo, 424 U.S. at 74). Consequently, the defendants concurred, 

without necessarily agreeing to all the facts presented, that SWP should not constitutionally be compelled to comply 

with the reporting requirements of the Act which require identifi cation of individuals. 

The decree also provided that:

• SWP must fi le all reports required by the Act, except that contributors and recipients of expenditures need not 

be identifi ed. 

• SWP must maintain all records required by the Act so that all information normally required to be reported 

is available. If the FEC has reason to believe that SWP has violated any provision of the Act other than the 

disclosure requirements and that the nondisclosed information is needed to investigate the suspected violation 

the FEC may apply to the court for an order to require SWP to produce the information. 

• In addition to the notice required on all literature and advertisements under 2 U.S.C. §435(b), SWP may add 

the following: “A Federal court ruling allows us not to disclose the names of contributors in order to protect 

their First Amendment rights.”

The procedural disagreement between defendants and plaintiff, focusing on the duration of the decree and the 

mechanism by which it could be extended, was resolved so that:

• The provisions of the decree will remain in force until the end of the reporting period for 1984. 

• Six months prior to that date, SWP can fi le for an extension. 

• If SWP does request an extension, the FEC must respond to the request three months prior to the expiration 

date of the current decree. 

Source: FEC Record, March 1979, p. 4. , March 1979, p. 4. 

Socialist Workers 1974 National Campaign Committee v. FEC, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9068 (D.D.C. 1979). 
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SPANNAUS v. FEC (85-0404)

On August 26, 1986, the U.S. District Court for the Southern District of New York granted the FEC’s motion for 

summary judgment in Spannaus v. FEC Spannaus v. FEC (Civil Action No. 85-Civ-0404 (LLS)). The Court dismissed plaintiffs’ suit (Civil Action No. 85-Civ-0404 (LLS)). The Court dismissed plaintiffs’ suit

with prejudice. It held that Lyndon LaRouche’s 1984 Presidential primary campaign committee and the campaign’s 

treasurer, Edward W. Spannaus, had “failed to make even a preliminary showing of bad faith on the part of the 

Commission [in conducting investigations of the campaign’s potential violations of the election law] or to allege facts 

suffi cient to show an infringement of their First Amendment rights....”

Background

In a suit fi led with the district court on January 16, 1985, plaintiffs asked the court to make the following 

declarations:

• FEC investigations of the LaRouche Campaign’s 1984 campaign activities were “motivated solely by bad 

faith” and were “an abuse of process,” in violation of federal laws and the U.S. Constitution. 

• The FEC was “selectively and discriminatorily enforcing the election laws resulting in violation of the plaintiffs’ 

rights of equal protection.”

• In seeking information from contributors to the LaRouche Campaign concerning certain credit card 

contributions, the FEC had abridged First Amendment rights by creating a chilling effect on: (1) the contributors’ 

participation in the electoral process and (2) the LaRouche Campaign’s ability to recruit volunteers. 

• The FEC had violated the confi dentiality provisions of the federal election laws. 

District Court’s Ruling

The court affi rmed the FEC’s claim that, in initiating investigations against the LaRouche Campaign, the agency had 

followed procedures established by the Federal Election Campaign Act and FEC regulations and had undertaken 

each investigation “for legitimate purposes.” Although plaintiffs asserted that the FEC had failed to respond to 

the LaRouche Campaign’s inquiries concerning the agency’s investigations into the campaign’s activities, the court 

noted that plaintiffs had “failed to make even a preliminary showing of bad faith and accordingly are not entitled to 

discovery into the FEC’s motives and activities.”

With regard to alleged discriminatory enforcement of the election law, the court held that “plaintiffs have not alleged 

facts demonstrating unequal treatment under the Act.”

Similarly, the court found no merit to plaintiffs’ claim that their First Amendment rights had been abridged. The 

court concluded that “to the extent that the Commission’s investigation has ‘chilled’ any volunteer activities on the 

part of contributors...that chill does not under the circumstances rise to a constitutional claim.”

Appeals Court’s Ruling

On October 28, 1986, the defendant fi led an appeal with the U.S. Court of Appeals, Second Circuit. The FEC fi led 

a motion to dismiss the appeal on November 12, 1986. The Court of Appeals affi rmed the District Court’s ruling on 

March 3, 1987 (Civil Action No. 86-6229).

Source: FEC Record, October 1986, p. 6; and October 1987, p. 6. , October 1986, p. 6; and October 1987, p. 6.

Spannaus v. FEC, 641 F. Supp. 1520 (S.D.N.Y. 1986), aff’d mem., 816 F.2d 670 (2d Cir. 1987). 

SPANNAUS v. FEC (91-0681)

On April 20, 1993, the U.S. Court of Appeals for the District of Columbia Circuit ruled on the 60-day deadline for 

requesting a court review of an FEC decision to dismiss an administrative complaint. No. 92-5191. The court held 

that the 60-day period begins on the date the FEC dismisses the complaint, based on a mandatory literal reading 

of the statute. The appellant, Edward W. Spannaus (treasurer of the LaRouche Democratic Campaign), had argued 

that the period should begin on the date the complainant receives notice of the dismissal. The ruling by the court of 

appeals affi rmed the district court’s dismissal of the suit. (Civil Action No. 91-0681.)

Under the Federal Election Campaign Act, a petition for judicial review must be fi led “within 60 days after the date 

of the dismissal” of the complaint. 2 U.S.C. §437g(a)(8)(B). The court of appeals said that, in accordance with a 

Supreme Court decision on fi ling deadlines, the statutory language must be read literally. Therefore, based on the 

“date of dismissal” of the complaint, the court of appeals found that Mr. Spannaus fi led his petition for review after 

the 60-day deadline.
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(The Commission dismissed Mr. Spannaus’s complaint on January 9, 1991. The notice of dismissal arrived at his 

post offi ce box on January 28 and was claimed on February 2. He fi led his petition for review with the district court 

on April 2, 1992.)

Mr. Spannaus said that he had relied on a district court opinion holding that the 60-day review period begins “when 

the complainant actually receives notice of the dismissal.” Common Cause v. Federal Election Commission, 630 F. 

Supp. 508, 512 (D.D.C. 1985). The court of appeals, however, rejected that holding. Commenting on the appellant’s 

reliance on Common Cause, the court stated that it “[could not] extend the fi ling deadline for Spannaus simply because 

he relied on an unreviewed and, we now hold, incorrect district court decision.”

Mr. Spannaus alternatively argued that he should be granted a dispensation from the 60-day time period in light of his 

late receipt of the FEC’s notice of dismissal. The court refused the request, noting that Mr. Spannaus “was less than 

fully diligent” in fi ling his review petition. The court pointed out that the FEC’s notifi cation letter “conspicuously 

stated the dismissal date and referred Spannaus to the appropriate review provision.” 

Source: FEC Record, June 1993, p. 7. , June 1993, p. 7. 1

 In the case of air travel contracted from a corporation that is not licensed to provide commercial charter air service (e.g., a private 

corporate jet), a committee may pay the fi rst-class fare if traveling between cities linked by regular commercial service.

STAEBLER v. CARTER

On January 8, 1979, the U.S. District Court for the District of Columbia granted defendant Jimmy Carter’s motion 

for summary judgment and upheld the President’s recess appointment of John McGarry to the Federal Election 

Commission. 

The action against President Carter was fi led in October 1978 by former FEC Commissioner Neil Staebler. Mr. 

Staebler, whose term of offi ce expired in April 1977, still held the seat (under the hold over provisions of 2 U.S.C. 

§437c(a)(2)(B)) to which Carter appointed Mr. McGarry on October 25, 1978. After the Senate had twice failed to 

act on Mr. McGarry’s nomination, the President appointed him to the Commission during the 1978-79 congressional 

recess. 

Mr. Staebler challenged the appointment on the grounds that:

• A vacancy occurs on the Commission, not at the close of the statutory term, but upon the lawful appointment 

of a successor. 

• A successor is lawfully appointed only when he is nominated by the President and confi rmed by the Senate. 

The court determined that neither the statutory language nor the legislative history of the Act supported these 

premises. 

• The court interpreted 2 U.S.C. §437c(a)(2)(C) to mean that “a vacancy shall occur upon the expiration of the 

term of offi ce.” In the case of Mr. Staebler, then, a vacancy existed since April 30, 1977, the date upon which 

his term expired. 

• In the view of the court, moreover, there is no support for the argument that Congress intended to prohibit 

some or all recess appointments to the FEC. 

The court concluded that a vacancy did exist, the President had the authority to make the McGarry appointment, 

and that Mr. McGarry is a lawful member of the Federal Election Commission. 

This case, the court noted, involved not only the interests of the defendant and plaintiff, but also the proper distribution 

of power between the branches of government. Under the plaintiff’s interpretation, it would be possible for a member 

of a Commission, once appointed and confi rmed, to remain in offi ce indefi nitely. As long as the Senate did not act, 

either to confi rm the nomination of a successor or to bring a nomination to a vote, the President would be powerless 

to protect the powers of appointment granted to him by Article II, Section 2 of the Constitution. 

This argument is “especially compelling,” the decision pointed out, when applied to the “politically sensitive” FEC. 

By providing the Senate with de facto authority to retain appointed offi ceholders, long beyond the expiration of their 

statutory terms, plaintiff’s interpretation would facilitate the legislative domination of the FEC, which the Supreme 

Court condemned in Buckey v. Valeo. The court pointed out, however, that had the Senate rejected Mr. McGarry’s 

nomination, the President would have been “unable to grant a recess appointment to McGarry.”

Source: FEC Record, March 1979, p. 4. , March 1979, p. 4. 

Staebler v. Carter, 464 F. Supp. 585 (D.D.C.), appeal dism’d appeal dism’d, 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9080 (D.C. Cir. 1979). , 2 Fed. Elec. Camp. Fin. Guide (CCH) ¶9080 (D.C. Cir. 1979). 
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STARK v. FEC

On August 20, 1987, the U.S. District Court for the District of Columbia issued an order dismissing with prejudice 

a complaint brought by Congressman Fortney H. “Pete” Stark, a Democrat from California, in Stark v. FEC; (Civil 

Action No. 87-1024.) Congressman Stark had sought a court order requiring the FEC to act within 120 days on his 

administrative complaint, which he had fi led in 1986 against his Republican opponent and the opponent’s supporters. 

Since the FEC had taken fi nal action on Congressman Stark’s complaint by dismissing it on June 8, 1987, the court 

dismissed it on June 9, 1987, as moot. 

On February 8, 1988, the court dismissed another suit brought by Congressman Stark against the Commission in 

Stark v. FEC; Civil Action No. 87-1700. The court found that the Commission had not acted contrary to law in 

dismissing, in a deadlock vote, Congressman Stark’s complaint. The court accordingly granted judgment in the 

Commission’s favor. 

Background

Shortly before election day in 1986, Congressman Stark fi led an administrative complaint that alleged, among other 

things, that excessive contributions made to Daniel M. Williams’ 1986 Congressional campaign by the American 

Medical Association Political Action Committee (AMPAC) resulted in violations of the election law by both parties. 

(AMPAC is the separate segregated fund of the American Medical Association.) In the complaint, Congressman 

Stark also alleged other violations of the election law’s contribution limits by the American Medical Association 

(AMA), AMPAC and certain state PACs affi liated with AMPAC. 

After a preliminary review of the complaint as amended in February 1987, the General Counsel’s Offi ce recommended 

that the Commission fi nd no reason to believe AMPAC’s affi liates had violated the law. 

With regard to the other allegation, the General Counsel recommended that the Commission fi nd reason to believe 

that AMPAC had violated the law by making excessive contributions to the Williams campaign and that the Williams 

campaign had violated the law by accepting them. (See 2 U.S.C. §§441a(a) and (f).) The General Counsel’s staff 

found that AMPAC had made three mailings to its membership describing Williams’ positions on certain issues and 

advocating Williams’ election. One of the mailings had also solicited funds for Williams’ campaign. The solicitation 

mailing included pre-addressed envelopes for donors to mail their contributions directly to candidates and pledge 

cards pre-addressed to AMPAC, which AMPAC could use to verify donors’ contributions. 

AMPAC claimed that its spending for the mailings constituted independent expenditures. However, citing an advisory 

opinion that dealt with a similar situation (AO 1980-46), the General Counsel reasoned that AMPAC’s expenditures 

for the solicitation mailing constituted in-kind contributions to the Williams campaign. (In AO 1980-46, the 

Commission had decided that expenditures by a PAC to facilitate earmarked contributions to candidates constituted 

in-kind contributions to candidates rather than independent expenditures on their behalf.)

Furthermore, the General Counsel found that, taken together, the circumstances of the mailings were suffi cient to 

indicate that AMPAC and the Williams campaign might not have remained at arms length throughout the campaign. 

For example, the General Counsel found that AMPAC’s substantial spending on behalf of the Williams campaign, 

when compared with the low spending by the campaign itself, raised questions concerning the independence of 

AMPAC’s expenditures. 

Pursuant to 2 U.S.C. §437g(a)(8)(C), Congressman Stark asked the court to declare that the FEC acted contrary to 

law by failing to act on his administrative complaint within 120 days after he fi led it in October 1986. (Civil Action 

No. 87-1024, April 14, 1987.)

Congressman Stark further asked the court to:

• Issue an order directing the FEC to act on the complaint within 30 days, as required by 2 U.S.C. §437g;

• Declare that Commissioner Lee Ann Elliott should recuse herself from any further participation in the FEC’s 

consideration of the complaint, consistent with Canon 4 of the Canons of Judicial Ethics; and

• Retain jurisdiction over the suit, so that, if the FEC failed to act on his complaint, Congressman Stark 

could bring a separate suit against defendant AMPAC. (In a stipulation fi led with the court on May 8, 1987, 

Congressman Stark agreed to voluntarily dismiss his claim against AMA and AMPAC, both defendants in the 

suit.)

On June 9, 1987, the Commission voted to accept the General Counsel’s recommendation to dismiss the allegation 

concerning excessive contributions by AMPAC’s affi liates. However, the Commissioners were divided by a series of 

3-3 votes on the General Counsel’s recommendation concerning AMPAC’s alleged excessive in-kind contributions 
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to the Williams campaign. Since the Commission can act only on “the affi rmative vote of four members,” the agency 

voted unanimously to close the enforcement fi le. Consequently, Congressman Stark’s fi rst suit was dismissed from the 

district court as moot following the Commission’s fi nal action. 

District Court Ruling Second Suit

Congressman Stark fi led a second suit asking the district court to fi nd the FEC’s dismissal of his administrative 

complaint to be contrary to law (Civil Action No. 87-1700, June 22, 1987). 

Following a decision by the U.S. Court of Appeals for the D.C. circuit in Democratic Congressional Campaign 

Committee (DCCC) v. FEC Committee (DCCC) v. FEC (831 F.2d 1131 (D.C. Cir. 1987)), the district court held that it could review the case (831 F.2d 1131 (D.C. Cir. 1987)), the district court held that it could review the case 

because the provision of the election law affording judicial review of dismissals “imposes neither vote count nor 

substantive-issue conditions on the right it confers.” (See 2 U.S.C. §437g(a)(8)(A).)

The court noted, however, that, unlike the DCCC case, the Stark case included a statement from Commissioner 

Thomas Josefi ak setting forth his reasons for voting against the General Counsel’s recommendations. Commissioner 

Lee Ann Elliott fi led a concurrence with that statement. 

The court observed that in their statements the dissenting Commissioners had said that they disagreed with the 

conclusion of AO 1980-46, the advisory opinion that the General Counsel had cited in arguing that AMPAC’s 

solicitation expenditures might be in-kind contributions. Thus, concluded the Commissioners, the rationale of that 

opinion should not be extended beyond the facts presented in that case. The Commissioners argued that independent 

expenditures (e.g., AMPAC’s expenditures for contribution envelopes sent to candidate Williams’ potential donors) 

did not lose their independence because the candidate subsequently derived indirect benefi t from them. 

Further, the dissenting Commissioners rejected the idea that a “dollar disparity” between AMPAC’s spending and 

spending by the Williams campaign implied cooperation between the two committees. The Commissioners also 

rejected Congressman Stark’s allegations concerning a “debate arrangement” made by AMPAC and the duplication 

of Williams’ campaign materials by AMPAC for solicitation purposes. 

In determining whether the dissenting Commissioners acted reasonably in voting to dismiss the Stark allegations, 

the court found that the DCCC case required “that the same deference be accorded the reasoning of ‘dissenting’ 

Commissioners who prevent Commission action by voting to deadlock as is given the reasoning of the Commission 

when it acts [by at least four affi rmative votes] as a body to dismiss a complaint.”

Accordingly, the court concluded that the dissenting Commissioners’ statement of reasons was “‘suffi ciently 

reasonable,’ if not ‘the only reasonable [decision] or even the [one] the court would have reached’ on the General 

Counsel’s Report on his fi ndings.... ”

Source: FEC Record, June 1987, p. 6; September 1987, p. 8; October 1987, p. 6; and April 1988, pp. 8-9. , June 1987, p. 6; September 1987, p. 8; October 1987, p. 6; and April 1988, pp. 8-9. 

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988). 
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STERN v. FEC

On December 11, 1990, The U.S. Court of Appeals for the District of Columbia Circuit affi rmed the district court 

decision granting the Commission’s motion for judgment on the pleadings. Philip M. Stern had claimed that the General 

Electric Company (GE) violated the Federal Election Campaign Act by making unlawful corporate expenditures for 

the establishment, administrative and solicitation expenses of its separate segregated fund, GE/PAC.

Background

Although section 441b(a) of the Federal Election Campaign Act prohibits corporations from using their general 

treasury funds to make contributions or expenditures in connection with a federal election, another provision of the 

Act specifi cally excludes from the defi nitions of contribution and expenditure the use of corporate treasury funds 

for “the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized 

for political purposes....” (Emphasis added.) 2 U.S.C. §441b(b)(2)(C). In his complaints fi led with the FEC and the 

courts, Mr. Stern alleged that GE/PAC’s contributions were not made for “political purposes” but, rather, were made 

to advance GE’s lobbying interests. As a result, he claimed, GE’s funding of the PAC resulted in prohibited corporate 

expenditures.

When the Commission dismissed his administrative complaint, fi nding “no reason to believe” that GE had violated 

the law, Mr. Stern sought judicial review of the agency’s decision. The district court ruled that the Commission had 

not acted contrary to law in dismissing the complaint, holding that GE/PAC’s direct contributions to the campaigns 

of federal candidates were permissible under any construction of “political purposes.” The district court found it 

unnecessary to reach the question of whether lobbying was a permissible activity for a separate segregated fund, 

although the court characterized the Commission’s position—that separate segregated funds could be used “for any 

lawful purpose”—as a reasonable interpretation of the Act.

Appeals Court Decision

In his arguments, Mr. Stern claimed that several types of contributions made by GE/PAC were not made for “political 

purposes”:

• Contributions to unopposed candidates or to those facing weak opposition;

• Contributions made without regard to the candidate’s position on business issues;

• Contributions to opposing candidates in the same election;

• Post-election contributions to winners; and

• Contributions to incumbents.

The appeals court examined these claims but found that the GE/PAC’s contributions did not violate the Act. Like the 

district court, the appeals court found no reason to reach the question of how the phrase “political purposes” should 

be interpreted. “Even under the narrowest possible defi nition urged by Stern—namely, that segregated funds may be 

used only ‘in connection with an election’—the GE/PAC practices he challenges do not violate the Act.”

Source: FEC Record, November 1989, p. 4; and February 1991, p. 7. , November 1989, p. 4; and February 1991, p. 7. 

Stern v. FEC, No. 89-0089 (D.D.C. 1989) (memorandum opinion), 921 F.2d 296 (D.C. Cir. 1990). 
Selected Court Case Abstracts

284 Cases Through March 2004

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STERN v. GENERAL ELECTRIC CO.

On January 28, 1991, the U.S. Court of Appeals for the Second Circuit ruled that the Federal Election Campaign 

Act (the Act) does not preempt state law doctrine on corporate waste. Philip M. Stern, a General Electric (GE) 

stockholder, fi led suit alleging that GE’s funding of its separate segregated fund (GE/PAC) constituted a waste of 

corporate assets under state law. 

The district court had dismissed the allegations, ruling that they were preempted by the Act. Reversing the district 

court decision on this issue, the appeals court held that the Act did not preempt Mr. Stern’s allegations of corporate 

waste. The court, however, dismissed the allegations on other grounds but granted Mr. Stern leave to replead. With 

respect to Mr. Stern’s allegations that GE violated federal lobbying and anti-bribery statutes, the appeals court 

affi rmed the district court’s dismissal of the claims.

Allegations of Corporate Waste

Mr. Stern alleged that GE’s payment of GE/PAC’s administrative and solicitation expenses constituted a waste of 

corporate assets under state law because:

• GE did not realize any benefi t from GE/PAC’s contributions to incumbent candidates since they were made 

without regard to the candidates’ positions on issues of concern to GE; and

• GE’s payments for administrative and solicitation expenses were excessive in relation to the amount of 

contributions the PAC collected.

In response, GE argued that the allegations should be dismissed because they fell within the FEC’s exclusive jurisdiction 

under 2 U.S.C. §437c(b)(1). (Under that provision, the FEC has exclusive jurisdiction over civil enforcement of the 

Act.) The appeals court rejected this argument because Mr. Stern’s allegations focused on GE’s waste of corporate 

assets under state law rather than on whether GE’s activities violated the Act.

In reversing the district court holding that the allegations of corporate waste were preempted by the Act, the appeals 

court pointed out the “narrow wording” of statute’s preemption clause: the Act preempts “any provision of state 

law with respect to election to Federal offi ce.” 2 U.S.C. §453. The court said that Congress did not intend the Act 

to preempt the entire fi eld of corporate political spending. That would result in a total absence of regulation on the 

appropriate amounts that corporations may spend on their PACs, since the Act is silent on this issue.

The court found that state regulation of corporate waste did not confl ict with federal law in this case. The Act’s 

provision allowing a corporation to pay for the costs of administering and soliciting contributions to a PAC (2 U.

S.C. §441b(b)(2)(C)) was designed to limit, rather than encourage, corporate political spending “in order to preserve 

the integrity of the political process....Thus, state-law regulations that tend to reduce a corporation’s support of its 

political action committee do not impede the FECA’s goals.”

The court, however, dismissed Mr. Stern’s allegations of corporate waste because he failed to allege fraud or “bad faith” 

on the part of the company’s directors. The court, however, granted Mr. Stern leave to replead these allegations.

Other Allegations

The court of appeals upheld the district court’s dismissal of Mr. Stern’s allegation that GE’s administrative and 

solicitation payments for GE/PAC were actually lobbying expenditures that should have been reported pursuant to 

the Federal Regulation of Lobbying Act. Mr. Stern had alleged that the failure on the part of GE directors to comply 

with this statute exposed GE to prosecution under 2 U.S.C. §269 and therefore constituted a breach of fi duciary duty. 

The appeals court disagreed, fi nding that GE’s spending did not constitute “direct communication” with government 

offi cials and therefore was not subject to the lobbying statute.

Similarly, the court of appeals upheld the district court’s dismissal of Mr. Stern’s allegation that GE directors exposed 

GE to liability by acquiescing in GE/PAC’s violation of the federal anti-bribery statute. Mr. Stern had claimed that 

certain GE/PAC contributions violated the statute because they were given to “grandfathered” Members of Congress 

with the knowledge that the contributions might be converted to the candidate’s personal use under 2 U.S.C. §439a. 

The appeals court said that because such use is lawful under the Act, the contributions did not violate the anti-bribery 

statute (18 U.S.C. §203). Moreover, “[c]riminal intent under section 203 turns not on what the contributor expects the 

recipient to do with the money, but rather on what the contributor expects to receive for that money.”

Source: FEC Record, July 1991, p. 6. , July 1991, p. 6.

Stern v. General Electric Co., 924 F.2d 472 (2d Cir. 1991).
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STEVENS v. FEC (02C3291)

On May 7, 2002, William J. Stevens and the Libertarian Party of Illinois (the Party) fi led a complaint in the U.S. 

District Court for the Northern District of Illinois, Eastern Division, asking the court to set aside or modify the 

Commission’s fi nal determination that the Party, and its former treasurer Mr. Stevens, failed to fi le a required 

disclosure report. The plaintiffs also asked the court to enjoin the Commission from enforcing a civil money penalty 

it assessed under the administrative fi ne regulations.

On June 5, 2003, the U.S. District Court for the Northern District of Illinois granted the Commission’s motion 

to dismiss the plaintiffs’ complaint. The complaint had challenged the Commission’s fi nal determination that the 

Libertarian Party of Illinois (LPI) and its former treasurer William J. Stevens had failed to fi le timely the committee’s 

2001 mid-year report and the assessment of civil penalty. 2 U.S.C. §434(a). See the October 2002 Record, page 7. , page 7. 

Court Complaint

According to the complaint, in March 2002 the Commission made a fi nal determination that Mr. Stevens and the 

Party had violated the Federal Election Campaign Act (the Act) by failing to fi le a 2001 Mid-Year Report. 2 U.S.C. 

§434(a). The Commission also assessed a $7,875 civil money penalty under its Administrative Fine program based, 

according to the complaint, on “an assumed level of activity in the amount of $108,755.” Under the Commission’s 

Administrative Fine regulations, penalties for nonfi led reports are determined by the estimated level of activity on the 

report and any prior violations under the administrative fi ne regulations. 11 CFR 111.43.

Mr. Stevens and the Party claim that, because they did not raise any federal campaign funds during the reporting 

period in question and allocated only $14,552.64 as shared federal/nonfederal activity, they were not involved in any 

substantial activity that fell within the Commission’s jurisdiction. The plaintiffs allege that in determining the penalty, 

the Commission overestimated the amount of activity on the nonfi led report by calculating the penalty based on the 

Party’s federal and nonfederal activity. The complaint also claims that the Commission counted the same funds twice 

by determining the penalty according to both receipts and disbursements.

The plaintiffs ask the court to declare that “the application of the Federal Election Campaign Act is limited to federal 

election campaigns and cannot be applied to nor include non-federal funds nor nonfederal activities.” They ask the 

court to:

• Find that the plaintiffs are not in violation of 2 U.S.C. §434(a) and declare the civil money penalty null and 

void;

• Enjoin the Commission from enforcing the civil money penalty; and

• Enter an order and judgment setting aside the Commission’s fi nal determination or modifying it to limit its 

application to federal funds and activities only.

Court Decision

The court found that the plaintiffs’ claims were barred by the statute of limitations because they had not appealed 

the Commission’s determination with 30-day time period allotted by the Federal Election Campaign Act (the Act). 

2 U.S.C. §437g(a)(4)(C)(iii). The court also denied the plaintiffs’ request to amend their complaint. Plaintiffs had 

asked to add 2 U.S.C. §437h as a basis for jurisdiction, in order to challenge whether the Commission has jurisdiction 

over the types of funds disclosed in the LPI’s reports. The plaintiffs argued that the FEC required them to report 

local and state activity on the mid-year report. The court stated that the mid-year appeared only to require the LPI 

to report federal contributions and disbursements, with the exception of requiring LPI to report shared federal/

nonfederal operating expenditures. The court explained that in Buckley v. Valeo the Supreme Court had already found 

the compelled disclosure of federal campaign fi nance activity to be constitutional. The court further reasoned that the 

plaintiffs wanted to contest the activity on their report that the Commission used to determine the civil penalty, they 

should have made this challenge through the Commission’s administrative process. 

The court granted the Commission’s motion to dismiss and denied the plaintiffs’ cross-motion for summary 

judgment. 

Source: FEC Record, October 2002, p. 7; August 2003, p. 3. , October 2002, p. 7; August 2003, p. 3.
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STOCKMAN v. FEC

In August 1996, a U.S. District Court in Texas dismissed Congressman Stephen E. Stockman’s claim that the FEC 

had unreasonably delayed its investigation into his 1994 campaign. The court said: “There is no evidence showing 

that the time spent to investigate this matter is a product of anything other than the excessive demands on a strapped 

federal agency.”

In an earlier decision, the court dismissed the claim that the FEC had improperly leaked information about the matter 

to the press.

On March 27, 1998, the U.S. Court of Appeals for the Fifth Circuit sustained the district court’s ruling in this case for 

the FEC, but it based the dismissal on lack of jurisdiction rather than on the merits.

Background

Former Congressman Stephen E. Stockman was a respondent in an administrative complaint the FEC received 

concerning a newspaper that was published at Mr. Stockman’s residence and campaign headquarters during the 1994 

primary election season. In February 1996, Mr. Stockman asked the U.S. District Court for the Eastern District of 

Texas, Beaumont Division, to direct the FEC to dismiss the administrative complaint because, among other reasons, 

the FEC allegedly had unreasonably delayed its investigation and FEC personnel allegedly had leaked information 

about the investigation to the press, in violation of statutory and regulatory confi dentiality requirements.

District Court Decisions

In decisions rendered in June and August 1996, the district court rejected Mr. Stockman’s arguments. While the 

district court found that it had jurisdiction over the delay claim, it ruled that the delay in the investigation was not 

unreasonable in light of the FEC’s work load and lack of resources. The district court dismissed Mr. Stockman’s 

breach-of-confi dentiality claim for lack of jurisdiction because Mr. Stockman had failed to follow FEC procedures 

for resolving such a claim. In the alternative, the court found that there was no factual basis for Mr. Stockman’s 

allegations of press leaks by the FEC. Mr. Stockman then appealed the case.

Appeals Court Decision

The appellate court, citing 2 U.S.C. §437g(a)(8), concluded that the Federal Election Campaign Act (the Act) does 

not create a cause of action for a delay claim by an administrative respondent (as opposed to the person who fi les the 

complaint). Section 437g(a)(8), the court pointed out, states that only an administrative complainant who is aggrieved 

by the FEC’s failure to act may petition for judicial relief, and then only in the U.S. District Court for the District 

of Columbia. The court further held that Mr. Stockman’s delay claim could not be based on the Administrative 

Procedure Act, which does not apply where the underlying statute precludes judicial review. The court found that 

the Act precludes judicial review of delay claims by plaintiffs, like Mr. Stockman, who were not administrative 

complainants and did not fi le suit in the District of Columbia. The district court therefore lacked jurisdiction, the 

court of appeals held, over Mr. Stockman’s delay claim.

Source: FEC Record, October 1996, p. 2; May 1998, p. 3. , October 1996, p. 2; May 1998, p. 3.

Stockman v. FEC, 944 F. Supp. 518 (E.D. Tex. Aug. 27, 1996), aff’d as modifi ed, 138 F.3d 144 (5th Cir. Mar. 27, 1998). as modified, 138 F.3d 144 (5th Cir. Mar. 27, 1998).

TRINSEY v. FEC

On October 27, 1992, the U.S. District Court for the Eastern District of Pennsylvania dismissed a suit fi led by John 

H. Trinsey, Jr., a 1992 Presidential candidate. (Civil Action No. 91-8041.) He had brought suit against 49 of the 50 

states (all except New Hampshire) as well as the District of Columbia and Guam, seeking a declaration that the ballot 

access laws in South Dakota (where allegedly he was denied access to the primary ballot) and the other jurisdictions 

were unconstitutional. He also asked the court to bar the payment of matching funds to 1992 candidates until he was 

permitted to gain ballot access.

The court granted defendants’ motions to dismiss the suit, noting that the U.S. District Court in South Dakota 

dismissed, with prejudice, a virtually identical suit fi led by Mr. Trinsey. The court further noted that the Eighth 

Circuit Court of Appeals upheld the South Dakota court’s dismissal after carefully considering Mr. Trinsey’s claim 

(Trinsey v. Hazeltine, Civil Action No. 92-1394, September 2, 1992). On this basis, the Pennsylvania district court 

dismissed the suit even though some of the defendants had not yet fi led their motions.

Source: FEC Record, December 1992, p. 7. , December 1992, p. 7.
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UNITED STATES DEFENSE COMMITTEE v. FEC

On April 12, 1988, the U.S. District Court for the Northern District of New York entered an order granting summary 

judgment to the FEC in United States Defense Committee (USDC) v. FEC United States Defense Committee (USDC) v. FEC (Civil Action No. 84-CV-450). (Civil Action No. 84-CV-450). 

In a decision of November 7, 1988, the U.S. Court of Appeals for the Second Circuit held that the USDC’s complaint 

against the FEC was not ripe for the court’s review. The appeals court therefore remanded the case to the U.S. District 

Court for the Northern District of New York with instructions for the district court to dismiss the case.

Background

In its suit, the United States Defense Committee (USDC) asked the U.S. District Court to take action with respect to 

the Commission’s Advisory Opinions (AOs) 1983-43, 1984-14, and 1987-7. 

In those opinions, the Commission expressed the view that corporate treasury expenditures for certain voter guides 

which USDC proposed to compile and distribute to the general public were not exempted under Part 114 of FEC 

regulations. Consequently, the voter guides were prohibited by 2 U.S.C. §441b because, as drafted, the language of the 

guides suggested an election-infl uencing purpose. (Taken together, these legal provisions prohibit corporations, labor 

organizations and incorporated membership organizations from distributing to the general public voter guides that 

favor one candidate or political party over another.)

In response to the opinions, USDC asked the court to declare that USDC’s proposed expenditures were not proscribed 

by FEC regulations. USDC also raised three constitutional questions concerning its distribution of the voter guides. 

For example, USDC asked the court to consider whether 441b abridged its First and Fifth Amendment rights by 

discriminating between incorporated organizations like USDC and the institutional press. (Costs incurred by news 

media corporations for bona fi de coverage of political events are exempt from the election law’s broad prohibition 

on corporate expenditures, provided the news corporation is not owned or controlled by any political party, political 

committee or candidate.)

District Court Ruling

In a statement read into the public record, the district court judge presiding in this case held that the court had 

jurisdiction to review USDC’s complaint. While the court acknowledged that the election law did not specifi cally 

provide for judicial review of FEC advisory opinions, the court found that its authority to review the complaint had 

not been “explicitly restricted by statute or by Congress....” 

In ruling on the merits of the case, the court rejected USDC’s claim that the election law discriminates against 

USDC by permitting the institutional press to disseminate information on political candidates to the general public 

while prohibiting USDC from disseminating information in the form of voter guides. The court held that the press 

exemption had a “valid basis” in that it recognizes the need for informing the public on federal election-related 

issues. Further, the press is not covered by this exemption when it exceeds its legitimate press function. The court also 

rejected USDC’s argument that the guides were not covered by the 441b prohibition because they did not include an 

explicit request for the recipients to vote one way or another. 

Finally, the court held that the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life, Inc. (MCFL), (Civil 

Action No. 85-701) did not exempt USDC from 441b’s prohibition against corporate expenditures in connection with 

federal elections. To be eligible for the MCFL exception, among other things, a nonprofi t corporation must have a 

policy of not accepting contributions from business corporations or labor organizations. Since USDC had accepted 

money from its corporate members, the court found that the organization was not eligible for the MCFL exception. 

USDC subsequently fi led an appeal of the district court’s decision with the U.S. Court of Appeals for 

the Second Circuit. 

Appeals Court Ruling

In deciding that USDC’s case was not ripe for judicial review, the appeals court said that nothing in the legislative 

history indicated that Congress thought advisory opinions were reviewable. Further, the appeals court explained that 

an FEC advisory opinion was not “fi nal or binding.... ” In this regard, the court noted that “if a person proceeded 

to act contrary to an FEC advisory opinion, [that person] would be entitled to all of the enforcement protections, 

including conciliation, conference, persuasion and the like, provided under 2 U.S.C. §437g.”

The appeals court further noted that AO 1987-7 was “particularly inappropriate for judicial resolution at this time. As 

a consequence of the Supreme Court’s decision in FEC v. Massachusetts Citizens for Life the Commission is engaged 

in a rulemaking proceeding which could alter the very regulations applied in the opinion.”

On remand, the district court dismissed the case. 

Source: FEC Record, July 1988, p. 6. , July 1988, p. 6. 

United States Defense Committee, Inc. v. FEC, No. 84-CV-450 (N.D.N.Y. April 27, 1988) (unpublished order), vacated and remanded, 

861 F.2d 765 (2d Cir. 1988). 
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288 Cases Through March 2004

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UNITED STATES v. INTERNATIONAL UNION OF OPERATING 

ENGINEERS

On October 1, 1979, the U.S. Court of Appeals for the Ninth Circuit issued a decision in United States v. International 

Union of Operating Engineers. Reversing the lower court, the appeals court concluded that “nothing in these provisions 

[the Federal Election Campaign Act, as amended] suggests...that action by the Department of Justice to prosecute a 

violation of the Act is conditioned upon prior consideration of the alleged violation by the FEC.”

District Court Decision

On August 13, 1976, the U.S. District Court for the District of Oregon dismissed an indictment brought by the 

Department of Justice against the union. The district court decided that the Attorney General was required to refer 

the case to the FEC for an administrative remedy before seeking criminal penalties against the defendant for violations 

of 2 U.S.C. §§431-455. 

The administrative remedy to which the district court was referring was provided for in §437g of the FECA, which 

said that “any person who believes” a violation of the election law has occurred “may fi le a complaint with the 

Commission,” and which prescribed a detailed process for the FEC to take action. If the Commission found reason 

to believe that a violation had occurred, there was a period during which the agency had to attempt to reach a 

conciliation agreement with the respondent; the agreement could include a civil penalty.1 If the parties were unable 

to work out a conciliation agreement, the law allowed the FEC to seek relief through the federal courts. The law also 

provided that the FEC could refer cases of “knowing and willful violation” of the FECA to the Justice Department 

for criminal prosecution. Furthermore, a completed conciliation agreement with the FEC could be introduced by the 

respondent as mitigating evidence in any criminal action brought by the Attorney General. 

The district court concluded that “the procedural scheme devised by Congress to protect candidates from the adverse 

effects of groundless or insubstantial charges will be frustrated if the Attorney General has the power to step in and 

obtain an indictment in a case which was never referred to the FEC.” 

The Attorney General appealed the district court’s decision. 

Appeals Court Decision

On October 1, 1976, the court of appeals issued an opinion reversing the decision of the district court. 

The appeals court observed that the lower court had based its conclusion not on legislative history but on inferences 

from the language of the Act. Acknowledging that the statute does contain many restrictions designed to minimize 

the risk that the administrative process might be used unfairly, the appeals court concluded that the restrictions were 

aimed at complainants and the FEC, but not the Attorney General. 

The court cited the legislative history of the FECA to corroborate this conclusion. The Senate’s version of the 1974 

amendments to the FECA, the judges noted, had included a provision which allowed the Justice Department to take 

action on civil and criminal violations of the Act “only after the Commission [was] consulted and consent[ed] to such 

a prosecution.” The provision was dropped from the bill by the conferees. The conference report made explicit that 

Congress intended, in its fi nal version of the 1974 amendments, to grant the FEC primary powers of civil enforcement. 

The court further pointed out that the 1976 amendments to the Act gave the FEC “exclusive responsibility” for civil 

enforcement while it preserved the Justice Department’s customary jurisdiction over criminal violations. 

Finally, the court stated, the Act specifi es that if the FEC fi nds probable cause that a “knowing and willful 

violation” has occurred, the agency may refer the case to the Justice Department without fi rst attempting 

a conciliation agreement. 

By the time the appeals court issued this decision, the Justice Department and the FEC had entered into a memorandum 

of understanding which adopted similar principles. The Commission retained exclusive primary authority for the 

prosecution of civil violations of the Act, while the Justice Department retained independent authority for the 

prosecution of criminal violations of the Act. 

International Union of Operating Engineers, Local 701: United States v., 638 F.2d 1161 (9th Cir. 1979), cert. denied cert. denied, 444 U.S. 1077 (1980). , 444 U.S. 1077 (1980). 1 The phrase in 2 U.S.C. §437g(a)(2) to which the court was referring, “if it [the Commission] has reason to believe that any person has 

committed a violation,” was deleted in the 1979 amendments to the Act. The current enforcement procedures outlined in §437g would 

not have altered the outcome of this decision. 
Selected Court Case Abstracts

Cases Through March 2004 289

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USA v. HSIA

On May 18, 1999, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court decision to 

dismiss fi ve counts of a six-count criminal indictment charging Maria Hsia, a Democratic fundraiser, with collecting 

and disguising impermissible contributions in the 1995-96 election cycle.

The fi ve counts of the indictment that were reinstated accuse Ms. Hsia of causing the Clinton/Gore ’96 Primary 

Committee, the Democratic National Committee and The Friends of Patrick J. Kennedy ’96 to make false 

statements in their reports fi led with the FEC. The appellate court also denied Ms. Hsia’s cross-appeal of the 

remaining count in the indictment, which accuses her of conspiracy to defraud the FEC and the Immigration 

and Naturalization Service.

The court remanded the case to the U.S. District Court for the District of Columbia for further proceedings.

The Department of Justice (DOJ), which fi led this suit, alleged that Ms. Hsia and the International Buddhist Progress 

Society (IBPS), an incorporated, tax-exempt religious organization in California, funneled money through straw 

donors to various campaigns. The indictment alleged that Ms. Hsia and IBPS asked nuns, monks and others with 

ties to IBPS to make contributions to Democratic campaigns, and later reimbursed them with IBPS funds. Ms. Hsia 

was also accused of using straw donors to funnel money from two clients of her Los Angeles immigration consultant 

business to Democratic campaigns.

The Federal Election Campaign Act (the Act) prohibits corporations from making contributions in connection with 

any federal election. 2 U.S.C. §441b(a). The Act also prohibits any person from making a contribution in the name of 

another. 2 U.S.C. §441f. Additionally, the U.S. tax code bars certain organizations, such as IBPS, from participating 

in any political campaigns. 26 U.S.C. §501(c)(3). Finally, under 18 U.S.C. §§2 and 1001, it is unlawful to willfully cause 

an offense by another person against the United States.

Appeals Court Decision

The appeals court fi rst addressed the willful nature of Ms. Hsia’s alleged conduct. The district court had concluded 

that Ms. Hsia’s actions were not willful because the DOJ failed to show that she knew her conduct was unlawful. 

The appellate court, however, stated that the government need not prove that Ms. Hsia knew that her conduct was 

unlawful; only that she knew that the information provided to the political committees regarding the sources of 

contributions was false and that she intentionally caused false statements to be made by another.

The appeals court also rejected the district court’s fi nding that the causal link between Ms. Hsia’s conduct and the false 

statements in the political committees’ reports was too “attenuated.” In fact, the appeals court concluded the conduit 

scheme together with the names on the checks caused false statements to be made by the political committees. The 

appellate court pointed to several cases where the courts previously upheld applying the “false statement prohibition” 

to conduit contribution schemes. In those cases, defendants used straw donors to conceal their own contributions. 

Here, Ms. Hsia did not funnel her own money to straw donors: instead, the money belonged to immigration clients 

or to IBPS. Hsia, however, arranged for the conduits to do their part. The distinction of whose money was used is 

irrelevant to this situation, the appeals court found. FEC regulations state that a contribution made by check should 

be reported as a contribution by the last person signing it. 11 CFR 104.8(c). “The simple interposition of conduits 

to sign the checks is certainly enough to ‘cause’ a committee to make false statements in its report,” the appeals court 

wrote in its decision.

The appeals court also rejected the lower court’s fi nding that the contributor information fi led with the Commission 

by the three committees was “literally true.” The district court had reasoned that, because the indictment did not 

allege that the committees’ treasurers had any wrongful knowledge about the true contributors, the statements in their 

reports had to be considered in compliance with the Act, and therefore not false.

This reasoning assumes that the safe harbor provision protecting treasurers of political committees who 

use “best efforts” to report all required information, 11 CFR 104.7, modifi es the substantive reporting 

requirements of the Act. However, the court added, “it would make no sense for Congress to allow treasurers 

to rely on the provision of information by others while at the same time giving others a virtual carte blanche to 

provide inaccurate information.” 

Source: FEC Record, July 1999, p. 9. , July 1999, p. 9.

USA v. Hsia, 176 F.3d 517 (D.C. Cir. 1999).
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USA v. KANCHANALAK, ET AL.

On October 8, 1999, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court decision 

to dismiss charges against Pornpimol Kanchanalak and Duangnet Kronenberg for illegally using conduits to disguise 

donations from foreign nationals and corporations. The Department of Justice originally fi led suit against Ms. 

Kanchanalak and Ms. Kronenberg for willfully causing the Democratic National Committee (DNC) and other 

committees to fi le false reports of hard money contributions and soft money donations with the Federal Election 

Commission (FEC), in violation of 18 U.S.C. §§2(b), 1001.1 The defendants were allegedly involved in a scheme in 

which permanent U.S. residents signed checks for both hard and soft money when the actual source of the funds was 

a foreign corporation, Ban Chang International (USA), Inc. The U.S. District Court for the District of Columbia 

dismissed the charges against Ms. Kanchanalak and Ms. Kronenberg. In regard to the hard money counts, the 

district court concluded that the government had failed to prove that the defendants had directly caused the making 

of false reports to the FEC. With regard to the soft money counts, the court determined that neither the Federal 

Election Campaign Act (the Act) nor Commission regulations require political committees to report the sources of 

soft money donations. The Court of Appeals reversed on each of these matters.

Hard Money

The appeals court reinstated the hard money counts against the defendants based on its previous decision in United 

States v. Hsia,

2 which established that the Act requires political committees to report the true source of the federal 

funds they receive. 2 U.S.C. §441f. The appellate court ruled that the defendants’ scheme of illegally utilizing conduits 

caused the DNC and other committees to report the conduits rather than the true sources of the contributions on 

FEC forms. Because the defendants’ actions “caused false statements to be made to a government agency,” the 

appeals court summarily reversed the district court’s decision on these counts.

Reporting Soft Money

The court of appeals also reversed the district court’s ruling regarding the soft money reporting regulation. The 

appellate court did not question the lower court’s determination that nothing in the Act requires soft money reporting, 

but pointed to the Commission’s regulation at 11 CFR 104.8(e), which requires disclosure about any entity that 

“donates an aggregate amount in excess of $200 in a calendar year to the committee’s nonfederal account(s).” In 

upholding the FEC’s interpretation of its regulation to require the disclosure of the true sources of soft money, the 

opinion noted the appeals court’s long history of deferring to agencies’ interpretations of their own regulations, 

and quoted a Supreme Court opinion which stated ‘“that the [Federal Election] Commission is precisely the type of 

agency to which deference should presumptively be afforded.’”3

Soft Money Donations by Foreign Nationals

In reversing the district court’s judgment with regard to the soft money counts, the appeals court found that the FEC 

had reasonably interpreted the Act to forbid soft money donations by foreign nationals. While the defendants had 

argued that the prohibition applied only to federal elections, the appellate court ruled that it extends to state and 

local elections as well. The opinion cited 2 U.S.C.441e, which states that “it shall be unlawful for a foreign national 

directly or through any other person to make any contribution...in connection with an election to any political offi ce.” 

While the defendants had focused on the fact that “contribution” is defi ned to include “any gift...made by any person 

for the purpose of infl uencing any election for Federal offi ce” (2 U.S.C.§431(8)(A)(i)), the appeals court emphasized 

the use of the term “any political offi ce.” The appeals court compared §441e to §441b, which differentiates between 

contributions in connection with elections to federal offi ce and those in connection with election to “any political 

offi ce.” The opinion noted that, “[b]y distinguishing federal offi ces from ‘any political offi ce,’ Congress plainly 

intended to reach certain contributions made to state and local offi ces.” In this regard, the appellate court again 

relied on the FEC’s interpretation of the law, which has consistently been that nonfederal offi ces are included in the 

foreign national prohibition.

Source: FEC Record, January 2000, p. 1. , January 2000, p. 1.

192 F. 3d 1037 (D.C. 1999)

1 The court of appeals stated that “hard money” refers to funds that have been deposited by the Committee into a “federal account” and 

are used to fi nance federal election campaigns, whereas “soft money” refers to funds that are deposited into a “nonfederal” account and 

are supposed to be used for, among other things, state and local campaigns.

2 United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999). 3 FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37 (1981).
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VIRGINIA SOCIETY FOR HUMAN LIFE, INC. v. FEC

On September 17, 2001, the U.S. Court of Appeals for the Fourth Circuit upheld a district court decision that 11 CFR 

100.22(b) is unconstitutional. The regulation defi nes “express advocacy” as a communication that, when taken as a 

whole and with limited reference to external events (such as proximity to an election), can only be interpreted by a 

reasonable person as unambiguously advocating the election or defeat of a clearly identifi ed candidate.1 

The appeals court, however, found that the district court’s injunction, which prohibited the FEC from enforcing the 

regulation against any party throughout the country, was too broad. Instead, the appeals court limited the injunction 

to bar the FEC from enforcing the regulation against the Virginia Society for Human Life, Inc. (VSHL). The appeals 

court also rejected the VSHL’s cross-appeal, which asked the court to require the FEC to repeal the regulation. 

The appeals court found that ruling 11 CFR 100.22(b) unconstitutional and barring the FEC from enforcing the 

regulation against Plaintiffs gave the VSHL complete relief.

Background

The VSHL is a nonprofi t, tax-exempt membership corporation, which accepts corporate contributions. The group 

had planned to distribute voter guides to the general public in connection with the 2000 federal election cycle. The 

guides outlined the VSHL’s stance on abortion-related issues and tabulated candidates’ positions on these issues. 

The VSHL also planned to produce radio advertisements that would compare the positions of the candidates for 

President and U.S. Senator for Virginia on abortion-related issues. The VSHL planned to run these ads in Northern 

Virginia or the District of Columbia one week before the election. 

On January 6, 1999, the VSHL submitted a petition for rulemaking to the FEC, requesting that it repeal 11 CFR 

100.22(b). The VSHL argued that the defi nition of “express advocacy” was overly broad, and, thus, some of its 

planned activities might constitute prohibited corporate expenditures. See 2 U.S.C. §441b. The Commission did not 

vote to open a rulemaking. On August 9, 1999, the VSHL asked the U.S. District Court for the Eastern District 

of Virginia, Richmond Division, to require the FEC to act on its petition and to prohibit the Commission from 

enforcing 11 CFR 100.22(b).

District Court Decision

On January 4, 2000, the district court issued an injunction prohibiting the FEC from enforcing 11 CFR 100.22(b) 

“against the VSHL or against any other party in the United States of America.” Relying on Buckey v. Valeo, the 

district court concluded that the regulation at 100.22(b) was unconstitutional. The district court said that the Buckley

court defi ned express advocacy as “communications that in express terms advocate the election or defeat of a clearly 

identifi ed candidate for federal offi ce.” The court found that by allowing the FEC to regulate advocacy based upon the 

understanding of the audience rather than the actual message of the advocate, the regulation at 100.22(b) failed the 

Buckley test. Moreover, the district court concluded, the regulation empowered the FEC to regulate issue advocacy, 

which was “clearly forbidden by Buckley.” See the March 2000 Record, page 8. , page 8.

Appeals Court Decision

Plaintiff’s Standing and Timing of Judicial Intervention

On appeal, the FEC argued that the VSHL lacked standing to sue. The FEC maintained that, because it had adopted 

a policy of not enforcing 11 CFR 100.22(b) in the Fourth Circuit, the VSHL faced no credible threat of prosecution. 

The FEC also argued that the case was not appropriately timed for judicial intervention because the VSHL’s allegations 

about its planned activities were not suffi ciently concrete. 

The appeals court, however, held that the VSHL had standing and that its allegations created a controversy that was 

concrete enough for the court to address. First, the court found that the VSHL faced a threat of prosecution, despite 

the FEC’s policy in the Fourth Circuit. The FEC’s policy statement was only recorded in FEC meeting minutes, which 

“do not carry the binding force of law.” If sitting Commissioners were to change their minds, or new Commissioners 

were to disagree with the policy, the court reasoned, then the FEC could again enforce the regulation in the Fourth 

Circuit. Moreover, some of the VSHL’s planned activity could occur outside of the Fourth Circuit where it would not 

be protected even if the policy remained in place. Similarly, the court found that the case was ripe for judicial decision 

because the VSHL could not have engaged in its planned activities—nor could it engage in similar activities in the 

future—without the threat of penalty.

Constitutional Issues

The appeals court, relying on Buckley, agreed with the district court that the regulation violates the First Amendment 

and is unconstitutional because it “shifts the focus of the express advocacy determination away from the words 

themselves to the overall impressions of the hypothetical, reasonable listener or viewer.” 
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The FEC argued that a too narrow reading of the express advocacy requirement would allow corporations and unions 

to circumvent, with “little more than careful diction,” the Federal Election Campaign Act’s prohibitions against 

corporate expenditures. 2 U.S.C. §441b. The appeals court, however, stated that it was bound by previous Supreme 

Court decisions and that a broader reading of “express advocacy” must come “from an imaginative Congress or from 

further review from the Supreme Court.”

Scope of Injunction

The appeals court found that the district court abused its discretion by issuing a nationwide injunction against the 

FEC’s enforcement of the regulation. The appeals court found that a nationwide injunction:

• Exceeded what was necessary to give full relief to the VSHL because an injunction covering the VSHL alone 

adequately protected it from prosecution;

• Deprived the FEC of the opportunity to argue its case in other courts of appeals;

• Confl icted with the principle that a federal court of appeals’s decision is only binding within its circuit; and

• Deprived the Supreme Court of the benefi t of decisions from several courts of appeals.

The appeals court concluded that the injunction to bar the Commission from enforcing the regulation must be limited 

to protect only the VSHL anywhere in the country.

Repeal of Regulation

The appeals court rejected the VSHL’s request that it order the FEC to open a rulemaking to consider the repeal of 

11 CFR 100.22(b). The court found it had given the VSHL complete relief by ruling the regulation unconstitutional 

and authorizing an injunction that prohibited the FEC from enforcing the regulation against the VSHL.

The appeals court remanded the case to the district court in order to have the injunction amended so that its protection 

is limited to the VSHL.

Source: FEC Record, March 2000, p. 8; and November 2001, p. 1. , March 2000, p. 8; and November 2001, p. 1. 1 The FEC adopted the regulation at 11 CFR 100.22(b) based on its reading of the Ninth Circuit’s decision in FEC v. Furgatch, in which 

the court concluded that “speech need not include any of the words listed in Buckley [v. Valeo, such as “vote for,” “elect,” “support,” 

“cast your ballot for,” “Smith for Congress,” “vote against,” etc.] to be express advocacy under the [Federal Election Campaign] Act, 

but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but 

as an exhortation to vote for or against a specifi c candidate.”

263 F.3d 379.
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WALTHER v. FEC

On April 17, 1979, the U.S. District Court for the District of Columbia denied the FEC’s motion to dismiss the claim 

of Henry L. Walther in a suit fi led against the FEC on November 21, 1978, in accordance with 2 U.S.C. §437g(a)(9). 

The plaintiff contended that the Commission had acted contrary to law in dismissing 45 complaints fi led with the 

Commission by Mr. Walther and the National Right to Work Committee pursuant to 2 U.S.C. §437g(a)(1). Each 

complaint asserted that both a candidate for federal offi ce and the candidate’s committee had accepted illegal 

contributions in excess of the $5,000 contribution limitation established by 2 U.S.C. §441a(a)(2)(A). The complainants 

claimed that the alleged violations had occurred when contributions were accepted from both the AFL-CIO political 

committee (COPE) and from political committees set up by member unions of the AFL-CIO (union committees). 

The plaintiff contended that COPE and some union committees were subject to the same control and, therefore, shared 

one contribution limitation under 441a(a)(5). (The 441a(a)(5) antiproliferation provision provides that contributions 

from separate PACs which are “established or fi nanced or maintained or controlled” by the same person or group of 

persons shall be considered to have been made by a single political committee.)

The FEC contended, on the other hand, that as a matter of law, 441a(a)(5) was not intended by Congress to apply 

to the relationship between the AFL-CIO Federation and its membership (union locals). The FEC also maintained 

that since the agency had publicly construed the antiproliferation provision to exclude cooperation between COPE 

and union PACs, no candidate could knowingly violate the statute by accepting contributions from both. (In 1977, 

the FEC had dismissed a complaint fi led by the National Right to Work Committee against the AFL-CIO, which 

had alleged that the AFL-CIO and member unions were affi liated. The National Right to Work Committee never 

appealed that determination to the court.) Therefore, the FEC fi led a motion to dismiss the case. 

The court identifi ed the central question presented by the Commission’s motion to dismiss as one of 

statutory construction: What is the correct application of 441a(a)(5) to the relationship between COPE 

and union committees?

After examining the language of the statute and the policy underlying the Act, the court refused to accept the FEC’s 

interpretation of the statute for the following reasons:

• The court found nothing in the antiproliferation language of 441a(a)(5) to support the proposition that certain 

PACs were intended to be excluded from its scope. On the contrary, the statute enunciates an inclusionary rule 

wherein the PACs of a labor organization and its locals are automatically treated as one PAC. The statute does 

not identify any relationships excepted from the 441a(a)(5) rule. 

• The court accepted neither the FEC’s reliance on the legislative history of the statute nor its interpretation of 

that history to support the FEC position that COPE and union PACs were intended to be exempt from the 

antiproliferation provision. 

• FEC regulations, cited by the Commission in support of its position, declare the circumstances under which 

two PACs will always be treated as one. The court determined that cited regulations do not address the issue 

at hand: when two PACs are never treated as one. 

Accordingly, the court concluded that 441a(a)(5) applies to all political committees controlled by the same person 

or group of persons except for certain exemptions not relevant to this case. Therefore, the relationship alleged by 

the plaintiff may constitute a violation. Furthermore, the court rejected the FEC’s contention that the agency’s 

interpretation of the statute precluded commission of civil or criminal violations of the Act by candidates. The court 

concluded that, although an incorrect administrative interpretation may have some bearing on determining whether 

or not a party acted knowingly, it does not provide immunity to the party. 

Finally, in denying the FEC motion to dismiss, the court held that the plaintiff had alleged facts suffi cient to withstand 

a motion to dismiss. However, the court pointed out that this opinion could not be construed as concluding that a 

violation had occurred or that the FEC had actually failed to perform its statutory duty. 

Cross-motions for summary judgment were fi led. On June 15, 1979, the U.S. District Court for the District of 

Columbia granted summary judgment to the FEC. 

Based on the standard of judicial review that only arbitrary and capricious administrative actions of an agency may be 

reversed, the court determined that the Commission’s decision not to investigate Walther’s complaints was “eminently 

reasonable.” The court characterized the Walther complaints as a “shambles” containing serious shortcomings. 

Source: FEC Record, June 1979, p. 7; and September 1979, p. 5. , June 1979, p. 7; and September 1979, p. 5. 

Walther v. FEC, 468 F. Supp. 1235 (D.D.C. 1979). 
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WEBER v. HEANEY

The U.S. Court of Appeals for the Eighth Circuit recently held that the Federal Election Campaign Act (FECA) 

preempted the Minnesota Congressional Campaign Reform Act in its entirety. The court’s June 17, 1993, decision in 

John Vincent Weber v. William M. Heaney affi rmed a district court holding. The Commission was an amicus curiae

in the litigation.

Background

Under the Minnesota Congressional Campaign Reform Act, U.S. House and Senate candidates on the general election 

ballot may choose to limit their campaign expenditures to specifi ed amounts. A contributor to these candidates can 

then receive up to a $50 refund from the state. If one candidate agrees to the limit but the major party opponent does 

not, neither candidate is subject to the spending limit, but the fi rst candidate is entitled to a public funding grant from 

the state. Violations of the voluntary expenditure limit are subject to civil penalties of up to four times the amount 

of the excess spending.

The FECA “supersede[s] and preempt[s] any provision of state law with respect to election to Federal offi ce.” 2 U.

S.C. §453. The FEC addressed the Minnesota preemption question in AO 1991-22, requested by three members of 

the Minnesota delegation to the U.S. Congress. The Commission concluded that the Campaign Reform Act sought 

to regulate an area under the sole authority of federal law and was therefore preempted. The requesters, seeking the 

same ruling from the courts, fi led suit against the state offi cials responsible for enforcing the Campaign Reform Act.

District Court Decision

In deciding whether the FECA preempted the Minnesota Act, the U.S. District Court for the District of Minnesota 

found that §453 and its legislative history were too ambiguous to provide much guidance and therefore looked to the 

FEC’s interpretation of §453 in its regulations. (11 CFR 108.7 provides, in part, that federal law supersedes state law 

in the area of expenditure limitations.) The court found that “this regulation is probably the most persuasive evidence 

that section 453 was intended to preempt all state laws purporting to regulate congressional campaign expenditures.” 

The court noted that the regulation passed Congressional review in 1977. “Thus, the Court infers that this regulation, 

because it was tacitly approved by Congress, represents a valid interpretation of Congressional intent.” The court also 

accorded deference to the Commission’s conclusion in AO 1991-22.

On June 11, 1992, the court held that the Minnesota Campaign Reform Act was preempted in its entirety based on 

the FEC’s interpretation of §453. The court permanently enjoined Minnesota from implementing or enforcing the 

Act. (No. 4-91-1009.)

Court of Appeals Decision

Concluding that §453 was susceptible to more than one reading, the court of appeals nevertheless held that “under 

every plausible reading of §453, the Campaign Reform Act falls squarely within the boundaries of the preempted 

domain.” (No. 92-2458.)

Like the district court, the court of appeals was persuaded by the FEC preemption regulation: “We fi nd this duly 

authorized regulation is a further express preemption of the Campaign Reform Act.”

The court rejected appellants’ argument that the regulation was not applicable to voluntary expenditure limits. The 

court even questioned whether the limits were “truly voluntary” in light of the benefi ts bestowed on those who 

complied with them and the penalties imposed on those who did not. 

Source: FEC Record, August 1993, p. 1. , August 1993, p. 1.
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WERTHEIMER v. FEC (00-5371)

On October 26, 2001, the U.S. Court of Appeals for the District of Columbia upheld a district court’s dismissal of a 

complaint fi led against the Federal Election Commission by Fred Wertheimer, Scott Harsbarger and Archibald Cox 

(appellants referred to as Wertheimer).

Background

On September 13, 2000, Wertheimer fi led a complaint against the FEC in the U.S. District Court for the District 

of Columbia. In the complaint, Wertheimer alleged that the Commission’s failure to implement and construe the 

Fund Act to identify party expenditures coordinated with publicly funded Presidential candidates as impermissible 

“contributions” and “expenditures” injured them by:

• Depriving them of required information about the source and amount of candidates’ fi nancing;

• Preventing them from determining whether publicly fi nanced candidates were abiding by the law; and

• Interfering with their right to direct that their three-dollar income tax return check-off be used in 

a lawful fashion.

On October 10, 2000, the district court dismissed Wertheimer’s case on the grounds that:

• The court lacked jurisdiction to consider Wertheimer’s claimed informational injury; and

• Wertheimer’s other claimed injuries did not support their standing to sue the Commission.1

Appeals Court Decision

On appeal, Wertheimer relied on their alleged informational injury. The appeals court, however, affi rmed the district 

court’s decision. It held that Wertheimer had not satisfi ed their burden to establish their standing to bring the case 

because they had failed to assert a suffi cient injury in fact. Wertheimer’s appeal relied on FEC v. Akins,

2

 which, 

the court of appeals explained, holds that “a voter suffers cognizable injury under FECA when it is deprived of 

information that FECA requires disclosed.” The court concluded that Wertheimer failed to show either that they 

were deprived of any information or that the legal ruling they sought might provide additional factual information. 

Wertheimer was not seeking additional facts, but “only the legal determination that certain transactions constitute 

coordinated expenditures.” As a result, the court found that Wertheimer failed to demonstrate standing.

Source: FEC Record, November 2000, p. 9; and January 2002, p. 12. , November 2000, p. 9; and January 2002, p. 12. 1

See the Record, November 2000, p. 9. , November 2000, p. 9. 2

 524 U.S. 11 (1998).
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WHITE v. FEC

On April 24, 1992, the U.S. District Court for the Western District of Pennsylvania granted the FEC’s motion to 

dismiss this case based on the report and recommendation of the magistrate judge, which the court adopted as its 

opinion. (Civil Action No. 91-1201.)

William D. White challenged the constitutionality of 11 CFR 110.11(a), which permits candidates (except those 

receiving public funding1) to make unlimited contributions of personal funds to their own campaigns. Mr. White 

claimed that the rule violated the equal protection provision of the Fifth Amendment by conferring a privilege on 

candidates that is denied to other citizens. He sought an order compelling candidates to pay a penalty in the amount of 

their excessive contributions. He also sought a preliminary injunction barring candidates from making contributions 

to their own campaigns in excess of $1,000. The court denied that motion on August 26, 1991.

In ruling on the issues, the court pointed out that the Supreme Court upheld the challenged provision in Buckey v. 

Valeo. In that case, the High Court recognized that “the use of personal funds reduces the candidate’s dependence 

on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the 

[Federal Election Campaign] Act’s contribution limitations are directed.” The district court also cited California 

Medical Association v. FEC, in which the Supreme Court held that the disparities in the Act’s contribution provisions 

do not violate equal protection rights.

Because the Supreme Court has already ruled on the issue raised by Mr. White, the district court found that there was 

no need to certify his constitutional challenge pursuant to 2 U.S.C. §437h.2 The court therefore granted the FEC’s 

motion to dismiss based on plaintiff’s failure to state a claim for which relief may be granted.

Source: FEC Record, July 1992, p. 9. , July 1992, p. 9. 1 Presidential candidates who receive public funds are subject to a $50,000 limit on contributions to their own campaigns.

2 This provision provides for review of constitutional issues: the U.S. district court immediately certifi es to the U.S. court of appeals all 

questions of the constitutionality of the Federal Election Campaign Act.

WHITE v. FEC

On July 31, 1997, the U.S. District Court for the District of Columbia granted the FEC’s request for summary 

judgment and dismissed this case.

William D. White, the plaintiff, had charged in this suit that the FEC had acted contrary to law when it dismissed and 

closed an administrative complaint—later designated MUR 3920—he had fi led in November 1994.

Source: FEC Record, October 1997, p. 2. , October 1997, p. 2.

White v. FEC, 1997 WL 459849 (D.D.C. July 31, 1997).

WHITMORE v. FEC 

On December 9, 1994, the U.S. District Court for the District of Alaska dismissed Whitmore and Quinlan v. FEC, in 

which the plaintiffs challenged the constitutionality of permitting federal candidates for the Alaska at-large seat in 

the U.S. House of Representatives to accept contributions from individuals and PACs residing outside of Alaska.

The U.S. Court of Appeals for the Ninth Circuit, on October 26, 1995, affi rmed the district court’s dismissal.

District Court Decision

Joni Whitmore was the Green Party’s 1994 candidate for U.S. House Representative from Alaska. She refused outof-state contributions throughout her campaign. James Quinlan is a resident of Alaska. Plaintiffs argued that the 

Federal Election Campaign Act (the Act) permitted out-of-state contributions, which violated their constitutional 

rights, hurt Ms. Whitmore’s candidacy and diluted Mr. Quinlan’s vote. 

The court found that the plaintiffs lacked standing to bring this case because they did not demonstrate injury-in-fact 

or causation, or that the relief they sought would redress the alleged injury.

An injury-in-fact must affect a plaintiff in a personal and individual way. The court deemed Ms. Whitmore’s alleged 

injury to be hypothetical and speculative. The court found no evidence to suggest that Ms. Whitmore would have fared 
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better in the election if out-of-state contributions had been prohibited. As to the allegation that the Act injures Mr. 

Quinlan by depriving him of his right to equal protection and to be governed by a republican form of government, 

the court said there was no injury-in-fact because all candidates were free to solicit and receive contributions.

To show causation, a plaintiff’s injury must be traceable to the challenged action of the defendant. The court stated 

that Ms. Whitmore failed to present any facts indicating that the government had caused non-Alaskans to contribute 

to her opponents, prevented her from soliciting such contributions or prevented non-Alaskans from contributing to 

her. The Act, the court found, does not treat the plaintiffs any differently than other American citizens. 

Lastly, the court stated that there was no evidence to show that prohibiting her opponents from accepting out-of-state 

contributions would redress Ms. Whitmore’s injury; the effect of out-of-state contributions on her campaign was 

wholly speculative.

The court said “ . . . to accomplish the result plaintiffs seek, the court would have to add to [the Act] a prohibition [on] 

nonresident contributions, which it is not permitted to do. . . . [R]egulation of federal elections is more appropriately 

committed to the legislature, not to the judiciary.” 

Appeals Court Decision

The court of appeals affi rmed the district court’s dismissal of this case on grounds that plaintiffs lacked standing 

under Article III of the constitution to fi le this suit and that, even if they had standing, their claims were frivolous.

Source: FEC Record, February 1995, p. 7; and March 1996, p. 6. , February 1995, p. 7; and March 1996, p. 6.

Whitmore v. FEC, No. A94-289 CIV (JWS) (D.C. Alaska Sept. 16, 1994) (denying preliminary injunction); (D.C. Alaska Dec. 8, 1994) 

(opinion); No. 94-36236 (9th Cir. Oct. 26, 1995).

WILKINSON v. FEC 

On August 25, 2003, Clark A. Wilkinson petitioned the U.S. District Court for the Central Division in the District 

of Utah to set aside the Commission’s fi nal determination that, as treasurer of the Friends of Bob Gross Committee 

(the Committee), he failed to fi le the Committee’s July and October 2002 quarterly reports. Mr. Wilkinson also asked 

the court to set aside the Commission’s assessment of $5,400 in civil money penalties under its administrative fi nes 

regulations. 11 CFR 111.30-111.45.

Background 

On October 29, 2002, the Commission found reason to believe (RTB) that the Committee and Mr. Wilkinson failed 

to fi le the July quarterly report, and on December 23 the Commission found RTB that they failed to fi le the October 

quarterly report. The Commission calculated a $2,700 penalty for each report based on the FEC’s schedule of 

administrative fi ne penalties. Mr. Wilkinson challenged the RTB fi ndings under the administrative process provided 

for in Commission regulations. 11 CFR 111.35-111.37. After reviewing the RTB fi ndings and Mr. Wilkinson’s written 

responses, the FEC Reviewing Offi cer recommended that the Commission make a fi nal determination that the 

Committee and Mr. Wilkinson violated 2 U.S.C. §434(a) and assess $5,400 in civil penalties, based on the two reports. 

On July 8, 2003, the Commission adopted the Reviewing Offi cer’s recommendations and made fi nal determinations.

Court Complaint 

In his court complaint, Mr. Wilkinson asserts that he resigned as treasurer of the Committee on May 11, 2002, and 

sent the Committee written notice to that effect on May 13, 2002. Mr. Wilkinson argues that, because he resigned 

as treasurer prior to the two reporting dates, it was not his responsibility to fi le the July and October 2002 quarterly 

reports, and, therefore, the Commission’s fi nal determination and assessment of a civil money penalty against him is 

in error. 

Mr. Wilkinson asks that the court set aside the Commission’s fi nal determination and assessment of the civil penalties 

against him. 

Source: FEC Record, November 2003, p. 8. , November 2003, p. 8. 
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WILSON v. USA

On March 2, 1995, the U.S. District Court for the Northern District of California upheld the constitutionality of 

the National Voter Registration Act (NVRA). Additionally, the court ordered the State of California to present a 

proposed plan for implementing the NVRA within 10 days of this decision.

The U.S. Court of Appeals for the 8th Circuit upheld the district court’s decision on July 25, 1995.

The NVRA, a federal law that went into effect on January 1, 1995, mandated that states requiring advance registration 

to vote in federal elections must permit voter registration by: mail-in application; simultaneous application with 

driver’s license application, renewal, or change of address; and simultaneous application at disability and public 

assistance agencies as well as other agencies designated by the state. 1

California Governor Pete Wilson fi led suit in the district court against the federal government (including the FEC) 

on December 20, 1994. In his suit, Governor Wilson argued that the NVRA, as an unfunded federal mandate, was 

unconstitutional under the Tenth Amendment, which reserves to the states those powers not delegated to the federal 

government by the Constitution.

The district court, however, deemed that Article I, Section 4, of the Constitution does indeed delegate to the federal 

government the authority to enforce the NVRA:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each 

State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations, except as 

to the Places of chusing [sic] Senators.”

Source: FEC Record, May 1995, p. 1. , May 1995, p. 1.

Wilson v. U.S.A., Nos. C 95-20042 JW and C 94-20860 JW (N.D. Cal. Mar. 2, 1995). 1 The FEC is the federal agency entrusted with the development of a National Voter Registration Form. This form has been available 

since January 1. The FEC is also required to submit a report to Congress every 2 years assessing the impact of the National Voter 

Registration Act and suggesting improvements in voter registration forms and procedures.

CITIZENS FOR WOFFORD v. FEC

On April 14, 1995, plaintiff withdrew the complaint it had fi led against the FEC in the U.S. District Court for the 

District of Columbia. An FEC suit fi led against plaintiff on December 20, 1994, in the U.S. District Court for the 

Middle District of Pennsylvania, Harrisburg Division, on December 20, 1994, is still in progress. FEC v. Citizens for 

Wofford (1:CV-94-2057). (1:CV-94-2057).

Background

Both cases involve an FEC enforcement action borne out of the 1991 Pennsylvania special election. The major 

party contenders in the special election were Democratic nominee Mr. Harris Wofford and Republican nominee Mr. 

Richard Thornburgh. The Democrats nominated Mr. Wofford on June 1, 1991, but did not certify the nomination 

until September 5, 1994.

Citizens for Wofford, Mr. Wofford’s principal campaign committee, regarded contributions received following the 

June 1 designation but prior to the September 5 certifi cation as primary contributions. 1

As a result, the Republican State Committee of Pennsylvania fi led an administrative complaint with the FEC. 

Following an investigation, the Commission found probable cause to believe that Citizens for Wofford violated 2 U.

S.C. §441a(f) —the knowing acceptance of a contribution made in violation of the Federal Election Campaign Act’s 

limits. This was because contributions received after June 1, the date of the nomination, should have been counted 

against the contributor’s general election limit. Attempts to reach a conciliation agreement with Citizens for Wofford 

failed. This impasse lead to the fi ling of this case and FEC v. Citizens for Wofford.

Source: FEC Record, June 1995, p. 13. , June 1995, p. 13.

Citizens for Wofford v. FEC, No. 94-2617 (D.D.C. Apr. 14, 1995). 1

 Counting these contributions against a contributor’s primary election limit instead of against the contributor’s general election limit 

would enable contributors to give up to twice as much to the party’s nominee as they would otherwise be able to; contributors would be 

able to give up to their per-election limit to support Senator Wofford’s primary election campaign after the fact and again to support his 

general election campaign.
Selected Court Case Abstracts

Cases Through March 2004 299

X

XEROX CORP. v. AMERICANS WITH HART

KROLL v. AMERICANS WITH HART

On March 10, 1988, the U.S. District Court for the District of Columbia granted the FEC’s motion to vacate two 

writs of attachment fi led by creditors of Americans with Hart, Inc., Gary Hart’s 1984 publicly funded Presidential 

campaign. The court also dismissed the FEC as a party to the cases and remanded the cases to the Superior Court 

for the District of Columbia. (Xerox Corp. v. Americans with Hart, Inc. and Harry Kroll v. Americans with Hart, Inc.; 

Civil Action Nos. 88-0086 and 88-0211, respectively.) The court has not yet acted on the FEC’s motion to dismiss a 

third writ of attachment fi led by Semper-Moses Associates, Inc., another creditor of the 1984 Hart campaign. 

Background

The Commission declared Gary Hart eligible to receive matching funds on December 28, 1987, 13 days after his 

decision to reenter the 1988 campaign for the Presidency. 

On December 28, 1987, and again on January 12, 1988, the Commission was served with writs of attachment for 

assets belonging to the 1984 Hart campaign. The General Counsel fi led motions with the district court which 

sought to have the writs vacated. Because the creditors who served the writs were in litigation with the 1984 Hart 

campaign, the Commission also authorized the General Counsel to send letters advising the creditors that no federal 

statute authorized diversion of matching funds by the government to any other party. Moreover, the letters said 

that any attempt to execute a creditor’s judgment against funds of the United States government would be barred 

by sovereign immunity. 

In addition, the letters noted that the Commission did not possess any assets which belonged to the 1984 Hart 

campaign. The Commission had certifi ed that Hart was eligible to receive matching funds for his 1988 Presidential 

nomination campaign. The 1988 campaign was called Friends of Gary Hart-1988, Inc., a separate corporate entity 

from Americans with Hart. 

In conclusion, the letters explained that the Commission did not hold any matching payments that the candidate 

might be entitled to; nor did it make the actual payment of primary matching funds. Under the Presidential Account 

Primary Matching Payment Account Act, the Commission determines the eligibility of candidates to receive matching 

funds and certifi es the amount the candidate is to receive to the Secretary of the Treasury. The Secretary, not the 

Commission, is responsible for making the payment. 

Source: FEC Record, May 1988, p. 6 , May 1988, p. 6
Cases Through March 2004

Subject Index
Selected Court Case Abstracts

Cases Through March 2004 301

Subject Index

Subject Index

ADMINISTRATIVE FINES

Challenges

– Baker v. FEC

– Cannon v. FEC

– Correa, et al., v. FEC

– Cox for U.S. Senate, Inc. v. FEC

– Cunningham v. FEC

– Graham v. FEC

– Greenwood for Congress v. FEC

– Houghton, Friends For v. FEC

– Kieffer v. FEC

– Lovely v. FEC 

– Miles for Senate v. FEC

– Stevens v. FEC

– Wilkinson v. FEC

ADMINISTRATIVE PROCEDURE ACT

Common Cause v. FEC (86-1838)

NCPAC v. FEC

NCPAC: FEC v. (85-2898)

Rose v. FEC

ADVERTISING

See: COMMUNICATIONS/ADVERTISING

ADVISORY OPINIONS

Challenged

– Anderson v. FEC (80-0272)

– Athens Lumber Co. v. FEC

– Bread PAC v. FEC

– Faucher v. FEC

– Haley Congressional Committee v. FEC

– NCPAC v. FEC

– Political Contributions Data: FEC v.

– Satellite Business Systems v. FEC

– Sierra Club v. FEC

– United States Defense Committee v. FEC

FEC’s authority to issue

– Buckley v. Valeo

– Clark v. Valeo

– Fund for a Conservative Majority v. FEC (80-1609)

– Mott v. FEC

Reliance on

– FEC v. NCPAC (83-1032)

– FEC v. NRA (85-1018)

Tie vote on draft

– Democratic Senatorial Campaign Committee v. FEC 

(93-1321)

AFFILIATION

Between delegate committees and Presidential campaign

– National Right to Work Committee v. FEC (84-2955)

Between party committee and nonconnected committee

– Common Cause v. FEC (85-1130)

Between principal campaign committee and nonconnected 

committee

– Friends for Lane Evans: FEC v. 

Between separate segregated funds

– Antosh v. FEC (84-1552 and 84-2732)

– Common Cause v. FEC (78-2135)

– Hettinga v. FEC

– Machinists Nonpartisan Political League: FEC v.

– Sailors’ Union of the Pacifi c Political Fund: FEC v.

– Walther v. FEC

Between unauthorized draft committees

– Citizens for Democratic Alternatives in 1980: FEC v.

Resulting in excessive contributions

– Triad Management Services: FEC v. 

AGENT

Challenge to regulatory defi nition,

– Shays and Meehan v. FEC

ALLOCATION

Issue ads, regulations applied to

– RNC v. FEC (98-1207 and 98-5263)

ATTORNEY-CLIENT PRIVILEGE

FEC v. Franklin

ATTORNEYS’ FEES/COURT COSTS 

Applications for, under Equal Access to Justice Act

– Antosh v. FEC (84-3048)

– Haley Congressional Committee: FEC v.

– Political Contributions Data: FEC v.

– Rose v. FEC

Defendants ordered to pay FEC’s costs

– Beatty for Congress: FEC v.

– Hopfmann v. FEC

– NCPAC: FEC v. (85-2898)

– Walsh: FEC v.

– Weinberg: FEC v.

FEC ordered to pay defendant’s costs

– Christian Action Network: FEC v.
Selected Court Case Abstracts

302 Cases Through March 2004

Subject Index

AUDITS

Freedom of Information Act exemption

– Fund for a Conservative Majority v. FEC (80-1609)

– Kennedy for President Committee v. FEC (81-2552)

Investigative

– Gramm v. FEC

– Spannaus v. FEC

Publicly funded candidates

– Buchanan v. FEC

– Carter/Mondale Presidential Committee v. FEC (82-

1754 and 84-1393)

– Citizens for LaRouche v. FEC

– Committee to Elect Lyndon LaRouche v. FEC

– Dolbeare v. FEC

– Dole v. FEC 

– Dukakis v. FEC

– Kennedy for President Committee v. FEC (81-2552

and 83-1521)

– LaRouche: FEC v. (94-0658)

– LaRouche v. FEC (92-1555)

– Reagan-Bush Committee v. FEC

– Robertson v. FEC

– Simon v. FEC

AUTHORIZATION/DISCLAIMER NOTICES

Constitutionality of

– McIntyre v. Ohio

Failure to include

– California Democratic Party: FEC v. (02-0875)

– Californians for a Strong America: FEC v. (88-6449)

– Californians for Democratic Representation: FEC v.

– Central Long Island Tax Reform Immediately: FEC v.

– Christian Action Network: FEC v.

– Dominelli: FEC v.

– Freedom’s Heritage Forum: FEC v. 

– Furgatch: FEC v.

– Galliano v. United States Postal Service

– Kean for Congress Committee v. FEC

– McIntyre v. Ohio

– NCPAC: FEC v. (85-2898)

– Public Citizen: FEC v.

– Richards for President: FEC v. (88-2832)

– Survival Education Fund: FEC v.

– Thornton Township Regular Democratic Organization: 

FEC v.

BALLOT ACCESS

LaRouche v. State Board of Elections

Trinsey v. FEC

BANKRUPTCY

Application of bankruptcy protection to FEC civil penalties

– Schaefer v. FEC

BANKS

Loans from

See: LOANS

National

See: CORPORATIONS/LABOR

ORGANIZATIONS/NATIONAL BANKS

BEST EFFORTS

To obtain/report information

– Citizens for the Republic: FEC v.

– Committee for a Constitutional Presidency—McCarthy 

’76: FEC v.

– Dramesi for Congress: FEC v.

– Re-Elect Hollenbeck to Congress: FEC v.

– RNC v. FEC (94-1017)

BIPARTISAN CAMPAIGN REFORM ACT

Challenge

– McConnell v. FEC

– Adams v. FEC

– AFL-CIO v. FEC

– California Democratic Party and California Republican 

Party v. FEC

– Chamber of Commerce of United States v. FEC

– Echols v. FEC

– McConnell v. FEC

– National Association of Broadcasters v. FEC

– NRA v. FEC

– Paul, Ron v. FEC

– Republican National Committee v. FEC

– Thompson, Bennie, v. FEC

Electioneering Communications

See: ELECTIONEERING COMMUNICATIONS

Litigation

– Hawaii Right to Life, Inc. v. FEC

CANDIDATES

See: AFFILIATION 

Appearances

– Common Cause v. FEC (85-0968)

– Orloski v. FEC

Clearly identifi ed

See: EXPRESS ADVOCACY

Debates

– Koczak v. FEC

– League of Women Voters v. FEC

Defi nition

– Gelman v. FEC (80-2471)

Families of, contributions by

– Anderson for Senator: FEC v.

– Bell (Jeffery): FEC v.

– Bell (Marjorie): FEC v.

– Rhoads for Congress: FEC v.

– Webb for Congress: FEC v.

Liability for campaign debt

See: LIABILITY
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

303

CANDIDATES (cont.)

Names of, unauthorized use

– Common Cause v. FEC (83-2199)

– Galliano v. United States Postal Service

– Richards for President: FEC v. (88-2832)

Personal funds of

– Webb for Congress: FEC v.

Publicly funded

See: PUBLIC FUNDING

CIVIL RIGHTS ACT

Freedom Republicans v. FEC

COMMISSION

See: FEDERAL ELECTION COMMISSION

COMMUNICATIONS/ADVERTISING

Anonymous

– McIntyre v. Ohio

Candidate slates

– Californians for Democratic Representation: FEC v.

– Reilly v. FEC

Coordinated vs. independent

See: INDEPENDENT EXPENDITURES

Corporate and labor

See: CORPORATIONS/LABOR

ORGANIZATIONS/NATIONAL BANKS

Disclaimer notice requirements

See: AUTHORIZATION/DISCLAIMER NOTICES

Express advocacy

See: EXPRESS ADVOCACY

Letter

– Common Cause v. FEC (89-0524 and 91-2914)

– NCPAC: FEC v. (85-2898)

– Survival Education Fund: FEC v. Newspapers, journals

– Christian Action Network: FEC v.

– Dominelli: FEC v.

– Epstein v. FEC

– Furgatch: FEC v.

– Kay v. FEC

– Mott v. FEC

– Phillips Publishing: FEC v.

News story exemption

See: NEWS STORY EXEMPTION

Pamphlets

– Central Long Island Tax Reform Immediately: FEC v.

Poster

– AFSCME: FEC v.

Solicitations

See: SOLICITATIONS

Television and radio

– Barnstead v. FEC

– Branstool v. FEC

– Christian Action Network: FEC v.

– Citizens for Percy ’84 v. FEC

– Colorado Republican Federal Campaign Committee: 

FEC v.

– McDonald v. FEC

– National Congressional Club v. FEC

Use of candidate’s name in

– Common Cause v. FEC (83-2119)

– Galliano v. United States Postal Service

Videotapes

– Reader’s Digest Association v. FEC

Voting records/voter guides

See: VOTER GUIDES

COMPLAINTS

See: ENFORCEMENT

CONTRIBUTION and EXPENDITURE LIMITS

Constitutionality

– Albanese v. FEC

– Americans for Change: FEC v.

– Anderson v. FEC (80-0272)

– Buckley v. Valeo

– Burris v. Russell

– California Medical Association v. FEC

– Cincinnati v. Kruse

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Goland v. United States

– Grover v. FEC

– Hooker v. All Campaign Contributors

– Hooker v. FEC

– Hooker v. Sundquist

– Khachaturian v. FEC

– Renato P. Mariani v. FEC

– Missouri Republican Party v. Charles F. Lamb

– NCPAC: FEC v. (83-2823)

– NCPAC v. FEC

– Nixon v. Shrink PAC

– Schaefer: FEC v. (02-1255) 

– White v. FEC

Exceeded

– Anderson for Senator: FEC v.

– Antosh v. FEC (84-1552, 84-2737, 84-3048, 85-2036 and

 86-0179)

– Batts, Committee to Elect: FEC v.

– Beatty for Congress: FEC v.

– Bell (Jeffrey): FEC v.

– Bell (Marjorie): FEC v.

– Bryant Campaign Committee: FEC v.

– Bull for Congress: FEC v.

– Citizens for Wofford: FEC v.

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Common Cause v. FEC (85-1130, 87-2224, 89-0524,

 91-2914, 92-2538, 94-02104 and 96-5160)

– Common Cause and Democracy 21 v. FEC

– Dear for Congress: FEC v.

– Democratic Congressional Campaign Committee v. FEC

 (96-0764)

– Democratic Party of New Mexico: v. FEC

– Democratic Senatorial Campaign Committee v. FEC

 (93-1312)
Selected Court Case Abstracts

304 Cases Through March 2004

Subject Index

CONTRIBUTION and EXPENDITURE LIMITS (cont.)

– Democratic Senatorial Campaign Committee: FEC v.

 (95-2881)

– Dramesi for Congress: FEC v.

– Florida for Kennedy: FEC v.

– Franklin: FEC v.

– Freedom’s Heritage Forum: FEC v.

– Friends of Lane Evans: FEC v.

– Friends of Schaefer: FEC v. (91-90240 and 91-0650)

– Goland: United States v.

– Haley Congressional Committee: FEC v.

– Hettinga v. FEC

– Hopfmann v. FEC

– Judicial Watch, Inc. and Peter Paul v. FEC

– Kalogianis: FEC v.

– Liberal Party Federal Campaign Committee: FEC v.

– Machinists Nonpartisan Political League: FEC v.

– Mann for Congress: FEC v.

– Mastorelli Campaign Fund: FEC v.

– McCallum: FEC v.

– Michigan Republican State Committee: FEC v.

– National Republican Senatorial Committee: FEC v.

 (93-1612)

– NCPAC: FEC v. (84-0866)

– New York State Conservative Party/1984 Victory Fund:

 FEC v.

– Parisi: FEC v.

– Populist Party: FEC v. (92-0674)

– Re-Elect Hollenbeck to Congress: FEC v.

– Republican Party of Kentucky v. FEC

– Rhoads for Congress: FEC v.

– Richards for President: FEC v. (88-2832)

– Rose v. FEC

– Sailors’ Union of the Pacifi c Political Fund: FEC v.

– Schaefer : FEC v. (02-1255)

– Speelman: FEC v.

– Stark v. FEC

– Triad Management Services: FEC v. 

– Walther v. FEC

– Webb for Congress: FEC v.

– Williams: FEC v.

– Wofford: FEC v.

– Wolfson: FEC v.

Preemption of state law

– Weber v. Heavey

CONTRIBUTIONS

Anonymous

– Goland v. United States

By corporations and labor organizations

See: CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

By party committees

See: PARTY COMMITTEES

Coercive

– Brown v. FEC

– International Association of Machinists v. FEC

Corporate and labor

See: CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

Credit card

– Spannaus v. FEC

Defi nition of

– Schaefer v. FEC(02-1255)

– Stern v. FEC 

– Wertheimer v. FEC 

Earmarked

See: EARMARKED CONTRIBUTIONS

Excessive

See: CONTRIBUTION and EXPENDITURE LIMITS

Failure to forward to treasurer

– Toledano: FEC v. 

Foreign Nationals

– Friends of Fasi: FEC v.

– USA v. Kanchanalak

Forwarded by campaign vendor

– Campaign Resource Technologies: FEC v.

Government contractors

– Weinsten: FEC v.

In-kind

– AFSCME-PQ: FEC v.

– Anderson for Senator: FEC v.

– Citizens for Percy ’84 v. FEC

– Evans, Lane, Friends of: FEC v. 

– Freedom’s Heritage Forum: FEC v. 

– Liberal Party Federal Campaign Committee: FEC v.

– New York State Conservative Party State Committee: 

FEC v.

– NCPAC: FEC v. (84-0866)

– Orton: FEC v.

– Populist Party: FEC v. (92-0674)

– Rose v. FEC

– Sierra Club v. FEC

– Specter: FEC v. 

– Wisconsin Democrats for Change in 1980: FEC v.

In-kind, resulting from coordination

See: INDEPENDENT EXPENDITURES

In the name of another

– Clark: FEC v.

– Dear for Congress: FEC v. 

– Fireman v. USA

– Goland v. United States

– Kopko: FEC v.

– Lawson: FEC v.

– Mastorelli Campaign Fund: FEC v.

– Orton: FEC v.

– Rodriguez: FEC v.

– Weinsten: FEC v.

– Williams: FEC v.

– Wolfson: FEC v.

– USA v. Kanchanalak

Limits

See: CONTRIBUTION and EXPENDITURE LIMITS
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

305

CONTRIBUTIONS (cont.)

Loans and guarantees of loans

See: LOANS

Minors

– Echols v. FEC

Misdirected

– Toledano: FEC v.

Out-of state/district

– Froelich v. FEC

– Lytle v. FEC

– Whitmore v. FEC

Private funds, constitutionality

– Albanese v. FEC

Prohibited

See: CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

Redesignations

– National Republican Senatorial Committee: FEC v. 

(93-1612)

Reverse checkoff

– NEA: FEC v.

COORDINATED PARTY EXPENDITURES

See: PARTY COMMITTEES

CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

Committees established by

See: SEPARATE SEGREGATED FUNDS

Communications to general public

– AFSCME: FEC v.

– Austin v. Michigan State Chamber of Commerce

– Christian Action Network: FEC v.

– Christian Coalition: FEC v.

– Clifton v. FEC

– Faucher v. FEC

– Freedom’s Heritage Forum: FEC v. 

– Maine Right to Life Committee v. FEC

– Massachusetts Citizens for Life: FEC v.

– Survival Education Fund: FEC v.

– United States Defense Committee v. FEC

Communications to restricted class

– Chamber of Commerce v. FEC

Constitutionality of Section 441b

– Antosh v. FEC (84-1552 and 84-2737)

– Athens Lumber Co. v. FEC

– Austin v. Michigan Chamber of Commerce

– Beaumont v. FEC

– Bread PAC v. FEC

– California Democratic Party: FEC v. 

– Faucher v. FEC

– Hawaii Right to Life, Inc. v. FEC

– Martin Tractor Co. v. FEC

– Massachusetts Citizens for Life: FEC v.

– National Chamber Alliance for Politics v. FEC

– Satellite Business Systems v. FEC

– Sierra Club v. FEC

– Schaefer v. FEC(02-1255)

– United States Defense Committee v. FEC

Corporate contributions/expenditures

– America’s PAC: FEC v.

– Anderson for Senator: FEC v.

– Athens Lumber Co.: FEC v.

– Austin v. Michigan Chamber of Commerce

– Barnstead v. FEC

– Beatty for Congress: FEC v.

– Beaumont v. FEC

– Bookman & Associates: FEC v.

– Christian Action Network: FEC v.

– Christian Coalition: FEC v.

– Clifton v. FEC

– Common Cause v. FEC (86-1838)

– Dear for Congress: FEC v. 

– Epstein v. FEC

– Forbes: FEC v.

– Friends of Jane Harman: FEC v.

– Golar v. FEC

– Kay v. FEC

– League of Women Voters v. FEC

– Lee: FEC v.

– Massachusetts Citizens for Life: FEC v.

– Mastorelli Campaign Fund: FEC v.

– McDonald v. FEC

– National Congressional Club: FEC v.

– National Congressional Club v. FEC

– NOW: FEC v.

– NRA: FEC v. (81-1218)

– NRA: FEC v. (85-1018)

– National Right to Work Committee: FEC v. (90-0571)

– NRA Political Victory Fund: FEC v.

– Orloski v. FEC

– Orton: FEC v.

– Phillips Publishing: FEC v.

– Populist Party: FEC v. (88-0127 and 92-0674)

– Reader’s Digest Association v. FEC

– Rose v. FEC

– Sierra Club v. FEC

– Specter: FEC v. 

– Survival Education Fund: FEC v.

– Triad Management Services: FEC v. 

– United States Defense Committee v. FEC

– USA v. Hsia

– USA v. Kanchanalak

– Weinsten: FEC v.

– Woods, Charles for U.S. Senate: FEC v.

– Working Names: FEC v.

Labor contributions/expenditures

– AFL-CIO: FEC v.

– AFSCME: FEC v.

– International Association of Machinists v. FEC

– National Right to Work Committee: FEC v. (90-0571)

– National Republican Congressional Committee v. FEC 

(96-2295)
Selected Court Case Abstracts

306 Cases Through March 2004

Subject Index

CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS (cont.)

Lobbying activities

– Akins v. FEC (92-1864)

– Stern v. FEC

– Stern v. General Electric Co.

Membership associations

See: MEMBER, DEFINITION OF; TRADE 

ASSOCIATIONS

Partnerships, corporate

– Satellite Business Systems v. FEC

Qualifi ed nonprofi t corporations

See: QUALIFIED NONPROFIT CORPORATIONS

Solicitations

See: SOLICITATIONS

Trade associations

See: TRADE ASSOCIATIONS

DEBATES

Contributions for

– League of Women Voters v. FEC

– Perot ’96 and Natural Law Party v. FEC and the 

Commission on Presidential Debates

Commission’s debate regulations challenged

– Becker v. FEC 

– Buchanan v. FEC (00-1775) 

– Clark v. FEC and the Commission on Presidential 

Debates

– Committee for a Unifi ed Independent Party v. FEC

– Nader v. FEC 

– Natural Law Party of the United States of America v. 

FEC

– Perot ‘96 v. FEC (98-1022)

– Perot ’96 and Natural Law Party v. FEC and the 

Commission on Presidential Debates

See also: Koczak v. FEC

DEBTS

Failure to report

– NCPAC v. FEC

– Populist Party: FEC v. (88-0127)

Liability for payment

See: LIABILITY

DELEGATES

Freedom Republicans v. FEC

National Right to Work Committee v. FEC (84-2955)

DISCLAIMER NOTICES

See: AUTHORIZATION/DISCLAIMER NOTICES

DISCLOSURE

See: AUTHORIZATION/DISCLAIMER NOTICES; 

BEST EFFORTS; RECORDKEEPING; 

REPORTING

DRAFT COMMITTEES

Citizens for Democratic Alternative in 1980: FEC v.

Florida for Kennedy: FEC v.

Machinists Nonpartisan Political League: FEC v.

DUAL CANDIDACY

Boulter v. FEC

EARMARKED CONTRIBUTIONS

America’s PAC: FEC v.

Common Cause v. FEC (89-0524 and 91-2914)

Friends of Jane Harman: FEC v.

National Republican Senatorial Campaign Committee: FEC v. 

 (90-2055 and 93-1612)

Toledano: FEC v. 

ELECTION

Defi nition of

– Democratic Senatorial Campaign Committee v. FEC 

(93-1321)

– Hopfmann v. FEC

ELECTIONEERING COMMUNICATIONS

Defi nition challenged as unconstitutional

– McConnell et al., v. FEC et al.

– Hawaii Right to Life, Inc. v. FEC

ENFORCEMENT

Complaints: expedited FEC action sought

– Democratic Congressional Campaign Committee v. FEC

 (84-3352 and 96-0764)

– DNC v. FEC (96-2506)

– Democratic Senatorial Campaign Committee v. FEC 

(96-2184)

– Durkin for U.S. Senate v. FEC

– National Republican Congressional Committee v. FEC 

(96-2295)

– National Right to Work Committee v. FEC (84-2955)

– National Right to Work Committee v. FEC (84-2955)

– Perot ’96 and Natural Law Party v. FEC and the

Commission on Presidential Debates

Complaints: FEC’s disposition challenged

– Akins v. FEC (91-2831)

– Akins v. FEC (92-1864)

– Antosh v. FEC (85-1410)

– Barnstead for Congress Committee v. FEC

– Branstool v. FEC

– Brown v. FEC

– Citizens for Percy ’84 v. FEC (85-0763)

– Common Cause v. FEC (83-2199, 85-0968, 85-1130, 

87-2224, 89-0524, 91-2914 and 94-02104)

– Common Cause and Democracy 21 v. FEC

– Democratic Congressional Campaign Committee v. FEC

 (86-2073)

– Democratic Senatorial Campaign Committee (80-2074, 

90-1504 and 93-1321)

– Epstein v. FEC
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

307

ENFORCEMENT (cont.)

– Golar v. FEC

– Gottlieb v. FEC

– Hopfmann v. FEC

– International Association of Machinists v. FEC

– Jordan v. FEC

– Kay v. FEC

– McDonald v. FEC

– Miller v. FEC

– National Congressional Club v. FEC

– NRA v. FEC (86-2285, 87-5373 and 89-3011)

– Orloski v. FEC

– Republican Party of Kentucky v. FEC

– Spannus v. FEC (91-0681)

– Stern v. FEC

– Walther v. FEC

– White v. FEC

Complaints: FEC’s failure to take action

– Akins v. FEC (91-2831)

– Alliance for Democracy v. FEC

– Center for Responsive Politics v. FEC (93-2250)

– Common Cause v. FEC (78-2135, 83-0720, 87-2224, 

92-0249 and 92-2538)

– Democratic Congressional Campaign Committee v. FEC 

(84-3352 and 96-0764)

– Democratic National Committee v. FEC (96-2506)

– Democratic Senatorial Campaign Committee v. FEC 

(95-0349 and 96-2184)

– Democratic Senatorial Campaign Committee v. National 

Republican Senatorial Committee

– Hettinga v. FEC

– Hollenbeck v. FEC

– Judicial Watch, Inc. v. FEC

– Judicial Watch, Inc. v. FEC (1:01CV01747)

– Judicial Watch, Inc. and Peter Paul v. FEC

– Kean for Congress Committee v. FEC

– Kripke v. FEC

– National Republican Congressional Committee v. FEC 

(96-2295)

– NRA v. FEC (84-1878)

– National Right to Work Committee v. FEC (84-2955)

– National Right to Work Committee v. Thomson

– Perot ‘96 v. FEC (98-1022)

– RNC v. FEC (97-1552)

– Segerblom v. FEC

– Stockman v. FEC

Complaints: improperly fi led

– California Democratic Party: FEC v.

– Fulani v. FEC (94-4461)

Conciliation agreement violated

– Citizens for LaRouche: FEC v.

– Citizens Party: FEC v. (86-3113)

– Clark: FEC v.

– Committee of 100 Democrats: FEC v.

– Free the Eagle: FEC v.

– Mann for Congress: FEC v.

– Miller: FEC v.

– Minchew: FEC v.

– Richards for President: FEC v. (89-0254)

– RUFFPAC: FEC v.

– Taylor for Congress: FEC v.

– Weinberg: FEC v.

– Working Names: FEC v.

Confi dentiality provision breached

– Stockman v. FEC

Contempt petitions

– America’s PAC: FEC v.

– Californians for a Strong America: FEC v. (88-6449)

– Dramesi for Congress: FEC v.

– Friends of Isaiah Fletcher: FEC v. 

– Gelman v. FEC (80-2471)

– Liberal Party Federal Campaign Committee: FEC v. 

– Life Amendment PAC: FEC v. (88-0860 and 89-1429)

– Gus Savage for Congress ’82 Committee: FEC v.

– Friends of Schaefer: FEC v.

– Maggin for Congress Committee: FEC v.

– Rodriguez: FEC v.

– Walsh for Congress: FEC v.

– Weinberg: FEC v.

– Working Names: FEC v.

Disclosure of internal enforcement actions

– AFL-CIO v. FEC 

– AFL-CIO and DNC v. FEC

– Democratic Senatorial Campaign Committee v. National 

Republican Senatorial Committee

– Dole v. International Association of Managers

FEC’s authority challenged

– Dolbeare v. FEC

– Fund for a Conservative Majority v. FEC

– Gelman v. FEC (80-2471)

– Lance: FEC v.

– National Congressional Club v. FEC

– NRA Political Vicatory Fund: FEC v.

– Ohio Democratic Party v. FEC

– Reader’s Digest Association v. FEC

– Reilly v. FEC

– Schaefer, Friends of: FEC v.

– Spannaus v. FEC

– United States v. International Union of Operating 

Engineers

– Wright: FEC v.

FEC’s authority to petition Supreme Court

– NRA Political Vicatory Fund: FEC v.

FEC’s unconstitutional status: validity of enforcement actions

– Legi-Tech: FEC v.

– National Republican Senatorial Committee: FEC v. 

(93-1612)

– National Republican Senatorial Committee v. FEC 

(94-0332)

– NRA Political Victory Fund: FEC v.

– Robertson v. FEC

– Willams: FEC v.

Investigations

See: INVESTIGATIONS

Liability for payment of penalties

See: LIABILITY
Selected Court Case Abstracts

308 Cases Through March 2004

Subject Index

ENFORCEMENT (cont.)

Permanent injunction challenged

– FEC v. Furgatch

Statute of limitations

See: STATUTE OF LIMITATIONS

Subpoena enforcement

See: SUBPOENA ENFORCEMENT

EQUAL ACCESS TO JUSTICE ACT

See: ATTORNEYS’ FEES/COURT COSTS

EXPENDITURES

Corporate and labor

See: CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

Coordinated party

See: PARTY COMMITTEES

Independent

See: INDEPENDENT EXPENDITURES

Limits

See: CONTRIBUTION and EXPENDITURE LIMITS

EXPRESS ADVOCACY

As required element for coordinated party expenditures

– Colorado Republican Federal Campaign Committee: 

FEC v.

Defi nition

– AFSCME: FEC v.

– Buckley v. Valeo

– Central Long Island Tax Reform Immediately: FEC v.

– Christian Action Network: FEC v.

– Christian Coalition: FEC v.

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Faucher v. FEC

– Freedom’s Heritage Forum: FEC v. 

– Furgatch: FEC v.

– Hawaii Right to Life, Inc. v. FEC

– Maine Right to Life Committee: FEC v.

– NOW: FEC v.

– Orloski v. FEC

– Right to Life of Dutchess County, Inc. v. FEC

– Survival Education Fund: FEC v.

– Virginia Society for Human Life, Inc. v. FEC

FEDERAL ELECTION COMMISSION

See: BIPARTISAN CAMPAIGN REFORM ACT

Constitutional status

– AFL-CIO v. FEC

– Beaumont v. FEC

– Buckley v. Valeo

– Clark v. Valeo

– Hawaii Right to Life, Inc. v. FEC

– Legi-Tech: FEC v.

– National Republican Senatorial Committee: FEC v. 

(93-1612)

– National Republican Senatorial Committee v. FEC 

(94-0332)

– NRA Political Victory Fund: FEC v.

– Robertson v. FEC

– Schaefer v. FEC (02-1255)

– Willams: FEC v.

Direct petition to Supreme Court

– NRA Political Victory Fund: FEC v

Ex offi cio members

– Legi-Tech: FEC v.

– National Republican Senatorial Committee: FEC v. (93-

1612)

– National Republican Senatorial Committee v. FEC 

(94-0332)

– NRA Political Victory Fund: FEC v.

– Robertson v. FEC

– Willams: FEC v.

Regulations

See: REGULATIONS, FEC

FREEDOM OF INFORMATION ACT

AFL-CIO and DNC v. FEC

Fund for a Conservative Majority v. FEC (84-1342)

Reagan-Bush Committee v. FEC

AFL-CIO v. FEC

FUNDRAISING

See: SOLICITATIONS

GOVERNMENT IN THE SUNSHINE ACT

Kennedy for President v. FEC (81-2552)

HONORARIA

Wright: FEC v.

INDEPENDENT EXPENDITURES

By party committees

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Democratic Senatorial Campaign Committee v. FEC 

(96-2109)

Constitutionality 

– Beaumont v. FEC

Coordination/prior consent alleged

– Branstool v. FEC

– Carter-Mondale Reelection Committee v. FEC

– Common Cause v. FEC (83-2199 and 85-1130)

– Democratic Senatorial Campaign Committee v. FEC 

(90-1054)

– Public Citizen: FEC v.

– Stark v. FEC

By qualifi ed nonprofi t corporations

See: QUALIFIED NONPROFIT CORPORATIONS

Express advocacy

See: EXPRESS ADVOCACY

Limits on

– Americans for Change: FEC v.

– Common Cause v. Schmitt

– NCPAC v. FEC (83-2823)
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

309

INDEPENDENT EXPENDITURES (Cont.)

Reporting

See: REPORTING

Versus contributions

– Akins v. FEC (92-1864)

Versus coordinated party expenditures

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Democratic Senatorial Campaign Committee v. FEC 

(96-2109)

INVESTIGATIONS

Adequacy of

– Branstool v. FEC

– McDonald v. FEC

Attorney-client privilege

See: ATTORNEY-CLIENT PRIVILEGE

Challenge to

– Dolbear v. FEC

– Fulani v. FEC (94-1593)

– Jones, Leroy B., v. FEC

– Lance v. FEC

– Reader’s Digest Association v. FEC

– Spannaus v. FEC (85-0404)

Decision to authorize

– Democratic Senatorial Campaign Committee v. FEC 

(90-1504)

Government informant’s privilege

– Dole v. International Association Managers

See also: AUDITS; SUBPOENA ENFORCEMENT

JURISDICTION

Stockman v. FEC

LABOR ORGANIZATIONS

See: CORPORATIONS/LABOR ORGANIZATIONS/

NATIONAL BANKS

LEGISLATIVE VETO

Clark v. Valeo

LIABILITY

Of candidate, for payment of campaign debts

– Rove v. Thornburgh

Of treasurer, for payment of penalty

– Bull for Congress: FEC v.

– Dramesi for Congress: FEC v.

– Free the Eagle: FEC v.

– RUFFPAC: FEC v.

– Wilkenson v. FEC

LOANS

As excessive or prohibited contributions

– Anderson for Senator: FEC v.

– Beatty for Congress: FEC v.

– Bell, Marjorie: FEC v.

– Kalogianis: FEC v.

– Mastorelli Campaign Fund: FEC v.

– McCallum: FEC v.

– McDonald v. FEC

– Richards for President: FEC v. (88-2832)

– Schaefer, Friends of: FEC v.

– Webb for Congress: FEC v.

Challenges to

– Schaefer v. FEC (02-1255)

Excessive guarantees or endorsements

– Bull for Congress: FEC v.

– Haley Congressional Committee: FEC v.

– Rhoads for Congress: FEC v.

From banks

– Bank One: FEC v.

– Lance: FEC v.

MAIL FRANK (CONGRESSIONAL)

Unconstitutionality

– Albanese v. FEC

MAJOR PURPOSE

Akins v. FEC (92-1864)

Buckley v. Valeo

Citizens for a Democratic Alternative: FEC v.

GOPAC: FEC v.

Machinists Non-Partisan Political League: FEC v.

Massachusetts Citizens for Life: FEC v.

MEMBER, Defi nition of

Akins v. FEC (92-1864)

Chamber of Commerce v. FEC

Jordan v. FEC

NRA v. FEC (84-1878, 86-2285, 87-5373 and 89-3011)

National Right to Work Committee: FEC v. (77-7125)

National Right to Work Committee v. FEC (78-0315)

MULTICANDIDATE COMMITTEES

Status

– Dramesi for Congress: FEC v.

– Re-Elect Hollenbeck to Congress: FEC v.

– Rhoads for Congress: FEC v.

 Unauthorized

– Americans for Change: FEC v.

– Common Cause v. FEC (83-0720)

– Fund for a Conservative Majority: FEC v. 

 (80-1609)

– Mott v. FEC

– NCPAC v. FEC (83-2823)

NATIONAL VOTER REGISTRATION ACT

Condon v. USA

Wilson v. USA

NEWS STORY EXEMPTION

Austin v. Michigan Chamber of Commerce

Barnstead for Congress v. FEC

Faucher v. FEC
Selected Court Case Abstracts

310 Cases Through March 2004

Subject Index

NEWS STORY EXEMPTION (Cont.)

Forbes: FEC v.

Kay v. FEC

Massachusetts Citizens for Life: FEC v.

Phillips Publishing Co.: FEC v.

Reader’s Digest Association v. FEC

United States Defense Committee v. FEC

NOMINATING CONVENTIONS

Delegate selection process challenged

– Freedom Republicans v. FEC

See also: DELEGATES

PARTNERSHIP

Contributions by

– Satellite Business System v. FEC

PARTY COMMITTEES

Affi liated with nonconnected committees

– Common Cause v. FEC (85-1130)

See: ALLOCATION

Building Fund

– Shays and Meehan v. FEC 

Federal and nonfederal accounts

– California Democratic Party: FEC v.

– Common Cause v. FEC (86-1838)

– Democratic Party of New Mexico: FEC v. 

– Michigan Republican State Committee: FEC v.

– Stevens v. FEC 

– West Virginia Republican State Executive Committee: 

FEC v.

Candidate of

– Reform Party of the USA v. John Hagelin

– Reform Party of the USA v. Gerald M. Moan

Contributions by

– Michigan Republican State Committee: FEC v.

– National Republican Senatorial Committee: FEC v. 

(93-1612)

– New York State Conservative Party: FEC v.

– Republican National Committee v. FEC (94-1017)

Coordinated expenditures by

– Anderson v. FEC (80-0272)

– Colorado Republican Federal Campaign Committee: 

FEC v.

– Common Cause v. FEC (94-02104)

– Common Cause and Democracy 21 v. FEC 

– Democratic Congressional Campaign Committee v. FEC 

(86-2075)

– Democratic Party of New Mexico: v. FEC

– Democratic Senatorial Campaign Committee v. FEC 

(80-1903, 93-1321 and 96-2109)

– Democratic Senatorial Campaign Committee: FEC v. 

(95-2881)

– Wertheimer v. FEC

Federal Election Activity

– Shays and Meehan v. FEC

Fundraising by

– Common Cause v. FEC (89-0524)

– Common Cause and Democracy 21 v. FEC

– Michigan Republican State Committee: FEC v.

Generic voter education

– Colorado Republican Federal Campaign Committee: 

FEC v.

Issue Ads

– RNC v. FEC (98-1207 and 98-5263) 

Levin Funds

– Shays and Meehan v. FEC

National committee, defi nition of

– Anderson v. FEC (80-0272)

Voter Drives

– California Democratic Party: FEC v.

PERSONAL FUNDS

Candidate’s use of, challenged

– White v. FEC

Commingled with committee funds

– Caulder: FEC v.

– Committee to Elect Bennie Batts: FEC v.

PHONE BANKS

AFSCME-PQ: FEC v.

West Virginia Republican State Executive Committee: 

FEC v.

POLITICAL COMMITTEES

Corporate/labor

See: SEPARATE SEGREGATED FUNDS

Defi nition

See: MAJOR PURPOSE

Party

See: PARTY COMMITTEES

Registration

See: REGISTRATION

PREEMPTION OF STATE LAW BY FECA

Contribution/expenditure limits

– Weber v. Heaney

Corporate governance laws

– Stern v. General Electric Co.

PUBLIC FUNDING

Attachments to matching funds

– Kroll v. Americans with Hart

– Xerox v. Americans with Hart

Audits

See: AUDITS

Challenged Entitlement

– Fulani v. FEC

Compliance funds

– Center for Responsive Politics v. FEC (95-1464)

Constitutionality challenged

– Anderson v. FEC (80-1911)

– Buckley v. Valeo
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

311

PUBLIC FUNDING (cont.)

– Hooker v. FEC (3-99-0794)

– Hopfmann v. FEC

– Judd v. FEC

– National Committee of the Reform Party v. FEC

– Republican National Committee v. FEC (78-2783)

Convention funding challenged

– Freedom Republicans v. FEC

Recipient of Convention funding challenged

– Reform Party of the USA v. John J. Gargan

Contribution and expenditure limits exceeded

– Wertheimer v. FEC

Matching fund certifi cation actions challenged

– Committee for Jimmy Carter v. FEC

– Committee to Elect Lyndon LaRouche v. FEC

– Democratic National Committee v. FEC (96-2506)

– Gelman v. FEC (80-1646)

– Gottlieb v. FEC

– Jones v. FEC

– LaRouche v. FEC (92-1100)

– National Committee of the Reform Party v. FEC

– Trinsey v. FEC

Repayment determinations challenged

– Bush-Quayle ’92 Primary Committee v. FEC

– Buchanan v. FEC

– Carter/Mondale Presidential Committee v. FEC (82-

1754 and 84-1393)

– Citizens for LaRouche v. FEC

– Committee for Jimmy Carter v. FEC

– Dukakis v. FEC

– Fulani v. FEC (97-1466)

– Glenn Presidential Committee v. FEC (83-1521)

– Kennedy for President v. FEC (83-1521)

– LaRouche v. FEC (92-1555)

– LaRouche: FEC v. (94-0658)

– Reagan-Bush Committee v. FEC

– Robertson v. FEC

– Simon v. FEC

Repayments: statute of limitations on notifi cations

See: STATUTE OF LIMITATIONS

QUALIFIED NONPROFIT CORPORATIONS

Austin v. Michigan Chamber of Commerce

Beaumont v. FEC

Faucher v. FEC

Hawaii Right to Life, Inc. v FEC

Massachusetts Citizens for Life: FEC v

Minnesota Citizens Concerned for Life v. FEC

NRA: FEC v. (85-1018)

Survival Education Fund: FEC v.

RECORDKEEPING

Best efforts to obtain/report information

See: BEST EFFORTS

Failure to keep adequate records

– Dear for Congress: FEC v. 

– Life Amendment PAC: FEC v. (88-0860 and 89-1429)

REGISTRATION

Failure to fi le/amend Statement of Organization on time

– Akins v. FEC (92-1864)

– America’s PAC: FEC v.

– Americans for Jesse Jackson: FEC v.

– Californians for Democratic Representation: FEC v.

– Committee to Elect Bennie Batts: FEC v.

– Durkin for U.S. Senate v. FEC

– Friends for Lane Evans: FEC v. 

– GOPAC: FEC v.

– Holmes Committee: FEC v.

– Kean for Congress Committee v. FEC (04-0007)

– Richards for President (88-2832): FEC v.

– Schaefer, Friends of: FEC v.

– Thornton Township Regular Democratic Committee: 

FEC v.

– Triad Management Services: FEC v. 

REGULATIONS

Allocation, federal/nonfederal

– California Democratic Party: FEC v.

– Common Cause v. FEC (86-1838)

– Ohio Democratic Party v. FEC

– RNC v. FEC (98-1207 and 98-5263)

– Shays and Meehan v. FEC

Best efforts

– Citizens for the Republic: FEC v.

– RNC v. FEC (94-1017)

Civil Rights Act

– Freedom Republicans v. FEC

Compliance funds

– Center for Responsive Politics v. FEC (95-1464)

Contribution limits: post-election

– Haley Congressional Committee: FEC v.

Court-ordered

– Common Cause v. FEC (86-1838)

– Freedom Republicans v. FEC

Express advocacy

– Maine Right to Life Committee: FEC v.

– Right to Life of Dutchess County, Inc. v. FEC

Legislative review

– Clark v. Valeo

– Weber v. Heaney

Member defi nition

– Chamber of Commerce v. FEC

Preemption

– Weber v. Heaney

Pre-1995 debts

– NCPAC v. FEC

Public funding: matching fund entitlement

– LaRouche v. FEC (92-1555)

Public funding: matching fund repayments

– Kennedy for President v. FEC (83-1521)

Public funding: repayment determination notifi cation

– Dukakis v. FEC

– Simon v. FEC

Qualifi ed Nonprofi t Corporations
Selected Court Case Abstracts

312 Cases Through March 2004

Subject Index

REGULATIONS (Cont.)

– Minnesota Citizens Concerned for Life v. FEC

– Hawaii Right to Life, Inc. v. FEC

Voter guides

– Clifton v. FEC

– Faucher v. FEC

Voting records

– Clifton v. FEC

REPORTING

Best efforts standard to obtain/report information

See: BEST EFFORTS

Constitutionality of disclosure requirements

– Buckley v. Valeo

– Central Long Island Tax Reform Immediately: FEC v.

– Faucher v. FEC

– Furgatch: FEC v.

– Goland v. United States

– Hall-Tyner Election Campaign Committee: FEC v.

– International Association of Machinists v. FEC

– Socialist Workers Party v. FEC

Failure to itemize transactions

– Alliance for Democracy v. FEC

– Citizens for the Republic: FEC v.

– Common Cause and Democracy 21 v. FEC

– Democratic Party of New Mexico v. FEC

– Friends for Lane Evans: FEC v. 

– Judicial Watch, Inc., and Peter F. Paul v. FEC

– Life Amendment PAC: FEC v. (88-0860 and 89-1429)

– Populist Party: FEC v. (88-0127)

– West Virginia Republican State Executive Committee: 

FEC v.

Failure to report

– AFSCME-PQ: FEC v.

– America’s PAC: FEC v.

– Americans for Jesse Jackson: FEC v.

– Beatty for Congress Committee: FEC v.

– Braun for Congress: FEC v.

– Bull for Congress: FEC v.

– California Democratic Party: FEC

– Californians for a Strong America: FEC v. (88-1554 and 

88-6449)

– Carter Committee for a Greater America: FEC v.

– Citizens Party: FEC v. (87-1577)

– Common Cause and Democracy 21 v. FEC

– Dietl for Congress: FEC v.

– Friends of Isaiah Fletcher: FEC v.

– Fund for a Conservative Majority: FEC v.

– Dave Gentry for Congress Committee: FEC v.

– GOPAC: FEC v.

– Greenwood for Congress v. FEC

– Holmes Committee: FEC v.

– Judicial Watch, Inc. v. FEC (1:01CV01747)

– Kean for Congress Committee v. FEC

– Life Amendment PAC: FEC v. (88-0860 and 89-1429)

– Maggin for Congress Committee: FEC v.

– Mid-America Conservative PAC: FEC v.

– Murray for Congress Committee: FEC v.

– National Medical Political Action Committee: 

 FEC v.

– National Republican Senatorial Committee: FEC v. 

(93-1612)

– New York State Conservative Party State Committee: 

FEC v.

– Populist Party: FEC v. (88-0127)

– RNC v. DNC and FEC

– Richards for President: FEC v. (88-2832)

– Salvi, Al for Senate: FEC v.

– Schaefer, Friends of: FEC v.

– Smith for Congress: FEC v.

– Thornton Township Regular Democratic Committee: 

FEC v.

– Triad Management Services: FEC v. 

– West Virginia Republican State Executive Committee: 

FEC v.

– Woods, Charles for U.S. Senate: FEC v.

False statements fi led with Commission

– United States v. Goland

– USA v. Kanchanalak

RIPENESS FOR JUDICIAL REVIEW

Athens Lumber Co. v. FEC

Central Long Island Tax Reform Immediately: FEC v.

Chamber of Commerce v. FEC

Clark v. Valeo

Dolbeare v. FEC

Faucher v. FEC

Franklin: FEC v.

Lance: FEC v.

Martin Tractor Co. v. FEC

Mott v. FEC

National Chamber Alliance for Politics v. FEC

NCPAC v. FEC

National Republican Senatorial Committee v. FEC (94-0332)

Reader’s Digest Association v. FEC

RNC v. FEC (78-2783)

Sierra Club v. FEC

United States Defense Committee v. FEC

SALE OR USE RESTRICTION

Constitutionality of the restriction

– Dolan v. FEC

– International Funding Institute: FEC v.

– Political Contributions Data: FEC v.

 Violations

– American International Demographic Services: FEC v.

– Bryant Campaign Committee: FEC v.

– Dolan v. FEC

– International Funding Institute: FEC v.

– Legi-Tech: FEC v.

– Political Contributions Data: FEC v.

– Working Names: FEC v.
Cases Through March 2004

Subject Index

Selected Court Case Abstracts

313

SEPARATE SEGREGATED FUNDS

Establishment/administration/solicitation expenses

– Stern v. FEC

– Stern v. General Electric Co.

Partnership support of

– Satellite Business Systems v. FEC

Prohibited funds accepted by

– AFL-CIO: FEC v.

– NRA: FEC v.

– NRA: FEC v. (85-1018)

– NRA Political Victory Fund: FEC v.

Solicitations

See: SOLICITATIONS

SEPARATION OF POWERS

Buckley v. Valeo

Clark v. Valeo

NRA Political Victory Fund: FEC v.

Staebler v. Carter

SOLICITATIONS

By corporations

– Martin Tractor Co. v. FEC

– Survival Education Fund: FEC v.

– Triad Management Services: FEC v. 

By union

– Brown v. FEC

– International Association of Machinists v. FEC

– NEA: FEC v.

By membership organizations

– Chamber of Commerce v. FEC

– Jordan v. FEC

– National Chamber Alliance for Politics v. FEC

– NRA v. FEC

– National Right to Work Committee: FEC v. (77-7125)

– National Right to Work Committee v. FEC (78-0315)

– Public Citizen: FEC v.

By trade association

See: TRADE ASSOCIATIONS

Coercive

– Brown v. FEC

– International Association of Machinists v. FEC

Constitutionality of solicitation rules

– California Medical Association v. FEC

– Chamber of Commerce v. FEC

– International Association of Machinists v. FEC

– Martin Tractor Co. v. FEC

– National Right to Work Committee: FEC v. (77-7125)

– National Right to Work Committee v. FEC (78-0315)

On behalf of candidate

– Galliano v. United States Postal Service

– NCPAC: FEC v. (85-2898)

– Stark v. FEC

– Williams v. FEC

Reverse checkoff

– NEA: FEC v.

STANDING

Akins v. FEC (92-1864)

Albanese v. FEC

Antosh v. FEC (84-1552, 84-2337, 85-2036, 86-0179)

Athens Lumber Co. v. FEC

Bread PAC v. FEC

Center for Responsive Politics v. FEC (95-1464)

Chamber of Commerce v. FEC

Clark v. Valeo

Committee for a Unifi ed Independent Party v. FEC

Common Cause v. FEC (96-5160)

Common Cause v. Schmitt

Democratic Senatorial Campaign Committee v. FEC (96-2184, 

97-5160 and 97-5161)

Faucher v. FEC

Freedom Republicans v. FEC

Froelich v. FEC

Goland v. United States

Gottlieb v. FEC

Hollenbeck v. FEC

Hooker v. All Campaign Contributors

Hooker v. FEC (3-99-0794)

Hooker v. Sundquist

International Association of Machinists v. FEC

Judicial Watch, Inc. v. FEC

Miles for Senate v. FEC

Minnesota Citizens Concerned for Life v. FEC

NCPAC v. FEC (83-2823)

NRA Political Victory Fund: FEC v.

Wertheimer v. FEC

Whitmore v. FEC

STATUTE OF LIMITATIONS

In civil proceedings

– Christian Coalition: FEC v.

– Democratic Senatorial Campaign Committee v. FEC 

(96-2184)

– Friends for Fasi: FEC v.

– Lance: FEC v.

– National Republican Senatorial Committee: FEC v. 

(93-1612)

– National Right to Work Committee: FEC v. (90-0571)

– Williams: FEC v.

On notifi cation of repayment amounts

– Dukakis v. FEC

– Fulani v. FEC (97-1466)

– Robertson v. FEC

– Simon v. FEC

SUBPOENA ENFORCEMENT

Citizens for Democratic Alternative in 1980: FEC v.

Committee to Elect Lyndon LaRouche: FEC v.

Florida for Kennedy Committee: FEC v.

Lance: FEC v.

Machinists Non-Partisn Political League: FEC v.

Populist Party: FEC v. (90-0229 and 90-7169)

Wisconsin Democrats for Change: FEC v.

Wright: FEC v.
Selected Court Case Abstracts

314 Cases Through March 2004

Subject Index

TRADE ASSOCIATIONS

Affi liation between

– Antosh v. FEC (84-1552 and 84-2337)

Contributions from

– Anderson for Senator: FEC v.

Solicitations by

– Bread PAC v. FEC

– Chamber of Commerce v. FEC

TREASURER

See: LIABILITY

UNINCORPORATED ORGANIZATIONS

Contributions and expenditures by

– California Medical Association v. FEC

VOTER GUIDES

Central Long Island Tax Reform Immediately: FEC v.

Christian Coalition: FEC v.

Clifton v. FEC

Faucher v. FEC

Massachusetts Citizens for Life: FEC v.

United States Defense Committee v. FEC

VOTER REGISTRATION

California Democratic Party: FEC v.

See also: NATIONAL VOTER REGISTRATION 

 ACT

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