United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2006 Decided January 12, 2007

No. 06-5014

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv02145)

Anne L. Weismann argued the cause for appellant. With her

on the briefs was Melanie Sloan.

David B. Kolker, Attorney, Federal Election Commission,

argued the cause for appellee. With him on the brief were

Richard B. Bader, Associate General Counsel, and Vivien Clair,

Attorney.

Before: RANDOLPH, GARLAND and GRIFFITH, Circuit

Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.
2

Opinion concurring in the judgment filed by Circuit Judge

GARLAND. 

RANDOLPH, Circuit Judge: This is an appeal from an order

of the district court granting summary judgment in favor of the

Federal Election Commission. Citizens for Responsibility and

Ethics in Washington (CREW) sought judicial review of the

Commission’s dismissal of CREW’s administrative complaint.

The issue is whether CREW has standing to challenge the

Commission’s decision. 

I.

During the 2004 presidential election campaign, Grover

Norquist gave Ken Mehlman a list of conservative activists in

thirty-seven states. Norquist is president of Americans for Tax

Reform, a § 501(c)(3) tax-exempt corporation. Mehlman was

campaign manager of Bush-Cheney ’04. A reporter from The

Washington Post witnessed the transaction and reported it.

Relying on the newspaper story, CREW filed a complaint with

the Commission alleging that the list constituted an in-kind

corporate campaign contribution in violation of the Federal

Election Campaign Act, 2 U.S.C. § 441b(a); that if, instead, the

list constituted a personal contribution by Norquist, its value

exceeded his $2,000 contribution limit under § 441a(a)(1)(A);

and that Bush-Cheney ’04 violated § 434(a)-(b) by failing to

report the list as a contribution. The complaint named as

respondents Norquist, Americans for Tax Reform, Mehlman,

and Bush-Cheney ’04. As relief, CREW requested that the

Commission “conduct an investigation into these allegations,

declare the respondents to have violated the federal campaign

finance laws, impose sanctions appropriate to these violations

and take such further action as may be appropriate.” BushCheney ’04 and Americans for Tax Reform defended on the

grounds that the materials Norquist provided to Mehlman were
3

not confidential, were accessible from publicly available sources

including Americans for Tax Reform’s website, and did not

represent a campaign contribution because they had no market

value.

The Commission’s General Counsel sought to determine

whether the list constituted a “contribution” – that is, a “gift,

subscription, loan, advance, or deposit of money or anything of

value” made for the purpose of influencing a federal election.

2 U.S.C. § 431(8)(A)(i). He requested that the administrative

respondents provide a copy of the materials given to Mehlman.

Bush-Cheney ’04 submitted one version of the documents;

Americans for Tax Reform submitted a slightly different

version, explaining that it had updated the materials since

providing them to Mehlman and had not kept a copy of the

original list. The materials, which are described in great detail

in the General Counsel’s Report to the Commission, included a

map of thirty-six states in which “Center-Right Coalition”

meetings had taken place, descriptions of some of the meetings,

and lists of attendees. The General Counsel recommended to

the Commission that it find reason to believe that the transaction

constituted a prohibited corporate contribution under § 441b(a),

find no reason to believe that the transaction constituted an

excessive personal contribution exceeding $2,000 under

§ 441a(a)(1)(A), and find reason to believe that Bush-Cheney

’04 violated § 434(b) by failing to report the in-kind

contribution.

Although the General Counsel concluded that the materials

had some value, the value was “small,” the list had only a

limited “impact,” and amounted only to a “limited contribution”

to Bush-Cheney ’04. He determined that the materials would be

of little assistance in organizing Bush-Cheney ’04’s

conservative base: the individuals identified in the list were

doubtless already aware of and supportive of the President’s re-
4

1

 Commissioner Michael E. Toner issued a personal

“Statement of Reasons,” concluding that CREW’s complaint “should

have been dismissed based on prosecutorial discretion with no reasonto-believe finding.” See FEC, Statement of Reasons (Nov. 23, 2004)

(Toner, Comm’r), http://eqs.nictusa.com/eqs/searcheqs (enter 5409 as

case number).

election campaign; with few exceptions, the materials focused

on state and local issues; and Bush-Cheney ’04 already had

some of the information and portions of it were posted on

Americans for Tax Reform’s website. “[I]n order to devote the

Commission’s limited resources to more significant cases,” the

General Counsel therefore recommended that the “Commission

exercise its prosecutorial discretion and take no further action

and close the file in this matter.”

The Commission voted to adopt the General Counsel’s

recommendations, but did not issue a separate joint statement.1

We therefore infer that the General Counsel’s report sets forth

the Commission’s rationale for ending its inquiry into CREW’s

administrative complaint. See, e.g., FEC v. Democratic

Senatorial Campaign Comm., 454 U.S. 27, 38 & n.19 (1981);

Nat’l Rifle Ass’n of Am. v. FEC, 854 F.2d 1330, 1333 n.7 (D.C.

Cir. 1988). The Commission notified CREW of its action,

provided a copy of the General Counsel’s report, and stated that

materials relating to the matter would be placed on the public

record within thirty days, see 11 C.F.R. § 111.20(a), which they

were. 

After the election, CREW filed this action pursuant to 2

U.S.C. § 437g(a)(8)(A), which states that “Any party aggrieved

by an order of the Commission dismissing a complaint filed by

such party . . . may file a petition with the United States District

Court for the District of Columbia.” CREW’s complaint sought

a declaration that the Commission’s “failure to require reporting
5

and disclosure of the value of the master contact list . . . was

contrary to law.” The district court, Bates, J., granted summary

judgment in favor of the Commission on the ground that CREW

lacked standing to litigate its claims. The court reasoned that

CREW suffered no injury in fact because the precise dollar

value of the list would not be useful either to voters generally or

to CREW in particular. See Citizens for Responsibility and

Ethics in Wash. v. FEC, 401 F. Supp. 2d 115, 120-22 (D.D.C.

2005). Moreover, because CREW’s administrative complaint

did not seek to discover the precise dollar value of the list, the

court found that CREW’s “endeavor is tantamount to seeking

enforcement of the law.” Id. at 122.

II.

To establish standing, CREW claims to have suffered the

requisite injury in fact, see Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992), because it is being deprived of one

piece of information about the list not posted on the

Commission’s website – namely, what the list was worth. One

might wonder why the case is not moot. The election is over;

President Bush is constitutionally barred from running again;

and Vice President Cheney has announced that he will not run.

Unlike the plaintiffs in FEC v. Akins, 524 U.S. 11 (1998), who

wanted certain information so that they could make an informed

choice among candidates in future elections, CREW cannot

vote; it has no members who vote; and because it is a

§ 501(c)(3) corporation under the Internal Revenue Code, it

cannot engage in partisan political activity. 

CREW claims it is still suffering an injury because if it

knew the actual value of the list, it could better inform the public

of the relationship between Norquist and the Bush

Administration. See Br. for Appellant 17-18. This seems highly

attenuated. CREW describes itself as an organization devoted
6

to protecting “the rights of citizens to be informed about the

activities of government officials and to ensuring the integrity

of those officials.” Id. at ii. But any citizen who wants to learn

the details of the transaction between Norquist and Mehlman

can do so by visiting the Commission’s website, which contains

the list and a good deal more. This is why the district court

ruled, 401 F. Supp. 2d at 121, that the list’s precise value – if

that could be determined – would add only a trifle to the store of

information about the transaction already publicly available.

See Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S.

214, 231 (1992) (“[T]he venerable maxim de minimis non curat

lex (‘the law cares not for trifles’) is part of the established

background of legal principles against which all enactments are

adopted, and which all enactments (absent contrary indication)

are deemed to accept.”). 

Like the district court, we see other problems with the

remaining two prerequisites to standing – causation and

redressability, see Lujan, 504 U.S. at 560-61. CREW complains

about the Commission’s “failure to require [Bush Cheney ’04]

to comply with [the Act’s] reporting and disclosure

requirements.” Br. for Appellant 18. But the Commission has

no authority to order anyone to report anything. If, after a

“reason to believe” determination, the Commission finds

“probable cause” to believe that someone has violated the Act,

it must attempt to negotiate a conciliation agreement. See 2

U.S.C. § 437g(a)(4)(A)(i). Nothing in the Act requires that

disclosure of information be part of such an agreement. If

negotiation proves unsuccessful, the Commission may decide to

bring an enforcement action in federal district court. See id.

§ 437g(a)(6)(A). There is no requirement that the Commission

seek, or that a court grant, a particular form of redress in such an

action. 
7

The Commission also tells us that it does not place precise

values on in-kind contributions. That is the responsibility of the

person or entity who must report the contribution. See Alliance

for Democracy v. FEC, 362 F. Supp. 2d 138, 145 (D.D.C. 2005).

The Commission’s responsibility is to disclose what others

report. See id.; 2 U.S.C. §§ 434(a)(11)-(12), 437g(a). CREW

does not question the Commission’s position on this score. 

Short of a Commission enforcement action in district court,

further administrative proceedings will thus boot CREW

nothing. At this stage, judicial review of the Commission’s

refusal to act on complaints is limited to correcting errors of

law. See 2 U.S.C. § 437g(a)(8). Yet CREW agrees with the

Commission’s reason-to-believe determinations and expresses

satisfaction that it received “a publicly disclosed ruling that the

administrative respondents violated the law.” Br. for Appellant

22. CREW must disagree with the Commission’s judgment that

its resources were better employed on other, more important

matters. But we do not know what legal principle CREW thinks

the Commission thereby violated, or in terms of standing, how

CREW’s alleged harm is “fairly traceable” to a Commission

determination resting “upon an improper legal ground.” Akins,

524 U.S. at 25. No one contends that the Commission must

bring actions in court on every administrative complaint. The

Supreme Court in Akins recognized that the Commission, like

other Executive agencies, retains prosecutorial discretion. See

id; Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156-59

(D.C. Cir. 2006). 

Many similar considerations underlie our decision in

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per

curiam), on which the Commission relies. See Cass R. Sunstein,

Informational Regulation and Informational Standing: Akins

and Beyond, 147 U. PA. L. REV. 613, 658-59 (1999). Common

Cause’s administrative complaint charged that a national party’s
8

committee and its state counterpart made contributions and

expenditures in a state senatorial election campaign exceeding

the legal limits and then failed to report them. After an

investigation, the General Counsel recommended that the

Commission find probable cause. The Commission deadlocked

and therefore dismissed the complaint. Common Cause, 108

F.3d at 418. To establish its standing to sue, Common Cause

claimed that the injury to it and its members consisted of the

lack of information that would have been provided if the

Commission had pursued its complaint, filed an action in court,

and won a court order requiring the national and state

committees to report the contributions and expenditures. Unlike

CREW, Common Cause was a membership organization and its

members were voters. Yet we dismissed the case for lack of

standing.

The important consideration was that Common Cause’s

administrative complaint sought, as relief, only “the

investigation and imposition of monetary penalties . . ..” Id.

CREW’s request to the Commission also sought an

investigation, a declaration that respondents had violated federal

campaign finance laws, and the imposition of “sanctions.” As

we have already mentioned, the Commission does not itself have

coercive power. And even if it did, CREW never mentioned its

desire to have the list precisely valued and never hinted that this

is what it had in mind as a “sanction.” It is of no consequence

that CREW also requested in its administrative complaint “such

further action as may be appropriate.” Lujan specifically

demanded a showing of injury that is “concrete and

particularized,” not one that is indirectly inferred. 504 U.S. at

560. Given the precedent established in Common Cause and the
9

2

 See LaShawn v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en

banc). CREW seeks to avoid this result on the basis that Common

Cause “must yield” to the Supreme Court’s later decision in Akins.

Br. for Appellant 22. The short answer is that we have never

overruled Common Cause and we have applied its holding and

rationale after Akins. See Judicial Watch, Inc. v. FEC, 180 F.3d 277,

278 (D.C. Cir. 1999); Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C.

Cir. 2001); Am. Soc’y for the Prevention of Cruelty to Animals v.

Ringling Bros. & Barnum & Bailey Circus, 317 F. 3d 334, 337 (D.C.

Cir. 2003).

lack of any meaningful distinction between that case and this

one, we must hold that CREW lacks standing.2

Affirmed.
GARLAND, Circuit Judge, concurring in the judgment:

I agree with the court that there is no meaningful distinction

between this case and Common Cause v. FEC, 108 F.3d 413

(D.C. Cir. 1997), and on that ground conclude that CREW lacks

standing to litigate its challenge to the Commission’s decision.