Docket No. 07-1284

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(On appeal from the United States District Court, District of Arizona,

Civil Action No. 07-cv-00398-EHC

the Honorable Earl H. Carroll)

JON MARCUS,

Plaintiff-Appellant, 

vs. 

 

UNITED STATES ATTORNEY GENERAL ALBERTO R.

GONZALES, FEDERAL ELECTION COMMISSION CHAIRMAN

MICHAEL E. TONER, In their official capacities,

Defendants-Appellees.

PLAINTIFF-APPELLANT’S BRIEF ON APPEAL

*** ORAL ARGUMENT REQUESTED ***

Submitted by:

Michael R. Dezsi

Fieger, Fieger, Kenney, Johnson & Giroux, P.C.

19390 W. Ten Mile Road

Southfield, MI 48075

Tel: (248) 355-5555

Counsel for Plaintiff-Appellant
CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. Rule 26.1, Plaintiff-Appellant Jon Marcus

makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? 

No

If the answer is YES, list below the identity of the parent corporation or

affiliate and the relationship between it and the named party:

2. Is there a publicly owned corporation, not a party to the appeal, that has

a financial interest in the outcome? No 

If the answer is YES, list the identity of such corporation and the nature

of the financial interest:

 April 25, 2008

Michael R. Dezsi 
-iTABLE OF CONTENTS

TABLE OF AUTHORITIES ....... ....... ....... ....... ....... . . iii

STATEMENT OF RELATED CASES ....... ....... ....... ....... vii

STATEMENT IN SUPPORT OF ORAL ARGUMENT . . . . . . . . . . . . . . viii

JURISDICTIONAL STATEMENT ....... ....... ....... ....... .... 1

STATEMENT OF ISSUE PRESENTED ....... ....... ....... ....... 2

STATEMENT OF THE CASE ....... ....... ....... ....... ....... . 3

STATEMENT OF FACTS ....... ....... ....... ....... ....... .... 7

REVIEWABILITY AND STANDARD OF REVIEW . . . . . . . . . . . . . . . . . 11

SUMMARY OF THE ARGUMENT ....... ....... ....... ....... . . 11

ARGUMENT

I. The Federal Election Commission Has Primary and

Exclusive Jurisdiction Over the Federal Election Campaign

Act. Only By An Affirmative Vote of a Majority of Four

Members May the Commission Refer to the Attorney

General Knowing and Willful Violations of the Act.

Without a Referral By the FEC, the Attorney General Has

No Jurisdiction to Investigate or Prosecute Suspected

Campaign Finance Violations . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The 1980 Amendments to the Federal Campaign

Finance Act Contain a Congressionally Mandated

Sequence That the Attorney General May Investigate

Alleged Violations of the Act Only Upon a Referral

By an Affirmative Vote of 4 Members of the FEC.

Without an FEC Referral, the Attorney General Has
-iiNo Congressional Authority to Conduct an Investigation of Federal Campaign Finance Violations . . . . . . 23

B. The Attorney General’s Assertion That He May

Proceed Simultaneously With an Investigation

Without Referral While the FEC Exercises Its Own

Congressionally Mandated Subpoena Power Creates

the Unconstitutional Conundrum of Compelling

Individuals to Invoke the Fifth Amendment and Thus

Thwart the Ability of the FEC to Exercise Its

Exclusive Jurisdiction ....... ....... ....... ..... 28

C. A Congressional Grant of Primary and Exclusive

Jurisdiction to the FEC Effectively and Entirely

Forecloses the Attorney General’s Contention of

Shared or Concurrent Jurisdiction. Exclusive and

Concurrent Jurisdiction Do Not Go Hand-in-Hand . . . . 35

CONCLUSION AND RELIEF SOUGHT ....... ....... ....... ..... 40

CERTIFICATE OF COMPLIANCE.............. ....... ....... ... 42

CERTIFICATE OF SERVICE ....... ....... ....... ....... ....... 43
-iiiTABLE OF AUTHORITIES 

FEDERAL CASES 

Arkansas Best Corp. v. Commissioner Internal Revenue Serv.,

 485 U.S. 212 (1988)......... ....... ....... ....... .... 24, 37

Blau v. United States, 340 U.S. 159 (1950) ....... ....... ....... 29

Buckley v. Valeo, 424 U.S. 1 (1976) ....... ....... ....... ... 34, 35

Hoffman v. United States, 341 U.S. 479 (1951) ....... ....... .... 29

Holbrook v. United States, 284 F.2d 747 (9th Cir. 1960) . . . . . . . . . . 23

Marchetti v. United States, 390 U.S. 39 (1968) ....... ....... .... 30

Murphy v. Waterfront Commission of New York Harbor,

 378 U.S. 52 (1964) ....... ....... ....... ....... ....... ... 31

Order of Railway Conductors v. Pitney, 326 U.S. 561 (1946) . . . . . . 36

Outdoor Media Group, Inc. v. City of Beaumont,

 506 F.3d 895 (9th Cir. 2007) ....... ....... ....... ....... . . 10

United States v. Alaska Steamship Co., 110 F. Supp. 104 (Dist. D.C.

1952) ....... ....... ....... ....... ....... ....... ...... 36

United States v. Billingsley, 469 F.2d 1208 (10th Cir. 1972) . . . . . . . 33

United States v. Grable, 98 F.3d 251 (6th Cir. 1996) . . . . . . . . . . . . . 30

United States v. Haun, 124 F.3d 745 (6th Cir. 1997) . . . . . . . . . . 36, 37

United States v. Hodge & Zweig, 548 F.2d 1347 (9th Cir. 1977) . . . . 32
-ivUnited States v. International Union of Oper. Engineers, Local 701,

 638 F.2d 1161 (9th Cir. 1979) ....... ....... ....... ....... . 17

United States v. LaSalle National Bank, 437 U.S. 298 (1978) . . . . . . 32

United States v. Morgan, 222 U.S. 274 (1911) ....... ....... .... 11

United States v. Pacific & Arctic Co., 228 U.S. 87 (1913) . . . . . . . . . 36

United States v. Philadelphia National Bank, 374 U.S. 321 (1963) . . 38

United States v. Western Pac. R.R., 352 U.S. 59, 63-64 (1956) . . . . . 37

United States v. White, 322 U.S. 694 (1944) ....... ....... ...... 31

FEDERAL STATUTES 

2 U.S.C. § 437c(b) ....... ....... ....... ....... ....... ..... 35

2 U.S.C. § 437d ....... ....... ....... ....... ....... ..... 21, 37

2 U.S.C. § 437d(a)(7) ....... ....... ....... ....... ....... ... 21

2 U.S.C. § 437g ....... ....... ....... ....... ....... ....... 1, 8

2 U.S.C. § 437g(a)(2) ....... ....... ....... ....... ....... 19, 20

2 U.S.C. § 437g(a)(4)(A)(i) ....... ....... ....... ....... ..... 20

2 U.S.C. § 437g(a)(5)(C) ....... ....... ....... ....... 2, 6, 18, 22

2 U.S.C. § 437g(c) ....... ....... ....... ....... ....... ..... 18

2 U.S.C. § 437g(d)(2) ....... ....... ....... ....... ....... ... 25

2 U.S.C. § 441a ....... ....... ....... ....... ....... ....... . 14

18 U.S.C. § 608 ....... ....... ....... ....... ....... ..... 13, 14
-v18 U.S.C. § 614 ....... ....... ....... ....... ....... ....... . 14

28 U.S.C. §1291 ....... ....... ....... ....... ....... ....... . 1

28 U.S.C. §1331 ....... ....... ....... ....... ....... ....... . 1

28 U.S.C. §§ 2201 & 2202 ....... ....... ....... ....... ....... 1

28 U.S.C. § 7602 ....... ....... ....... ....... ....... ....... 32

88 Stat. 1268 ....... ....... ....... ....... ....... ....... . . 14

88 Stat. 1281 ....... ....... ....... ....... ....... ....... ... 13

88 Stat. 1284 ....... ....... ....... ....... ....... ....... . . 13

90 Stat. 475 ....... ....... ....... ....... ....... ...... 14, 15

90 Stat. 476 ....... ....... ....... ....... ....... ....... . . 15

90 Stat. 484 ....... ....... ....... ....... ....... ....... . . 15

90 Stat. 486-87 ....... ....... ....... ....... ....... ....... . 14

90 Stat. 490 ....... ....... ....... ....... ....... ....... . . 14

93 Stat. 1360 ....... ....... ....... ....... ....... ....... . . 19

93 Stat. 1361-62 ....... ....... ....... ....... ....... ....... 20
-viCOURT RULES

Fed.R.App.P. 32(a)(7)(B) ....... ....... ....... ....... ....... 41

Fed.R.App.P. 32(a)(7)(C), I ....... ....... ....... ....... ..... 41

Fed.R.App.P. 26.1 ....... ....... ....... ....... ....... ....... 2
-viiSTATEMENT OF RELATED CASES

There are no prior or related appeals in this matter.
-viiiSTATEMENT IN SUPPORT OF ORAL ARGUMENT

Appellant, Mr. Jon Marcus, requests oral argument in the instant appeal.

The question presented herein is a question of statutory construction of first

impression for this Court. The history and background of the law is

sufficiently complex to warrant oral argument which would afford the Court

the opportunity to pose any questions it may have concerning the facts or the

specifics of the parties’ respective positions.

Mr. Marcus’s counsel sincerely believes that participation in oral

argument will be beneficial, and that the decisional process will be

significantly aided by this Court’s grant of oral argument.

As one court has noted:

At its core, the adversary process is oral argument.

The presence of live human beings in verbal combat

engages the attention of judges and makes them

think, question, discuss and reconsider a case as can

nothing else, including able briefs and judicial

opinions on analogous points. It focuses thought and

reflection more than discussion and debate with law

clerks in chambers even when the law clerks are

better lawyers than the lawyers in the case.

* * *

The oral tradition runs deep in Anglo-American

jurisprudence for good reason. It is a safeguard

against inattentiveness and unreflection. Oral

argument, as Karl Llewellyn observed, is one of the
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‘major steadying factors’ which produce

‘reckonability’ in ‘[o]ur institution of lawgovernment’.

In oral argument lies counsel’s one hedge against

misdiagnosis and misperformance in the brief, the

one last chance of locating a postern missed in the

advance survey. In oral argument lies the

opportunity to catch attention and rouse interest

among men [and women] who must be got to read –

or to reread – this brief not as a routine duty nor

under the undiscriminating press of other business,

but with the pointed concentration this cause merits.

[citing K. Llewellyn, The Common Law Tradition:

Deciding Appeals, 18-19 (1960)].

Merritt, Judges on Judging: The Decision Making Process in Federal Courts of

Appeals, 51 Ohio St. L.J. 1385, 1386-87 (1991).
-1-

JURISDICTIONAL STATEMENT

The district court had original jurisdiction as the case is based on a

federal question. 28 U.S.C. §1331. Specifically, Mr. Marcus sought a

declaratory judgment under 28 U.S.C. §§ 2201 & 2202 as to the proper

interpretation of 2 U.S.C. § 437g. This is an appeal from the final judgment

and order of the district court that was entered on March 10, 2008, granting

Defendants’ motions to dismiss. The district court’s order disposed of all

parties’ claims and is appealable to the Ninth Circuit Court of Appeals

pursuant to 28 U.S.C. §1291. Plaintiffs filed their timely Notice of Appeal on

March 18, 2008.
-2-

STATEMENT OF ISSUE PRESENTED

I. The Federal Election Commission has primary and exclusive

jurisdiction over the Federal Election Campaign Act. The provisions of

the Act set forth a sequence under which the Commission exclusively

investigates alleged violations of the Act in the first instance, and the

Attorney General may investigate only upon an affirmative and majority

vote of the Commission. Did the district court err in dismissing

Plaintiff’s request for declaratory judgment where the Attorney General

violated the Act by initiating an investigation without the statutorily

required referral set forth in 2 U.S.C. § 437g(a)(5)(C)?

Appellant Jon Marcus answers: “YES”

Appellees Mukasey and the FEC presumably answer: “NO”

The district court would answer: “NO”
-3-

STATEMENT OF THE CASE

This case poses a question of first impression for this Court as to

whether the 1980 amendments to the Federal Election Campaign Act (“Act”)

sets forth a sequence under which the Federal Election Commission (“FEC”)

investigates alleged campaign finance disputes in the first instance and that the

Attorney General can investigate only after receiving a referral from the

Commission. 

Under the Act, the FEC has exclusive civil jurisdiction to investigate

campaign finance disputes. This means that the FEC may exercise its

jurisdiction to the exclusion of all others. And for more than thirty years, the

FEC has resolved, civilly, virtually all campaign finance disputes without the

intervention or interference of the Attorney General.

The Act also sets forth a referral mechanism by which the FEC may

refer certain violations to the Attorney General but only by a bipartisan

majority vote of the FEC. By giving the FEC exclusive civil jurisdiction and

providing a referral mechanism by which the FEC may refer matters to the

Attorney General, it is clear that Congress set forth a sequence under which

the FEC would conduct its civil investigation in the first instance (to the
-4-

exclusion of all others including the Attorney General), and that the Attorney

General would investigate only after receiving a referral from the FEC.

In this case, the Attorney General began what is believed to be the

largest campaign finance investigation in the history of America targeting

dozens of individuals, including Mr. Marcus, who contributed to the John

Edwards 2004 presidential campaign. The Attorney General began this

investigation without ever having received the statutorily required referral

from the FEC. About a year later, the FEC began its own investigation but has

since sat out on the sidelines because the Attorney General has stripped the

FEC of its “exclusive” civil jurisdiction. In short, the Attorney General, with

the tacit approval of the FEC, have circumvented the jurisdictional

requirements of the Act and reversed the congressional sequence of the Act. 

The Attorney General and FEC contend, however, that they have acted

properly because the FEC has “civil” jurisdiction while the Attorney General

has “criminal” jurisdiction, but this is not the specific issue before the Court.

Appellant Marcus does not dispute that the FEC has civil jurisdiction or that

the Attorney General has criminal jurisdiction. 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
The government suggests that Mr. Marcus’s arguments represent a 1

“radical” change in the law. Respectfully, Mr. Marcus disagrees. For more than

30 years, the FEC has resolved, civilly, about 99.9% of campaign finance

disputes without the interference or intervention of the Attorney General. In

fact, there have only been a handful of criminal campaign finance cases brought

by the Attorney General, and even less have ever actually been tried before a

jury. So in reality, the only “radical” change proposed here is by the Attorney

General. The fact that there have been so few criminal campaign finance cases

in 30 years explains why the jurisdictional requirements of the Act, raised

herein, have gone unaddressed. 

-5-

civil jurisdiction and providing a mechanism by which the FEC could refer

certain matters to the Attorney General after it exercised its exclusive

jurisdiction. Indeed, the very definition of ‘exclusive’ jurisdiction means “to

the exclusion of all others.” Blacks Law Dictionary 564 (6th ed. 1990).

The Attorney General and FEC are proposing that the Court interpret the

Act so as to provide the FEC with exclusive civil jurisdiction but only to the

extent that the Attorney General has not begun its own investigation. In other

words, the government seeks to re-write the statute so that the Attorney

General and FEC have concurrent jurisdiction, but such an interpretation is

contrary to the plain language of the statute.1

The referral provision of the statute further supports Marcus’s assertion

that the Act sets forth a sequence under which the FEC exercises its

jurisdiction first, and the Attorney General only after receiving a referral.

Congress incorporated such a specific referral mechanism to prevent
-6-

politically motivated or uneven application and enforcement of the Act.

Specifically, Congress mandated that the six member Commission consist of 3

members from each party, and required a bipartisan majority vote of 4

members in order to refer a matter to the Attorney General for criminal

investigation, but only after the FEC has conducted its own investigation.

Specifically, the Act provides that

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 of this

Act . . . has occurred or is about to occur, it may refer

such apparent violation to the Attorney General of

the United States . . . .

2 U.S.C. § 437g(a)(5)(C)(emphasis added). Thus, it is only after the FEC

opens this jurisdictional door (i.e., by an affirmative vote of 4 of its members)

that the Attorney General may proceed with an investigation under the Act. 

The Attorney General and FEC contend that the referral mechanism is

merely a limitation on the FEC and does not restrict the authority of the

Attorney General. However, such an interpretation of the statute produces an

absurd result. An example that best illustrates the obvious flaw in the Attorney

General’s and FEC’s argument is as follows: If the FEC votes 5 to 1 against

referral, the lone disgruntled FEC member can simply walk across the street

and say to the Attorney General, “the FEC won’t vote to refer this matter to
-7-

you, so I’m bringing it to you myself. This way, you can still prosecute the

case.” Such an interpretation of the Act renders meaningless the bipartisan

referral mechanism enacted by Congress.

For the following reasons, Appellant Marcus respectfully requests that

this Honorable Court reverse the judgment of the district court, and grant his

motion for declaratory relief consistent with the congressional mandate

contained in the Act.

STATEMENT OF FACTS

Sometime during the summer of 2005, a former disgruntled employee of

the Michigan law firm of Fieger, Fieger, Kenney & Johnson, P.C. contacted

the Detroit office of the FBI falsely claiming that he had been forced by the

firm partners to contribute to the presidential campaign of Senator John

Edwards. Instead of referring the matter to the Federal Elections Commission,

which under the law has original and exclusive jurisdiction and must

investigate campaign finance issues in the first instance, former Attorney

General Alberto Gonzales began an invasive and illegal investigation of every

Fieger Firm employee, their families, and other friends and acquaintances of

Geoffrey Fieger, the president of the Fieger law firm. Appellant Jon Marcus, a
-8-

resident of Arizona, is an attorney, business associate, and close personal

friend of Mr. Fieger.

On November 30, 2005, in a highly publicized media event, federal

prosecutors, accompanied by nearly 100 federal agents, led an unprecedented

nighttime raid of Fieger’s law offices, as well at the homes of all the

employees. This unprecedented nighttime raid upon a prominent Democrat’s

law office was specifically authorized by former Attorney General Alberto

Gonzales. Since January 2006, many of these employees, family members,

and friends of the Fieger firm have been compelled to testify before a federal

grand jury. During the grand jury proceedings, the Attorney General’s agents

have attempted to compel witnesses to disclose for whom they voted in the

2004 election and their entire history of campaign contributions.

On February 1, 2006, counsel to the Fieger Firm sent a letter to FEC

Chairman Michael E. Toner demanding that the Commission comply with the

provisions of 2 U.S.C. § 437g under which the FEC must first conduct its own

investigation before voting to refer the matter to the Attorney General for a

criminal investigation. The FEC ignored the letter and took no action; the

illegal and extra-jurisdictional investigation by the Attorney General continues

to this day.
-9-

Around September 2006, the Federal Election Commission began its

own investigation into whether the Fieger law firm, including its employees

and associates, had violated the Act. Since September 2006, however, the

FEC has failed to conduct its statutorily required duties because of the simple

fact that the Attorney General has effectively stripped it of its congressionally

mandated “exclusive” jurisdiction. Together, the Attorney General and FEC

are treating the FEC’s “exclusive civil” jurisdiction as dead letter law.

In October 2006, Mr. Marcus was subpoenaed in Arizona to testify and

produce documents before a federal grand jury which occurred in November

2006. While appearing before the grand jury, agents of the Justice Department

attempted to coerce Mr. Marcus to reveal constitutionally protected activities

such as the identity of the presidential candidate for whom he voted in the

2004 election. 

On February 21, 2007, Mr. Marcus filed the instant action seeking a

declaratory judgment that the acts of the Attorney General are in violation of

the Federal Election Campaign Act. Specifically, Marcus avers that the

Attorney General, aided by the FEC, have ignored the jurisdictional

requirements of the Act such that the Attorney General’s investigation is extrajurisdictional. 
-10-

District Court Proceedings and Order

The parties filed cross motions for judgment and dismissal and on

March 10, 2008, the district court issued its Opinion and Order granting the

Attorney General’s and FEC’s motions to dismiss and denying Mr. Marcus’s

motion for declaratory judgment (Order dated June 28, 2007, attached as

Addendum A).

Specifically, the district court relied on the language of the Act that

provides that “[t]he Commission shall have exclusive jurisdiction with respect

to the civil enforcement of such provisions” and that this “‘directive’ applies to

civil enforcement of the Act, not to criminal enforcement of the Act.” (R.32,

Opinion and Order, pg. 5, Record Excerpts pg. 8).

The district court also found that the 1980 amendments to the Act

appeared “to be a procedural change which does not evidence a directive that

alters the powers of the Attorney General.” (R.32, Opinion and Order, pg. 5,

Record Excerpts pg. 8). On March 18, 2008, Mr. Marcus filed a timely Notice

of Appeal to this Court.
-11-

REVIEWABILITY AND STANDARD OF REVIEW 

This Court reviews de novo the district court’s decision granting

Defendants’ motions to dismiss for failure to state a claim. Outdoor Media

Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).

All of the issues presented in this appeal were raised and briefed at the

district court and therefore preserved for appellate review. See Ninth Cir. R.

28-2.5.

SUMMARY OF THE ARGUMENT

The Federal Election Commission has primary and exclusive

jurisdiction over the Federal Election Campaign Act. Only by an affirmative

vote of a majority of four members may the Commission refer to the Attorney

General knowing and willful violations of the Act. Without a referral by the

FEC, the Attorney General has no jurisdiction to investigate or prosecute

suspected campaign finance violations. 
In Morgan, the Supreme Court found that the Attorney General shared 2

parallel jurisdiction with the Department of Agriculture based on the Pure Food

and Drug Act of 1906 which expressly provided that the Attorney General could

initiate proceedings based on a report from either the Secretary of Agriculture

or any health or food or drug officer or agent of any State. See Pure Food and

Drug Act of June 30, 1906, ch. 3915, sec. 5, 34 Stat. 768, 769 (1906). Given

that the statute expressly recognized the Attorney General’s ability to prosecute

without a referral, the Morgan Court refused to limit the Attorney General’s

prosecutorial powers to cases referred by the Department of Agriculture. Here,

unlike the statute considered in Morgan, the Federal Election Campaign Act

does not allow the Attorney General to independently prosecute violations of the

Act without a referral from the FEC. In fact, as demonstrated herein, the entire

statutory scheme of the FECA would be preempted and rendered nugatory if the

Attorney General shared with the FEC primary jurisdiction over the Act. 

-12-

ARGUMENT

I. The Federal Election Commission Has Primary and Exclusive

Jurisdiction Over the Federal Election Campaign Act. Only By An

Affirmative Vote of a Majority of Four Members May the

Commission Refer to the Attorney General Knowing and Willful

Violations of the Act. Without a Referral By the FEC, the Attorney

General Has No Jurisdiction to Investigate or Prosecute Suspected

Campaign Finance Violations. 

Generally, the United States Attorney General’s authority to prosecute

suspected crimes is plenary except where Congress has provided an expression

of its legislative will to restrict the jurisdiction of the Attorney General.

United States v. Morgan, 222 U.S. 274 (1911). The Federal Election 2

Campaign Act (‘FECA’, or ‘Act’ ) is one example where Congress has clearly
-13-

stripped the Attorney General of his ability to prosecute suspected violations

of the Act absent a referral from the Federal Election Commission (FEC). 

In 1971, Congress created the FECA to regulate the financing of

political campaigns. Public Law 92-225. At the same time, Congress

amended several provisions of the federal penal code contained in Title 18 of

the United States Code and placed monetary limits on both individual

contributions and expenditures in federal political campaigns. Significantly,

Congress left many campaign finance crimes in Title 18 of the U.S.C. where

those crimes were exclusively subject to prosecution by the Attorney General. 

In 1974, Congress amended the FECA and created the Federal Election

Commission. Federal Election Campaign Act Amendments of 1974, Pub. L.

No. 93-443, § 310, 88 Stat. 1263, 1280-83 (amended 1976, 1979, 2002). By

statute, Congress expressly required that “[t]he Commission shall administer,

seek to obtain compliance with, and formulate policy with respect to this Act .

. . .” 88 Stat. 1281. The Commission was also given “primary jurisdiction

with respect to the civil enforcement of such provisions.” Id.

In order to carry out its congressional mandate, the Federal Election

Commission, as an independent federal agency, was created to conduct

investigations, issue subpoenas, initiate civil actions, promulgate rules and
-14-

regulations under the Act, and render advisory opinions as to whether “any

specific transaction or activity by such [an] individual . . . would constitute a

violation of th[e] Act. 88 Stat. 1282-83. The 1974 amendments also provided

that:

The Commission, upon receiving any complaint

under paragraph (1)(A), or a referral under paragraph

(1)(B), or if it has reason to believe that any person

has committed a violation of any such provision,

shall notify the person involved of such apparent

violation and shall report such violation to the

Attorney General;

88 Stat. 1284. 

Along with the 1974 amendments to the FECA, Congress also amended

certain provisions of the federal criminal code contained in Title 18 of the

United States Code. Specifically, Congress amended 18 U.S.C. § 608 relating

to limitations on contributions by providing that “no person shall make

contributions to any candidate with respect to any election for Federal office

which, in the aggregate, exceed $5,000.” Pub. L. No. 93-443, § 101, 88 Stat.

1263. Congress also added 18 U.S.C. § 614 which provided that “[n]o person

shall make a contribution in the name of another person.” 88 Stat. 1268. 

In 1976, Congress further amended the Act by shifting to the FECA

many of the campaign finance restrictions previously contained in Title 18 of
-15-

the federal penal code. Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283; 90 Stat. 475. For example, before the 1976 amendments,

18 U.S.C. § 608 provided a limit on individual political contributions.

Congress repealed 18 U.S.C. § 608 (along with several other provisions of title

18) and shifted this provision to the Federal Campaign Finance Act, 2 U.S.C. §

441a. 90 Stat. 486-87. Congress also made unlawful contributions or

expenditures by national banks, corporations, and labor organizations. 90 Stat.

490 (currently codified at 2 U.S.C. 441b). 

In addition to the substantive restrictions on campaign finance,

Congress also restructured the makeup of the FEC to be “composed of the

Secretary of the Senate and the Clerk of the House of Representatives, ex

officio and without the right to vote, and 6 members appointed by the

President of the United States, by and with the advice and consent of the

Senate.” 90 Stat. 475 (currently codified at 2 U.S.C. 437c). To ensure that the

FEC’s decisions remained neutral, bipartisan and non-political, Congress

further commanded that “[n]o more than 3 members of the Commission

appointed under this paragraph may be affiliated with the same political

party.” 90 Stat. 475. 
-16-

Significantly, Congress also amended the Act to add the word

“exclusive” before the word “primary” to describe the jurisdiction of the FEC

over the Act. 90 Stat. 476. At the same time, Congress restricted the Attorney

General’s ability to prosecute alleged violations of the Act without first

receiving a referral by the FEC. Specifically, in 1976, Congress commanded

that:

If the Commission determines that there is probable

cause to believe that a knowing and willful violation

subject to and as defined in section 329 . . . has

occurred or is about to occur, it may refer such

apparent violation to the Attorney General of the

United States . . .

90 Stat. 484. 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. Indeed,

the very definition of “exclusive jurisdiction” means “to the exclusion of all

others.” BLACKS LAW DICTIONARY 564 (6th ed. 1990). 

Under this statutory scheme, the FEC has exclusive jurisdiction to

civilly resolve any alleged violations of the Act; failing which it can refer

violations to the Attorney General by a bipartisan majority vote. The FEC’s

exclusive jurisdiction is further buttressed by the fact that, from 1971 until
-17-

1976, Congress left certain campaign finance violations in Title 18 (like the

current § 441a which limits individual contributions to federal campaigns)

where those violations could be independently prosecuted by the Attorney

General without regard to the FEC and its jurisdiction. 

Because the 1976 amendments required a referral from the FEC before

the Attorney General could initiate criminal proceedings, the amendments

received some opposition from members of Congress. Specifically, Senator

Brock opposed passage of the 1976 amendments because of the restriction

placed on the Attorney General’s ability to prosecute without referral from the

FEC. In a Senate debate on the amendments, Brock remarked that:

Equally bad, the Justice Department is no longer able

to prosecute on its own. If an aggressive district

attorney finds a clear violation of the law, he cannot

take the person into court. He must refer the case to

the Federal Election Commission. And what if this

agency, which Congress has neatly overtaken,

imposes nothing but a simple fine? That is it. The

Justice Department can take no further action even if

it violently disagrees with the decision.

122 Cong. Rec. S. 12471 (1976). That is the correct interpretation of the

statute. Senator Brock correctly recognized that it was the specific intent of

Congress, of which he was an elected member, to prevent the Attorney
-18-

General from independently prosecuting FECA violations without first

receiving a referral from the FEC.

In 1979, the Ninth Circuit considered for the first and only time whether

the Attorney General could independently prosecute violations of the Act

without referral from the FEC under the 1976 law. United States v. Int’l

Union of Oper. Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979). There,

the court concluded, based upon the then existing language of the 1976 law,

that the Attorney General could prosecute alleged violations of the Act without

first receiving a referral from the FEC. Significantly, however, the Ninth

Circuit’s opinion has now been superceded by subsequent amendment to the

Act in 1980. 

In 1980, Congress enacted amendments to the Act which made clear it’s

intent to require a referral by the FEC before the Attorney General could

prosecute. The 1980 amendments were intended to codify the intent of

Congress to require a referral by the FEC before the Attorney General could

prosecute.

The 1980 amendments require that the FEC may refer a matter to the

Attorney General for criminal prosecution only by an affirmative vote of 4 of

its members. Specifically, the Act provides that:
-19-

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 of this

Act [or chapter 95 or chapter 96 of the Internal

Revenue Code of 1954] 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).

2 U.S.C. § 437g(a)(5)(C)(emphasis added). It is only after the FEC opens this

jurisdictional door (i.e., by an affirmative vote of 4 of its members) that the

Attorney General may proceed with an investigation (or prosecution) under the

Act. This congressionally mandated sequence allows the FEC to exclusively

exercise its subpoena power in the first instance to determine compliance or

conciliation before ever referring a matter to the Attorney General. 

Upon referral to the Attorney General, the Act now requires that “the

Attorney General shall report to the Commission any action taken by the

Attorney General regarding the apparent violation. Each report shall be

transmitted within 60 days after the date the Commission refers an apparent

violation, and every 30 days thereafter until the final disposition of the

apparent violation.” 2 U.S.C. § 437g(c). This new provision requiring the

Attorney General to file reports after a referral from the FEC dispels any

argument by the Attorney General that the Act only applies to the FEC and

does not impose any restrictions or duties on the office of the Attorney
Under the Attorney General’s misguided argument, he can undermine 3

and circumvent his reporting obligations under the Act by simply initiating all

investigations of campaign finance violations himself, thereby avoiding the

Act’s requirement to issue periodic reports to the FEC. 

-20-

General. By this statutory scheme, Congress mandates that all alleged 3

violations of the Act first be considered by the FEC which possesses the sole

discretion to later allow the Attorney General to investigate. 

In a direct repudiation of the Ninth Circuit’s opinion in Int’l Union of

Oper. Engineers, Congress’s amendment to the Act in 1980 solidified the

exclusive jurisdiction of the FEC and outlined the necessary steps required to

be taken by the FEC before it may vote to refer the matter to the Attorney

General. Under the 1980 version of the Act, the FEC can investigate only with

an affirmative vote of 4 of its members “upon receiving a complaint” or “on

the basis of information ascertained in the normal course of carrying out its

supervisory responsibilities.” Pub. L. No. 96-187; 93 Stat. 1360; 2 U.S.C. §

437g(a)(2). 

Upon receiving allegations of a campaign finance violation, the

Commission “shall . . . notify the person of the alleged violation” and “shall

make an investigation of such alleged violation, which may include a field

investigation or audit, in accordance with the provisions of this section.” Id.
-21-

These steps are mandatory and must be followed before the FEC can make a

criminal referral to the Attorney General.

If, after conducting its field investigation or audit, the FEC determines,

by an affirmative vote of 4 of its members, that there is probable cause to

believe that there has been a violation of the Act, the Commission “shall

attempt, for a period of at least 30 days, to correct or prevent such violation by

informal methods of conference, conciliation, and persuasion, and to enter into

a conciliation agreement with any person involved.” 2 U.S.C. §

437g(a)(4)(A)(i). Significantly, in 1980, Congress also amended the Act to

allow an individual who may be subsequently charged criminally (after a

referral by the FEC) to “introduce as evidence a conciliation agreement” to

demonstrate his lack of knowledge or intent to commit the alleged violation.

Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187; 93

Stat. 1361-62 (effective January 1980). This amendment clearly demonstrates

Congress’s intent to establish a sequence of events under which the FEC first

attempts to resolve alleged violations prior to a referral to the Attorney

General.

Consistent with the statutory scheme to provide exclusive jurisdiction to

the FEC, Congress provided the FEC with powerful tools to exercise its
-22-

exclusive jurisdiction to enforce the Act. For example, in addition to its

subpoena power, the FEC is authorized “to render advisory opinions” as to

whether certain conduct or transactions are permissible under the Act. 2

U.S.C. § 437d. The FEC’s power to issue advisory opinions would be

rendered meaningless and would be preempted if the Attorney General could

independently investigate and charge criminally without first allowing the

FEC to examine a case through the issuance of advisory opinions as set forth

in 2 U.S.C. § 437d(a)(7). Such a practice by the Attorney General would lead

to inevitable conflicts where the FEC and the Attorney General reach entirely

inconsistent and diametrically opposed positions as to interpretation,

implementation, and enforcement of the Act. This anomalous result is clearly

prevented by the Act’s orderly scheme providing original jurisdiction to the

FEC.

Additionally, § 437d(a)(8) delegates to the FEC the sole power to

“develop such prescribed forms and to make, amend and repeal such rules . . .

as are necessary to carry out the provisions of this Act.” Thus, the Act means

exactly what it says; that is, that Congress delegated the exclusive authority to

the FEC to carry out its mandate as contained in the Act. Congress’s mandate

would be meaningless, and rendered nugatory, if the Attorney General were
-23-

free to develop his own guidelines for interpreting and prosecuting the

provisions of the Act before [or without] the FEC’s involvement, or before the

FEC even had the opportunity to exercise its exclusive jurisdiction over

enforcement.

A. The 1980 Amendments to the Federal Campaign Finance Act

Contain a Congressionally Mandated Sequence That the

Attorney General May Investigate Alleged Violations of the

Act Only Upon a Referral By an Affirmative Vote of 4

Members of the FEC. Without an FEC Referral, the Attorney

General Has No Congressional Authority to Conduct an

Investigation of Federal Campaign Finance Violations.

 

If there were any doubt remaining after the 1976 amendments as to the

question of whether Congress intended to give the FEC exclusive jurisdiction,

Congress again amended the Act in 1980 to eliminate any confusion that might

have been caused by this Court’s opinion in Operating Engineers. In 1980,

Congress added two significant provisions mandating the FEC’s exclusive

jurisdiction. First, Congress mandated that an alleged knowing and willful

violation of the Act could be referred to the Attorney General only “by an

affirmative vote of 4 of its members”. 2 U.S.C. § 437g(a)(5)(c). This is

significant because it shows that Congress wanted to avoid political

prosecutions of an out-of-power party by the controlling party. Because the

Commission consists of 6 members, no more than 3 of whom can be from the
-24-

same party, Congress expressly required bipartisan support from a majority of

the Commission before referring a case for criminal prosecution. 

Indeed, it would defy common sense to believe that Congress would

statutorily confer broad power upon the FEC only to have it usurped

unilaterally by an Attorney General’s investigation or prosecution prior to a

referral by the FEC. 

In determining the effect to be given the provision requiring an

affirmative vote of 4, it is not only appropriate for this court to examine the

nature and objectives of the FEC as a whole but “a significant consideration . .

. is a comparison between the results to which each such construction would

lead.” Holbrook v. United States, 284 F.2d 747, 752 (9th Cir. 1960). The very

purpose and essence of requiring “an affirmative vote of 4" members in order

to refer a matter for criminal prosecution would be rendered meaningless if the

Attorney General could just simply step in and say “oh well, since they don’t

have the bipartisan support of a majority vote of the Commission we’ll issue

an indictment ourselves.” Congress clearly contemplated this exact politically

charged scenario and guarded against it by requiring the bipartisan support of

4 members of the Commission before the FEC could refer a case to the

Attorney General for criminal prosecution. 
-25-

If the Attorney General’s assertion of concurrent jurisdiction was true,

the purpose of a 4 member bipartisan vote for referral would be superfluous.

Arkansas Best Corp. v. Comm’r Internal Revenue Serv., 485 U.S. 212, 218

(1988) (an interpretation of statutory provision that renders another

superfluous cannot be correct). Under the Attorney General’s theory, if the

FEC was considering a criminal referral to the Attorney General, but the

Commission voted 5 to 1 against such a referral, then the lone member in

support of referral could simply walk across the street to a politically allied

Attorney General and say, “prosecute this case, the Commission has refused to

refer for prosecution so I’m bringing it to you myself.” Obviously, Congress

did not intend such a result. In fact, it protected against such a politically

corrupt act. Such a result would undermine the entire statutory scheme of the

Act, and render superfluous Congress’s 1980 amendment to the statute.

Surely, no one can argue in good faith that Congress intended that it be easier

for a disgruntled member of the FEC to bring a matter to the Attorney General

than it is for the whole Commission (who can only refer upon a majority vote).

A second provision of the 1980 amendments further mandates that the

Attorney General may investigate and prosecute violations of the Act only

after referral from the FEC. Under 2 U.S.C. § 437g(d)(2), a defendant in a
-26-

criminal action “may evidence their lack of knowledge or intent to commit the

alleged violation by introducing as evidence a conciliation agreement entered

into between the defendant and the Commission . . .”(emphasis added). By

using the word “entered” in the past tense, it is clear that Congress intended

the FEC to have the first opportunity to examine and administratively resolve

alleged violations of the Act before referring the matter to the Attorney

General. This provision would be nullified if the Attorney General could first

prosecute an alleged violation of the Act since no one would ever cooperate

with the FEC in the first instance if the Attorney General could proceed

irrespective of a referral.

Naturally, the Attorney General would have no interest in a defendant

using a conciliation agreement as exculpatory evidence in a criminal

proceeding. Thus, if a referral were not required, the Attorney General could

circumvent the law by simply initiating a criminal charge before the FEC ever

reaches a conciliation agreement. Such duplicity would be an end-run around

the statute. By enacting § 437g(d)(2), Congress required that the FEC

investigate alleged violations of the Act in the first instance, and the Attorney

General may investigate or charge only after a referral by a bipartisan

majority vote of the Commission.
-27-

The history of the Act from its inception unequivocally supports this

conclusion. At the time the Act was originally passed, most of the substantive

restrictions on campaign finance were contained in the federal penal code. In

1974, Congress created the FEC and left the substantive restrictions on

Campaign finance in the penal code. This fact demonstrates that in 1974

Congress fully intended to allow the Attorney General to continue

investigating and prosecuting suspected campaign finance violations even

after it created the FEC. 

In 1976, Congress removed the issues related to campaign finance from

the penal code and shifted them to the Campaign Finance Act making them

subject to the FEC’s oversight, interpretation, and enforcement. Since 1974,

virtually all campaign finance cases have been resolved by the FEC. In the

history of the United States, no case resembling the facts here has ever been

criminally charged or tried to a verdict before a jury.

Congress clearly understood that their members were the very persons

who could be targeted by a politically motivated Justice Department. Thus,

Congress devised a statutory formula to place all campaign finance matters

first within the administrative aegis of the FEC. Also significant is the fact

that in 1976 Congress created a mechanism by which “the Commission” could
-28-

refer to the Attorney General knowing and willful violations of the Act. This

provision demonstrates congressional intent to administratively funnel all

alleged violations of the Act first through the FEC, without interference from

the Attorney General. It was exactly for this reason that Senator Brock

opposed the 1976 amendments. As Senator Brock correctly recognized, under

the 1976 amendments, “the Justice Department is no longer able to prosecute

on its own. [Instead, the Attorney General] . . . must refer the case to the

Federal Election Commission.” 122 Cong. Rec. S. 12471 (1976). That is the

law, and is has been violated here.

B. The Attorney General’s Assertion That He May Proceed

Simultaneously With an Investigation without Referral While

the FEC Exercises its Own Congressionally Mandated

Subpoena Power Creates the Unconstitutional Conundrum of

Compelling Individuals to Invoke the Fifth Amendment and

Thus Thwart the Ability of the FEC to Exercise its Exclusive

Jurisdiction.

The Attorney General’s proposed interpretation of the Act

impermissibly allows vital Fifth Amendment protections to be used as a

mechanism to thwart the entire purpose of the FEC. Under the Attorney

General’s theory, he may proceed with a criminal investigation irrespective of

a referral by the FEC. Under such a scheme, every time the FEC provides its

statutorily required notice to an individual of possible noncompliance with the
-29-

Act, an individual would, without fail, assert her Fifth Amendment right

against self-incrimination for fear that any statements made to the FEC would

be used against her by the Attorney General in a criminal prosecution.

The FEC could never, ever carry out its congressionally mandated

functions and duties if the Attorney General could, irrespective of a referral,

issue an indictment during the pendency of an ongoing FEC investigation. No

individual would rationally respond to, or even settle an investigative request

by the FEC without first securing a promise from the FEC that it would not

refer the case for criminal prosecution. Each time the FEC sought to settle a

case civilly, an individual would be forced to file a motion to quash the FEC

subpoena, or move for a protective order, asserting a Fifth Amendment

privilege against self-incrimination for fear that the Attorney General would

unilaterally prosecute irrespective of a referral by the FEC. Moreover, the

FEC would be powerless to proceed because an individual’s fear of

prosecution would be well founded. Certainly a court could not enforce an

FEC subpoena during a simultaneous civil investigation (by the FEC) and a

criminal investigation (by the Attorney General) without compelling a

violation of a respondent’s Fifth Amendment privilege. Thus, allowing
-30-

simultaneous investigations would prevent the FEC from ever carrying out its

statutory duties.

In Hoffman v. United States, 341 U.S. 479, 488 (1951), the Supreme

Court emphasized that “[t]he privilege afforded [under the Fifth Amendment]

not only extends to answers that would in themselves support a conviction

under a federal criminal statute but likewise embraces those which would

furnish a link in the chain of evidence needed to prosecute the claimant for a

federal crime.” Id. at 486 (citing Blau v. United States, 340 U.S. 159 (1950)).

By utterly disregarding the congressionally mandated sequence that the FEC

proceed first [and that the Attorney General proceed only after a referral] the

Attorney General is effectively making the Fifth Amendment an absolute

impediment to the FEC’s ability to carry out its investigative and resolution

functions. 

There is no doubt that if the Attorney General were permitted to conduct

a concurrent [or prior] criminal investigation, while at the same time the FEC,

during its statutorily required investigation, issues compulsory process to

testify, a respondent would have a well founded fear of answering any

question posed by the FEC. Indeed, a respondent’s answers “[c]ould furnish a

link in the chain of evidence needed [by the Attorney General] to prosecute the
-31-

claimant for a federal crime.” Hoffman, 341 U.S. at 486. Thus, the FEC could

never civilly resolve a dispute if the Attorney General could independently

prosecute without a referral by a majority vote of the Commission. 

In United States v. Grable, 98 F.3d 251 (6th Cir. 1996), the Sixth Circuit

refused to uphold a civil contempt order against a taxpayer who asserted his

Fifth Amendment privilege in response to an IRS summons. In Grable, the

IRS issued a compulsory summons for failure to file federal income tax

returns. At a contempt hearing, the taxpayer asserted his Fifth Amendment

privilege against compulsory self-incrimination. The district court refused to

recognize the taxpayer’s Fifth Amendment right in response to the IRS

summons and held him in contempt of court. The Sixth Circuit reversed and

held that the taxpayer’s failure to file a tax return constituted a crime and thus

“the prospect of a criminal prosecution and punishment appears to have been

real and substantial, not ‘merely trifling or imaginary.’” Id. at 255 (citing

Marchetti v. United States, 390 U.S. 39 (1968)). So it is here.

An Attorney General’s ‘concurrent’ investigation of the same facts and

circumstances that serve as a basis for an FEC investigation would act as an

illegal whipsaw under which the Attorney General simply sits back while the

FEC uses its congressionally authorized subpoena power to compel a
-32-

respondent into self-incrimination. Such a shameless result is totally

repugnant to the most basic principles of constitutional jurisprudence. See

Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52 (1964). As

Justice Frank Murphy aptly stated: 

The immediate and potential evils of compulsory

self-disclosure transcend any difficulties that the

exercise of the privilege may impose on society in

the detection and prosecution of crime. While the

privilege is subject to abuse and misuse, it is firmly

embedded in our constitutional and legal frameworks

as a bulwark against iniquitous methods of

prosecution.

United States v. White, 322 U.S. 694 (1944).

Here, the Attorney General [with the tacit approval of the FEC] is

attempting to gut those provisions of the Act designed specifically to thwart

the intolerable situation now created. The Act is carefully designed to allow

the FEC to administratively resolve alleged violations of the Act by way of

civil settlements and conciliations. As part of a conciliation, the FEC can

agree that it will not refer the matter to the Attorney General so as to

conclusively resolve the matter.

The Attorney General’s position undermines any such efforts by the

FEC to conciliate alleged violations. If the Attorney General could

independently prosecute alleged violations of the Act without a referral, no
-33-

one could ever resolve a campaign finance dispute with the FEC, and the

various provisions of the Act allowing the FEC to resolve disputes would be

rendered meaningless. 

Moreover, the Supreme Court has refused to allow simultaneous

criminal and civil investigations by the Attorney General and administrative

agencies like the FEC. In United States v. LaSalle Nat’l Bank, 437 U.S. 298

(1978), the Court considered whether the Internal Revenue Service could

exercise its subpoena power under 28 U.S.C. § 7602 when it “was conducting

[an] investigation solely for the purpose of unearthing evidence of criminal

conduct.” Id. at 299. The Court concluded that under § 7602 Congress

specifically authorized the IRS to conduct civil investigations that carried the

potential of criminal liability; however, the Court also emphasized that the

IRS’s subpoena power must cease at the point at which the agency refers a

matter to the Attorney General for criminal prosecution.

The LaSalle Court recognized the inherent conflict created by allowing

simultaneous investigations by the Attorney General and an administrative

agency. As the LaSalle Court noted, “[o]nly at th[e] point [of referrral] do the

criminal and civil aspects of a tax fraud case begin to diverge.” LaSalle, 437
-34-

U.S. at 311 (citing United States v. Hodge & Zweig, 548 F.2d 1347, 1351 (9th

Cir. 1977); United States v. Billingsley, 469 F.2d 1208, 1210 (10th Cir. 1972). 

The Court noted the impossible situation created if it allowed both the

IRS and the Department of Justice to proceed simultaneously and after the IRS

had referred the matter to the Attorney General. In fact, the Court highlighted

the futility of the Attorney General’s case if the IRS were allowed to continue

its investigation by use of its subpoena power. Such activity by the IRS would

greatly jeopardize the Attorney General’s’ use of a grand jury. “We cannot

deny that the potential for expanding the criminal discovery rights of the

Justice Department or for usurping the role of the grand jury exists at the point

of the recommendation by the special agent.” Id. at 313.

After the LaSalle case was decided, Congress amended the Tax Equity

and Fiscal Responsibility Act of 1982 (TEFRA) to ensure that the Attorney

General and IRS could not conduct simultaneous investigations. Specifically,

Congress delineated where the IRS’s subpoena power under § 7602 ended,

that is at the point where an investigation has been referred to the Justice

Department for prosecution. Pub. L. No. 97-248, 96 Stat. 324 (1982). This

case involves a similar practical problem as that presented in LaSalle.
-35-

In short, the Attorney General’s assertion that he may proceed

independently with a criminal investigation, without a referral from the FEC,

while the FEC conducts its own investigation, runs afoul of the statutory

scheme requiring the FEC to resolve cases civilly in the first instance.

Recognizing this obvious problem, Congress set up a statutory scheme under

which all alleged violations of the Act must first be considered by the FEC

and then only by the Attorney General upon referral by the FEC.

Accordingly, the Attorney General’s proposed statutory construction of

the Act to include shared or concurrent jurisdiction must be rejected by this

Court as an impermissible infringement upon the statutory framework

providing the FEC with primary and exclusive jurisdiction. 

C. A Congressional Grant of Primary and Exclusive Jurisdiction

to the FEC Effectively and Entirely Forecloses the Attorney

General’s Contention of Shared or Concurrent Jurisdiction.

Exclusive and Concurrent Jurisdiction Do Not Go Hand in

Hand.

The FEC’s ability to exercise its primary and exclusive jurisdiction over

the law is gutted when the Attorney General intervenes uninvited by the FEC.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court described the

FEC’s enforcement power as “both direct and wide ranging.” Buckley, 424

U.S. at 112. The Court also emphasized that the FEC has exclusive
-36-

jurisdiction to decide how to proceed under the Act. Specifically, the Court

stated that “[i]n no respect do the foregoing civil actions require the

concurrence of or participation by the Attorney General; conversely, the

decision not to seek judicial relief in the above respects would appear to rest

solely with the Commission.” Id. (italics added).

By ignoring the FECA statutory scheme, the Attorney General has

usurped the primary and exclusive jurisdiction of the FEC and taken it for

himself. The FEC is thus forced to sit by while the Attorney General

disingenuously claims that he and the FEC share exclusive jurisdiction. In

short, both the Attorney General and the FEC are treating the FEC’s exclusive

civil jurisdiction as dead letter law. In an effort to circumvent this problem,

the Attorney General suggests in the alternative that he has jurisdiction over

criminal matters while the FEC has jurisdiction only over civil matters. These

arguments completely miss the mark. 

When the Attorney General steps in, without a referral, he has stripped

the FEC of any and all jurisdiction to do anything, including civil

enforcement of the Act. In short, the Attorney General does violence to the

congressional command that the Commission shall have “exclusive

jurisdiction of civil enforcement.” 2 U.S.C. § 437c(b). “Exclusive” means
-37-

exactly what it says: that the FEC has jurisdiction to the exclusion of all others

including the Attorney General! Indeed, the Attorney General’s proposition of

“shared exclusive jurisdiction” is an oxymoron. The statute requires that the

FEC exhaust its administrative functions before making a referral to the

Attorney General. 

The Attorney General’s position is also at odds with the abstention

doctrine of primary jurisdiction. The absurd concept of ‘shared primary

jurisdiction’ is entirely unworkable under the Federal Campaign Finance Act. 

Primary jurisdiction is used by the federal courts to abstain from hearing

certain matters until after the agency has had an opportunity to interpret

unanswered technical factual issues. Order of Ry. Conductors v. Pitney, 326

U.S. 561, 567 (1946); United States v. Haun, 124 F.3d 745 (6th Cir.

1997)(“The doctrine of primary jurisdiction arises when a claim is properly

cognizable in court but contains some issue within the special competence of

an administrative agency.”). The doctrine of primary jurisdiction is designed

to promote comity between courts and administrative agencies and applies

with equal force to both civil proceedings and criminal prosecutions. See

United States v. Pacific & Arctic Co., 228 U.S. 87, 106-08 (1913); United
-38-

States v. Alaska Steamship Co., 110 F. Supp. 104, 111 (Dist. D.C. 1952). I n

Haun, the Sixth Circuit emphasized that:

‘Primary jurisdiction,’ . . . applies where a claim is

originally cognizable in the courts, and comes into

play whenever enforcement of the claim requires the

resolution of issues which, under a regulatory

scheme, have been placed within the special

competence of an administrative body; in such a case

the judicial process is suspended pending referral of

such issues to the administrative body for its views.

Haun, 124 F.3d at 749 (quoting United States v. Western Pac. R.R., 352 U.S.

59, 63-64 (1956)). Here, Congress expressly delegated to the FEC the sole

statutory responsibility to issue advisory opinions as to whether certain

conduct or transactions fell within the scope of the Act, and promulgate rules

“necessary to carry out the provisions of th[e] Act” and to “encourage

voluntary compliance . . .” 2 U.S.C. § 437d. 

If the Attorney General were permitted, in the first instance, to

investigate and prosecute without a referral from the FEC, the value of the

Commission’s practices and rules designed to promote voluntary compliance

and avoid the rigors of litigation would be gutted. Arkansas Best Corp. v.

Comm’r of Internal Revenue Serv., 485 U.S. 212 (1988)(an interpretation of a

statutory provision that renders another superfluous cannot be correct).
-39-

The following example best illustrates this point: the Attorney General

issues an indictment while at the same time the FEC is drafting an advisory

opinion as to whether the conduct forming the basis of the indictment is

proscribed by the Act. In these circumstances, the courts must ordinarily defer

to the rule making authority of the FEC under the doctrine of primary

jurisdiction. United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 353

(1963)(primary jurisdiction “requires judicial abstention in cases where

protection of the integrity of a regulatory scheme dictates preliminary resort to

the agency which administers the scheme”). 

If the Attorney General could proceed unfettered without referral from

the FEC, the Attorney General’s prosecutions would constantly be at odds

with courts who must defer jurisdiction of the matter to the FEC as the

administrative agency exclusively possessed with the exclusive

implementation and enforcement of the Act. Congress intended to avoid

this quagmire completely by plainly writing a statute which mandates that the

FEC has the first opportunity to consider the conduct or transaction and decide

whether to refer the matter to the Attorney General. The plain wording of the

Act conclusively establishes that Congress intended the FEC to exercise
-40-

“exclusive” jurisdiction over the investigation of all alleged violations of the

Act before the Attorney General can ever initiate a criminal investigation.

CONCLUSION AND RELIEF SOUGHT

The Federal Election Commission has primary and exclusive

jurisdiction over the Federal Election Campaign Act. Only by an affirmative

vote of a majority of four members may the Commission refer to the Attorney

General knowing and willful violations of the Act. Without a referral by the

FEC, the Attorney General has no jurisdiction to investigate or prosecute

suspected campaign finance violations. 

It is important to stress that the activity of the Attorney General as

documented here is unlike ever before. For nearly 30 years, virtually all

campaign finance cases have been resolved by the FEC – not the Justice

Department. The FEC is willfully failing to comply with the requirements of

the Federal Campaign Finance Act in order to assist the Attorney General to

engage in politically motivated investigations like the one now before this

Court. 

Accordingly, Appellant Mr. Marcus respectfully requests that this

Honorable Court reverse the judgment of the district court, grant his motion

for declaratory judgment, and conclude that the Attorney General’s conduct is 
-41-

unlawful, unconstitutional, and contrary to the requirements of the Federal

Election Campaign Act.

Respectfully submitted,

FIEGER, FIEGER, KENNEY, JOHNSON

& GIROUX, P.C.

 

Michael R. Dezsi

Counsel for Plaintiff-Appellant Jon Marcus

19390 W. Ten Mile Road

Southfield, MI 48075

(248) 355-5555

m.dezsi@fiegerlaw.com

Dated: April 25, 2008
-42-

Docket No. 07-1284

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(On appeal from the United States District Court, District of Arizona,

Civil Action No. 07-cv-00398-EHC

the Honorable Earl H. Carroll)

JON MARCUS,

Plaintiff-Appellant, 

vs. 

 

UNITED STATES ATTORNEY GENERAL ALBERTO R.

GONZALES, FEDERAL ELECTION COMMISSION CHAIRMAN

MICHAEL E. TONER, In their official capacities,

Defendants-Appellees.

CERTIFICATE OF COMPLIANCE

As required by Fed. R. App. P. 32(a)(7)(C), I hereby certify that this

brief complies with the type-volume limitation provided in Fed.R.App.P.

32(a)(7)(B). The foregoing brief is proportionally spaced Times New Roman

(Point 14), and contains 8,349 words. I relied on my WordPerfect software to

obtain the word count.

 

Michael R. Dezsi

Counsel for Plaintiff-Appellant Jon Marcus

19390 W. Ten Mile Road

Southfield, MI 48075

(248) 355-5555

Dated: April 25, 2008 m.dezsi@fiegerlaw.com
-43-

Docket No. 07-1284

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

(On appeal from the United States District Court, District of Arizona,

Civil Action No. 07-cv-00398-EHC

the Honorable Earl H. Carroll)

JON MARCUS,

Plaintiff-Appellant, 

vs. 

 

UNITED STATES ATTORNEY GENERAL ALBERTO R.

GONZALES, FEDERAL ELECTION COMMISSION CHAIRMAN

MICHAEL E. TONER, In their official capacities,

Defendants-Appellees.

CERTIFICATE OF SERVICE

Michael R. Dezsi hereby certifies that on the 25 day of April, 2008 he th

caused to be served a copy of Plaintiff-Appellant’s Opening Brief on Appeal

and Appendix upon the following individuals by placing same in the U.S.

Mail, postage fully prepaid:
-44-

Eric Fleisig-Greene, Esq.

Michael S. Raab, Esq.

U.S. Department of Justice

Civil Division, Room 7214

Washington, D.C. 20530-0001

Gregory J. Mueller, Esq.

Federal Election Commission

999 E. St., N.W.

Washington, D.C. 20463

 

Michael R. Dezsi

Counsel for Plaintiff-Appellant Jon Marcus

19390 W. Ten Mile Road

Southfield, MI 48075

(248) 355-5555

m.dezsi@fiegerlaw.com