Your web browser is not supported You're using Internet Explorer, some features might not work. Please switch to another browser like Chrome, Firefox, or Edge for a better experience.


An official website of the United States government Here's how you know
 **Official websites use .gov**
            
            A **.gov** website belongs to an official government organization in the United States.
 **Secure .gov websites use HTTPS**
            
            A **lock** ( A locked padlock ) or **https://** means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.


Federal Election Commission | United States of America Calendar
           Glossary
          Search
              Search


Menu
      Home
      Campaign finance data
        All data
            Raising
            Spending
            Loans and debts
            Filings and reports
            Candidates
            Committees
            Bulk data
            Campaign finance statistics
        Find elections. Search by state or ZIP code
          Look up contributions from specific individuals
      Help for candidates and committees
        All compliance resources
            Guides
            Forms
            Dates and deadlines
            Trainings
        Learn about electronic filing
          Find and contact your committee's analyst
      Legal resources
        All legal resources
            Advisory opinions
            Enforcement
            Statutes
            Legislation
            Regulations
            Court cases
            Policy and other guidance
        Search across all legal resources
          Search guidance documents
      About
        All about the FEC
            News and announcements
            Commission meetings
            Mission and history
            Leadership and structure
            Reports about the FEC
            Careers
            Working with the FEC
            Contact
        Introduction to campaign finance and elections


- Home
- ›
        Legal resources
- ›
        Court cases
- ›
      Combat Veterans for Congress PAC, et al. v. FEC

Combat Veterans for Congress PAC, et al. v. FEC 
 Summary
          
            Documents
 Summary

  
  
    On July 28, 2015, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court's dismissal of administrative fine challenges filed by Combat Veterans for Congress PAC.BackgroundIn 2010, Combat Veterans for Congress PAC ("CVCP") submitted three reports after the statutory filing deadlines. As a result, the Commission began administrative enforcement proceedings against CVCP and found reason to believe (RTB) that CVCP and its treasurer, in his official capacity, violated 52 U.S.C. § 30104(a) by failing to file the reports on time.[1] The Commission imposed fines totaling $8,690 for the violations. CVCP challenged the Commission’s findings and argued that the actions of its treasurer at the time made it impossible for CVCP to file its reports on time. The Commission confirmed the penalties against CVCP and its successor treasurer in a Final Determination dated October 27, 2011.CVCP filed a Petition for Review with the district court on December 7, 2011 arguing, among other things, that the Commission’s enforcement action was invalid because it lacked the requisite four affirmative votes for a RTB finding; its former treasurer was solely liable in his personal capacity for failing to file the reports on time; the Commission failed to provide CVCP an in-person hearing; and the Commission’s failure to mitigate the penalties was an abuse of discretion.District court decisionThe district court found no evidence that the Federal Election Campaign Act (the Act) imposed liability on treasurers in their personal capacity to the exclusion of committees and treasurers in their official capacity. The court deferred to the FEC's decision not to prosecute the former treasurer in his personal capacity, citing the Commission’s considerable prosecutorial discretion and no evidence that the Commission abused its discretion. It also referenced requirements in the Act and Commission regulations that political committees and treasurers file periodic reports of receipts and disbursements (see 52 U.S.C. § 30104(a)(1) and (4); 11 CFR 104.5(c)), and noted the Commission’s policy and practice to name as respondents in enforcement matters the political committee and its current treasurer, in his or her official capacity.The district court also rejected CVCP's claim that it was unlawful for the Commission to decline to grant an in-person hearing, finding that the phrase "opportunity to be heard" can be interpreted to include not merely oral, but written advocacy, and that a decision regarding the need for an in-person hearing is properly left to the agency. The court also rejected CVCP’s arguments that the FEC failed to mitigate the CVCP fines finding the fines compliant with statutory guidelines, and similarly rejected CVCP's various claims of Constitutional violations finding them undeveloped and unsupported. The district court declined to consider CVCP’s challenges to the Commission’s voting procedures because they had not first been presented to the agency itself and were based on documents outside the administrative records.Appeals court decision and analysisThe court of appeals affirmed the district court’s decision. On appeal, CVCP argued that the district court failed to address its challenges to the FEC's voting procedures and, among other objections, that the Commission's RTB determinations were void because they lacked affirmative votes from at least four Commissioners.Under the Act, an enforcement action can only begin after an affirmative vote of four Commissioners that finds RTB that a person has committed a violation of the Act. 52 U.S.C. § 30109(a)(2). Following an investigation, and upon the general counsel’s recommendation, the Commission will determine, again by an affirmative vote of four Commissioners, whether there is probable cause to believe that the person violated the Act. 52 U.S.C. § 30109(a)(2), (4)(A)(i). After a finding of probable cause, the Commission must attempt to resolve the matter by informal methods, but may resort to filing a civil suit after another affirmative vote by four Commissioners. 52 U.S.C. § 30901(a)(4)(A)(i), (6)(A).Congress authorized the Commission's Administrative Fines Program to provide a streamlined procedure to handle reporting violations. First, the Commission conducts a 24-hour, no objection vote on a RTB finding, then provides the respondent with notice and an opportunity to be heard. 52 U.S.C. § 30109(4)(C)(i). Pursuant to an agency directive, the no-objection vote requires circulation of ballots to each Commissioner. Any ballots not marked and returned within 24 hours are counted as "yes” votes. FEC Directive 52 (Sept. 10, 2008). At that point, the Commission may find a violation of the Act and issue a civil money penalty without an additional probable cause finding. 52 U.S.C. § 30109(4)(C)(i)-(ii). However, if the respondent challenges the RTB finding, the Commission will consider the respondent’s arguments and will circulate ballots for a "tally vote" on its final determination, whereby votes are marked and counted and any ballots not returned within one week are deemed abstentions.For each of CVCP's three late filings, the Commission used the 24-hour, no objection procedure to find RTB. Consistent with agency procedures, the Commission secretary certified that the Commissioners "voted affirmatively" and decided the issue "by votes of 6-0," though some Commissioners did not return a ballot. The Commission unanimously found CVCP liable for the violations in its final determination by tally vote.In its court complaint, CVCP argued that the Commission’s RTB procedures did not meet the Act’s requirement for an “affirmative vote” of at least four Commissioners. The appeals court determined that the case did not require the court to decide that issue because even if the Commission’s use of its voting procedure was in error, CVCP failed to show that the voting procedure caused it any prejudice. In addition, the court reasoned that "any prejudice [CVCP] might have suffered was rendered harmless by the Commission’s subsequent ratification of its reason-to-believe finding with a concededly valid tally vote." With regard to the tally votes, the appeals court referenced the rules of the agency in holding that ballots signed by Commission staff acting on a Commissioner’s instructions were validly cast and that "the practice is reasonable, not proscribed by statute, and rooted in longstanding principles of agency."Finally, the appeals court rejected all of CVCP's other arguments for the reasons given by the district court. CVCP argued that its former treasurer’s negligence made it impossible for it to file its reports on time, that the Commission should have held the former treasurer solely liable, that the Commission should have mitigated the penalties assessed against CVCP and that a related Commission regulation was unlawful. The appeals court dismissed these arguments and affirmed the lower court’s decision.FOOTNOTES:[1] At the time of the enforcement proceedings, Michael Curry was listed as CVCP’s treasurer and custodian of records. By time the enforcement proceedings ended, David Wiggs was named the successor treasurer and, in addition to CVCP, was assessed the administrative fine in his official capacity.Source: FEC Record —October 2015; August 2015; December 2013
 Documents

  
  
    Appeals Court (DC)Court decisions:Mandate (10/27/2015)Order (10/16/2015)Order (10/16/2015)Opinion (07/28/2015)Judgment (07/28/2015)Order (05/13/2014)Related documents:Petition for Panel Rehearing and Rehearing en banc for Appellants Combat Veterans for Congress Political Action Committee and David H. Wiggs, Treasurer (10/08/2015)Reply Brief for Appellants Combat Veterans for Congress Political Action Committee and David H. Wiggs, Treasurer (09/30/2014)Brief for the FEC (09/16/2014)Corrected Brief for Appellants (08/19/2014)Brief for Appellants (08/18/2014)Reply in Support of Summary Affirmance (03/25/2014)Appellants' Opposition to FEC's Motion for Summary Affirmance (03/04/2014)Appellee FEC's Motion for Summary Affirmance (01/27/2014)District Court (DC)Court decisions:Order (09/30/2013)Memorandum Opinion (09/30/2013)Related documents:Amended Notice of Appeal (11/29/2013)Notice of Appeal (11/26/2013)Defendant's Reply Memorandum in Support of Its Motion for Summary Judgment (09/14/2012)Plaintiffs' Memorandum of Points and Authorities in Further Support of its Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment (08/10/2012)Defendant FEC's Motion for Summary Judgment and Memorandum in Support of its Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment (07/09/2012)Plaintiffs' Amended Petition for Review of FEC Determination and Complaint for Declaratory and Injunctive Relief (06/20/2012)Plaintiffs' Consent Motion to Amend Complaint (06/20/2012)Plaintiffs' Motion for Summary Judgment (06/07/2012)Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment (06/07/2012)Defendant FEC's Answer to Plaintiffs' Petition for Review (03/23/2012)Plaintiff's Petition for Review of FEC Determination and Complaint for Declaratory and Injunctive Relief (12/07/2011)


This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


About
          Careers
          Press
          Contact
   Privacy and security policy
          Plain language
          No FEAR Act
          Strategy, budget and performance
 Open government
          Protected Voices
          USA.gov
          Inspector General
          FOIA
 OpenFEC API
          GitHub repository
          Release notes
          FEC.gov status


Federal Election Commission
 The FEC's Twitter page
            The FEC's YouTube page Sign up for FECMail


Hide glossary Glossary Search terms