UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

:

Ralph Nader :

53 Hillside, Winsted, Connecticut 06098, :

:

Plaintiff, :

:

v. : Civil Action No. ______________

:

Federal Election Commission, :

999 E Street, NW, Washington, DC, 20463 :

:

Defendant. :

:

COMPLAINT

INTRODUCTION

1. This lawsuit is brought against the Federal Election Commission (“FEC”), to

remedy the agency’s wrongful dismissal of Plaintiff’s administrative complaint against

individuals and entities affiliated with the Democratic Party, who made, solicited or accepted

millions of dollars in unreported and unlawful contributions and expenditures during the 2004

General Election (collectively, the “Respondents”).

2. In clear violation of the Federal Election Campaign Act of 1971 (“FECA” or the

“Act”) and its own regulations, the agency failed to serve the administrative complaint on certain

Respondents, delayed serving other Respondents for several months, and then relied on its own

failure and delay as grounds for dismissal. By definition, therefore, the FEC’s wrongful dismissal

was contrary to law, and reversal is necessary for that reason alone.1

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Plaintiff’s allegations that the FEC failed to serve the administrative complaint on the law firm Respondents and

others rely on the representations of Attorney Roy Q. Luckett of the agency’s General Counsel’s office, as set forth

in the Affidavit of Counsel Oliver B. Hall submitted in support of this Complaint. Further, the record discloses no

indication that the agency served such Respondents.

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3. Reversal is also necessary because the FEC’s conclusion that it had no reason to

believe Respondents violated the Act was arbitrary and capricious and an abuse of discretion.

The FEC’s own General Counsel concluded that the violations alleged in the administrative

complaint are “based on a viable theory.” Further, the agency easily could have confirmed that

Respondents committed such violations by serving the administrative complaint upon them and

obtaining a response. Instead, for nearly two years prior to its wrongful dismissal, the FEC failed

to conduct any investigation whatsoever, and then concluded that “the available information”

does not indicate that Respondents committed the alleged violations. On the contrary, the

administrative complaint provides reason to believe that Respondents violated the Act, and the

FEC has a statutory duty to investigate the allegations and evidence set forth therein.

4. The administrative complaint, which the FEC designated as Matter Under Review

(“MUR”) 6021, alleges that Respondents Democratic National Committee (“DNC”) and Kerry

for President 2004, Inc. (the “Kerry-Edwards Campaign”) planned, directed and participated in a

coordinated nationwide effort to oppose the 2004 independent presidential campaign of Ralph

Nader and Peter Miguel Camejo (the “Nader-Camejo Campaign”). Respondents’ goal was to

help the Kerry-Edwards Campaign win the 2004 presidential election by denying voters the

choice of voting for a competing candidacy, and by convincing “progressive” voters not to vote

for the Nader-Camejo ticket. To achieve that goal, Respondents organized state court or

administrative challenges to Nader-Camejo nomination papers in 18 states, and launched a

nationwide communications campaign that expressly advocated against the Nader-Camejo

candidacy. In the course of such conduct, Respondents violated numerous provisions of the Act.

5. The FEC’s wrongful dismissal of the administrative complaint caused Plaintiff

direct injury. Despite being presented with clear evidence that Respondents committed numerous

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violations of the Act, including knowing and willful violations, and that certain Respondents

may have criminally interfered with Plaintiff’s 2004 presidential campaign, the FEC failed to

conduct an investigation, and also declined Plaintiff’s request that it refer this matter to the

Justice Department. The FEC thus deprived Plaintiff of the protection of federal law, and

prevented Plaintiff from accessing information that Respondents are required by law to disclose.

Further, as set forth below, the FEC’s wrongful dismissal threatens Plaintiff with imminent harm,

because certain Respondents continue to pursue enforcement of a costs judgment that they

fraudulently procured against Plaintiff as a result of conduct that violated the Act.

PARTIES

6. Plaintiff Ralph Nader was an Independent candidate for President of the United

States in the 2004 presidential election. Mr. Nader also ran for President in 2000 as a candidate

of the Green Party, and in 2008 as an Independent candidate. Mr. Nader continues to advocate on

behalf of minor party and independent candidates, and may run for office again.

7. Defendant Federal Election Commission is a federal agency created under the

statutory authority of FECA. 2 U.S.C. § 437c. The FEC is responsible for ensuring compliance

with the Act, including its reporting requirements, its prohibitions against corporate and labor

union contributions, its limitations on individual contributions, and its requirements that political

committees register with and make disclosures to the agency. 2 U.S.C. § 431 et seq. The FEC

also has authority to refer matters involving knowing and willful violations of the Act to the

Justice Department for criminal prosecution. 2 U.S.C. § 437g(a)(5)(C).

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JURISDICTION AND VENUE

8. This action arises under FECA and the Declaratory Judgment Act. 2 U.S.C. § 431

et seq.; 28 U.S.C. § 2201. The jurisdiction of this Court is conferred by 2 U.S.C. § 437g and 28

U.S.C. § 1331.

ALLEGATIONS

Summary of Underlying Allegations in the Administrative Complaint

9. Respondents are members, allies or affiliates of the Democratic Party who

engaged in a coordinated nationwide effort to oppose the Nader-Camejo Campaign during the

2004 presidential election. Ad. Com. 2. Respondents’ goal was to help Democratic candidates

John Kerry and John Edwards win the election by denying voters the choice of voting for a

competing candidacy, and by convincing “progressive” voters not to vote for the Nader-Camejo

ticket. Ad. Com. 2. To achieve their goal, Respondents organized legal or administrative

challenges to Nader-Camejo nomination papers in 18 states, and launched a nationwide

communications campaign that expressly advocated against the Nader-Camejo candidacy. Ad.

Com. 2-20; ¶¶ 155-71.

10. Respondents’ effort to oppose the Nader-Camejo Campaign was part of a

campaign strategy jointly planned and executed by Respondents DNC and the Kerry-Edwards

Campaign. Ad. Com. ¶¶ 155-71. Approximately three dozen leaders and organizers of

Respondents’ effort met at the Four Seasons Hotel in Boston on July 26, 2004 to coordinate

plans and discuss the details of their strategy. Ad. Com. ¶ 156. Respondent Robert Brandon, a

DNC consultant, organized the meeting, and the DNC paid for it. Ad. Com. ¶¶ 156.

11. The Democratic National Convention began the same day as Respondents’ Four

Seasons meeting, and was being held across town at Boston’s Fleet Center. Ad. Com. ¶ 159.

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Respondents planned to use the convention as a platform to introduce their litigation strategy to

delegates from state Democratic Parties, whom they would enlist to file ballot access challenges

against the Nader-Camejo Campaign, and to solicit financial support from major party donors.

Ad. Com. ¶ 159. Respondents prepared a memo for this purpose, which they later circulated at

the convention. Ad. Com. ¶ 160.

12. The memo outlined Respondents’ comprehensive litigation and communications

strategy against the Nader-Camejo Campaign. Ad. Com. ¶ 160. The memo stated that

Respondents would coordinate and finance their activities with three Section 527 organizations

they had established. Ad. Com. ¶ 160. One was The Ballot Project, which would coordinate

Respondents’ litigation strategy and recruit law firms and lawyers to challenge Nader-Camejo

nomination papers in as many states as possible. Ad. Com. ¶ 160. The other two were the

National Progress Fund and Uniting People for Victory, which would coordinate and finance

Respondents’ communications campaign.2 Ad. Com. ¶ 160. The memo further stated that

Respondents would work to convince Nader-Camejo supporters that the independent candidates

were “in bed with Republicans,” a message Democratic consultant Stanley Greenberg found

most effective in polling he conducted prior to the Four Seasons meeting. Ad. Com. ¶ 160.

13. By relying on Section 527 organizations and others, Respondents could present

their opposition to the Nader-Camejo Campaign to voters – and to the FEC – as an ostensibly

independent, “grassroots” effort, when in fact, the administrative complaint alleges, it was an

integral part of a nationwide campaign strategy planned and executed by the DNC and the KerryEdwards Campaign. Ad. Com. ¶¶ 155-71. Respondents thus violated numerous provisions of the

Act.

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Respondents’ Use of Unlawful and Unreported Corporate Contributions to Finance Ballot

Access Litigation Against the Nader-Camejo Campaign

14. To achieve their goal of denying voters the choice of voting for the Nader-Camejo

ticket, Respondents organized state court or administrative challenges to Nader-Camejo

nomination papers in 18 states, including Arizona, Arkansas, Colorado, Florida, Illinois, Iowa,

Maine, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, Ohio, Oregon,

Pennsylvania, Washington, West Virginia and Wisconsin. Ad. Com. ¶ 164. In the course of such

conduct, Respondents made, solicited or accepted millions of dollars in unreported and unlawful

contributions and expenditures to benefit the Kerry-Edwards Campaign.

15. FECA defines a campaign contribution to include “any gift, subscription, loan,

advance, or deposit of money or anything of value made by any person for the purpose of

influencing any election for Federal office.” 2 U.S.C. 431(8)(A)(i). Applying this provision to

ballot access challenges, the FEC has determined that:

a candidate’s attempt to force an election opponent off the ballot so that the electorate

does not have an opportunity to vote for that opponent is as much an effort to influence

an election as is a campaign advertisement derogating that opponent. FEC Advisory

Opinion 1980-57.

Respondents’ concerted effort to force the Nader-Camejo ticket off the ballot for the benefit of

the Kerry-Edwards Campaign thus constitutes an effort to influence the 2004 presidential

election. Respondents’ contributions and expenditures in connection with that effort, including

the value of the legal services rendered by Respondent law firms in the 18 states where

Respondents challenged Nader-Camejo nomination papers, are therefore subject to the Act’s

reporting requirements and limitations and prohibitions. 2 U.S.C. §§ 434; 441a; 441b; see FEC

AO 1980-57 (funds solicited by Democratic Party to finance candidate’s litigation challenging

2 A fourth Section 527 organization, Americans for Jobs, was originally established to fund communications

opposing Howard Dean during the 2004 Democratic primaries, but was terminated thereafter, and its remaining

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opponent’s ballot access are campaign contributions); FEC AO 1983-37 (funds are campaign

contributions if used “to initiate legal action to remove an identified candidate from the ballot”);

AO 2006-22 (the value of legal services law firm provides on behalf of a campaign committee in

a court case addressing the ballot eligibility of another candidate is an in kind contribution).

16. In clear violation of the Act, Respondents failed to report millions of dollars in

legal services rendered without charge by Respondent law firms that challenged Nader-Camejo

nomination papers. 2 U.S.C. 434. Respondents also violated the Act by failing to report the value

of Respondent law firm resources – including office space, support staff, computers, equipment,

supplies and related materials – used by Respondent attorneys in connection with such

challenges. Id. Respondents further violated the Act by making, soliciting or accepting such

contributions and expenditures from incorporated law firm Respondents, in violation of the

prohibition on corporate contributions and expenditures. 2 U.S.C. 441b(a); see AO 2006-22.

17. At least 95 lawyers from 53 law firms joined Respondents’ litigation, filing 24

complaints to challenge Nader-Camejo nomination papers in 18 states. Ad. Com. ¶¶ 170, 172-

307. In August 2004, with Respondents’ litigation in full swing, The Ballot Project’s president,

Respondent Toby Moffett, told the Washington Post that Respondent law firms had already

provided $2 million in legal services, without charge. Ad. Com. ¶ 170. By Mr. Moffett’s own

estimation, therefore, the total value of the legal services that Respondent law firms unlawfully

contributed to the Kerry-Edwards Campaign greatly exceeds $2 million. None of these

prohibited corporate contributions were reported. Ad. Com. 6.

18. In an apparent attempt to avoid the Act’s reporting requirements and prohibitions

and limitations, Respondents falsely denied that their ballot access challenges were part of a

$225,000 in funds was used to establish the National Progress Fund.

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nationwide campaign strategy coordinated by the DNC and the Kerry-Edwards Campaign. For

example, on August 17, 2004, the New York Times reported the following:

[Respondents’] legal strategies in most states are being developed by local Democrats,

but The Ballot Project is helping them to find lawyers to work pro bono and share

information. “We’re doing everything we can to facilitate lawyers in over 20 states,” said

Toby Moffett. ...

Because of federal campaign finance laws, [The Ballot Project] cannot coordinate its

activities with either the Kerry campaign or the national Democratic Party, but the party

approves of the legal challenges, said Jano Cabrera, a spokesman, and is closely

monitoring Mr. Nader’s progress.

On September 4, 2004, the Associated Press reported a similar story:

In dozens of states, Democratic state parties have backed a myriad of legal challenges to

Nader’s efforts to win ballot access, frustrating his supporters and draining his resources.

“Our state parties made the decision to make sure that if Ralph Nader wanted to get on

the ballot, that he was playing by the rules,” said Democratic National Committee

spokesman Jano Cabrera. He said the national party is not funding the efforts but fully

supports what state parties are doing.

Ad. Com. ¶ 166 & n.84. State Democratic Party chairs likewise denied that they had filed ballot

access challenges in their states as part of a nationwide effort coordinated by the DNC and the

Kerry-Edwards Campaign, and Respondent John Kerry denied that his campaign would

participate in such litigation. Ad. Com. ¶ 168.

19. Evidence cited in the administrative complaint, however – including

Respondents’ own internal email records – suggests that the DNC and Kerry-Edwards Campaign

not only coordinated, but also directly participated in Respondents’ litigation against the NaderCamejo Campaign. For example, on September 17, 2004, DNC employee Caroline Adler, who

worked as a member of the Kerry-Edwards Campaign legal team in Washington, D.C., sent DNC

staff an email with an attachment entitled “Script for Nader Petition Signers,” which DNC

employees used to help Respondents prepare challenges to Nader-Camejo nomination petitions.

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Ad. Com. ¶ 167. The document’s electronic properties indicate that DNC and Kerry-Edwards

Campaign consultant Jack Corrigan was its author. Ad. Com. ¶ 167. Another email, sent by

Kerry-Edwards Campaign deputy national director for northern New England Judy Reardon on

September 12, 2004, indicates that Ms. Reardon herself drafted at least one of Respondents’

complaints and coordinated with the Democratic Party officials and attorneys who filed it,

including New Hampshire Democratic Party Chair and DNC official Kathleen Sullivan. Ad.

Com. ¶ 168.

20. Further, contrary to Respondent DNC’s public misrepresentations, the FEC’s own

records confirm that the DNC did in fact retain several law firm Respondents, including those

that challenged Nader-Camejo nomination petitions in Ohio, Maine, Mississippi and

Pennsylvania. Ad. Com. ¶ 166. Specifically, the DNC and its state party affiliates paid at least

$527,508 to retain Respondent law firms that challenged Nader-Camejo nomination papers in

Florida, Maine, Mississippi, Ohio, Oregon and Pennsylvania. Ad. Com. 4. Internal Revenue

Service (“IRS”) records likewise confirm that The Ballot Project spent an additional $331,398 on

lawyers, expert witnesses and others, mainly in connection with Respondents’ Florida challenge.

Ad. Com. 5. Only a few of the 95 Respondent law firms that joined Respondents’ litigation

received payment for their services, however, and such payments are exclusive of the millions of

dollars in unreported and unlawful legal services that Respondent law firms provided without

charge.

21. DNC official and Maine Democratic Party Chair Dorothy Melanson provided

further confirmation that the DNC and the Kerry-Edwards Campaign coordinated Respondents’

litigation, by testifying under oath that DNC officials directed her to file a challenge in that state

and paid the costs of her lawsuit, including attorneys’ fees. Ad. Com. 4; Ad. Com. ¶ 114. Five

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more DNC officials serving as state party chairs filed challenges in their own names, including

those in Florida, Michigan, Mississippi, New Hampshire and Washington. Ad. Com. ¶ 165. In

addition, lawyers recruited by the Kerry-Edwards Campaign to join the group Lawyers for Kerry

filed challenges in Ohio, New Mexico and Pennsylvania. Ad. Com. ¶ 169.

22. The great majority of Respondents’ ballot access challenges failed. Nineteen of

Respondents’ 24 complaints were dismissed. Further, in four out of five states where

Respondents’ challenges “succeeded,” they did so by invoking unconstitutional statutes that

federal courts later struck down (in Arizona and Ohio) and/or by interfering with the NaderCamejo Campaign’s efforts to comply with state election laws (in Ohio, Oregon and

Pennsylvania). Ad. Com. ¶¶ 242-47, 257-63, 270, 280. But for such unconstitutional statutes and

unlawful interference, the Nader-Camejo ticket would have been on the ballot in Arizona, Ohio,

Oregon and Pennsylvania.

23. Respondents confirmed on numerous occasions, however, that the purpose of

their ballot access challenges was not to vindicate valid claims, but rather to distract the NaderCamejo Campaign and drain its resources, by forcing it to defend lawsuits that Respondents

themselves did not expect to prevail. Ad. Com. ¶¶ 155, 157, 171. Respondents’ apparently

knowing and willful violations of the Act therefore provided them with a significant advantage in

their effort to drain the Nader-Camejo Campaign of resources. By using prohibited corporate

contributions to finance their litigation, which they failed to report, Respondents were free to file

as many challenges as possible, unconstrained by the Act’s prohibitions and limitations.

Respondents’ Unlawful Interference With the Nader-Camejo Campaign

24. Because litigation alone was unlikely to prevent the Nader-Camejo Campaign

from gaining ballot access, Respondents in states such as Ohio, Oregon and Pennsylvania

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organized concerted efforts to prevent the independent candidates from complying with state

election laws, by sabotaging their nomination petitions, disrupting their nominating conventions

and/or falsely threatening or harassing their petition circulators. Ad. Com. ¶¶ 242-47, 257-63,

270, 280. In the course of such conduct, Respondents in Oregon committed further violations of

the Act.3

25. In Oregon, Multnomah County Democratic Party official Moses Ross sent an

email urging party members to attend a June 26, 2004 Nader-Camejo nominating convention

under false pretenses, and to refuse to sign the independent candidates’ nominating petitions, so

that the convention would fall short of the number of verified attendees required by law. Ad.

Com. ¶ 258. Mr. Ross and at least 100 others did so, causing the convention to fall short, even

though legitimate Nader-Camejo supporters were denied entry by state officials. Ad. Com. ¶ 258.

26. When the Nader-Camejo Campaign next attempted to access Oregon’s ballot by

collecting signatures, as the state’s law alternatively permits, Respondent Service Employees

International Union (“SEIU”) hired private investigators, who visited Nader-Camejo petition

circulators at their homes and falsely threatened them with prison sentences if they submitted

signatures that were invalidated. Ad. Com. ¶ 261. The private investigators delivered a letter

from a law firm retained by SEIU, which falsely threatened the petition circulators with

“conviction of a felony with a fine of up to $100,000 or prison for up to five years.” Ad. Com. ¶

261.

3 Respondents’ harassment of Nader-Camejo petition circulators in Ohio is fully recounted in the administrative

complaint. Ad. Com. 68-70, ¶¶ 242-47. In Pennsylvania, unidentified individuals planted approximately 7,000

phony signatures in the Nader-Camejo nomination petitions, which paid petition circulators identified and withdrew

prior to submission. Ad. Com. ¶ 280. Further, as discussed infra, Respondents’ Pennsylvania challenge was the

product of a criminal conspiracy to deny the Nader-Camejo ticket ballot access, which was hatched before the

independent candidates had even submitted their nomination petitions.

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27. SEIU and its affiliated Section 527 organization America Coming Together

(“ACT”) took even more aggressively unlawful measures to disqualify Nader-Camejo

nominating petitions. Ad. Com. ¶ 262. According to ACT employee William Gillis, high-level

officers of both organizations (which shared the office space in which he worked) directed

staffers to sabotage Nader-Camejo nominating petitions by deliberately signing them in a manner

that would invalidate entire sheets of signatures. Ad. Com. ¶ 262. The Oregon Secretary of State

subsequently invalidated hundreds of signatures on that basis. Ad. Com. ¶ 265.

28. Like Respondents in other states, SEIU and ACT publicly stated that their goal

was to benefit the Kerry-Edwards Campaign by denying ballot access to the Nader-Camejo

Campaign. For example, an ACT spokesperson told CBS News in April 2004, “If we think it gets

to a point where we need to step in and mobilize to make sure [the Nader-Camejo ticket] doesn’t

get on the ballot, then we will.” Ad. Com. ¶ 257. SEIU also endorsed and publicly committed its

resources to electing John Kerry in 2004, and SEIU intervened in proceedings to challenge the

Nader-Camejo Oregon nomination petitions. Ad. Com. ¶ 268. Further, according to SEIU’s own

documents, “SEIU gave $1 million to the DNC.” Ad. Com. ¶ 268.

29. The Act prohibits labor organizations such as SEIU from making contributions to

a national political party, and contributions by SEIU’s political action committee to political

parties are limited to $15,000. 2 U.S.C. §§ 441b(a), 441a(a)(2)(B). Therefore, all contributions

and expenditures by SEIU in connection with its effort to deny the Nader-Camejo ticket ballot

access in Oregon or elsewhere, including compensation paid to the law firm that SEIU retained

to “investigate” Nader-Camejo petitioners and to intervene in the Oregon proceedings,

compensation paid to SEIU staff that participated in Respondents’ effort to deny Nader-Camejo

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ballot access, and any other thing of value that SEIU contributed to Respondents’ effort violated

the Act. Id. In addition, SEIU’s $1 million contribution to the DNC violated the Act. Id.

Respondents’ Communications Against the Nader-Camejo Campaign

30. To achieve their goal of convincing “progressive” voters not to vote for the

Nader-Camejo ticket, Respondents launched a nationwide communications campaign that

expressly advocated against the independent candidates. Ad. Com 8-17. In the course of such

conduct, Respondents made or accepted, and failed to report, hundreds of thousands of dollars in

unlawful contributions and expenditures. Ad. Com. 8-17.

31. Like their litigation against the Nader-Camejo Campaign, Respondents planned

and coordinated the details of their communications strategy during their July 26, 2004 meeting

at Boston’s Four Seasons Hotel. Ad. Com. ¶ 157. Democratic pollster Stanley Greenberg

presented his findings to the attendees, including Respondent Robert Brandon, the DNC

consultant who housed both The Ballot Project and Uniting People for Victory in his offices. Ad.

Com. ¶¶ 156, 160. Greenberg’s message that the Nader-Camejo Campaign was “in bed with

Republicans” became the predominant theme of Respondents’ communications. Ad. Com. 11.

32. To execute Respondents’ communications strategy, the National Progress Fund

and Uniting People for Victory hired political consultants and pollsters, produced press materials

and advertisements, and paid to broadcast these advertisements on television, radio and other

media outlets throughout the country. Ad. Com. 8-9. For example, the National Progress Fund

paid Stanley Greenberg’s firm $25,000 in June 2004, and The Ballot Project paid Greenberg’s

firm another $10,000 in July 2004. Ad. Com. ¶ 160. To further publicize Respondents’ message,

the National Progress Fund established the website www.thenaderfactor.com, while Uniting

People for Victory established www.upforvictory.com. Ad. Com. 9.

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33. Both the National Progress Fund and Uniting People for Victory produced

advertisements containing express advocacy against the Nader-Camejo Campaign and in support

of the Kerry-Edwards Campaign. The National Progress Fund produced and broadcast at least

eight different radio and television advertisements, which included statements such as: “Ralph

Nader’s candidacy in 2000...helped put George Bush in office”; “by supporting Ralph Nader, I

actually helped George Bush”; “I made a mistake supporting Ralph Nader, because it helped

George Bush”; and “After all the good he has done, Ralph Nader’s legacy could be reduced to

four more years of George Bush.” Ad. Com 11-12. The unambiguous meaning of this language –

and the message of the advertisements themselves – was that progressive voters should not vote

for Ralph Nader.

34. Uniting People for Victory primarily produced advertisements in the form of

“open letters” to Nader-Camejo supporters, and developed anti-Nader-Camejo/pro-KerryEdwards talking points, fact sheets, flyers, letters to the editor and related materials. Ad. Com.

15. These advertisements and materials included statements such as, “Voting for John Kerry and

John Edwards is the only choice for those of us who want to safeguard progressive values,” and

“Citizens who believe in a progressive agenda should vote for John Kerry. A vote for Nader

could result in four more years of George Bush.” Ad. Com. 15.

35. The National Progress Fund made expenditures of $516,334 to finance

Respondents’ communications. Ad. Com. 10. Uniting People for Victory (and its affiliated

political committee United Progressives for Victory) made expenditures of approximately

$235,000 for the same purpose. Ad. Com. 15.

Respondents’ Unlawful Use of Section 527 Organizations to Coordinate and Finance Their

Opposition to the Nader-Camejo Campaign

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36. Neither the National Progress Fund nor Uniting People for Victory engaged in

any advocacy that was unrelated to Respondents’ goal of persuading Nader-Camejo supporters to

vote for the Kerry-Edwards ticket. Just as Respondents established The Ballot Project

specifically to coordinate their litigation against the Nader-Camejo Campaign, Respondents also

established the National Progress Fund and Uniting People for Victory specifically to coordinate

their communications against the Nader-Camejo Campaign. All three Section 527 Respondents

terminated following the conclusion of the 2004 election, without engaging in any other activity.

37. Because The Ballot Project, the National Progress Fund and Uniting People for

Victory received contributions and made expenditures in excess of $1000, and because they

primarily engaged in activity intended to help elect John Kerry as a candidate in the 2004

General Election, these Section 527 Respondents – like Respondents’ fourth Section 527

organization Americans for Jobs – fall within the Act’s definition of “political committee,” and

satisfy the “major purpose” test established by the Supreme Court. 2 U.S.C. § 431; see Buckley v.

Valeo, 424 U.S. 1, 79 (1976) (an organization is a political committee under FECA if its major

purpose is to influence the election of federal candidates).

38. In clear violation of the Act, The Ballot Project, the National Progress Fund,

Uniting People for Victory and Americans for Jobs each failed to register as political

committees, and each of these Section 527 Respondents also violated the Act’s reporting

requirements and prohibitions and limitations. 2 U.S.C. §§ 431, 433, 434, 441a, 441b.

39. Further, the violations committed by the individual Respondents who established

The National Progress Fund and Uniting People for Victory appear to be knowing and willful.

For example, in order to avoid triggering the $1,000 threshold for registration of political

committees, the National Progress Fund improperly reported its express advocacy against the

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Nader-Camejo Campaign as electioneering communications, thus plainly misrepresenting the

content and purpose of its advertisements. Ad. Com. 12. Although the Respondents who

established Uniting People for Victory did register with the FEC in June 2004 (under the name

“United Progressives for Victory”), one month later they established their Section 527

organization (under the name “Uniting People for Victory”), which they failed to register or

operate in compliance with the Act. Ad. Com. 15. These Respondents also apparently failed to

respond to a letter from the FEC, which requested that they identify “any affiliated or connected

organization” – information that the letter states is “essential to full public disclosure of your

federal election campaign finances.” Ad. Com. 16.

40. Once again, Respondents’ apparently knowing and willful violations of the Act

provided them with a significant advantage in their effort to convince “progressive” voters to

support the Kerry-Edwards Campaign instead of the Nader-Camejo Campaign. By using

unregistered Section 527 organizations to finance their communications, Respondents were free

to publicize express advocacy against the Nader-Camejo Campaign, unconstrained by the Act’s

prohibitions on corporate and labor union contributions and its limitations on individual

contributions.

Respondents’ Violations of the Act

41. The foregoing account, which is only a summary of the relevant allegations and

evidence, clearly provided the FEC with reason to believe that Respondents committed the

following violations, as set forth in the administrative complaint:

Count 1 – Respondents DNC, the Kerry-Edwards Campaign, The Ballot Project, at least

95 lawyers from 53 law firms, 18 state or local Democratic Parties and an unknown

number of DNC and Democratic Party employees made, solicited or accepted, and failed

to report, millions of dollars in prohibited in kind contributions from the corporate law

firm Respondents that provided legal services, without charge, in litigation initiated

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against the Nader-Camejo Campaign, for the benefit of the Kerry-Edwards Campaign, in

violation of 2 U.S.C. §§ 434, 441a and 441b;

Count 2 – Respondent SEIU and its affiliated Section 527 organization ACT made, and

failed to report, prohibited contributions and expenditures in connection with their effort

to prevent the Nader-Camejo Campaign from accessing Oregon’s ballot, in violation of 2

U.S.C. §§ 434, 441a(a)(2)(B) and 441b(a), and further, SEIU made, and failed to report, a

prohibited contribution of $1,000,000 to Respondent DNC, in violation of 2 U.S.C. §§

434, 441a(a)(2)(B) and 441b(a);

Count 3 – Respondents National Progress Fund, Uniting People for Victory, The Ballot

Project, Americans for Jobs and the individual Respondents who served as officers and

employees of these organizations failed to register their Section 527 organizations as

political committees, and failed to comply with the Act’s reporting requirements and

prohibitions and limitations, in violation of 2 U.S.C. §§ 432, 434, 441a and 441b.

Newly Discovered Evidence That Respondents’ Pennsylvania Challenge Was Prepared By

Means of a Criminal Conspiracy to Misappropriate Taxpayer Funds and Resources for the

Benefit of the Kerry-Edwards Campaign

42. If the FEC entertained any doubt that it had reason to believe Respondents

committed the foregoing violations, a Grand Jury Presentment filed by the Pennsylvania

Attorney General on July 10, 2008 (“Presentment”) substantially confirmed that Respondents’

Pennsylvania challenge, at least, was intended to influence the 2004 presidential election for the

benefit of the Kerry-Edwards Campaign. The Attorney General’s ensuing prosecution also

provided clear, convincing and undisputed evidence that Respondents’ Pennsylvania challenge

was prepared by means of a criminal conspiracy to misappropriate taxpayer funds and resources

for the benefit of the Kerry-Edwards Campaign. Plaintiff therefore submitted two supplements to

the administrative complaint, on September 24, 2008 (“Supp. 1”) and January 7, 2010 (“Supp.

2”), which summarized such newly discovered evidence.4

43. The Presentment includes detailed findings indicating that “a veritable army” of

state employees – “as many as fifty [Pennsylvania House Democratic] Caucus staff members” –

unlawfully prepared Respondents’ Pennsylvania challenge, which Respondent Reed Smith, LLP

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filed, at taxpayer expense. Supp. 1 at 8. According to the sworn testimony of state employee

Melissa Lewis, Respondent Efrem Grail, a partner in Reed Smith, coordinated this effort. Supp.

2 at 2. Reed Smith is one of the law firms that the DNC retained during the 2004 election, and

the firm also represented John Kerry in at least one other matter arising from the 2004 election.

Ad. Com. ¶ 286.

44. The Grand Jury based its findings on evidence such as the following email, which

former Pennsylvania House Minority Whip Michael Veon sent to his staff after Respondents’

Pennsylvania challenge removed the Nader-Camejo ticket from the ballot:

FYI... great job by our staff! This would never ever have been successful

without your work. You have given John Kerry an even better opportunity

to win this state... one of the most 5 [sic] important states to win this year.

That is a very significant fact and significant contribution by each one of

you to the Kerry for president campaign... you should take great pride in

your efforts (emphasis added).

Supp. 1 at 9. This evidence that Respondents’ Pennsylvania challenge was intended to influence

the election, for the benefit of the Kerry-Edwards Campaign, could hardly be more clear. The

Presentment also includes detailed findings that quantify the taxpayer funds and resources that

were misappropriated in connection with Respondents’ Pennsylvania challenge, including

taxpayer-funded bonuses that were specifically paid to induce state employees to work on the

challenge. Supp. 1 Ex. A 54-58.

45. Prior to the commencement of the Pennsylvania Attorney General’s Grand Jury

investigation, Respondent Efrem Grail and his colleagues submitted a bill of costs requesting that

the Pennsylvania court order Mr. Nader and Mr. Camejo to pay $81,102.19 in litigation costs

that they purportedly incurred in connection with their challenge. Ad. Com. ¶ 282. These

Respondents failed to disclose that state employees had prepared their challenge at taxpayer

4 The supplemented submitted on January 7, 2010 was incorrectly dated January 7, 2009.

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expense, and the court awarded the requested costs. Ad. Com. ¶ 283. Thereafter, in July 2007,

Respondent Reed Smith initiated attachment proceedings in the District of Columbia, in an

attempt to seize the funds in Mr. Nader’s personal bank accounts. Ad. Com. ¶ 284. Reed Smith

continues to pursue such efforts, even following disclosure of the above-cited evidence

indicating that state employees unlawfully prepared Respondents’ Pennsylvania challenge, which

Reed Smith filed, at taxpayer expense.

46. The supplements to the administrative complaint also provide clear, convincing

and undisputed evidence that the same criminal conspiracy produced the challenge to 2006

Pennsylvania Green Party senatorial candidate Carl Romanelli’s nomination petitions. Supp. 1 at

13. The Grand Jury found that the goal of that challenge, which was filed by the campaign

counsel of Bob Casey for Senate, was “to enhance the electability of the Democratic nominee,

Robert Casey.” Supp. 1 at 13. Mr. Casey’s campaign counsel thus worked on the challenge in

cooperation with state employees who misappropriated taxpayer funds and resources for Mr.

Casey’s benefit. Supp. 1 at 13-14.

47. Thus far in the Pennsylvania Attorney General’s ongoing investigation, 11

defendants have been convicted or pleaded guilty to numerous felony counts of criminal

conspiracy, theft and conflict of interest. Based on such developments, the supplements to the

administrative complaints named additional individual Respondents, and reiterated Plaintiff’s

request that the FEC refer this matter to the Justice Department for investigation of certain

Respondents’ knowing and willful violations of the Act and other federal laws, including 18

U.S.C. § 241 (conspiracy against rights) and 18 U.S.C. § 242 (deprivation of rights under color

of law).

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The FEC’s Arbitrary and Capricious Dismissal of the Administrative Complaint

48. The FEC’s arbitrary and capricious dismissal of the administrative complaint

began with the agency’s failure to perform its basic initial function of serving the respondent

parties. The Act provides that the FEC “shall notify, in writing” parties alleged to have

committed a violation “within 5 days after receipt of a complaint.” 2 U.S.C. § 437g(a)(1). The

FEC’s regulations further specify that such notice must include a copy of the complaint. 11

C.F.R. § 111.5(a). In direct violation of the Act and its own regulations, however, the FEC failed

to serve any of the law firm Respondents, as well as SEIU, the state Democratic Party

Respondents and the individual named Respondents affiliated with the Section 527 Respondents.

49. The FEC violated the Act and its own regulations again by neglecting to serve

The Ballot Project for nearly four months, and by failing to serve America Coming Together for

more than six months. The FEC attributed its delay to an “administrative oversight,” but its

failure to serve the administrative complaint as required by law was no harmless error. Rather, as

set forth below, the FEC relied on its failure to serve certain Respondents, and its delay in

serving others, as grounds to dismiss the entire administrative complaint – nearly two years after

it was filed, without conducting any investigation. Such dismissal was therefore contrary to law,

and the FEC must be reversed on this ground alone.

50. The FEC apparently faulted Plaintiff for the length of the administrative

complaint, as supplemented, but the filing is commensurate with the scope of Respondents’

violations of the Act, which arise from a nationwide effort planned and coordinated by

Respondents in Washington, D.C. and executed by additional Respondents in 18 states. Further,

Respondents deliberately concealed the coordinated nature of their conduct, necessitating

specific pleading and evidence to refute such concealment. The agency’s willful failure even to

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process the administrative complaint thus rewards Respondents – and penalizes Plaintiff – for the

scope of their wrongdoing, and for their efforts to conceal it.

51. The FEC’s wrongful dismissal also requires reversal because the record plainly

contradicts the agency’s conclusion that it had no reason to believe that Respondents violated the

Act. The FEC’s factual and legal analysis is an exercise in selective amnesia, with the agency

examining each allegation and piece of evidence in the administrative complaint anew, in

isolation from all the others, and inevitably concluding that, “without more,” such individual

allegations and pieces of evidence fail to establish that Respondents committed a single

violation. In each case, however, there is more – much more – that the FEC simply disregarded.

Further, the agency erred as a matter of law by requiring Plaintiff to submit evidence amounting

to proof that Respondents violated the Act, when the administrative complaint clearly provides

reason to believe that they committed such violations. The FEC therefore had a statutory duty to

investigate, and its failure to do so was arbitrary, capricious and an abuse of discretion.

52. As if to provide cover for the patent insufficiency of its analysis, the FEC began

by reciting the procedural history of proceedings that are not relevant to this matter, in which

Plaintiff’s state tort and federal civil rights claims against certain Respondents were dismissed.

Contrary to the FEC’s suggestion, however, the only ground upon which such claims were

ultimately dismissed is that they were barred by the District of Columbia’s one- and three-year

statutes of limitations. In fact, the D.C. Circuit noted that Plaintiff’s tort claims raise “interesting

legal issues of first impression,” and expressly stated that its statute of limitations holding did not

reach “the ultimate merits.” Nader v. DNC, 567 F.3d 692, 699, 702 (D.C. Cir. 2009). The D.C.

Circuit subsequently dismissed Plaintiff’s federal claims in reliance on its limitations holding.5

5

See Nader v. DNC, 2009 U.S. App. LEXIS 24747 (D.C. Cir. Oct. 30, 2009); Nader v. McAuliffe, 2009 U.S. App.

LEXIS 24737 (D.C. Cir. Oct. 30, 2009).

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Such proceedings are plainly irrelevant, therefore, because the administrative complaint was

filed well within the five-year statute of limitations governing this action.

The FEC Wrongfully Dismissed Count 1 of the Administrative Complaint

53. In clear violation of the Act and its own regulations, the FEC dismissed Count 1

of the administrative complaint, which alleges that Respondent law firms made millions of

dollars in unlawful contributions and expenditures to benefit the Kerry-Edwards Campaign,

without serving a single law firm Respondent – despite the conclusion of its General Counsel

that the claims against such Respondents are “based on a viable theory.” The FEC’s duty to serve

the administrative complaint on respondent parties is mandatory. 2 U.S.C. 437g(a)(1); 11 C.F.R.

111.5(a). Therefore, this error alone requires reversal.

54. The FEC compounded its error in failing to serve Respondent law firms by

relying upon its supposed lack of information regarding such Respondents as grounds for

dismissal. Thus, the FEC reasoned, the administrative complaint fails to specify “which firms

allegedly provided free services or to whom, which of those firms are incorporated, and of those,

which firms compensated their attorneys who worked on the ballot challenges.” Kerry An. 5;

DNC An. 5. This assertion is patently false: the administrative complaint clearly specifies that

Respondent law firms “provided their legal services for the benefit of the Kerry-Edwards

Campaign,” and that, with one named exception, the 95 Respondent lawyers “apparently

received normal compensation from their law firm employers.” Ad. Com. 92, ¶ 310. Further, the

administrative complaint identifies each Respondent law firm and lawyer by name and provides

their addresses. If the FEC actually doubted whether a particular Respondent law firm were

incorporated, therefore, it could have resolved such doubt with nothing more than an internet

connection and a few keystrokes.

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55. The FEC also imposed an impossible burden by requiring direct evidence

amounting to proof that Respondent law firms compensated Respondent lawyers who challenged

Nader-Camejo nomination papers. No complainant has access to the billing records of private

law firms. By contrast, the FEC easily could have obtained the relevant information by serving

the administrative compliant upon the law firm Respondents, as it was required by law to do, and

seeking their response. Failing that, the FEC could have subpoenaed the necessary documents.

56. The FEC declined to make such rudimentary inquiries because it reasoned that

“any free attorney services may have been provided by volunteers without any sponsorship from

their employers,” and that “without such information, there is no reason to believe a violation of

the Act occurred, and therefore insufficient grounds to investigate the 2004 activities and billing

practices” of the Respondent law firms. Kerry. An. 5; DNC An. 5. Such reasoning is plainly

circular: the FEC declined to investigate Respondent law firms’ billing practices because it

lacked information regarding Respondent law firms’ billing practices. The FEC was presented

with specific and credible allegations that Respondents violated the Act, however, based on a

legal theory that its own General Counsel deemed to be viable, and the agency had a statutory

duty to investigate.

57. The FEC’s reasoning is also wrong as a matter of law. The value of legal services

that Respondent law firms provided falls under the Act’s volunteer exception only if the

attorneys employed by the law firms received no compensation for the services rendered. 2

U.S.C. 431(8)(B)(i). Respondent lawyers who received the usual compensation from their

employer law firms while providing such services, by contrast, are not volunteers but paid

employees, and the value of their services constitutes an in kind contribution by the Respondent

law firms. 2 U.S.C. 431(8)(A)(ii) (the term ‘contribution’ includes “the payment by any person

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of compensation for the personal services of another person which are rendered to a political

committee without charge for any purpose”); see AO 2006-22 (law firm’s payment of

compensation to firm employees for legal services rendered to political committee free of charge

is a contribution). Therefore, Respondent lawyers cannot be considered “volunteers” if they

received normal compensation from Respondent law firms while working on Respondents’

challenges.

58. Even Respondent lawyers who qualified as volunteers under the Act by taking

unpaid leaves of absence would still be prohibited from using corporate law firm resources,

including office space, office equipment, office supplies and support staff services. Only one out

of 95 named Respondent lawyers claimed to have taken such leave, and even that attorney may

have used prohibited corporate resources. Ad. Com. 85 ¶ 287; 92, ¶ 310. Evidence in the record

thus contradicts the FEC’s conclusion that it had no reason to believe that a violation occurred.

59. The FEC erred again by failing to investigate Respondent Reed Smith on the

ground that the allegations against the firm are “contradictory.” Kerry An. 5-6; DNC An. 5-6. On

the contrary, the allegations that Reed Smith billed its services to “charity, without charging any

client,” and that the DNC retained the firm during the 2004 election, are not mutually exclusive.

Kerry An. 6; DNC An. 6. Instead, the DNC could have – and did in fact – retain Reed Smith and

pay the firm $136,142, Ad. Com. 83, ¶ 286, while by its own admission, Reed Smith also

provided $1 million in unpaid legal services in connection with Respondents’ Pennsylvania

challenge. Supp. 1 at 12. The FEC’s conclusions regarding Reed Smith thus rest on nothing more

than a logical fallacy.

60. Furthermore, presented with sworn and undisputed testimony that Reed Smith

partner Efrem Grail coordinated an unlawful effort to prepare Respondents’ Pennsylvania

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challenge using funds and resources misappropriated from the taxpayers of Pennsylvania, for the

benefit of the Kerry-Edwards Campaign, the FEC simply disregarded the evidence. Compare

Supp. 2 at 2 with Kerry An. 9 n.1; DNC An. 8 n.1. The FEC further asserted that such conduct

“does not constitute a FECA violation.” Kerry An. 9 n.1; DNC An. 8 n.1. Taxpayer funds and

resources plainly fall within the Act’s definition of a contribution as “anything of value,”

however, and Reed Smith’s failure to report the value of such contributions clearly violated the

Act. 2 U.S.C. §§ 431(8)(A)(i), 434. Therefore, the FEC abused its discretion by disregarding the

foregoing evidence.

61. Finally, the FEC’s analysis of Count 1 is flawed because the agency repeatedly

confused Respondents’ mere denials with actual refutation of the claims against them. Kerry An.

9-10; DNC An. 9. Such unquestioning acceptance of Respondents’ unsupported assertions,

which contradict evidence in the record, is a clear abuse of discretion.

The FEC Wrongfully Dismissed Count 2 of the Administrative Complaint

62. The FEC again violated the Act and its own regulations by dismissing Count 2 of

the administrative complaint without even serving Respondent SEIU. Count 2 alleges that SEIU

and Respondent ACT made illegal and unreported contributions in connection with their effort to

prevent the Nader-Camejo Campaign from accessing Oregon’s ballot. Because the FEC’s duty to

serve the administrative complaint on respondent parties is mandatory, this error alone requires

reversal. 2 U.S.C. 437g(a)(1); 11 C.F.R. 111.5(a).

63. The FEC compounded its error in failing to serve SEIU by failing to inquire

whether SEIU made unreported and unlawful expenditures as alleged in Count 2. The FEC thus

deemed the allegations in Count 2 to be “insufficient,” because “the available information” does

not establish that SEIU and ACT coordinated their Oregon efforts with the DNC or the KerryCase 1:10-cv-00989-HHK Document 1 Filed 06/11/10 Page 25 of 31
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Edwards Campaign. Kerry An. 11; DNC An. 11; ACT An. 3. Even if that were true, however,

the Act prohibits labor organizations such as SEIU from making any “contribution or

expenditure in connection with any election at which presidential and vice presidential

electors...are to be voted for.” 2 U.S.C. § 441b(a) (emphasis added). Therefore, SEIU’s

expenditures to influence the 2004 presidential election, as alleged in Count 2, violate the Act

whether or not the labor union coordinated with the DNC and/or the Kerry-Edwards Campaign,

2 U.S.C. §§ 431(9)(A), 441b(a). By disregarding such violations, the FEC erred as a matter of

law.

64. The FEC is obviously aware of the Act’s distinction between a “contribution” and

an “expenditure,” because the agency itself applied the distinction in its analysis of whether ACT

committed the violations alleged in Count 2. ACT An. 4-5. Indeed, the FEC appears to concede

that it had reason to believe that ACT – and therefore SEIU – made expenditures in connection

with Respondents’ efforts to deny the Nader-Camejo Campaign ballot access in Oregon, because

the agency “determined not to proceed further” with respect to such violations, on the ground

that ACT is “essentially defunct.” ACT An. 5. Even if that rationale were valid with respect to

ACT, however, it is plainly inapplicable to SEIU, and cannot excuse the FEC’s disregard of the

labor union’s prohibited expenditures.

65. Given that the FEC did not serve the administrative complaint on SEIU, the

record also cannot support the agency’s conclusion that “the available information” fails to

provide reason to believe that SEIU and ACT coordinated with the DNC and the Kerry-Edwards

Campaign. The fact that SEIU’s Secretary-Treasurer is a DNC official, for instance, plainly

establishes a factual predicate providing reason to believe that the two organizations may have

coordinated Respondents’ Oregon efforts – particularly in view of evidence that the DNC was

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coordinating similar efforts in other states. Yet the FEC rejected such evidence on the ground

that it does not, “without more,” establish coordination. DNC An. 11. There is “more,” of course,

but the FEC simply failed to investigate, because it had already violated the Act and its own

regulations by failing to serve SEIU.

66. The FEC’s arbitrary and capricious dismissal of the claim that SEIU made an

unreported and unlawful contribution of $1 million to the DNC is even clearer. This claim relies,

in part, on two of SEIU’s own documents, one of which states that “SEIU gave $1 million to the

DNC and has made large donations to groups that share our goals,” and another that states,

“SEIU contributed $1,000,000 to fund various DNC activities.” Ad. Com. Ex. 60-61. The FEC

nevertheless dismissed this claim – without making any inquiry of SEIU – on the ground that

such statements have “a number of possible meanings,” and that it “seems unlikely” that SEIU

would commit such a violation. DNC An. 11.

67. To support such speculation, the FEC asserted that the foregoing claim “has been

generally refuted by SEIU in a prior MUR.” DNC An. 11 (citing MUR 5612). That is patently

false. The claim was never even addressed in MUR 5612 – much less was it “refuted”. The FEC

also noted that its “disclosure database does not reveal any direct contributions by SEIU itself to

the DNC,” and asserted that “we have no information to the contrary.” DNC An. 12. SEIU’s

apparent failure to report its prohibited contribution to the DNC, however, is one of the

violations that SEIU allegedly committed. Ad. Comm. 93-94, ¶ 313. Furthermore, the FEC

certainly could have had information to confirm the alleged violation, had it served the

administrative complaint on SEIU as required by law, and conducted an investigation.

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The FEC Wrongfully Dismissed Count 3 of the Administrative Complaint

68. Once again violating the Act and its own regulations, the FEC dismissed Count 3

of the administrative complaint without serving the individual named Respondents who

committed the violations alleged therein. Ad. Com. ¶ 322. Such Respondents served as the

officers and directors of the Section 527 Respondents National Progress Fund, Uniting People

for Victory, The Ballot Project and Americans for Jobs. Ad. Com. ¶¶ 142-54. Count 3 alleges

that these individual named Respondents violated the Act by failing to register their Section 527

organizations, and by failing to comply with the Act’s reporting requirements, prohibitions and

limitations.6 Because the FEC’s duty to serve the administrative complaint on such Respondents

is mandatory, its failure to do so is contrary to law and requires reversal. 2 U.S.C. 437g(a)(1); 11

C.F.R. 111.5(a).

69. The FEC asserted “prosecutorial discretion” to justify its dismissal of Count 3, on

the ground that the Section 527 Respondents are “defunct.” NPF An. 1; UPV An. 1; TBP An. 2;

AFJ An. 1. The FEC’s duty to serve the individual named Respondents is not discretionary,

however, and therefore, prosecutorial discretion cannot possibly justify its failure to serve them.

2 U.S.C. 437g(a)(1); 11 C.F.R. 111.5(a). Moreover, even if the agency had such discretion, its

rationale for declining to prosecute the Section 527 Respondents – that they are defunct – is

plainly inapplicable to the individual named Respondents. Thus, the record cannot support the

FEC’s wrongful dismissal of Count 3 as against the individual named Respondents.

70. The FEC also asserted that “the age of the alleged violations would create

problems of proof and raise obstacles under the five-year statute of limitations.” The

6 The FEC erroneously asserted that Plaintiff alleges that ACT failed to register as a political committee. ACT An.

1,4. In fact, the administrative complaint makes that allegation against the Section 527 Respondents National

Progress Fund, Uniting People for Victory, The Ballot Project and Americans for Jobs – not ACT. Ad. Com. 8-20;

98, ¶ 322.

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administrative complaint was filed on May 30, 2008, however – only three and one-half years

into the applicable five-year statute of limitations. It was the FEC’s own “administrative

oversight” that delayed service of the administrative complaint on The Ballot Project and ACT

for several months thereafter. But even that delay need not present “problems of proof,” because

the administrative complaint meticulously documents the violations alleged in Count 3 by

citation to the relevant, publicly available IRS documents and other materials, and even itemizes

each unlawful contribution that the individual named Respondents accepted on behalf of their

Section 527 organizations. Ad. Com. 8-20. The FEC could easily confirmed such violations

simply by verifying the evidence included in the administrative complaint.

71. Because the record does not support the FEC’s conclusory assertion that it would

encounter “problems of proof,” its wrongful dismissal of Count 3 was not only contrary to law,

but a clear abuse of discretion. The FEC’s failure to investigate the apparently knowing and

willful violations alleged in Count 3 rewards the individual named Respondents who committed

them, while penalizing Plaintiff for the scope of such violations, and for Respondents’ attempts

to conceal them. Therefore, the FEC’s wrongful dismissal of Count 3 was arbitrary and

capricious.

Harm to Plaintiff

72. The FEC’s wrongful dismissal of the administrative complaint nearly two years

after it was filed, without conducting any investigation, amounts to a total abdication of the

agency’s statutory duty to enforce the Act. The administrative complaint presented the FEC with

clear evidence that Respondents engaged in a concerted nationwide effort to neutralize Plaintiff’s

2004 presidential campaign, which Respondents funded almost entirely with unlawful and

unreported contributions and expenditures, and yet the agency did not even perform its basic

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initial function of serving the respondent parties as required by law and its own regulations. Such

official dereliction not only deprived Plaintiff of the protection of the law, but invites further and

even more flagrant violations of federal campaign finance laws in the future. In effect, the FEC

stamped its imprimatur upon an unlawful, mercenary, hit-and-run-style of electoral politics,

which freely operates outside the law, without fear of consequence. See, e.g. Charles Lewis,

Political Mugging in America, Anatomy of an “Independent” Smear Campaign, CENTER FOR

PUBLIC INTEGRITY (March 4, 2004) (“In the 21st century in the United States of America, it is

still astonishingly easy to assassinate a political opponent’s character, with little or no

accountability or basis in fact”) (attached to administrative complaint as Exhibit 25).

73. The reputational harm sustained by Plaintiff as a result of Respondents’ unlawful

conduct is thoroughly documented in the administrative complaint. By failing to investigate such

conduct, and by failing to enforce the Act in this matter, the FEC has denied Plaintiff access to

information that Respondents are required by law to disclose, thus causing Plaintiff ongoing

reputational harm.

74. The FEC’s wrongful dismissal, and its failure to refer this matter to the Justice

Department as Plaintiff requested, also threatens Plaintiff with imminent harm because, as set

forth herein, certain Respondents continue to pursue enforcement of a costs judgment that they

procured against Plaintiff as a result of conduct that violated the Act.

COUNT I

(Wrongful Dismissal)

75. Plaintiff repeats and realleges the allegations of paragraphs 1 through 74, as

if fully set forth herein.

76. The FEC’s dismissal of the administrative complaint is arbitrary and capricious,

an abuse of discretion, and contrary to law in violation of 437g(a)(8)(A).

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77. The FEC’s dismissal of the administrative complaint was based on an

impermissible interpretation of the Federal Election Campaigns Act and was contrary to law in

violation of 437g(a)(8)(A).

WHEREFORE, Plaintiff requests that this Court: 1) declare that the FEC’s dismissal of

the administrative complaint was contrary to law; 2) remand the matter to the FEC with an order

to conform to the declaration within 30 days; and 3) grant such other and further relief as may be

appropriate, including an award of attorneys’ fees and litigation expenses pursuant to 28 U.S.C. §

2412(d)(1)(A).

Dated: June 11, 2010 Respectfully Submitted,

Oliver B. Hall, Esquire

D.C. Bar No. 976463

1835 16th Street NW

Washington, D.C. 20009

(617) 953-0161

oliverbhall@gmail.com

Counsel of Record

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