Malenick began operating Triad as an unincorporated entity 1

in January 1995 and incorporated it to form Triad Inc. in May

1996 (with Malenick as its president and sole shareholder). 

Thereafter, Triad Inc. assumed financial and operational

responsibilities for those activities previously conducted by

Triad. In a letter to the FEC’s General Counsel’s Office dated

October 4, 2001, Malenick asserted that “Triad has been moribund

and non-operational for several years, and [that she] ha[s] no

plans or intentions to revive Triad or engage in any similar

business.” Pl.’s Mem., Ex. 74, at 2. Plaintiff has not informed

the Court of Triad Inc.’s current operational status and, for

these purposes, the Court will assume that it is nonoperational.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

CAROLYN MALENICK, et al.,

Defendants.

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 Civil Action No. 02-1237 (JR)

MEMORANDUM ORDER

This is an enforcement action by the Federal Election

Commission (“FEC” or “Commission”) against Carolyn Malenick d/b/a

Triad Management Services [“Triad”], Triad Management Services,

Inc. [“Triad Inc.”], and Carolyn Malenick, as corporate officer

of Triad Inc. In its complaint, the FEC alleges that the 1

defendants violated various provisions of the Federal Election

Campaign Act of 1971 (“FECA” or “Act”), as amended, 2 U.S.C.

§ 431 et seq. The FEC seeks declaratory and injunctive relief,

as well as a civil penalty for each violation of the FECA that
Only defendant Malenick, pro se, has responded to the FEC’s 2

motion for summary judgment. However, summary judgment against

Triad and Triad Inc. will only be granted if plaintiff, “the

moving party[,] is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c) 

Malenick’s cross-motion asserts that Triad Inc. was formed 3

under the Internal Revenue Code and therefore is not a political

action committee; that her civil rights have been violated by the

FEC’s own guidelines and administrative procedures; that the

Court should limit the FEC as an independent agency and should

call for an independent investigation of the FEC; and that the

Court should assess damages sufficient to deter violations of

rights by the FEC. Only the first of those assertions is

addressed in this memorandum. The others are claims that have

not been properly pleaded in this case. If cognizable at all,

they would be counterclaims, but Malenick has filed no

counterclaims, and, pro se or not, she may not do so

constructively by raising them for the first time in a motion for

summary judgment.

- 2 -

the defendants are found to have committed. Before the Court are

the Commission’s motion for summary judgment [#16] and defendant

Malenick's cross-motion for summary judgment [#28]. For the 2

reasons stated below, plaintiff's motion is granted in part and

denied in part, and defendant's cross-motion is denied.

3

Background

On May 5, 1997, the FEC notified Malenick by letter

that a complaint had been filed with the Commission, alleging

violations of FECA by Triad. See Def. Mem., Ex. 126 (Letter from

the FEC Supervisory Attorney Turley, to Malenick, dated May 5,

1997), at 1. The letter notified her of her rights under the

FECA to “demonstrate in writing that no action should be taken 

. . . in this matter.” Id.; see also 2 U.S.C. § 437g(a)(1). On
Compare (unfavorably) with Winston Churchill, November 10, 4

1942: “This is not the end. It is not even the beginning of the

end. But it is, perhaps, the end of the beginning.”

- 3 -

June 17, 1997, Malenick’s counsel responded to the FEC that no

further action by the Commission was warranted. See Def.’s Mem.,

Ex. 128 (Letter from E. Mark Braden, to FEC Chairman McGarry,

dated June 17, 1997). After an investigation, the FEC notified

counsel for Triad Inc. on June 8, 1998, that it had reason to

believe the organization had violated 2 U.S.C. §§ 433, 434, 441a,

441b and 441f of the FECA during the 1995-1996 election cycle. 

See Id., Ex. 167 (Letter from FEC Chairman Aikens, to E. Mark

Braden, dated June 8, 1998), at 1. A similar letter addressed to

Malenick on that same day notified her that the Commission had

found reason to believe she had violated 2 U.S.C. §§ 441b and

441f of the FECA during the same election cycle. See id., Ex.

167-A (Letter from FEC Chairman Aikens, to Malenick, dated

June 8, 1998), at 1. Both letters were accompanied by detailed

memoranda explaining the factual and legal bases for the FEC’s

findings.

On July 18, 2001, more than four years after Malenick

was first notified of the filing of a complaint, the FEC advised

all three defendants that its Office of General Counsel was

“prepared to recommend that the Commission find probable cause to

believe” that the defendants had violated various FECA 4

provisions. Id., Ex. 220 (Letter from FEC Acting General Counsel
- 4 -

Lerner, to E. Mark Braden, dated July 18, 2001), at 1. On

October 4, 2001, Malenick responded on behalf of herself, Triad,

and related entities, denying the allegations. See Pl.’s Mem.,

Ex. 74 (Letter to Mark Shonkwiler, from Malenick, dated

October 4, 2001). On April 10, 2002, the Commission made its

formal probable cause finding and informed the defendants that

there would be a period for conciliation, after which the

Commission could institute a civil suit in United States District

Court. See id., Ex. 87 (Letter from FEC General Counsel Norton,

to Malenick, dated April 17, 2002). On June 13, 2002, after

conciliation was unsuccessful, the Commission authorized its

general counsel to institute this action. See id., Ex. 88

(Letter from FEC General Counsel Norton, to Paul Sullivan

(defendants’ counsel), dated June 13, 2002).

The FEC filed the complaint on June 21, 2002. 

Analysis

The FEC has “exclusive jurisdiction with respect to the

civil enforcement of [provisions of the FECA],” 2 U.S.C.

§ 437c(b)(1), and can “initiate (through civil actions for

injunctive, declaratory, or other appropriate relief) . . . any

civil action in the name of the Commission to enforce the

provisions of th[e] Act . . . through its general counsel.” Id.

§ 437d(a)(6). In civil actions instituted by the Commission,

“the court may grant a permanent or temporary injunction,
- 5 -

restraining order, or other order, including a civil penalty

which does not exceed the greater of $5,000 or an amount equal to

any contribution or expenditure involved in such violation, upon

a proper showing that the person involved has committed, or is

about to commit (if the relief sought is a permanent or temporary

injunction or a restraining order), a violation of this

Act . . . .” Id. § 437g(a)(6)(B).

Summary judgment will be granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). In ruling on a motion for summary judgment, the Court

must draw all reasonable inferences in the nonmoving party’s

favor and accept the evidence of the nonmoving party as true. 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

However, in proffering evidence to defeat a motion for summary

judgment, the nonmoving party cannot simply rely on conclusory

statements or allegations. See Greene v. Dalton, 164 F.3d 671,

675 (D.C. Cir. 1999). Rather, the nonmoving party must come

forward with specific facts that, when viewed in the context of

the record as a whole, could reasonably lead a rational trier of

fact to find for the nonmoving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). 
Under the Act, “[t]he term ‘person’ includes an individual, 5

partnership, committee, association, corporation, labor

organization, or any other organization or group of persons, but

such term does not include the Federal Government or any

authority of the Federal Government.” 2 U.S.C. § 431(11). “An

organization may incorporate . . . if the organization

incorporates for liability purposes only, and if the organization

is a political committee . . . . Notwithstanding the corporate

status of the political committee, the treasurer of an

incorporated political committee remains personally responsible

for carrying out their respective duties under the Act.” 11

C.F.R. § 114.12. 

- 6 -

1. Whether Triad and Triad Inc. were “political committees”

A threshold question in this case -- and the central

question, really -- is whether the FEC has established that Triad

and Triad Inc. were “political committees” under the FECA.

Organizations categorized as “political committees” must make

certain detailed disclosures and file certain reports, and the

failure of Triad and Triad Inc. to do so form the basis for most

of the FEC’s claims against the defendants. Under the Act, a

"political committee" is, first of all,

any committee, club, association, or other group

of persons which receives contributions

aggregating in excess of $1,000 during a calendar

year or which makes expenditures aggregating in

excess of $1,000 during a calendar year . . . .

2 U.S.C. § 431(4)(A). It is undisputed that Triad/Triad Inc.

falls somewhere within the definitional language of “association,

or other group of persons.” “Contribution[s]” are defined under 5

the Act as “any gift, subscription, loan, advance, or deposit of

money or anything of value made by any person for the purpose of
- 7 -

influencing any election for Federal office . . . .” 2 U.S.C.

§ 431(8)(A)(i). “[A]n entity subject to regulation as a

‘political committee’ under the Act is one that is either ‘under

the control of a candidate or the major purpose of which [sic] is

the nomination or election of a candidate.’” FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 252 n.6 (1986) (quoting

Buckley v. Valeo, 424 U.S. 1, 79 (1976)); but see Akins v. FEC,

101 F.3d 731, 742 (D.C. Cir. 1996) (en banc) (“We think the . . .

Court clearly distinguished independent expenditures and

contributions as to their constitutional significance, and its

references to a ‘major purpose’ test seem to implicate only the

former.” (emphasis omitted)), vacated on other grounds by 524

U.S. 11 (1998).

The FEC asserts that, “[b]ased on Triad’s own

statements and actions, it is clear that its major, if not sole,

purpose during the 1996 election cycle was to support particular

candidates for federal office both in Republican Party primaries

and in the general election.” Pl.’s Mem., at 20. Malenick

disputes this assertion, arguing that Triad/Triad Inc. was a forprofit marketing company established to provide potential donors

and clients “with sound advice prior to their [making]

contributions [to charitable or political causes], much like a

stockbroker,” Defs.’ Mem., at 15-16.
- 8 -

a. Major purpose

An “organization's purpose may be evidenced by its

public statements of its purpose or by other means, such as its

expenditures in cash or in kind to or for the benefit of a

particular candidate or candidates,” but “[c]ircuit precedent

indicates . . . that even if the organization's major purpose is

the election of a federal candidate or candidates, the

organization does not become a ‘political committee’ unless or

until it makes expenditures in cash or in kind to support a

‘person who has decided to become a candidate’ for federal

office.” FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996)

(discussing FEC v. Machinists Non-Partisan Political League, 655

F.2d 380, 392 (D.C. Cir. 1981)).

Defendants have stipulated that Triad’s announced

“GOALS” for the 1996 election cycle were: 

1) Return Republican House Freshmen;

2) Increase by 30 the Republican House 

Majority; [and]

3) Increase Senate Republicans to a 

Filibuster-proof 60.

Pl.’s Mem., Ex. 1 (Stipulations of Fact signed and submitted by

Malenick and Triad Inc., to the FEC on January 28, 2000) (“Triad.

Stip.”), at ¶ 2.1(b) (listing numerous 1995 and 1995 Triad

materials announcing these goals); see also, e.g., id., Ex. 58

(Triad Brochure) (“TRIAD has already put in place a team of
- 9 -

political advisors and interested organizations, and is working

on assembling a team of donors to work together in 1996 for the

same goal: Retaining GOP control of Congress and the advance of a

conservative issue agenda.”), at FECTR000131; id., Ex. 47 (Letter

from Malenick, to Cone, dated Mar. 30, 1995) (“A major part of

TRIAD’s time in the next two years will be working with the 104th

Congress Freshmen and targeting approximately 20 other Democratic

held seats. Regardless of the GOP Presidential nominee, the

focus must be on maintaining the House majority.”), at

Cone000037. In furtherance of these general goals, Triad and

Triad Inc. sent approximately 60 “fax alerts” to approximately

160 recipients during and after the primary and general election

season in 1996. Triad Stip. ¶ 4.1. In these “fax alerts,” Triad

advocated for the election of specific federal candidates. See,

e.g., Pl.’s Mem, Ex. 4 (Fax Alert dated April 22, 1996) (“TRIAD

Recommends Marvin Scott”); id. (“TRIAD Recommends Robert Wilkie);

id. (“TRIAD recommends Leroy Pittman”); id. (Fax Alert dated

May 22, 1996) (“TRIAD recommends John Thune”); id. (“TRIAD

Recommends Bob Riley”); id. (“TRIAD recommends Mike Pappas”); id.

(Fax Alert dated August 2, 1996) (“TRIAD recommends Bob

Schaffer”); id. (Fax Alert dated October 14, 1996) (attaching a

list of twenty-six specific candidates and stating “Attached:

List of . . . campaigns that are in need of your support.”). 
As a result of Triad’s fax alerts, candidate audits and 6

Expanding the Majority, individuals sent checks to Triad and

Triad Inc., made payable to a federal candidate or authorized

campaign committee, which were forwarded to the intended

recipient. See Triad Stip. ¶¶ 4.16, 5.1-5.4 (stating that Triad

forwarded approximately fifty personal checks, totaling

approximately $43,000 and Triad Inc. forwarded approximately 180

checks, totaling $142,500, to intended federal candidate or

campaign committees in 1995 and 1996).

- 10 -

The record contains the undisputed testimony of Robert

Cone (see infra) that it “was the objective of the whole TRIAD

concept to get major donors involved so that the ideally

conservative candidates could be elected, and if those types of

candidates with those types of views got into Congress there

wouldn’t necessarily be a need for heavy lobbying . . . [because]

they would be in sync with the values that we held.” Pl.’s Mem.,

Ex. 94 (“Cone Dep.”), at 418:11-19. Triad Inc. conducted

detailed political audits of federal candidates, and compiled its

findings in a book entitled Expanding the Majority, which was

sent to more than 200 prospective donors. See id., Ex. 99

(“Oliver Dep.”), at 104:25-106:20. The purpose of sending out

the book was “[t]o basically have in one place all the candidates

that TRIAD recommended federal dollars, client federal dollars

to, for the general election in 1996 so they could have it in one

place.” Id., at 105:14-17; see also Triad Stip. ¶¶ 4.12-4.15.6
In addition to “contributions,” the FEC has offered some 7

evidence that Triad and Triad Inc. made “expenditures,” see 2

U.S.C. § 431(4), in connection with its fax alerts and other

publications advocating for individual federal candidates. But,

these expenditures cannot be valuated on this record. See, e.g.,

Pl.’s Mem., at 46 (“The costs to Triad for these publications

cannot be calculated with certainty on the current record.”). 

- 11 -

b. Contributions7

The record establishes, and Malenick does not dispute,

that Robert Cone was the primary source of funding for Triad and

Triad Inc. in 1996, and that he provided both organizations with

well over $1,000 in “gifts] . . . or deposit[s] of money . . .

for the purpose of influencing . . . election[s] for Federal

office.” 2 U.S.C. § 431(8)(A)(i). 

“During 1996, [Triad] had financial receipts from

Robert Cone totaling $465,500," Triad. Stip., at ¶ 7.2(a), and

“[b]etween May 28 and December 31, 1996, Triad Inc.’s receipts

included 10 financial transfers totaling $426,621 that were

attributed to Robert Cone.” Id., at ¶ 7.3(a). Triad’s 1996

Statement of Account lists Cone’s 1996 financial transfers to

Triad as amounting to $312,500 above, and lists Cone’s 1996

transfers to Triad Inc. as amounting to $269,408.46 above, any

services charged to Cone for that year. See Cone Dep., Ex.

Cone000049-000052.

Moreover, Cone testified that he provided these funds

“on an as go basis,” id., at 135:17, and that “[Malenick] kept

[him] abreast of the cash flow requirements that she had, and
I cannot find, on this record, that Cone made 8

“contributions” in excess of $1,000 during the 1995 calendar

year. At his deposition, Cone produced “a 1998 Triad Inc.-

generated document entitled ‘Statement of Account’ [that] seem[s]

to indicate that [Triad] and Triad Inc. charged him a set amount

- 12 -

[he] provided funding so that she could continue her work.” Id.,

at 185:20-22. Although Triad and Triad Inc. promoted itself in

various materials as a for-profit business, the FEC has presented

evidence that during the 1996 election cycle “client billing was

basically nonexistent,” Oliver Dep., at 95:25-96:1, and Cone

testified that he listed his transfers to Triad in his personal

records as “GI: Political Indirect,” which he explained meant

“gifts, and [that he] noted [it] as political indirect as

compared to political direct, which would be hard dollars.” Cone

Dep., at 502:15-20. He further explained that he listed the

transfers as gifts “[b]ecause it is not a taxable deduction[; i]t

is a gift, something I would put in that is not a business

investment.” Id., at 503:3-5. Cone testified that he did not

have a signed consulting or other agreement concerning his

financial relationship to Triad. See id., at 142:9-15. On the

basis of this undisputed evidence concerning Cone’s financial

transfers to Triad and Triad Inc., the Court concludes that the

vast majority, if not the entirety, of Cone’s financial transfers

during this time were “contributions,” within the meaning of the

FECA aggregating in excess of $1,000 during the 1996 calendar

year.8
per month during 1995-1996” for arguably non-election related

services. Pl.’s Statement of Facts, at 81-82. And the 1995

account statement indicated that, at year’s end, Cone owed Triad

$22,500 for these services. See Cone Dep., Ex. Cone000048 (Triad

1995 Statement of Account) (listing Cone’s year-end balance as

$22,500 due for services rendered). While the FEC attempts to

discount the validity of this account statement by characterizing

Cone’s testimony as indicating “that this document did not

accurately reflect his arrangement with [Triad] or Triad Inc,”

Pl.’s Statement, at 82 (citing Cone Dep. 505-510), it is not so

clear to the Court that this characterization is accurate. See,

e.g., Cone Dep., at 506:18-22 (“Q. Is this document an accurate

reflection of the financial relationship between you and TRIAD? 

A. I would have to compare this to my records to answer that yes

or no.”). This testimony is insufficient, without more, to

support a finding that Cone made “contributions” to Triad that

exceeded $1,000 in 1995.

- 13 -

c. Political committee

Accordingly, because Triad and then Triad Inc.’s major

purpose was the nomination or election of specific candidates in

1996, and because Triad received contributions aggregating more

than $1,000 in 1996, I find that Triad and Triad Inc. operated as

a “political committee” in 1996.

2. Whether summary judgment is appropriate on plaintiff’s 

causes of action

a. Plaintiff has established that Triad and Triad

Inc. violated 2 U.S.C. §§ 433 and 434 (Causes of

Action I and II) (failure to register and report).

A political committee “shall file a statement of

organization within 10 days after becoming a political

committee,” 2 U.S.C. § 433(a), and “shall file reports of

receipts and disbursements,” id. § 434(a)(1), with the Commission

in accordance with the provisions of these sections. It is
The “knowing” standard used in this provision, “as opposed 9

to a ‘knowing and willful’ one, does not require knowledge that

one is violating the law, but merely requires an intent to act.” 

FEC v. John A. Dramesi for Congress Comm., 640 F. Supp. 985, 987

(D. N.J. 1986) (citations omitted). 

- 14 -

undisputed that neither Triad nor Triad Inc. registered as a

political committee or filed periodic reports with the FEC in

1996, as required by these statutes.

b. Cause of Action III (failure to report independent

expenditures) is moot.

Plaintiff’s third cause of action -- that Triad

violated 2 U.S.C. § 434(c) by failing to report independent

expenditures made in support of candidates for federal office --

is mooted by the Court’s finding that Triad was a “political

committee.” As the FEC acknowledges, § 434(c) applies to nonpolitical committees. See 2 U.S.C. § 434(c)(1) (“Statements by

other than political committees . . . (1) Every person (other

than a political committee) . . . .”).

c. Plaintiff has established that Triad and Triad

Inc. violated 2 U.S.C. § 441a(f) (Cause of Action

IV) (accepting contributions).

Section 441a(a)(1)(C) provides (with certain exceptions

not applicable here) that “[n]o person shall make contributions 

. . . to any . . . political committee in any calendar year

which, in the aggregate, exceed $5,000.” 2 U.S.C.

§ 441a(a)(1)(C). And subsection (f) of this provision provides

that “[n]o . . . political committee shall knowingly accept any 9
It is also undisputed that Triad received over $5,000 from 10

Cone and three other sources in 1995, see Triad Stip. ¶ 7.1, but,

while these sources appear to satisfy the “person” requirement of

§ 441a(a)(1)(C), the FEC has not provided the Court with

sufficient information regarding the receipt of these funds to

support a finding that they were “contributions,” 2 U.S.C.

§ 431(8)(A)(i). Nor has the FEC pointed the Court to sufficient

evidence to find that Triad violated 11 C.F.R. § 102.5 “by

depositing . . . excessive contributions into the same bank

accounts as the lawful contributions it received.” Pl.’s Mem.,

at 24.

- 15 -

contribution . . . in violation of the provisions of this

section.” Id. § 441a(f). It is undisputed that Triad and Triad

Inc. received over $5,000 in contributions from Robert Cone in

1996, see supra. Triad Stip. ¶¶ 7.1-7.3. The precise amount 10

of Cone’s “contributions” above the threshold $5,000 is unclear

on this record (the FEC acknowledges that the defendants were

“involved in few activities that were not related to the 1996

elections,” Pl.’s Mem., at 17 n.6 (emphasis in original)), but

is important.

d. Plaintiff has not established that Triad Inc.

violated 2 U.S.C. § 441b (Cause of Action V)

(knowing acceptance of corporate contributions).

Section 441b makes it “unlawful for . . . any

corporation organized by authority of any law of Congress, to

make a contribution or expenditure in connection with any

election to any political office, or in connection with any

primary election or political convention or caucus held to select

candidates for any political office, or for any . . . political

committee, or other person knowingly to accept or receive any
Nor has the FEC pointed the Court to sufficient evidence 11

to find that Triad Inc. violated 11 C.F.R. § 102.5 “when it

deposited . . . unlawful finds [from Cracker Barrel and Koch

Industries]” into the same bank accounts with funds that were

contributed in accordance with statutory restrictions. Pl.’s

Mem., at 24. 

- 16 -

contribution prohibited by this section . . . .” 2 U.S.C.

§ 441b(a). The present record is insufficient to support a

finding that Triad Inc. accepted prohibited contributions from

corporations. Unlike Cone’s transfers of funds to Triad Inc., as

to which there is record evidence that they were “gifts] . . . or

deposit[s] of money . . . for the purpose of influencing any

election for Federal office,” id. § 431(8)(A)(i), plaintiff has

demonstrated only that Cracker Barrel and Koch Industries

transferred funds to Triad Inc. Plaintiff has not established

the purpose with which these deposits were made or even pointed

to any place in the record that would illuminate the purpose.11

e. Plaintiff has not established that Triad and Triad

Inc. violated 2 U.S.C. § 441a(a) (Cause of Action

VI) (contributions through other entities and inkind contributions).

Generally, “all contributions made by political

committees established or financed or maintained or controlled by

any corporation . . . or any other person, or by any group of

such persons, shall be considered to have been made by a single

political committee.” 2 U.S.C. § 441a(a)(5). Plaintiff asserts

that “[s]ince Malenick established, financed, maintained or

controlled [Triad], Triad Inc., [the American Free Enterprise PAC
- 17 -

(“AFE”)], and [the Citizens Allied for Free Enterprise PAC

(“CAFÉ”)] . . . [these groups] were not only obligated to

disclose their affiliation with each other in reports filed with

the Commission, 2 U.S.C. § 433(b)(2), [but] they also were

subject to a single aggregate limit on the monetary and in-kind

contributions they made to any one candidate or political

committee. 2 U.S.C. § 441a(a)(5); 11 C.F.R. § 110.3(a)(1).” 

Pl.’s Mem., at 25. Plaintiff asserts that Triad and Triad Inc.

violated 2 U.S.C. § 441a(a)(1) because the combined financial

contributions of AFE and CAFE to fourteen federal candidates, and

the in-kind contributions of Triad to thirteen of those

candidates exceeded permissible levels.

The FEC has demonstrated that AFE was a PAC controlled

by Triad and Carolyn Malenick. David Bauer, treasurer of AFE,

testified that Malenick was the Director of AFE, see Pl.’s Mem.,

Ex. 92 (“Bauer Dep.”), at 16:25, that she made the decisions as

to which candidates would be supported, see id., and that he had

no discretion as to which candidates would be given AFE

contributions. Id., at 27:22-25. Furthermore, to the best of

Bauer’s knowledge, the “overwhelming majority” of AFE’s funds

were transferred to it from Triad. See id., at 27:11-21. This

evidence is undisputed and is enough to establish that AFE was

controlled by Malenick and Triad, so that all contributions made
- 18 -

by AFE to federal candidates will be considered to have been made

by a single political committee, which includes Triad.

The record will not support a similar finding with

regard to the relationship between CAFE and Triad. David

Gilliard testified that his company, Gilliard, Blanning &

Associates formed CAFE, see Pl.’s Mem., Ex. 96 (“Gilliard Dep.”),

at 17:6, and the FEC has not pointed the Court to enough record

evidence to find that Malenick in fact “established or financed

or maintained or controlled” CAFE.

Nor is the record evidence sufficient to support a

valuation of Triad’s “in-kind contributions” to federal

candidates, as the FEC itself acknowledges. See Pl.’s Mem., at

44 n. 22 (“Triad’s actual costs for all [its] in-kind

contributions cannot be calculated with certainty on the current

record.”). The FEC may very well be able to do so and, because

AFE’s contributions to fourteen federal candidates appear to be

at the statutory maximum for, at least, the primary cycle, may be

able to easily demonstrate that Triad’s “in-kind contributions”

caused Triad to exceed the statutory maximum for primary

donations. But the Court needs some valuation of these in-kind

contributions, and some specifics as to the dates on which they

occurred, to make a finding of law in the FEC’s favor.
- 19 -

f. Cause of Action VII (consent to prohibited

expenditures and contributions) is moot.

Plaintiff’s seventh cause of action -- the allegation

that Triad Inc. and Carolyn Malenick, as a corporate officer,

violated 2 U.S.C. § 441b by making and consenting to prohibited

corporate expenditures and contributions in connection with

federal elections -- was presented to the Court as an alternative

cause of action should the Court find Triad Inc. to be a

commercial enterprise and not a political committee. As the

Court has found Triad Inc. to be a political committee, see

supra, this cause of action is moot.

Conclusion, and Relief

As to the first, second and fourth causes of action, no

genuine issue of material fact appears of record, and the FEC is

entitled to a declaratory judgment as a matter of law. As to the

fifth and sixth causes of action, no genuine issues of material

fact appears of record, but the record is insufficient to support

a judgment for the FEC. The third and seventh causes of action

are moot. Penalties will not be imposed by way of summary

judgment, nor will the Court grant injunctive relief without

further record development. The Clerk will set a status
On April 18, 2003, Malenick moved for preliminary 12

injunction [#13], to restrain the FEC from placing on the public

record its administrative complaint, designated Matter Under

Review 5294 (“MUR 5294"). Malenick attached MUR 5294 to her own

cross-motion for summary judgment, however (Exhibit # 246A-W),

thus mooting her own motion for preliminary injunction. 

Accordingly, this motion is denied.

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conference, at which the next steps in this litigation (if any)

will be identified and scheduled.12

 JAMES ROBERTSON

United States District Judge