UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK and RENEE BEAM,

Plaintiffs, Civil Action No. 07-cv-1227

Honorable Rebecca R. Pallmeyer

vs.

ALBERTO R. GONZALES, UNITED

STATES ATTORNEY GENERAL, AND

ROBERT LENHARD, FEDERAL ELECTION

COMMISSION CHAIRMAN,

In their official capacities,

Defendants.

___________________________________________/

PLAINTIFFS’ RESPONSE TO DEFENDANT GONZALES’S MOTIONS TO DISMISS

The Attorney General asserts repeatedly that the FEC has “civil” jurisdiction while the

Attorney General has “criminal” jurisdiction, but this is not remotely close to the issue before this

Court. Plaintiff does not dispute that the FEC has civil jurisdiction or that the Attorney General has

criminal jurisdiction, but this is not the issue. The issue presented is an issue of sequence, that is,

who exercises jurisdiction in the first instance. Congress clearly and expressly answered this

question by granting the FEC exclusive civil jurisdiction and providing a mechanism by which the

FEC could refer certain matters to the Attorney General after it exercised its exclusive jurisdiction.

The entire statutory scheme of the Act makes clear that the sequence is that the FEC exercises its

exclusive jurisdiction in the first instance, and that the Attorney General exercises its jurisdiction

only upon a referral by a majority vote of the FEC. 

The Attorney General utterly fails to explain how the FEC can share its exclusive jurisdiction

with the Attorney General. In this case, the Attorney General has already thwarted the exclusive

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jurisdiction of the FEC by initiating its unlawful and extra-jurisdiction investigation. The Attorney

General is currently conducting a nationwide unprecedented investigation against prominent

democrats, like Plaintiff, who were supporters of the John Edwards 2004 presidential campaign.

More than a year after the Attorney General began this unlawful and extra-jurisdictional

investigation, the FEC opened its own investigation of several of the individuals already under

investigation by the Attorney General. 

To date, however, the FEC has sat out on the sideline because it is unable (or unwilling) to

conduct its own investigation. And why has the FEC done this? Because the Attorney General has

effectively stripped the FEC of its exclusive jurisdiction and forced it to sit on the sidelines. This

is simply not how it works. Congress gave the FEC the exclusive jurisdiction over civil enforcement

of the Act. The Attorney General is proposing that the Court interpret the Act so as to provide the

FEC with exclusive jurisdiction but only to the extent that the Attorney General has not begun its

own investigation. This is not what congress intended, and such an interpretation is expressly

foreclosed by the Act.

Under the express terms of the Act, congress gave the FEC exclusive jurisdiction over civil

matters, and created a mechanism by which the FEC could refer certain matters to the Attorney

General but only after the FEC exercised its exclusive jurisdiction. Because neither the Attorney

General nor the FEC can explain how the FEC can share its exclusive jurisdiction with the Attorney

General, they create a red herring by tautologically repeating that the FEC has “civil” jurisdiction

over civil laws and the Attorney General has “criminal” jurisdiction over criminal laws. But this

argument is fatally flawed because there is only one set of laws at issue here and those are civil laws

contained in the Federal Election Campaign Act. 

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While it is true that these civil laws carry criminal penalties, the FEC has exclusive

jurisdiction over these civil laws and the only way in which the FEC can exercise its exclusive civil

jurisdiction is to the exclusion of the Attorney General. Congress understood this problem, and so

it created a statutory scheme under which the FEC has exclusive civil jurisdiction over the civil

enforcement and provided the FEC with a mechanism to refer certain violations to the Attorney

General for criminal investigation.

Both the Attorney General and the FEC utterly fail to address the most obvious problem with

their interpretation of the statute. Under their interpretation of the Act, if the FEC votes 5 to 1

against referral, the lone disgruntled FEC member can just simply walk across the street and say to

the Attorney General, “the FEC won’t vote to refer this matter to you, so I’m bringing it to you

myself. This way, you can still prosecute the case.” Congress outlawed such a practice by giving

the FEC exclusive jurisdiction in the first instance, and allowing the Attorney General to proceed

only after the FEC has opened its jurisdictional door by an affirmative bipartisan vote of 4 of its

members. The Attorney General should not be allowed to simply circumvent this procedure to carry

out its own political agenda.

Defendants misguided arguments stem from provisions of the Act that existed more than 30

years ago. For example, on pages 7-8 of its response brief, the Attorney General relies on a

conference report from the 1974 amendments to support its argument that the FEC has jurisdiction

over civil laws while the Attorney General has jurisdiction over criminal laws. In 1974, defendants’

arguments would have made sense because back then the substantive restrictions on campaign

finance were contained in the federal penal code (Title 18 U.S.C.). Thus, in 1974, the Attorney

General would have been correct to argue that he had jurisdiction over certain campaign finance laws

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because those laws were criminal laws contained in the federal criminal penal code. But this is no

longer the case.

In 1976, congress moved most of the substantive restrictions on campaign finance from the

federal penal code and placed them into the Federal Election Campaign Act subject to the exclusive

civil jurisdiction of the FEC. Therefore, prior to 1976, there were two sets of laws – one set subject

to the jurisdiction of the FEC and another subject to the jurisdiction of the Attorney General. In

1976, congress changed that scheme so that the FEC would have the first opportunity to resolve

alleged violations of the Act. At the same time, congress also limited the Attorney General’s

jurisdiction to independently prosecute violations of the Act without a referral by the FEC. Contrary

to Defendants’ assertions, these facts support Plaintiff’s argument and further expose the

anachronistic nature of the Defendants’ arguments.

B. Contrary to Defendant Gonzales’s assertions, there is not a single case interpreting the

current statutory scheme as amended in 1980. 

 Defendants assert that there are several cases which address the issue presented herein. This

is simply incorrect. Defendants rely on cases from the 1970s which were superceded by the 1980

amendments to the Act. On pages 10-12 of its response brief, the Attorney General cites Int’l Union,

Jackson, and Tonry to support its position. Each of these cases, however, were decided prior to the

1980 amendments which substantially and significantly altered the referral provision of the Act.

Given the statutory amendments to the Act in 1980, the decisions and discussions in Int’l Union,

Jackson, and Tonry were limited to the pre-1980 amendments and should not be relied on in

interpreting the current statutory scheme. 

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Also misplaced is Defendants’ reliance on dicta from Galliano v. U.S. Postal Serv., 836 F.2d

1362, 1368 n.6 (D.C. Cir. 1988). There, the court considered whether the FEC’s exclusive

jurisdiction displaced pro tanto the application of certain fraud proscriptions contained in the United

States Postal Service’s regulations. In a footnote unrelated to the issue presented in the case, the

court noted that criminal enforcement of the FEC may originate either with the FEC or the

Department of Justice. 836 F.2d 1362 n.6. In support of this footnote, the court cited the Int’l

Union case from 1979. Defendants’ reliance on the Galliano decisions is hardly a smoking gun.

The footnote was pure dicta unrelated to the issues presented therein, and based on the 1979 decision

of Int’l Union which has been superceded by the 1980 amendments to the statute. In short, since the

1980 amendments to the Act, there has not been one case which squarely addressed the issue now

before this Court. 

Also without merit is the Attorney General’s reliance on United States v. Hsia, 24 F. Supp.

2d 33 (Dist. D.C. 1998), rev’d on other grounds, 176 F.3d 517 (D.C. Cir. 1999). There, the

defendant challenged her indictment on the grounds that the more specific provisions of the FEC

impliedly repealed the more general provisions of the criminal code and thus she could not be

charged under both. The court rejected Hsia’s argument and stated that the “Attorney General . . .

is in no way limited by the FEC.” Like the language lifted from Galliano, the language cited by the

Attorney General from Hsia is dicta and does nothing to answer the question before this Court. 

The Attorney General’s citation to United States v. Palumbo Brothers, Inc., 145 F.3d 850

(7th Cir. 1998), is also without merit. There, the defendants were charged in a multiple count

indictment with violating the criminal RICO statutes. Defendants argued that, if at all, their conduct

violated the National Labor Relations Act and the Labor Management Act and that those labor

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 In short, there are no cases that are helpful in addressing the issue before this Court 1

because it is a pure question of statutory construction. In United States v. LaSalle Nat’l Bank,

437 U.S. 298, 307 (1978), the Court held that a question similar to that presented here was not

predicated on analysis of precedent but rather a review of the statutory scheme. 

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statutes preempted any criminal prosecution under the criminal RICO statutes. Unlike the instant

case, Palumbo dealt with two sets of laws, the criminal laws under RICO and civil laws under the

NLRA. Here, the AttorneyGeneral and the FEC both claim to have “exclusive”jurisdiction over the

same law at the same time. Palumbo is not even remotely relevant to the question before this Court.1

The FEC and the Attorney General may enter into hundreds of “Memoranda of

Understanding” (“MOUs”)(See FEC’s response brief, pg. 5). These MOUs do not trump

congressional mandates contained in the United States Code. And the fact that the Attorney General

has charged a handful of cases (most of which resulted in pleas) in 35 years without a referral, does

not mean that the Attorney General should continue to ignore the law (See FEC’s response brief, pg.

6). Just because they do it doesn’t make it right. And just because nobody has challenged them

doesn’t make it wrong.

On page 12 of the Attorney General’s brief (and page 13 of the FEC’s brief), Defendants

again attempt to discredit Plaintiff’s argument by recasting the issue of conciliation. Specifically,

Defendants assert that conciliation is not required under the Act, and thus Plaintiff’s argument must

fail. Defendants miss the mark by wide margin on this point. Plaintiff agrees that the Act allows

the FEC to skip conciliation efforts and refer a matter to the Attorney General. The issue here is not

whether conciliation is required under the Act. The issue is whether the Act sets forth a sequence

in which the FEC exercises its jurisdiction in the first instance, and the Attorney General only after

receiving a referral from the FEC. The conciliation provision demonstrates that a criminal defendant

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may use a conciliation agreement, if at all, only after the FEC has exercised its exclusive

jurisdiction and referred the matter to the Attorney General. 

Specifically, the conciliation statute allows a defendant in a criminal action to introduce as

evidence “a conciliation agreement entered into between the defendant and the Commission.” 2

U.S.C. § 437g(d)(2). By using the word “entered” in the past tense, congress reinforces the statutory

sequence that the FEC exercise its exclusive jurisdiction first and the Attorney General second and

only after receiving the statutorily mandated referral.

Contrary to Defendants’ assertions, congress provided a clear and express intent that the FEC

has exclusive jurisdiction over the Act in the first instance, and that the Attorney General cannot

proceed unless and until the FEC has referred the matter by “an affirmative vote of 4 of its

members.” Accordingly, Plaintiffs prays that this Honorable Court grant their motion for declaratory

relief on an expedited basis. 

Respectfully submitted,

FIEGER, FIEGER, KENNEY, JOHNSON

 & GIROUX, P.C.

s/ Michael R. Dezsi 

Michael R. Dezsi (P64530)

 Attorney for Plaintiffs

 19390 W. Ten Mile Road

 Southfield, Michigan 48075

 (248) 355-5555

m.dezsi@fiegerlaw.com

Dated: May 17, 2007

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on May 17, 2007 she electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will send notification of such filing

to the following:

Eric J. Beane at eric.bean@usdoj.gov

Linda A. Wawzenski at linda.wawzenski@usdoj.gov

Tamra L. Ulrich at tamara.ulrich@usdoj.gov

Attorneys for United States Attorney General Alberto Gonzales

Benjamin A. Streeter, III at bstreeter@fec.gov

Colleen T. Sealander at csealander@fec.gov

Attorneys for Robert Lenhard/Federal Election Commission

s/ Julie A. Nardone 

JULIE A. NARDONE

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