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FEDERAL ELECTION COMMISSION 

Washington, DC 20463 .. -.4 . 

MEMORANDUM ' 

' .TO: 

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FROM: 

Commissioners 

General Counsel Norton 

Staff Director Pehrkon 

Office of the Commission Secretary1 

DATE: April 16,2002 

SUBJECT: Statement of Reasons for MUR 5156 .. 

Attached is a copy of the Statement of Reasons for MUR 5156 

signed by Commissioner Thomas . This was receiyd in the 

Commission Secretary's Office on Tuesdav. Julv 16. 2002 at 

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10:07 a.m. 

cc: Vincent J. Convery, Jr. 

. OGC Docket (5) 

Press office 

Public Information 

Public Records 

Attachments 
FEDERAL ELECTION COMMISSION 

WASHINGTON. D.C 2114b3 

In the Matter of 1 

1 

1 

.1 

Don Bryant 1 

CIaude Riley 1 

Mark Morton 

Bill Lila 

MUR 5156 

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In MUR 5 156, the Conynkion voted 4-1 to take no action and close the file on a 

complaint alleging that a sign expressly advo&ting the election of George W. Bush, 

apparently Without the authorization of then-Govemor Bush, or his committee or agents, 

failed to include the appropriate disclaimer required under 2 U.S.C. 4441d. In so doing, 

we rejected the recommendation of the Office of the General Counsel that we approve a 

finding of reason to believe that the individuals involved fhiled to comply with the 

Federal Election Campaign Act of 1971, as amended (%e Act"), but take no fiuther 

action and close the case. I write this Statement of Reasons to explain my vote with the 

mjority, to answer issues raised by Commissioner Wold's' Statement of Reasons, and to 

address a concemillustrated by the case. 

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The Act provjdk that whenever any person makes aq expenditure for the purpose ' 

of financing communications expressly advocatiq the election or dew of a clearly 

identified candidate that is not authoized by a candidate, an &horizcd political 

commiffee of a candidate, or its agents, the communication must clearly state the name of 

the person who paid far the communication and state that the communication is not 

authorized by any candidate or any candidate's committee. 2 U.S.C. 0 441d(a)(3). 

Furtha, the Commission's regulations require that such disclaimer be presented in a 

"clear and conspicuous manned' 11 C.F.R. 9 1 lO.ll(a)(S). 

''Expressly advocating" is defined as a communication that, inter alia, uses 

phrases such as 'tote fbr the President," "re-elect pur Corqgcsm~" or "Smith fbr 

' On April 1.2002, Commissioner Wold was replaced on the Codion by Commissioner Michael Toner 
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Congress” which, in context, can have no reasonable meaning other than to urge the 

election or defeat or one or more clearly identified candidate(s). 11 C.F.R. 8100.22. 

[or] the identity of the candidate is apparent by unambiguous reference.” 

431(18). 

The tenn “clearly identified” means “the name of the candidate iiiVbtved appears 

2 U.S.C. 0 . 

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M Fj 

On November 17,2000, Don Dyer (“complainant”) filed a complaint With the 

Federal Election Commission against four individuals, Mark Morton, Bill files, Don 

Bryant, and Claude Riley (“respondents”). The complaint alleged that the respondents 

created and erected a sign supporting then-Governor George W. Bush that did not include ’ 

a disclaimer, thereby violating federal election law. The sign stat-: 

VOTJt FOR 

GEORGE W. BUSH 

FORPRESIDENT 

TOTHBWHITEHOUS~ ‘ 

’ VoteforLXlWljRTUCBSFORALLTAXPAYERS 

Vote for MORALITY, FAMILY VALUES, LESS GOWRNMENT 

Vote for THE RIG= TO KEEP FIREARM 

Vote for A REAL ENERGY POLICYTO IxlwBRFUEL PRICES 

Vote fror SENSIBLE B”MBNTAL POLICIES 

PEOPLE ARE MORE IMPORTXNT THAN SNAILS AND RATS 

VoteforRBspoNsIBLEMEDICALCARBFORAUUTIZENS 

Vote for A STRONG MILITARY TO PR- U.S. INTERESTS 

Vote €in KXAL SCHOOL CONTROL & BEITERTEACHER PAY 

VolgRRPuBLIcAN 

NOTALGORESOCIALISM 

’ 

EAT MORE BEEF - WEAR COOL - SUPPORT FARMERS 

MUR 5156, Complaint at 3. On December 12,2000, the Commission received a : 

letter in response hm Bill Liles, on behalf of himself and the other three respondents. In 

the letter, the respondents admitted that they hded the sign and recognized that it failed 

to include the proper disclaimer. They assert that they are not affiliated with any party 

nor&d George W. Bush or the Republican Party enaoiiStfie sign. ‘Their hted r&wn 

for mating the sign was because they got “tired of looking at” a sign urging support for 

Al Gore, made hn a.m&igeratorbox and p lacedon the porch of aid firrnitureand 

appliancestore. Decidin%thatth~neededsomethin%‘~biggerandbettes;”th~hireda 

profdonal Sign painter to create their 8’xlO’ sign and hung it off of a cotton trailer 

parked across the street hm the furniture store. The trailer and sign stayed in the same 

place during the entire election season, eventually becoming a topic of conversation at the 

Spudnut Shop on Main Street and the Dinner Bell C& on Hwy. 84. As word spread, 

people began donating money to help pay the cost fbr the sign. Respondents maintain 

this was “all a small town joken and no one meant to break any law. 

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On Decembes 6,2001, the Commission considered the General counsel’s Repart 

on the matter, which racommezlded that the commission find reason to believe (”RTB”) 

that the ~espomhts violated 2 U.S.C. 8 441d(ax3), but talcc no Mer action txocpf to 

send an admonishment letter and close the file. The Counsel’s .office concluded that the 

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respondents did violate 2 U.S.C. 441 d(a)(3), but because the matter dealt .with one 

stationary sign and the respondents acknowledged their error, the Commission should 

take no further action against them. By a 4-1 vote, with one Commissioner absent, the 

Commission voted to ovmle the Counsel’s recommendation and approve a motion to 

take no action at all and close the file. 

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II. 

As the respondents admitted to their violatiim of the Act, the real issue was how 

to handle the procedUres by which the matter would be resolved. The end result of both 

the Counsel’s recommendation and Commissioner Wold’s motion was the same: no 

Mer action would be taken against the respondents and the file would be closed. When 

it became clear that thk were not enough votes to approve the Counsel’s 

recommehdatiOn; however, I voted with the majority to approve the motion in order to 

ayoid a conhing 3-2 split and prolonged debate. 

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A. .. 

While I voted for.Commissioner Wold’s motion, I do not share his Statement of 

primary reason for making the motion .to take no action was because a ‘reason to believe 

finding’ is a :statement by an agency of the federal government that the agency, literally, 

has reason to believe that the indiiriduals have violated Federal law,” and this 

detexmination should not be “taken lightly.” MUR 5156, Statement of Reasons of 

Commissioner Wold at 3 (March 22,2002). I am not aware of any Commissioners who 

take ‘reason to believe’ findings lightly. Moreover, the facts of this case cleaily warrant 

Though they admit it was unintentional, the fact remains that they did not comply with . . 

federal law. Section 441d sets no threshold level for enforcem&t nor does it differentiate 

. . between candidates, committees, or individuals. However, as I stated above, I voted with 

the majority of my colleagues to avoid needless debate where the end result is the same. 

*’ 

y 

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E Rewnsjoined by Commissioners Mason and Smith. Commissioner Wold states that his 

. a finding of ‘reasondo believe’ that the respondents violated a provision of Feck 

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I would ais0 iike to address a separate matter Commissioner Wold takesup in his 

Statement of Reasons, a section in which Chairman Mason did not join. MUR 5156, , 

Statement of Reasons of Commissioners, Mason and Smith at 1 (April 25,2002). Part IIC of Commissioner Wold’s statement expressed “serious reservations about the statutory 

. 

I note that a good deal of Commission& Wold’s Statement was taken up.witb his theory that the Act’s 

disclaimer provision may be uncollstitutiona1. He certainly argued fa that position (unsuccess~y) before 

joining the Commission. See Griset v. Fair Political Practices Commission, 107 Cal.Rptr.2d 149 (Chl., 

2001). At moQs sucb cancans would justify a ‘reason to believe finding but take no further action’ 

approach where, oshere, the Oilice ofthe General Counselhadactivatdthemattcrandpresmted 

unassailable evidence of a statutory violation. 

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’ basis for using a RTB finding to express our opinion that there may have been a violation 

of the law, where we do not intend to pursue enforcement.” MUR 5 156, Statement of 

Reasons, Commissoner Wold at 6 (March 29,2002). The relevant section .of.the Act 

provides that the Commission “shall” make an investigation of an allegechielation where 

the Commission, with the vote of four members, determines that there is reason to believe. 

that a person has committed, or will commit, a violation of the Act. 2 U.S.C. 0.437g; see . 

- also 11 C.F.R. 6 1 11 .lO(f). Commissioner Wold interprets this provision as requiring the 

Commission to make a reason to believe finding only .when it intends to proceed to the 

investigative step. Commissioner Wold thus concludes that there is no statutory authority 

for the Commission to make a ‘reason to believe’ finding and then take no mer action. 

I do not share in Commissioner Wold’s conclusion. The Commission, by practice 

and public guidance, has made it clear that a ‘&on to believe’ finding does not mandate 

an agency investigation. As illustrated.by recent cases discussed in- the Commikion 

has repeatedly made reason to believe findings without investigating a particular matter. 

Similarly, the Commission has approved advice to’the regulata cominunity that ‘‘[a], any 

point during the complaint process, however, the Commission has the discretion to take 

no Mer action in a particular matter.” Filhg a Complaint, FEC (1998); In light of the 

small’amounts which may be involved in some violations, as well as the insignificance of 

the matter relative to other matters pending before the Commission, the Commission ’ . 

must have the flexibility to make ‘reason to believe’ findings, but,exercise its 

. .. p&utorial discretion and decide not to purrme a matter fbrther. See Heckler v. 

Chanev,.470 U.S. 821,831 (1985). 

’ . 

’ 

C. 

Finally; I would like to address a critical concem highliated by this case. During 

the November 6,2001 Executive Session, the Commission first considered two MuHg 

, involving violations of 5 441d(a)(3).’ In both cases, the Commission ultimately voted 

unanimously 6-0 to approve the General Counsel’s recommendation to find’reason to 

beliewe that 0 441d(a)(3) was violated, but because of the relative insignificance of the 

violations, only send admohent letterst0 thvondents, takmdWh=don,ad-’ 

close the file. The Office of General Counsel and a majority of the Commission agree 

that no action shouldbe taken against respondents here. Given that two factualy 

COmparatle Cases were decided in a similar Eashion, it is unclear why this case should not 

have followed the same procedural method. 

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In MUR 5130, the basis for a complaint filed against the candidate Rob Simmons 

and his Committee, SimmoG for Congress, was a fhll back-page ad published in the Fall 

2000 issue of me Connecticut Legionnaire. .The ad contained campaign pledges and 

biographical idonnation &out the candidate, but did not include a’disclaimer stating the 

source of the ad’s fund= In response, the Committee asserted that the ad as submitted 

included the disclaimer, but the disclaimer was inadvexteatly removed by the printer. 

However, the Committee took responsibility fix fhiling to inspect the ad before it was . 

published. The Commission voted 6-0 to app~ove the General Counsel’s 

~~~~tofindreasontobelieve~simmonsfar~and AnnS~~ 

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as treasurer, violated 2 U.S.C. §441d, but due to the circumstances of the case, only issue 

tlieiii a letter of admonishment, take no Turthcr action and close the file. . 

.. A similar case, MUR 5161, involved a campaign mailer distributed-by Barney 

Braiinon for Congress ("Committee) called ."The Barney Beat," which expressly 

advocated the election of Barney Brannon without the required disclaimer. The New 

Hampshire Republican State Committee filed a complaint against the Committee alleging 

violation of 2 U.S.C. 8441d. The campaign manager for the Committee responded by 

stating that the failure to include the disclaimer was an oversight and all subsequent 

mailers included the appropriate disclaimer. Again, the Commission voted 6-0 to , 

approve the Counsel's recommendation to find reason to believe that Brannon for 

Congress and treasurer William H. Barry In violated 2 U.S.C. 54414, but besides an 

admonishment letter, no other action would be taken on the matter. 

The vastly different treatment afforded the latter two cases raises a concern about 

arbitrary decision-making. Any time cohissioneixfchin~eH~e pidce&ng of a 

case in order to make 'reason to believe' findmgs not otherwise called for, or to reject a 

'reason to believe' recornendation where there is an admitted violation,.the ability to 

explain our action is undermined3. ~oreo~er, as the amount. of ink and paper now 

devoted to this MUR indicates, it is a tenible waste of time and research when such 

explanations must needlessly be cded. 'The Commission should depend on procedures that result in consistent results for comparable violations. hconsistency and variance . 

hm'established practice, particularly for relatively insignificant cases, expends time and 

resources that could be better spent debating and resolving more pressing issues. 

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Date Scott E. Thomas - 

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