UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEOFFREY N. FIEGER, NANCY FISHER

and FIEGER, FIEGER, KENNEY AND 

JOHNSON, P.C.,

CIVIL NO. 07-10533

Plaintiffs,

HON. LAWRENCE P. ZATKOFF

-vs- MAG. JUDGE MONA K. MAJZOUB

ALBERTO GONZALES, United States

Attorney General, and MICHAEL E. TONER,

Federal Election Commission Chairman,

Defendants.

 /

DEFENDANT ALBERTO GONZALES’S

MOTION TO DISMISS

Defendant Alberto Gonzales, United States Attorney General, through his attorneys, Alan

Gershel, Acting United States Attorney for the Eastern District of Michigan, and Peter A.

Caplan, Assistant U.S. Attorney, moves this court for an order, pursuant to Fed.R.Civ.P.

12(b)(6), dismissing this case with prejudice. This motion is supported by the attached brief. 

Concurrence in the relief that is sought by this motion was requested on April 5, 2007, and was

not obtained.

Respectfully yours,

ALAN GERSHEL

Acting United States Attorney

s/Peter A. Caplan 

PETER A. CAPLAN

Assistant U.S. Attorney

211 W. Fort St., Ste. 2001

Detroit, MI 48226

313-226-9784

Peter.Caplan@usdoj.gov

P30643

DATED: April 9, 2007

Case 2:07-cv-10533-LPZ-MKM Document 15 Filed 04/09/2007 Page 1 of 17
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEOFFREY N. FIEGER, NANCY FISHER

and FIEGER, FIEGER, KENNEY AND 

JOHNSON, P.C.,

CIVIL NO. 07-10533

Plaintiffs,

HON. LAWRENCE P. ZATKOFF

-vs- MAG. JUDGE MONA K. MAJZOUB

ALBERTO GONZALES, United States

Attorney General, and MICHAEL E. TONER,

Federal Election Commission Chairman,

Defendants.

 /

BRIEF IN SUPPORT OF DEFENDANT 

ALBERTO GONZALES’S MOTION TO DISMISS

PRIMARY ISSUE

WHETHER FECA PRECLUDES THE DEPARTMENT OF

JUSTICE FROM CONDUCTING A CRIMINAL

INVESTIGATION AND PROSECUTION OF ALLEGED

CAMPAIGN FINANCE LAW VIOLATIONS ABSENT A

REFERRAL FROM THE FEC.

MOST PERTINENT AUTHORITY

United States v. International Union of Operating Engineers,

Local 701, 638 F.2d 1161 (9th Cir. 1980)

2 U.S.C. § 437c(b)(1)

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1

 There have been a number of sealed proceedings before Judge Rosen relating to the

criminal investigation out of which this case arises. 2:05X71710-GER, 2:05X71994-GER,

2:05X74527-GER, 2:06X50057-GER

2

FACTS

Plaintiffs are attorney Geoffrey Fieger, the firm of which he is the president, and Nancy

Fisher, that firm’s office manager. (Application for Writ of Mandamus and Complaint

[hereinafter “Complaint”], ¶ 1) They allege that the FBI and the IRS are conducting an

investigation of them for violations of the Federal Campaign Finance Act, 2 U.S.C. ¶ 431 et seq.

(Complaint, ¶ 15)1

 Plaintiffs further allege that this is an improper investigation because the

Federal Election Campaign Act (“FECA” or “the Act”) endows the Federal Election

Commission (“FEC”) with the exclusive authority to perform an investigation, in the first

instance, and that the Department of Justice (“DOJ”) is precluded from proceeding unless and

until it receives a referral from the FEC. (Complaint, ¶ 13) Because there has been no such

referral, plaintiffs claim, DOJ is prohibited from conducting the alleged investigation into

plaintiffs’ campaign contributions. They seek mandamus relief against the FEC and a

declaratory judgment against both DOJ and the FEC.

ARGUMENT

SUMMARY OF ARGUMENT

This is really a very simple case. The Attorney General has plenary authority to

investigate and prosecute all federal criminal matters. This authority will be found not to exist

only where there is a clear and unambiguous expression of legislative will to the contrary. There

has been no such expression with regard to the Attorney General’s authority under FECA. 

Indeed, the only time that Congress ever considered withdrawing criminal enforcement authority

from the Attorney General, it decided not to. Rather, although Congress has expressly provided

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the FEC with exclusive responsibility over civil FECA matters, it has purposely not done the

same with regard to criminal FECA matters. The statutory language compels this conclusion. 

The legislative history compels this conclusion. The relevant case law compels this conclusion.

THE FEDERAL ELECTION CAMPAIGN ACT DOES NOT

REQUIRE THE ATTORNEY GENERAL TO AWAIT A

REFERRAL FROM THE FEC BEFORE HE CAN

COMMENCE A CRIMINAL INVESTIGATION OR

PROSECUTION OF CAMPAIGN FINANCE LAW

VIOLATIONS.

A. The Attorney General Has Plenary Authority to

Investigate and Prosecute Violations of Federal

Law. That Authority Can Be Limited Only By a

Clear Declaration of Congressional Intent.

The starting point for any challenge of the sort presented here is recognition of the fact

that the discretion to institute legal actions is invested in the Attorney General, as head of the

Department of Justice. 28 U.S.C. § 503. While this no doubt has been recognized as implicit in

the structure of the Executive Branch since the founding of the Republic, the Supreme Court

explicitly addressed the plenary authority of the Attorney General in United States v. San Jacinto

Tin Co., 125 U.S. 273, 278-79 (1888):

[T]here is no very specific statement of the general duties of the

Attorney General, but it is seen from [28 U.S.C. § 501 et seq.] that

he has the authority, and it is made his duty, to supervise the

conduct of all suits brought by or against the United States . . . . 

There is no express power vested in him to authorize suits to be

brought against the debtors of the government, or upon bonds, or

to begin criminal prosecutions, or to institute proceedings in any

numerous cases in which the United States is plaintiff; and yet he

is invested with the general superintendence of all such suits. . . . 

We cannot believe that where a case exists in which this is done it

is not within the authority of that officer to cause such action to be

instituted and prosecuted.

The Attorney General’s plenary authority is so deeply embedded in our jurisprudence

that it can be limited only by the most explicit expression of Congressional will to the contrary. 

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That has been the working standard for almost one hundred years, since the Supreme Court said

so in United States v. Morgan, 222 U.S. 274 (1911). That case arose under the Pure Food and

Drug Act, which provided for the Department of Agriculture to collect and analyze specimens of

suspected misbranded or adulterated goods that were traveling in interstate commerce. If the

goods were found to be adulterated, notice was to be given to the party from whom the goods

were seized, and that party was to be provided with an opportunity to be heard. If, after such

hearing, it appeared as if there had been a violation of the law, the Secretary of Agriculture was

to certify such fact to the district attorney, who was required to institute criminal proceedings. A

case could also reach the district attorney by way of referral from state officials, who could do so

without providing the target with an opportunity to be heard. The issue for the Supreme Court

was whether the district attorney could proceed on a case arising out of the Department of

Agriculture’s seizure of goods, where the administrative process described above had not been

implemented. The Court answered with a resounding “yes”:

 Repeals by implication are not favored, and there is certainly no

presumption that a law passed in the interest of the public health

was to hamper district attorneys, curtail the powers of grand juries

or make them, with evidence in hand, halt in their investigation

and await the action of the Department. To graft such an exception

upon the criminal law would require a clear and unambiguous

expression of the legislative will.

Id. at 281-82 (Emphasis added). In response to the defendant’s claim that the preliminary

hearing before the Secretary of Agriculture was designed to prevent malicious prosecutions, the

Court stated that that interest could be protected by the grand jury’s responsibility of having to

find probable cause before criminal charges could be laid. Id. at 282. See also United States v.

Dotterweich, 320 U.S. 277 (1943).

Morgan continues to guide courts faced with challenges similar to the one lodged in this

case. For instance, in Kent v. Benson, 945 F.2d 372 (11th Cir. 1991), plaintiffs, who were targets

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5

of a grand jury investigation, sought a writ of mandamus to compel the Administrator of the

FDA to provide them with notice and an opportunity to be heard administratively before

referring their alleged criminal violations to the U.S. Attorney for prosecution. The court, citing

Morgan and Dotterweich, found the plaintiffs’ arguments so lacking in merit that it imposed

monetary sanctions. Id. at 384. See also United States v. Hercules, Inc., 961 F.2d 796, 799 (8th

Cir. 1992) (section 122 of CERCLA does not limit plenary authority of Attorney General).

B. FECA Has Never Impinged on the Attorney

General’s Plenary Authority to Initiate Criminal

Investigations of Campaign Finance Law

Violations.

1. The 1974 Amendments

The modern era of campaign finance regulation dates to the immediate aftermath of the

Watergate scandal. Congress established the FEC in the FECA Amendments of 1974, P.L. 93-

443, 88 Stat. 1263, 1280, reprinted in Legislative History of Federal Election Campaign Act

Amendments of 1974 (hereinafter “1974 Amendments”), at 1152. Although in those

amendments Congress provided the FEC with primary jurisdiction over civil enforcement of the

Act, it specifically declined to provide that body with similar authority over criminal

enforcement of FECA. Indeed, it is clear beyond doubt that this is so because, although the

Senate bill endowed the FEC with criminal enforcement authority, that provision was deleted by

the Conference Committee. Instead, the bill that ultimately was enacted preserved the historic

authority of the Attorney General to investigate and prosecute criminal campaign finance

violations, with or without a referral from the FEC. Reporting on the Conference Committee’s

product, Senator Cannon stated on the floor that “the Department of Justice would not be

deprived of any of its power to initiate civil or criminal actions in response to referrals from the

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 This circuit has observed that committee reports are especially relevant sources of

legislative intent. Schmitt v. City of Detroit, 395 F.2d 327, 331 n.2 (6th Cir. 2005)

6

commission or complaints from other sources.” 1974 Amendments at 1079. (Emphasis added). 

The Conference Committee Report, itself, confirmed the accuracy of these comments:

The conference substitute generally follows the provisions of the

House amendment with two modifications. First, the Commission

is given power to bring civil actions in Federal district court to

enforce the provisions of the Act where its informal methods of

obtaining compliance fail to correct violations. Second, the

commission is given primary jurisdiction for the enforcement of

the provisions of the Act. Thus, any person must exhaust his

administrative remedies with respect to violations under this Act. 

The primary jurisdiction of the Commission to enforce the

provisions of the Act is not intended to interfere in any way with

the activities of the Attorney General or Department of Justice in

performing their duties under the laws of the United States.

Conf. Rep. No. 93-1438, at 94 (1974), 1974 Amendments at 1038 (emphasis added).2

2. The 1976 Amendments

On January 30, 1976, the Supreme Court issued its decision in Buckley v. Valeo, 424

U.S. 1 (1976), in which it addressed a number of the provisions of the then-existing campaign

finance law. One provision under challenge was § 310 of Pub.L. 93-443, then codified as 2

U.S.C. § 437c(a), which established an FEC made up of six members plus the Secretary of the

Senate and the Clerk of the House – the latter two serving ex officio. The Court struck down that

section of the statute because it invested improper litigative and executive authority in members

who were not selected in accordance with the Constitution’s Appointments Clause:

We hold that these provisions of the Act, vesting in the

Commission primary responsibility for conducting civil litigation

in the courts of the United States for vindicating public rights,

violate Art. II § 2, cl. 2, of the Constitution. Such functions may

be discharged only by persons who are “Officers of the United

States” within the meaning of that section.

Id. at 140.

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 Although plaintiffs’ take much comfort in this amendment, they do not completely set

forth the relevant statutory language in their papers. Instead, they selectively quote it in the brief

in support of their motion for declaratory relief:

These 1976 amendments are important because they show that

Congress fully intended to depoliticize campaign finance disputes

by taking them away from the purview of the Attorney General

and placing them in the first instance within the “exclusive

primary” jurisdiction of the FEC.

Id. at p.8. Of course, missing from this statement is the small detail that those amendments

explicitly confined the FEC’s “exclusive primary jurisdiction” to the civil enforcement of the

Act.

7

 To address this and other defects, Congress amended the Act in 1976. The amendments

made the six FEC Commissioners Presidential appointees, subject to Senate confirmation, and

the ex officio members non-voting positions. Pub.L. 94-283, reprinted in Legislative History of

FECA Amendments of 1976 at 1128. Plaintiffs contend that these amendments did more than

that – that they endowed the FEC with exclusive jurisdiction over criminal violations of the Act,

to the exclusion of the Attorney General’s historic plenary authority over enforcement of the

criminal laws. In support of this argument, plaintiffs cite the addition of the word “exclusive”

before the word “primary,” in describing the FEC’s jurisdiction over enforcement of the Act. In

so arguing, plaintiffs badly miss the point. The provision to which they refer describes only the

FEC’s jurisdiction over civil matters:

The Commission shall administer, seek to obtain

compliance with, and formulate policy with respect to, this Act and

chapter 95 and chapter 96 of Title 26. The Commission shall have

exclusive primary jurisdiction with respect to the civil enforcement

of such provisions.3

Pub.L. 94-283, § 101(c)(2), codified at 2 U.S.C. § 437c(b)(1) (Emphasis added).

This amendment is silent with regard to the criminal enforcement of the Act, and it surely

is not a “clear and unambiguous” expression of a legislative will to in any way affect the

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 Plaintiffs also suggest that the 1976 Amendments, for the first time, provided for a bipartisan FEC. (Brief in support of plaintiffs’ motion for declaratory relief, p.7) This is incorrect. 

8

Attorney General’s plenary authority to investigate and prosecute criminal violations. Contrary

to plaintiffs’ contention, a reader searches in vain for any suggestion that the 1976 Amendments

“required a referral from the FEC before the Attorney General could initiate criminal

proceedings[.]” (Brief in Support of Plaintiffs’ Motion for Declaratory Judgment, p.8)

The only authority to which plaintiffs can point to support their interpretation of the

amendment is the comment of Senator Brock, a vocal opponent of that year’s changes to the Act,

indicating that “[t]he Justice Department is no longer able to prosecute on its own. . . .” (Brief in

Support of Plaintiffs’ Motion for Declaratory Judgment, p.8) Senator Brock was simply wrong. 

Again, Senator Cannon, who was a sponsor of the bill that ultimately became law, described the

relevant amendment as follows:

Under existing law, every violation of the Federal election

campaign laws is a criminal act and the Federal Election

Commission has extremely limited civil enforcement powers at the

present time. S. 3065 would provide criminal penalties for willful

and knowing violations of the law of a substantive nature, and civil

penalties and immediate disclosure of violations for less

substantial infractions of the campaign finance laws. S. 3065

would give the Commission expanded civil enforcement powers

including the power to ask the court for imposition of civil fines

for such violations as, for example, the negligent failure to file a

particular report, as well as more substantial civil fines for willful

and knowing violations of the act. The bill would grant the

exclusive civil enforcement of the act to the Commission to avoid

confusion and overlapping with the Department of Justice, but at

the same time, retain the jurisdiction of the Department of Justice

for the criminal prosecution of any violations of this act.

1976 Amendments, p.470 (Emphasis added).

Neither the statutory language nor the legislative history support plaintiffs’ contention

that the 1976 Amendments in any way affected the Attorney General’s authority to criminally

enforce FECA.4

 The courts agree with this conclusion.

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At the time of the creation of the FEC, Congress took care to ensure that the voting members of

that body were evenly split between the two major political parties. In its original incarnation,

the six voting members of the FEC were appointed – two each – by the President pro tem of the

Senate, the Speaker of the House and the President. Each of those three appointing authorities

was forbidden to choose both of their appointees from the same political party. See Buckley v.

Valeo, 424 U.S. 1, 679-80 (1976).

9

3. United States v. Int’l Union of Operating

Engineers, Local 701

The most extensive analysis of the issue that is raised in this case is contained in United

States v. Int’l Union of Operating Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979), cert.

denied, 444 U.S. 1077 (1980). That appeal arose out of a district court’s dismissal of an

indictment for campaign finance law violations, on the grounds that the Attorney General had

failed to exhaust administrative remedies before the FEC. The appeals court reversed, holding

that “[w]e conclude Congress did not intend to impose this limitation upon the power of the

Attorney General to enforce the law.” Id. at 1161. What followed in Operating Engineers was a

lengthy analysis of much of the legislative history discussed above, and a conclusion that

responds directly to plaintiffs’ contention in this case:

In sum, neither the language nor the legislative history of the Act

provides the kind of “clear and unambiguous expression of

legislative will” necessary to support a holding that Congress

sought to alter the traditionally broad scope of the Attorney

General’s prosecutorial discretion by requiring initial

administrative screening of alleged violations of the Act. On the

contrary, the language and legislative history indicates that while

centralizing and strengthening the authority of the FEC to enforce

the Act administratively and by civil proceedings, Congress

intended to leave undisturbed the Justice Department’s authority to

prosecute criminally a narrow range of aggravated offenses.

Id. at 1168. 

Other courts have agreed with this analysis in the FECA context. See United States v.

Hsia, 24 F.Supp.2d 33, 43 (D.D.C. 1998), rev’d on other grounds, 176 F.3d 517 (D.C. Cir.

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1999). In United States v. Jackson, 433 F.Supp. 239, 241 (W.D.N.Y. 1977), the court

determined that “[a] finding of probable cause by the Commission and its subsequent referral to

the Attorney General is not a condition precedent to the jurisdiction of the Attorney General to

investigate and prosecute alleged criminal violations of 26 U.S.C. § 9042(c).” And again, in

United States v. Tonry, 433 F.Supp. 620, 623 (E.D. La. 1977), the court came to the same

conclusion: “At no place in the statute is specific provision made prohibiting the Attorney

General from going forward with criminal investigation without a referral by the Commission. 

In the absence of such a specific provision the general authority of the Attorney General to

proceed cannot be limited.” And, as recently as 1988, a court of appeals, citing Operating

Engineers, observed that “[i]t is well settled that criminal enforcement of FECA provisions may

originate with either the FEC, see 2 U.S.C. § 437g(a)(5)(C) (1982) or the Department of Justice.” 

Galliano v. United States Postal Service, 836 F.2d 1362, 1368 n.6 (D.C. Cir. 1988) (Bader

Ginsberg, J.).

When faced with similar attacks on DOJ’s authority to criminally enforce other statutes,

courts almost uniformly adopt the approach of the Operating Engineers opinion, requiring a

clear and unambiguous legislative directive before concluding that Congress intended to cabin

that agency’s plenary jurisdiction. The decision in United States v. Palumbo Brothers, Inc., 145

F.3d 850 (7th Cir. 1998), is instructive in this regard because it addressed the tension inherent in

the criminal enforcement of federal labor law. This nation’s labor laws, particularly the National

Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151 et seq., and the Labor-Management Relations

Act (“LMRA”), 29 U.S.C. §§ 141-197, perhaps have provided the most fertile ground for the

development of the preemption doctrine, because those statutes have been recognized to fully

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occupy the field of employer-employee relations. See, e.g., San Diego Bldg. Trades Council,

Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959) (NLRA preemption); 

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) (LMRA preemption). Nonetheless, the

Palumbo court refused to sanction the dismissal of an indictment that necessarily interposed the

criminal law on activities that also constituted unfair labor practices. With a nod to the approach

taken by the Operating Engineers court, the Palumbo opinion concluded that Congress’s

provision of a civil remedy does not diminish the Attorney General’s authority to prosecute the

criminal law. This is so even where the available civil remedies are as comprehensive and as

complete as they are in the federal labor arena:

Given these canons of statutory construction and criminal

jurisprudence, we recognize that the existence of a civil cause of

action does not eliminate the availability or merit of an

independent criminal prosecution that involves similar facts and

implicates the same conduct, and we also observe that the

availability of civil remedial orders imposed for violations of

federal labor law does not eliminate the potential imposition of

criminal penalties available for violations of criminal law.

Id. at 866.

Thus, neither the language of the 1976 Amendments nor the cases decided thereunder nor

cases decided in analogous circumstances provide any support whatsoever for plaintiffs’

contention that the Amendments limited the Department of Justice’s ability to initiate criminal

proceedings for violations of the campaign finance law.

4. The 1980 Amendments

Recognizing the fatal blow dealt their case by the Operating Engineers decision, they

argue – stridently but ineffectually – that “[i]n 1980, and in direct response to the Ninth Circuit’s

faulty reasoning, Congress enacted amendments to the Act which made clear it’s [sic] intent to

require a referral by the FEC before the Attorney General could prosecute.” Brief in Support of

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Plaintiffs’ Motion for Declaratory Relief, p.9 (Emphasis in original). There is nothing in the

1980 Amendments that supports plaintiffs’ argument.

Plaintiffs’ argument is based on the addition of eight words and one number to what is

now 2 U.S.C. § 437g(a)(5)(C). Despite the importance of this change to plaintiffs’ contention,

they do not favor the court with a before-and-after view of the statutory language. In 1976, the

section provided, in relevant part:

 If the Commission determines that there is probable cause to

believe that a knowing and willful violation . . . has occurred or is

about to occur, it may refer such apparent violation to the Attorney

General of the United States without regard to any limitations set

forth in subparagraph (A).

The 1980 Amendments effected the following change, indicated by italics, in that

provision:

 If the Commission by an affirmative vote of 4 of its members,

determines that there is probable cause to believe that a knowing

and willful violation . . . has occurred or is about to occur, it may

refer such apparent violation to the Attorney General of the United

States without regard to any limitations set forth in paragraph

(4)(A).

(Emphasis added).

It is this language, describing the number of votes it takes for the FEC to refer a case to

DOJ, that plaintiffs’ contend is “a clear and unambiguous expression of legislative will,” United

States v. Morgan, supra at 281-82, to confine the Attorney General’s plenary authority to

enforce the criminal law. One need only read the change to conclude that it does nothing to

affect the Attorney General’s power to investigate and prosecute criminal violations of the

campaign finance law. The above language speaks only to the authority and responsibility of the

FEC; under Morgan, it cannot be read to in any way affect the Attorney General’s authority and

responsibility.

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5

 This also answers plaintiffs’ contention that § 437g(d)(2), which allows the

introduction of a conciliation agreement into evidence at a criminal trial to demonstrate lack of

knowledge or intent, somehow precludes Attorney General involvement before the FEC

conciliation process has occurred. (Brief in Support of Plaintiffs’ Motion for Declaratory Relief,

p.15) Again, the statute itself allows such Attorney General involvement. Plaintiffs cannot argue

that the Act means one thing when it says the opposite.

13

Undaunted, though, plaintiffs plow forward, stridently arguing that any interpretation to

the contrary would “undermine the entire statutory scheme of the Act[.]” Brief in Support of

Plaintiffs’ Motion for Declaratory Relief, p.14. However, they forgot to read the statute. For

instance, they argue that to allow the Attorney General to independently commence an

investigation of a criminal FECA case would gut the Act’s provisions allowing for the FEC to

administratively conciliate suspected statutory violations. Although they describe such an “end

run” by the Attorney General as “duplicit[ous],” “intolerable,” and “illegal,” (Brief in Support of

Plaintiff’s Motion for Declaratory Relief, p.15), plaintiffs fail to bring to the court’s attention the

fact that the Act explicitly countenances DOJ involvement without FEC conciliation. The very

provision upon which they rely says so. The last clause of § 437g(a)(5)(C), quoted above,

provides for FEC referral to the Attorney General “without regard to any limitations set forth in

paragraph (4)(A).” (Emphasis added). Paragraph 4(A) describes the FEC’s conciliation

authority. Thus, the section upon which plaintiffs’ place so much reliance specifically provides

that the FEC can refer a matter to the Attorney General without engaging in conciliation. The

Act itself allows for Attorney General involvement to the exclusion of the conciliation process.5

Finally, throughout their four-page dissection of the 1980 Amendments, plaintiffs fail to

bring up § 437c(b)(1), which was the subject of discussion with regard to the 1976 Amendments. 

(Argument B(2), supra) That provision, which has been in the Act in one incarnation or another

since its original enactment in 1974, still provides:

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 Plaintiffs make much of the 1980 Amendments’ change in § 437g(a)(5)(c), providing

for what they term as a “supermajority” of four votes to refer a matter to the Department of

Justice. First, four out of six FEC members is not a “supermajority.” Second, to the extent that

plaintiffs argue that this provision was added in direct response to the decision in Operating

Engineers, that argument is belied by the fact that the “four-vote” language was proposed in a

bill reported out of a House Committee three weeks before the Ninth Circuit issued the

Operating Engineers decision.

14

 The Commission shall administer, seek to obtain compliance

with, and formulate policy with respect to, this Act and chapter 95

and chapter 96 of Title 26. The Commission shall have exclusive

jurisdiction with respect to civil enforcement of such provisions. 

(Emphasis added)

The 1980 Amendments’ only change to this section was to employ the language

“exclusive jurisdiction,” dispensing with the belt-and-suspenders “exclusive primary

jurisdiction.” It is interesting to note that plaintiffs found the 1976 addition of “exclusive” to

“primary jurisdiction” so critical to their cause, but are silent as to the effect of the 1980 deletion

of “primary.” In any event, as the legislative history confirms, Congress – by way of the original

1974 Senate bill – thought about providing the FEC with exclusive jurisdiction over criminal

matters, but decided not to withdraw that authority from the Attorney General. Nothing in the

statutory language, the legislative history or the case law over the past 33 years has changed that

very basic fact.6

Plaintiffs attempt some mop-up arguments, which are as unavailing as all that came

before them. First, they contend that to allow the Attorney General to pursue a FECA

investigation without a referral from the FEC would constrain anyone subpoenaed by the FEC

during an administrative investigation to assert his Fifth Amendment rights. (Brief in Support of

Plaintiffs’ Motion for Declaratory Judgment, pp.17-22) Any number of the alphabet-soup of

federal agencies have the power to subpoena or summons a party during an administrative

investigation – the IRS with a taxpayer, the Department of Labor with a union official, the EPA

Case 2:07-cv-10533-LPZ-MKM Document 15 Filed 04/09/2007 Page 15 of 17
15

with a suspected polluter. Any such administrative investigation could theoretically evolve into

a criminal matter, and this fact may implicate the Fifth Amendment rights of the subpoenaed

party. Notwithstanding, in those situations the Attorney General can still, on his own,

commence a criminal investigation. So it is here.

Plaintiffs also take one more shot at the “exclusive” jurisdiction of the FEC. (Brief in

Support of Plaintiffs’ Motion for Declaratory Relief, pp. 23-30) Suffice it to say that the very

language cited by plaintiffs in support of this argument, § 437c(b)(1), speaks only of the FEC’s

exclusive jurisdiction with respect to civil enforcement. Making the same wrong argument over

and over does not make it right.

CONCLUSION

For the foregoing reasons, defendant Attorney General’s Motion to Dismiss should be

granted.

Respectfully yours,

ALAN GERSHEL

Acting United States Attorney

s/Peter A. Caplan 

PETER A. CAPLAN

Assistant U.S. Attorney

211 W. Fort St., Ste. 2001

Detroit, MI 48226

313-226-9784

Peter.Caplan@usdoj.gov

P30643

DATED: April 9, 2007

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CERTIFICATION OF SERVICE

I hereby certify that on April 9, 2007, I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send notification of such filing to the

following:

Michael R. Dezsi

I further certify that I have mailed by U.S. mail the paper to the following non-ECF

participants:

Alan M. Dershowitz, 26 Reservoir Street, Cambridge, MA 02138

s/Peter A. Caplan

PETER A. CAPLAN

Assistant U.S. Attorney

211 W. Fort St., Ste. 2001

Detroit, MI 48226

Phone: (313) 226-9784

E-mail: peter.caplan@usdoj.gov

(P30643)

Case 2:07-cv-10533-LPZ-MKM Document 15 Filed 04/09/2007 Page 17 of 17