UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

 ) 

RALPH NADER, ) 

 ) 

 Plaintiff, ) 

 ) Civ. No. 10-989 (BAH) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_________________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

February 23, 2011 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 1 of 40
TABLE OF CONTENTS 

I. STATEMENT OF FACTS ............................................................................................2 

A. The Parties .........................................................................................................2 

B. The Administrative Complaint and Notification of Respondents ......................3 

C. Disposition of the MUR .....................................................................................5 

II. ARGUMENT ................................................................................................................5 

A. Standard of Review ............................................................................................5 

B. The Commission’s Disposition of the Administrative Complaint Was 

Lawful ................................................................................................................7 

1. It Was Lawful for the Commission to Find “No Reason to Believe” 

that the DNC, Kerry Committee, Their Treasurers, and John Kerry 

Had Violated the Law Because of The Speculative Nature of the 

Allegations .............................................................................................7 

a. There is no Evidence that the Ballot Challenge Proceedings 

Were Coordinated With The Kerry Committee and the 

DNC ..........................................................................................9 

b. The Administrative Complaint Contained No Evidence 

That Ballot Challenge Attorneys Were Compensated For 

Their Work ..............................................................................12 

2. It Was Lawful for the Commission to Exercise its Prosecutorial 

Discretion to Dismiss the Complaint Against the 527 Groups ............14 

a. The Commission Reasonably Considered the Defunct 

Status of the Organizations ....................................................15 

b. The Commission Reasonably Took Into Account The 

Staleness of Evidence and the Approaching Statute of 

Limitations ..............................................................................16 

3. The Commission Acted Reasonably In Identifying the Appropriate 

Respondents To The Administrative Complaint ..................................18 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 2 of 40
ii 

a. The Commission Regularly Exercises its Discretion In 

Identifying the Appropriate Respondents To An 

Administrative Complaint ........................................................19 

b. The Commission Acted Reasonably In Identifying the 

Appropriate Respondents To Nader’s Administrative 

Complaint .................................................................................24 

i. Notification of all Individuals and Entities 

Identified In The Administrative Complaint Would 

Have Created Unnecessary Burdens for 

Respondents .................................................................26 

ii. Notification of all Individuals and Entities 

Identified in the Administrative Complaint Would 

Have Caused Significant Delay ...................................28 

iii. Notification of all Individuals and Entities 

Identified In The Administrative Complaint Would 

Have Required Disproportionate Commission 

Resources .....................................................................31 

c. It Was Reasonable To Make No Recommendations As To 

Non-Respondents .....................................................................32 

III. CONCLUSION ............................................................................................................32 

 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 3 of 40
iii 

TABLE OF AUTHORITIES 

Cases Page 

3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994) ................................................................17 

AFL-CIO v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001) ................................................... 7, 25-26 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .............................................................23, 25 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) .............................................................. 5-6, 15 

Citizens for Responsibility and Ethics in Wash. v. FEC, 475 F.3d 337 (D.C. Cir. 2007) .......14 

Citizens United v. FEC, 130 S. Ct. 876, 913 (2010) ................................................................27 

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) ........................................................6 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .......................6 

Democratic Senatorial Campaign Comm. v. FEC, 918 F. Supp. 1 (D.D.C. 1994) ...................6 

FEC v. Akins, 524 U.S. 11 (1998) ............................................................................................14 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) .................................5,6 

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) ...............20 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001)...............................................6 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .....................................................................6, 17 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ........................................................................5 

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) .....................................................27 

Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................................14 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) ...............................................................17 

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996) .................................2 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................................28 

Monitor Detroit Co. v. Roy, 401 U.S. 265 (1971) ...................................................................20 

Nader v. DNC, 567 F.3d 692 (D.C. Cir. 2009) ........................................................................18 

Nader v. DNC, 590 F. Supp 2d 164 (D.D.C. 2008) .................................................................18 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 4 of 40
iv 

Nader v. McAuliffe, 549 F. Supp. 2d 760 (E.D. Va. 2008) ......................................................18 

Nader v. McAuliffe, 593 F. Supp. 2d 95 (D.D.C. 2009) ..........................................................18 

Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342 (1944) ......................17 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...................................................................5, 20 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ............................................................................30 

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 1996) ...............................................7 

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ................................................................. 6-7

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .............................................................................7 

Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009) ...........................................................28 

Statutes and Regulations 

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457 ...............................2 

2 U.S.C. § 431(8)(A)............................................................................................................8 

2 U.S.C. § 431(8)(B)(i) ........................................................................................................8 

2 U.S.C. § 437g(a) ...................................................................................................2, 19, 32

2 U.S.C. § 437g(a)(1) .....................................................................................................2, 16 

2 U.S.C. § 437g(a)(2) .....................................................................................................2, 29 

2 U.S.C. § 437g(a)(3) .........................................................................................................29 

2 U.S.C. § 437g(a)(4)(a) ....................................................................................................29

2 U.S.C. § 437g(a)(6)(A) .............................................................................................17, 29 

2 U.S.C. § 437g(a)(8) ...................................................................................................1, 3, 6 

2 U.S.C. § 437g(a)(8)(A) ...................................................................................................18 

2 U.S.C. § 437g(a)(8)(C) .....................................................................................................3

2 U.S.C. § 441a(a)(7)(B)......................................................................................................8

2 U.S.C. § 441a(f) ..............................................................................................................15

2 U.S.C. § 441b ..................................................................................................................15 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 5 of 40
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26 U.S.C. § 527 ..........................................................................................................................3 

28 U.S.C. § 2462 ................................................................................................................17, 28 

11 C.F.R. § 111.6(a).................................................................................................................29 

11 C.F.R. § 111.6(b) ..........................................................................................................19, 32 

11 C.F.R. § 111.7 .....................................................................................................................29 

11 C.F.R. § 111.9-12 ................................................................................................................29 

11 C.F.R. § 111.17 ...................................................................................................................29 

11 C.F.R. § 111.18 ...................................................................................................................29 

11 C.F.R. § 111.19 ...................................................................................................................29 

Other Authorities 

Agency Procedures, 73 Fed. Reg. 74,494 (Dec. 8, 2008) ........................................................23 

Cert., MUR 6158 (Harpo Inc., et al.), Mar. 4, 2009, 

http://eqs.nictusa.com/eqsdocsMUR/29044231149.pdf ....................................................19 

Enforcement Procedures, 68 Fed. Reg. 23,311 (May 1, 2003) .......................................... 20-21 

Comment of California Political Attorneys Association, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/epdf/cpaa.pdf .....................21 

Comment of Free Speech Coalition, Inc., and Conservative Legal Defense and 

Education Fund, http://www.fec.gov/agenda/agendas2003/notice2003-

09/epdf/free.pdf ............................................................................................................22 

Comment of Perkins Coie, http://www.fec.gov/agenda/agendas2003/notice2003-

09/perkins.pdf ..............................................................................................................22 

Comment of Republican National Committee, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/rnc.pdf .........................21, 22 

Comments of FEC Watch and the Center for Responsive Politics, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/epdf/fec_watch.pdf ......21, 22

FEC Transcript of Public Hearing on Enforcement Procedures (2003), 

http://www.fec.gov/agenda/agendas2003/notice2003-09/enforce_trans.pdf .........22, 23 

Prepared Statement of Jan Witold Baran, Wiley, Rein & Fielding LLP, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/baran_statement.pdf ..........22

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 6 of 40
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FEC Advisory Op. 2006-22, http://saos.nictusa.com/aodocs/2006-22.pdf. ............................12 

FEC Performance and Accountability Report Fiscal Year 2010, 

http://www.fec.gov/pages/budget/fy2010/par_2010.pdf. ..................................................18 

General Counsel’s Rep., MUR 5333 (Swallow for Congress, Inc.), June 21, 2004, 

http://eqs.nictusa.com/eqsdocsMUR/0000602A.pdf .........................................................23 

General Counsel’s Rep., MUR 6158 (Harpo Inc., et al.), Jan. 16, 2009, 

http://eqs.nictusa.com/eqsdocsMUR/29044231144.pdf ....................................................19 

Guidebook for Complainants and Respondents on the FEC Enforcement Process, 

http://www.fec.gov/em/respondent_guide.pdf .............................................................19, 30 

LCvR 7(h)(2) .............................................................................................................................2 

Letter of Notification, MUR 5333 (Swallow for Congress, Inc.), Dec. 16, 2005, 

http://eqs.nictusa.com/eqsdocsMUR/0000605A.pdf .........................................................24 

Statement of Policy Regarding Comm’n Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007) ..................................... 2-3, 25 

Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings, 70 Fed. 

Reg. 3 (Jan. 3, 2005) ..........................................................................................................24 

Statement of Reasons, MUR 4960 (Hillary Rodham Clinton for Senate Exploratory 

Committee), Dec. 21, 2000, http://eqs.nictusa.com/eqsdocsMUR/0000263B.pdf ........ 9-11 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 7 of 40
On May 30, 2008, plaintiff Ralph Nader filed an administrative complaint with the 

Federal Election Commission (“FEC” or “Commission”) alleging a massive conspiracy against 

his 2004 Presidential campaign. The administrative complaint accused over 150 individuals and 

entities of having engaged in wrongdoing almost four years earlier, including the Democratic 

National Committee (“DNC”), Senator John Kerry’s campaign committee1

 (“Kerry 

Committee”), several non-profit groups, a number of state Democratic parties, dozens of law 

firms and individual lawyers, a union, and various other individuals and entities. The 

Commission used its discretion to identify the appropriate respondents, dismissed the allegations 

against some respondents as a matter of prosecutorial discretion, and found no reason to believe 

that the remaining respondents had violated the law. 

Nader now brings this lawsuit pursuant to 2 U.S.C. § 437g(a)(8) alleging that the FEC 

acted contrary to law in its handling of his administrative complaint. Nader’s claims should fail 

as a matter of law. The Commission acted reasonably and lawfully, particularly given the 

difficulties in investigating a complex administrative complaint involving scores of individuals 

and entities — some of which had since become defunct — that had allegedly broken the law 

several years earlier. Because the Commission acted reasonably, and because this Court affords 

considerable deference to the FEC’s investigatory decisions and interpretation of the statute it 

administers, summary judgment should be granted in favor of the Commission. 

 

1 The administrative complaint mentions both Kerry for President 2004, Inc. and KerryEdwards 2004, Inc., but seems to only allege wrongdoing by the latter. AR00856, AR00876. 

The Commission found no reason to believe that either entity violated FECA, and for purposes 

of this brief they are identified collectively as the “Kerry Committee.” 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 8 of 40
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I. STATEMENT OF FACTS2

A. The Parties 

The FEC is the United States agency with exclusive civil jurisdiction over administration 

of the Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“FECA”). Any person who 

believes that FECA has been violated may file with the Commission an administrative complaint 

regarding that violation. 2 U.S.C. § 437g(a)(1). The Commission then notifies the appropriate 

respondents, who have the opportunity “to demonstrate, in writing, to the Commission . . . that 

no action should be taken against such person.” Id. Afterwards, the Commission determines 

whether the administrative complaint provides “reason to believe” that FECA has been violated. 

2 U.S.C. § 437g(a)(2). The Commission may not conduct such a vote, other than a vote to 

dismiss, without giving respondents 15 days to respond. 2 U.S.C. § 437g(a)(1). If at least four 

commissioners vote to find reason to believe that FECA has been violated, the Commission 

investigates the alleged violation; if there are not four such votes, the Commission either 

dismisses the administrative complaint or makes a determination that there is “no reason to 

believe” a violation has occurred. 2 U.S.C. § 437g(a); see also Statement of Policy Regarding 

 

2

 Because this case involves review of an administrative record, the Commission includes 

this statement of facts rather than a separate statement of material facts and genuine issues. See

LCvR 7(h)(2). In addition to his improperly-filed statement of material facts, plaintiff also filed 

affidavits of counsel Oliver B. Hall and plaintiff Ralph Nader. As a general matter, review of an 

agency action is limited to materials “‘compiled’ by the agency, that were ‘before the agency at 

the time the decision was made.’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 

(D.C. Cir. 1996) (internal citations omitted). The Court therefore should consider Mr. Nader’s 

affidavit solely for the limited purpose of establishing standing, not for the merits. Mr. Hall’s 

affidavit, which is intended to show that the FEC did not treat all of the individuals and entities 

in the administrative complaint as respondents, should not be considered by the Court. That fact 

is in the administrative record (Docket Nos. 13-14), AR01730.06, and, in any event, the 

Commission does not dispute it. Compl. ¶ 2 (Docket No. 1); Answer ¶ 2 (Docket No. 7). 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 9 of 40
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Comm’n Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545-

46 (Mar. 16, 2007) (describing the initial stage of the FEC enforcement process). 

When the Commission dismisses a complaint, the complainant may file suit in the United 

States District Court for the District of Columbia seeking a declaration that the Commission’s 

dismissal was “contrary to law.” 2 U.S.C. § 437g(a)(8). If the district court determines that the 

Commission’s dismissal was contrary to law, the court can “direct the Commission to conform 

with such declaration within 30 days.” 2 U.S.C. § 437g(a)(8)(C). 

Plaintiff Ralph Nader was a candidate for President of the United States in both 2000 and 

2004. AR00020, AR00043. In 2004, Nader ran for President as an independent with Vice 

Presidential candidate Peter Miguel Camejo. AR00043. 

B. The Administrative Complaint and Notification of Respondents 

On May 30, 2008, Nader filed an administrative complaint with the FEC, alleging a wide 

range of illegal conduct by the DNC, the Kerry Committee, five Section 527 organizations,3

 and 

many other individuals and entities during the 2004 campaign. AR00001-00576. In all, the 

administrative complaint’s 100 pages of allegations and 475 pages of exhibits listed over 150 

individuals and entities that Nader believed had broken the law during the 2004 campaign. 

AR01833-34. The case was designated Matter Under Review (“MUR”) 6021. Id. 

On June 5, 2008, the Commission sent notice of the administrative complaint to the DNC 

and Kerry Committee. AR000577-83. Although there were over 150 individuals and entities 

accused of illegal activities in the administrative complaint, “[o]riginally, it appeared that the 

complaint might be duplicative of previous MURs dismissing similar allegations, and, in order to 

reserve resources, as well as to comply with the practice of avoiding over-notification, [the FEC] 

 

3

 A “Section 527” organization is a non-profit, tax-exempt political organization named 

after section 527 of the Internal Revenue Code. See 26 U.S.C. § 527. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 10 of 40
4 

initially notified only the DNC and the Kerry Committee of the complaint.” AR01730.06. After 

further consideration, Commission staff “later determined that the 527 organizations, which the 

complaint alleges were unregistered political committees, should also be notified.” Id. As a 

result, on September 26, 2008, the Commission sent notices to America Coming Together 

(“ACT”), Uniting People For Victory, United Progressives for Victory, National Progress Fund, 

Americans For Jobs, and The Ballot Project, Inc. (collectively “the 527 Groups”). AR00729-40.4

 

The Commission determined that the remaining individuals and entities identified in the 

complaint should not be treated as respondents and therefore did not need to receive notification. 

AR01730.05 n.2; see infra Part II.B.3.a (explaining Commission’s discretionary authority to 

designate appropriate respondents). 

Nader filed two supplements to the administrative complaint, dated on September 24, 

2008, and January 7, 2010 (erroneously dated January 7, 2009), accusing another 17 individuals 

and entities of wrongdoing. AR00609-728, AR01732-90. Nader had improperly filed the 

administrative complaint and first supplement with his attorney’s signature instead of his own; 

he therefore refiled them with appropriate signatures on October 14 and 15, 2008, at the 

suggestion of the Commission. AR00741-1421. The Kerry Committee, DNC, ACT, and The 

Ballot Project, Inc., all submitted responses to the administrative complaint, the last of which 

was dated February 17, 2009. AR00591-98, AR00599-608, AR01475-1609, AR01612-39. ACT 

also submitted a short response to the second supplement dated February 12, 2010. AR01809. 

The other 527 Group respondents did not respond. 

 

4 The notifications to the 527 Groups stated that “[t]he complaint was not sent to you 

earlier due to an administrative oversight.” See, e.g., AR00729. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 11 of 40
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C. Disposition of the MUR 

On April 13, 2010, the Commission voted unanimously in favor of the General Counsel’s 

recommendation that MUR 6021 should be closed. AR01810-11. With respect to each 

respondent, the Commission adopted a Factual and Legal Analysis articulating the reason for its 

determination. AR01812-57. The Commission found no reason to believe that the DNC, Kerry 

Committee, their treasurers, or Senator John Kerry personally violated FECA. AR01810-11, 

AR01831-57. With respect to ACT, the Commission found no reason to believe that it had made 

undisclosed excessive in-kind contributions or that it had failed to register as a political 

committee under 2 U.S.C. § 433. AR01810-11, AR01824-30. The Commission dismissed the 

complaint as to ACT with respect to the allegation that it illegally failed to report ballot 

expenditures. Id. The Commission also dismissed the complaint as to the remaining 527 

Groups. AR01810-11, AR01812-23. Consistent with the general practice of the Commission, it 

made no recommendation as to the non-respondents and closed the MUR. Id.; AR01730.05 n.2.

II. ARGUMENT 

A. Standard of Review 

A court reviewing the Commission’s dismissal of an administrative complaint “may set 

aside the FEC’s dismissal of a complaint only if its action was ‘contrary to law.’” Hagelin v. 

FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (citing 2 U.S.C. § 437g(a)(8)); Orloski v. FEC, 795 

F.2d 156, 161 (D.C. Cir. 1986) (same). The Commission’s dismissal of an administrative 

complaint cannot be disturbed unless it is based on “an impermissible interpretation of [FECA]” 

or is “arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161; see also FEC 

v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 31 (1981). “The FEC has 

broad discretionary power in determining whether to investigate a claim. . . .” Akins v. FEC, 736 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 12 of 40
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F. Supp. 2d 9, 21 (D.D.C. 2010). To affirm the agency’s action, “it is not necessary for a court to 

find that the agency’s construction was the only reasonable one or even the reading the court 

would have reached if the question initially had arisen in a judicial proceeding.” DSCC, 454 

U.S. at 39. Instead, the court engages in “the narrower inquiry into whether the Commission’s 

construction [is] sufficiently reasonable to be accepted by a reviewing court.” Id. (citations and 

internal quotation marks omitted). 

The Commission is entitled to deference from the Court in both its legal reasoning and its 

conduct. The court’s inquiry should be “highly deferential” to the Commission’s interpretation 

of the statutes it administers. Democratic Senatorial Campaign Comm. v. FEC, 918 F. Supp. 1 

(D.D.C. 1994). The court also “review[s] the Commission’s interpretation of its own regulations 

pursuant to an exceedingly deferential standard . . . [and that] interpretation will prevail unless it 

is plainly erroneous or inconsistent with the plain terms of the disputed regulation.” FEC v. 

Nat’l Rifle Ass’n of Am., 254 F.3d 173, 182 (D.C. Cir. 2001) (quotation marks and citations 

omitted). Lastly, the Commission is entitled to great deference as to the manner in which it 

conducts investigations and its decisions to dismiss complaints, provided it supplies reasonable 

grounds. See Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1134 (D.C. Cir. 

1987); Common Cause v. FEC, 655 F. Supp. 619, 623 (D.D.C. 1986), rev’d on other grounds, 

842 F.2d 436 (D.C.Cir.1988). In the absence of evidence of an abuse of discretion, the court 

should not “second-guess the Commission’s exercise of its discretion.” FEC v. Rose, 806 F.2d 

1081, 1091 (D.C. Cir. 1986). 5 

 

5

 The “contrary to law” standard is established in 2 U.S.C. § 437g(a)(8), which governs 

review of dismissals of administrative complaints by the FEC. Plaintiff’s brief incorrectly cites 

the Administrative Procedure Act’s standard of review and several cases applying that standard, 

most of which involved reviews of agency rulemaking. See Plaintiff’s Mem. of Points And 

Auth’ies in Support of Mot. For Summ. J. (“Nader Mem.”) at 3-5 (Docket 16-1) (citing Shays v. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 13 of 40
7 

B. The Commission’s Disposition of the Administrative Complaint Was Lawful 

In considering plaintiff’s administrative complaint, the Commission reasonably exercised 

its broad discretion in disposing of the MUR. The Commission’s finding that there was “no 

reason to believe” that any respondents made illegal contributions to the Kerry Committee was 

justified by the speculative nature of the allegations, most notably the absence of any evidence 

that the Kerry Committee had “played a role in this activity, rather than just being the indirect 

beneficiary.” AR01856. The Commission’s dismissal of the allegations against the remaining 

respondents as a matter of prosecutorial discretion was justified by the fact that each of the 

entities had long since stopped operating by the time Mr. Nader filed this administrative 

complaint. And the Commission’s determination to treat many of the individuals and entities 

accused of wrongdoing as non-respondents was justified by both the speculative nature of the 

claims against them and the burdens it could have placed on these potential respondents and the 

agency. For all of these reasons, the Commission did not act “contrary to law.” 

1. It Was Lawful for the Commission to Find “No Reason to Believe” 

that the DNC, Kerry Committee, Their Treasurers, and John Kerry 

Had Violated the Law Because of The Speculative Nature of the 

Allegations 

Count 1 of the administrative complaint alleges that the DNC, the Kerry Committee, and 

over 150 other individuals and entities made or received illegal in-kind contributions as part of 

an attempt to help John Kerry win the Presidential election in 2004. AR00857-63. According to 

the administrative complaint, the law firms and attorneys that worked on the numerous 

 

FEC, 337 F. Supp. 2d 28 (D.D.C. 2004); Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005); 

Republican Nat’l Comm. v. FEC, 76 F.3d 400 (D.C. Cir. 1996); and AFL-CIO v. FEC, 177 F. 

Supp. 2d 48 (D.D.C. 2001)). While APA review of rulemaking has a similar touchstone 

(arbitrary, capricious, or an abuse of discretion), the test is otherwise not applicable and the 

Court should instead rely on the analysis in section 437g(a)(8) cases, which accord the discretion 

appropriate to the context of a Commission dismissal. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 14 of 40
8 

challenges to Nader-Camejo’s nomination papers did so for free, and complainant asserted that 

doing so constituted illegal in-kind contributions to the DNC and/or the Kerry Committee. 

AR00858-59, AR00863. 

The allegations in Count 1 were speculative, however, because they assumed without any 

evidence that the legal challenges were coordinated with the DNC and/or the Kerry Committee. 

In order for the Kerry Committee or the DNC to have violated the law, there must be some 

connection between the legal challenges and the DNC or Kerry Committee such that the legal 

work would constitute a contribution. See 2 U.S.C. § 441a(a)(7)(B) (expenditures coordinated 

with a candidate “shall be considered to be a contribution to such candidate”). Expenditures 

made independently of a campaign, even if they are intended to benefit that campaign, do not 

constitute contributions under 2 U.S.C. § 431(8)(A). 

The allegations were also speculative because they assumed, without any supporting 

information, that attorneys were paid by their law firms for working on the ballot challenges. 

AR00860-61. The definition of “contribution” under FECA does not include “the value of 

services provided without compensation by any individual who volunteers on behalf of a 

candidate or political committee.” 2 U.S.C. § 431(8)(B)(i) (the “Volunteer Exception”). The 

complaint alleged that the in-kind contributions were impermissible for a variety of reasons, 

primarily because they were not disclosed as contributions, they exceeded contribution limits, 

and because incorporated entities such as law firms are prohibited from making contributions. 

AR 00860-61. But if the legal work was performed pursuant to the Volunteer Exception, it 

would not constitute a contribution at all. 

The Commission’s General Counsel agreed that the claim was based on a “viable theory, 

namely that spending by corporate law firms to remove a candidate from the ballot may 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 15 of 40
9 

constitute prohibited contributions.” AR 01730.10. But the General Counsel also believed that 

the available facts did not support the allegations. Id. As explained below, the Commission 

agreed and found no reason to believe there was a violation committed by the DNC, the Kerry 

Committee, their respective treasurers or John Kerry. AR01810-11. 

a. There is no Evidence that the Ballot Challenge Proceedings Were 

Coordinated With The Kerry Committee and the DNC 

The administrative complaint stated that free legal services were provided “to benefit the 

Kerry-Edwards campaign.” AR00858-59. But merely intending to benefit the Kerry Committee 

does not make the legal work a contribution if it was done independently from the Committee. 

As the Commission concluded, “[e]ven if there were corporate law firms that provided free 

services to ballot challengers while compensating their attorneys, the complaint does not present 

facts sufficient to support that those services constituted undisclosed in-kind contributions 

accepted or received by the Kerry Committee.” AR01852. 

The complaint generally did not specify “which firms allegedly provided free services or 

to whom.” AR01837. Without this information, it was impossible to conclude that the DNC, 

Kerry Committee, their treasurers, or John Kerry committed any unlawful conduct. The 

administrative complaint, which merely assumed that the legal challenges were coordinated with 

the DNC and Kerry Committee, was therefore too speculative to warrant an investigation. 

“[U]nwarranted legal conclusions from asserted facts or mere speculation will not be accepted as 

true” and “[s]uch purely speculative charges, especially when accompanied by a direct 

refutation, do not form an adequate basis to find reason to believe that a violation of the FECA 

has occurred.” AR01841 (quoting Statement of Reasons, MUR 4960 (Hillary Rodham Clinton 

for Senate Exploratory Committee), Dec. 21, 2000, at 3, 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 16 of 40
10 

http://eqs.nictusa.com/eqsdocsMUR/0000263B.pdf (“Clinton MUR Statement of Reasons”) 

(citations omitted)).6

The Commission noted that all the available evidence in response to Nader’s allegation 

indicated that the DNC and Kerry Committee did not coordinate the ballot challenges. AR01856 

(“[W]ithout specific facts suggesting that . . . the Kerry Committee played a role in this activity, 

rather than just being the indirect beneficiary, there is nothing left but speculative charges that 

have been directly refuted . . . .”); AR01841 (“[W]ithout specific facts suggesting that . . . the 

DNC played a role in this activity, there is nothing left but speculative charges that have been 

directly refuted . . . .”). The DNC’s response stated unequivocally that it “did not receive and 

fail to report any in-kind legal services from law firms representing ballot access petition 

challengers.” AR01838 (quoting AR00606). The Kerry Committee similarly denied accepting 

contributions in the form of legal services and stated that its “limited involvement in ballot 

access litigation and its awareness of the litigation engaged in by others — both on a volunteer 

and paid basis — simply does not constitute a violation of the act.” AR01854 (quoting 

AR00598). The record before the Commission also included four separate affidavits from the 

Ballot Project, the group that coordinated the ballot challenge efforts, which specifically refuted 

the allegation by stating “[t]he Ballot Project did not undertake any of its activities at the 

direction, request, or suggestion of, or in conjunction or concert with” the Kerry Committee, the 

DNC, or any state or local entities, and it “acted independently” of all those entities. AR01641, 

 

6

 The Commission noted one exception in which the administrative complaint made a 

specific allegation, namely that the Reed Smith law firm worked on the Pennsylvania ballot 

challenge and billed the work to “charity, without charging any client.” AR01837-38 (quoting 

AR00939). But this does not establish a connection with the Kerry Committee, and as noted 

infra, Part II.B.1.b, individual attorneys working without sponsorship from their employer may 

fall within an exception to the contribution limits for volunteer work. In fact, the newspaper 

article complainant relies upon to make the allegation indicates that the hours Reed Smith 

attorneys spent on the ballot challenge were “nonbillable.” AR01392. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 17 of 40
11 

AR01644, AR01647, and AR01650. The Commission is entitled to give credence to sworn 

evidence that is submitted under penalty of perjury by a respondent, particularly in a case where 

the allegations are based on speculation. See Clinton MUR Statement of Reasons at 2 (“[W]hile 

credibility will not be weighed in favor of the complainant or the respondent, a complaint may be 

dismissed if it consists of factual allegations that are refuted with sufficiently compelling 

evidence provided in the response to the complaint . . . .”). Furthermore, neither the DNC nor 

the Kerry Committee was a party to any of the ballot challenges the administrative complaint 

points to as illegal in-kind contributions. 

The administrative complaint bases its allegations of a connection between the Kerry 

Committee, DNC, and the various ballot challenges on some overlapping connections between 

these various entities. For example, the administrative complaint states that some of the same 

lawyers that represented the ballot challenges also were contacts for “Lawyers For Kerry,” a 

group that monitored polling stations for the Kerry campaign, AR00889; or represented the DNC 

on other matters, AR00938-939; or that an individual plaintiff in the Maine ballot challenge was 

also the “Maine Democratic Party Chair and DNC official.” AR00915. But it is unsurprising 

that some of the same people might have connections to these various entities, because they 

shared many of the same goals. Mere affiliations are insufficient to raise a non-speculative claim 

of illegality. The administrative complaint presented no evidence that the DNC or Kerry 

Committee played any actual role in the ballot challenges, rather than just being “indirect 

beneficiar[ies].” AR01856. It was entirely reasonable for the Commission to decline an 

investigation where all the complainant could do was point at a set of circumstances that 

provided no reason to believe it was illegal. 

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12 

b. The Administrative Complaint Contained No Evidence That Ballot 

Challenge Attorneys Were Compensated For Their Work 

The allegation that the DNC and/or the Kerry Committee received illegal in-kind 

contributions in the form of free legal services was also speculative in assuming that the 

Volunteer Exception did not apply and therefore that the legal work constituted “contributions” 

under the Act. AR00860-61. But, as the Commission noted, “any free attorney services may 

have been provided by volunteers without any sponsorship from their employer.” AR01864. 

The complaint presented no evidence about “which of those firms are incorporated, and of those, 

which firms compensated their attorneys who worked on the ballot challenges.” AR01837. 

Plaintiff relies on FEC Advisory Opinion 2006-22 for the proposition that a law firm providing 

free legal services to a political committee constitutes a contribution. But that AO specifically 

asked whether “the Firm’s” preparation of a brief would constitute a contribution. FEC 

Advisory Op. 2006-22 at 4, http://saos.nictusa.com/aodocs/2006-22.pdf. That advisory opinion, 

however, did not address whether individual attorneys at a firm can provide legal work to a 

campaign within the Volunteer Exception. 

It also remains unclear what the legal theory is in which the individual attorneys accused 

in the administrative complaint could have made illegal campaign contributions. If the 

individual lawyers were working on their own behalf without compensation, it would fall within 

the Volunteer Exception. On the other hand, if the law firm was compensating them for working 

on the ballot challenges, then it would be the law firms, not the individual lawyers, that were 

making the illegal contributions. In any event, the allegation that the law firms that worked on 

ballot challenges were providing illegal in-kind contributions is also entirely speculative because 

it, too, rests on the unsupported assumption that the lawyers’ work did not fall within the 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 19 of 40
13 

Volunteer Exception.7

 The complainant presented no evidence to bolster its speculation, and it 

was within the Commission’s discretion not to devote the substantial resources that would be 

required to obtain information about conduct that did not appear to constitute a violation. The 

Commission is not required to assume the worst and find reason to believe the law has been 

violated merely because an attorney has worked on a case. 

Plaintiff suggests that any ambiguity as to whether attorneys were compensated for their 

work on ballot challenges could have been resolved because “the FEC easily could have obtained 

the relevant information by serving the administrative complaint upon the law firm 

Respondents,” or failing that, “could have subpoenaed the necessary documents.” Nader Mem. 

at 14. But plaintiff seems overly optimistic about the ease with which such information would 

be obtained. While the Commission possesses the power to subpoena documents and might 

ultimately have been successful in obtaining law firms’ internal documents, it could have 

required an enormous and resource-draining undertaking to litigate subpoena enforcement 

actions against 54 different law firms in jurisdictions spread throughout the country. 

Furthermore, as discussed infra, Part II.B.2.b, the almost four-year delay between the alleged 

illegal activity and the filing of the administrative complaint meant that there was limited time 

before FECA’s five-year statute of limitations elapsed. There was thus no guarantee that the 

documents could even be obtained in sufficient time. 

 

7

 Plaintiff argues that even if the individual attorneys qualified under the Volunteer 

Exception, it would still constitute an illegal contribution by the law firms if those attorneys were 

using “corporate law firm resources, including office space, office equipment, office supplies 

and support staff services.” Nader Mem. at 15. The complaint provided no evidence regarding 

which law firms provided what resources to any volunteer attorneys, and the Commission was 

well within its discretion not to investigate four-year-old allegations of illegal contributions of 

office supplies. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 20 of 40
14 

2. It Was Lawful for the Commission to Exercise its Prosecutorial 

Discretion to Dismiss the Complaint Against the 527 Groups 

The administrative complaint alleged that The Ballot Project, National Progress Fund, 

Americans for Jobs, and Uniting People for Victory illegally failed to register and report as 

political committees in the 2004 election cycle.8

 The Commission ultimately exercised its 

prosecutorial discretion and dismissed the allegation. Plaintiff accuses the Commission of a 

“clear abuse of discretion” for the dismissal, calling it “wrongful” and “arbitrary and capricious.” 

Nader Mem. at 20. 

The FEC has considerable discretion to decide where to devote its resources and how best 

to enforce FECA. See supra Part II.A. This is especially true when the Commission decides not 

to bring an enforcement action. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n 

agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a 

decision generally committed to an agency’s absolute discretion. . . . [A]n agency decision not to 

enforce often involves a complicated balancing of a number of factors which are peculiarly 

within its expertise.”); FEC v. Akins, 524 U.S. 11, 25 (1998) (“[I]t is possible that even had the 

FEC agreed with respondents’ view of the law, it would still have decided in the exercise of its 

discretion not to require AIPAC to produce the information.”); Citizens for Responsibility and 

Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“No one contends that the 

Commission must bring actions in court on every administrative complaint. The Supreme Court 

in Akins recognized that the Commission, like other Executive agencies, retains prosecutorial 

discretion.”). 

 

8 There was some confusion as to whether the administrative complaint (at AR00950) 

intended to allege that America Coming Together had failed to register and report as a political 

committee, but plaintiff has now clarified that he did not make that allegation against it. Nader 

Mem. at 19 n.5. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 21 of 40
15 

a. The Commission Reasonably Considered the Defunct Status 

of the Organizations 

In this case, the Commission exercised its prosecutorial discretion and dismissed the 

claims against the 527 Groups because they were all “defunct” organizations and the age of the 

alleged wrongful activity would render an investigation exceedingly difficult. AR01813, 

AR01816, AR01819, AR01823. The administrative complaint was filed well after the 527 

Groups had ceased operations. AR01823 (Ballot Project dissolved on September 12, 2005); 

AR01813, AR01816, AR01819 (National Progress Fund, Uniting People for Victory, and 

Americans for Jobs filed their final IRS reports in March 2006, January 2006, and July 2004). 

And even if the Commission could complete a successful investigation and find probable 

cause to believe that a violation had been committed within the five-year period, it would be 

difficult to recover civil penalties from defunct organizations. Given that there are competing 

demands on the Commission’s resources, it is not contrary to law for the Commission to focus its 

law enforcement resources on claims that are more current and can be fully vindicated. Akins, 

736 F. Supp. 2d at 22 (“Absent evidence that the Commission’s investigation was so inadequate 

as to constitute an abuse of discretion, it is not this Court’s place to direct the Commission how 

to expend its resources, and it is certainly not the plaintiffs’.”). In light of the age of the 

allegations and the number of individuals and entities accused of wrongdoing, the Commission’s 

decision to exercise its prosecutorial discretion to dismiss the claims against the 527 groups was 

entirely reasonable.9

 

 

9 In addition to the dismissal of certain claims against ACT on the basis of prosecutorial 

discretion, the Commission also found that there was no reason to believe that it had made 

undisclosed excessive in-kind contributions in violation of 2 U.S.C. §§ 441b and 441a(f) by 

conspiring with the Service Employees International Union (“SEIU”) to attack a Nader-Camejo 

petition drive in Oregon. AR01828. The Commission noted that the administrative complaint 

“does not allege, and the available information does not suggest, that ACT’s activities in Oregon 

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16 

b. The Commission Reasonably Took Into Account The Staleness of 

Evidence and the Approaching Statute of Limitations 

Plaintiff directs considerable criticism at the Commission for its alleged “inaction and 

mishandling of this matter.” Nader Mem. at 3. Yet plaintiff never acknowledges that his own 

inaction was at least partially responsible for the Commission’s decision not to investigate the 

claims made against the 527 Groups. The entire alleged conspiracy took place during the 

presidential campaign of 2004. The vast majority of actions described in the administrative 

complaint, AR00856-1422, were not only knowable in 2004, but were actually known to Nader 

and his campaign because they involved litigation to keep him off the ballot. The newspaper 

articles that Nader attached to his administrative complaint and on which he bases most of his 

allegations were contemporaneous with the 2004 campaign. AR00956-59 (34 of the 36 news 

articles attached as exhibits to administrative complaint were published in 2004). 

Despite the fact that Nader knew all this information in 2004, he did not file his 

administrative complaint until May 30, 2008, nearly four years after most of the alleged 

wrongdoing had taken place. The administrative complaint had to be refiled in October 2008, 

along with a supplement that had been filed the month before, because both were signed by 

Nader’s attorney despite the statute’s requirement that a complaint shall be “signed and sworn to 

by the person filing such complaint.” 2 U.S.C. § 437g(a)(1). Plaintiff even submitted a second 

supplement in January 2010, more than five years after the alleged wrongdoing. 

Nader’s failure to bring a timely administrative complaint created “problems of proof” 

that might have otherwise been avoided. AR01813, AR01816, AR01819, AR01823, AR01830. 

 

were coordinated with the Kerry Committee, the DNC, or any other entity” so it “does not 

indicate that the activities in question resulted in the making of an in-kind excessive contribution 

to either the Kerry Committee or the DNC.” Id. The Commission therefore reasonably 

concluded that the complaint contained insufficient supporting facts to warrant an investigation. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 23 of 40
17 

As discussed above, all of the 527 Groups accused of wrongdoing were dissolved or otherwise 

non-operational well before the complaint was even brought. Congress long ago recognized the 

need for statutes of limitations because of “[t]he concern that after the passage of time ‘evidence 

has been lost, memories have faded, and witnesses have disappeared.’” 3M Co. v. Browner, 17 

F.3d 1453, 1457 (D.C. Cir. 1994) (quoting Order of R.R. Telegraphers v. Railway Express 

Agency, 321 U.S. 342, 349 (1944)). It was entirely reasonable for the Commission to consider 

these problems when deciding how to exercise its prosecutorial discretion. 

It was equally reasonable for the Commission to consider the statute of limitations when 

determining how to allocate its resources. The Act provides for both injunctive relief and civil 

penalties, 2 U.S.C. § 437g(a)(6)(A), but there is a general five-year statute of limitations 

regarding civil penalties, 28 U.S.C. § 2462. The Commission reviewed the evidence and 

determined that the age of the alleged violations “raise[d] obstacles under the five-year statute of 

limitations.” AR01813, AR01816, AR01819, AR01823, AR01830. Taking into account the 

difficulty of obtaining civil penalties in this case — with numerous more recent complaints 

pending before the Commission — the decision to dismiss this complaint is not arbitrary or 

capricious agency decisionmaking, and this Court should not second-guess the Commission’s 

decisions. As the D.C. Circuit has explained: 

[W]e have no basis for reordering agency priorities. The agency is in a unique — and 

authoritative — position to view its projects as a whole, estimate the prospects for each, 

and allocate its resources in the optimal way. Such budget flexibility as Congress has 

allowed the agency is not for us to hijack. 

In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991); Rose, 806 F.2d at 1091 (“It is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintendance directing 

where limited agency resources will be devoted.”). In fiscal year 2010, the Commission 

completed processing 135 enforcement cases and 45 cases through its alternative dispute 

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18 

resolution program. FEC Performance and Accountability Report Fiscal Year 2010, at 24, 

http://www.fec.gov/pages/budget/fy2010/par_2010.pdf. Plaintiff has failed to demonstrate that it 

was contrary to law for the Commission to exercise its prosecutorial discretion to decline to 

devote its limited resources to the allegations in MUR 6021 at the expense of the many matters 

before it that involve more current activities and elections. 

3. The Commission Acted Reasonably In Identifying the Appropriate 

Respondents To The Administrative Complaint 

Plaintiff argues at length that the Commission acted contrary to law by not notifying all 

of the individuals and entities that the administrative complaint identified as “respondents.”10 

Nader Mem. at 6-11. But the FECA enforcement process is not a civil lawsuit between the 

complainant and respondents. The entire process — which potentially includes an investigation, 

attempted conciliation, and the filing of a lawsuit — is performed by the Commission without 

direction by the complainant.11 Although many matters are initiated by outside complaints, it is 

ultimately the role of the Commission, with assistance from its staff, to determine who are the 

appropriate respondents and how to direct Commission resources. 

 

10 Plaintiff does not have statutory standing to bring a lawsuit based on a failure to provide 

notice to someone else. See 2 U.S.C. § 437g(a)(8)(A) (creating cause of action solely for parties 

aggrieved that their complaint has been dismissed). Nonetheless, the decision to treat those 

individuals and entities as non-respondents ultimately led to the determination to make no 

recommendation as to them. AR01730.05 n.2. As a practical matter, therefore, the 

Commission’s decision to close the file functioned as a dismissal of the allegations that such 

persons referenced in the complaint had violated the Act. 

11 Indeed, plaintiff is well aware that an administrative complaint is different from a 

lawsuit, having brought four separate unsuccessful civil lawsuits making many of the same 

factual allegations as this administrative complaint. See Nader v. DNC, 567 F.3d 692 (D.C. Cir. 

2009); Nader v. McAuliffe, 593 F. Supp. 2d 95 (D.D.C. 2009); Nader v. DNC, 590 F. Supp 2d 

164 (D.D.C. 2008); Nader v. McAuliffe, 549 F. Supp. 2d 760 (E.D. Va. 2008). 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 25 of 40
19 

a. The Commission Regularly Exercises its Discretion In Identifying 

the Appropriate Respondents To An Administrative Complaint 

Plaintiff argues that the statute and Commission’s regulations require that all individuals 

and entities accused in an administrative complaint must be treated as respondents and therefore 

receive notification and an opportunity to respond. But this misstates the statute and regulations 

in two respects. As an initial matter, both the statute and regulations make clear that the 

Commission need not provide an opportunity to respond in a situation where the Commission 

votes to dismiss the complaint. See 2 U.S.C. § 437g(a) (“Before the Commission conducts any 

vote on the complaint, other than a vote to dismiss, any person so notified shall have the 

opportunity to demonstrate . . . that no action should be taken . . . .” (emphasis added)); 

11 C.F.R. § 111.6(b) (The Commission “shall not take any action, or make any finding, against a 

respondent other than action dismissing the complaint, unless it has considered such response or 

unless no such response has been served upon the Commission . . . .” (emphasis added)). The 

statute and regulations therefore contemplate the possibility that the Commission might choose 

to dismiss a complaint, without even obtaining a response, or notifying potential respondents — 

a course of action that Commission has chosen in the past. See, e.g., Cert., MUR 6158 (Harpo 

Inc., et al.), Mar. 4, 2009, http://eqs.nictusa.com/eqsdocsMUR/29044231149.pdf (Commission 

voting 5-1 to dismiss); General Counsel’s Rep., MUR 6158 (Harpo Inc., et al.), Jan. 16, 2009, at 

1 n.1, http://eqs.nictusa.com/eqsdocsMUR/29044231144.pdf (“The potential respondents in this 

matter have not been notified in order that the Commission be afforded the opportunity to 

quickly dismiss the case. See 2 U.S.C. § 437g(a).”). The opportunity to respond is for the 

benefit of the respondent, not for the benefit of the complainant or as a means of discovery. See 

Guidebook for Complainants and Respondents on the FEC Enforcement Process, at 10, 

http://www.fec.gov/em/respondent_guide.pdf (“The notification letters . . . are merely a vehicle 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 26 of 40
20 

for (1) informing the respondent that the Commission has received allegations as to possible 

violations of the federal campaign laws by the respondent, (2) providing a copy of the complaint 

or referral document, or in limited circumstances, a summary thereof, and (3) giving the 

respondent an opportunity to respond in writing in a timely manner.”). 

Second, plaintiff misunderstands the regulations by assuming that the identity of the 

“respondents” is determined by the complainant and not by the Commission. The purpose of the 

enforcement process is, inter alia, to sanction and deter violations of FECA, but allowing 

complainants to determine who will be respondents would create the danger of both underenforcement (if complainants fail to identify all of the appropriate respondents) and overenforcement (if complainants name incorrect entities and individuals as respondents). Political 

opponents could harass each other by filing frivolous administrative complaints, and the FEC 

would be forced “to direct its limited resources toward conducting a full-scale, detailed inquiry 

into almost every complaint, even those involving the most mundane allegations. . . . [because] 

“[r]arely could the FEC dismiss a complaint without soliciting a response . . . .” Orloski, 795 

F.2d at 165. The Commission is particularly cautious in exercising its enforcement authority 

because courts look at FEC investigations with “extra-careful scrutiny.” FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387-88 (D.C. Cir. 1981). “[I]t can hardly be doubted 

that the constitutional guarantee (of the First Amendment) has its fullest and most urgent 

application precisely to the conduct of campaigns for political office . . . .” Id. (citing Monitor 

Detroit Co. v. Roy, 401 U.S. 265, 272 (1971)). 

For all these reasons, the Commission has carefully considered how to exercise its 

discretion in identifying respondents. In 2003, the Commission held a public hearing 

specifically about enforcement process procedures. Enforcement Procedures, 68 Fed. Reg. 

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21 

23,311 (May 1, 2003). The Commission solicited comments about a variety of subjects, and the 

very first was who was appropriate to designate as a respondent in a complaint. Id. at 23,312. 

The Commission noted that it was requesting input from the regulated community because it had 

“been criticized for designating too many additional respondents who may only have tangential 

interaction with the allegations in the complaint.” Id.

The problems resulting from over-designating of respondents was discussed at great 

length in both the public comments submitted and at the subsequent Commission hearing. 

Despite disagreement on a variety of subjects, no commenter argued that the Commission lacked 

the authority to determine who were the appropriate respondents in a MUR. See, e.g., Comment 

of California Political Attorneys Association, at 2, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/epdf/cpaa.pdf (“The CPAA believes the 

Commission has sufficient latitude within its statutory and regulatory enforcement powers to 

designate respondents that the Commission believes may have committed a violation of the 

FECA.”); Comments of FEC Watch and the Center for Responsive Politics, at 1, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/epdf/fec_watch.pdf (“CRP Comment”) 

(The decision about whom to treat as a respondent “is not an exact science and will require 

judgment and prosecutorial discretion on the part of the agency.”). All of the disagreement 

amongst commenters concerned how inclusive the Commission should be in designating 

respondents. Compare Comment of Republican National Committee, at 2, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/rnc.pdf (“RNC Comment”) (“If in 

doubt, Commission staff should err on the side of limiting the number of initial respondents 

named, and then naming additional respondents only if necessary based upon timely information 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 28 of 40
22 

gleaned during the investigation.”) with CRP Comment, at 1 (Commission should “err on the 

side of giving notice”). 

Many commenters, spanning a wide variety of ideological positions, explained the 

negative effects that follow from being named as a respondent in an FEC administrative 

complaint. See, e.g., Comment of Free Speech Coalition, Inc., and Conservative Legal Defense 

and Education Fund, at 2, http://www.fec.gov/agenda/agendas2003/notice2003-09/epdf/free.pdf

(“Becoming a respondent is a significant event for an individual or entity, and often requires the 

expenditure of legal fees in self-defense.”); Comment of Perkins Coie, at 3-4, 

http://www.fec.gov/agenda/agendas2003/notice2003-09/perkins.pdf (“[N]aming a person as a 

respondent may seem an insignificant act. To a respondent it is often of major consequence. It 

may require hiring an attorney. It can create paralyzing fear that something that they did or 

might do may expose them to significant civil and potentially criminal liability.”); id. at 16 

(“One can hardly overstate how emotionally and even financially disruptive it can be for an 

innocent individual to be named as a respondent in a matter in which he or she had absolutely no 

involvement.”); RNC Comment at 2 (The Commission’s overdesignation of respondents “has 

caused needless cost and anxiety for organizations and individuals named that must then hire 

attorneys and file a response.”); Prepared Statement of Jan Witold Baran, Wiley, Rein & 

Fielding LLP, at 3, http://www.fec.gov/agenda/agendas2003/notice2003-09/baran_statement.pdf

(naming of too many respondents “add[s] an enormous amount of pressure and anxiety to 

persons and entities merely included in the complaint for factual context.”). The same issue was 

also noted at the public hearing. See, e.g., FEC Transcript of Public Hearing on Enforcement 

Procedures (2003) (“Hearing Tr.”), at 230, http://www.fec.gov/agenda/agendas2003/notice2003-

09/enforce_trans.pdf (“[Respondents] are put in the position of having to go back and reconstruct 

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23 

what happened, to retain counsel, to have counsel prepare filings. There is a lot of cost involved 

in that, pain, anguish . . . .” (statement of William J. Olson, Free Speech Coalition and 

Conservative Defense and Education Fund)). 

Plaintiff argues that the Commission should merely rubber stamp the complainant’s 

designation of “respondents” identified in administrative complaints. But this approach was 

dismissed by most commenters in 2003 both because it creates incentives for complainants to 

over-designate and leads to over-designation when complainants are mistaken about the law. If 

complainants were the sole arbiter of who was a respondent it would “encourage complainants to 

name everybody under the sun as respondents.” Hearing Tr. at 38 (Robert F. Bauer, Perkins 

Coie); see also General Counsel’s Rep., MUR 5333 (Swallow for Congress, Inc.), June 21, 2004, 

at 5-7 http://eqs.nictusa.com/eqsdocsMUR/0000602A.pdf (twenty-one different individuals who 

had made legal contributions were treated as respondents because complainant misunderstood 

the law). Similarly, the Commission must “screen out frivolous complaints at the reason to 

believe stage” in order to reduce the incentive for “political opponents to file charges against 

their competitors to . . . chill[] the expressive efforts of their competitor.” See AFL-CIO v. FEC, 

333 F.3d 168, 178 (D.C. Cir. 2003) (internal quotation marks omitted) (discussing policy 

concerns in the context of the Commission’s disclosure policies).

In light of the comments received in 2003, the Commission has been especially conscious 

of the potential “over-notification” problem in the exercise of its discretion and has addressed 

two of the primary issues that commenters believed were causing it. The Commission no longer 

treats as respondents all parties mentioned in a complaint that merely could be inferred to have 

violated a provision of FECA. Agency Procedures, 73 Fed. Reg. 74,494, 74,498 (Dec. 8, 2008). 

And the Commission has clarified the instances in which treasurers of political committees are 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 30 of 40
24 

named as respondents, either in an official or personal capacity (or both). Statement of Policy 

Regarding Treasurers Subject to Enforcement Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005). “In 

any scenario, the Commission will, of course, remain free to exercise its prosecutorial discretion 

not to pursue a respondent.” Id. at 3 n.2. 

The possibility of under-notification is largely alleviated by the fact that the Commission 

has the ability to add additional respondents to a MUR in the event circumstances warrant it. 

Such additional respondents can be added prior to a Commission investigation, as several were 

in this case, or after the Commission has already found reason to believe that one or more of the 

original respondents have violated the law. See, e.g., Letter of Notification, MUR 5333 

(Swallow for Congress, Inc.), Dec. 16, 2005, http://eqs.nictusa.com/eqsdocsMUR/0000605A.pdf

(explaining Commission’s decision to add additional respondent after investigation). The 

flexibility to add additional respondents in later stages of the enforcement process allows the 

Commission to avoid problems of over-notification while still retaining the ability to enforce the 

law against individuals and entities whose inclusion in the case is warranted by subsequent 

developments. 

b. The Commission Acted Reasonably In Identifying the Appropriate 

Respondents To Nader’s Administrative Complaint 

Plaintiff argues that the failure to notify all entities and individuals accused in his 

complaint of wrongdoing represents a “radical departure from the Agency’s established practice . 

. . .” Nader Mem. at 10-11. As discussed above, the Commission regularly exercises its 

discretion to determine the appropriate respondents to an administrative complaint, so its actions 

in this case are not a “radical departure.” But to the extent the Commission’s actions represent 

any sort of departure from the way it handles ordinary administrative complaints, such treatment 

is entirely justified because this was not an ordinary complaint. The typical FEC administrative 

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25 

complaint involves approximately three or four respondents; the administrative complaint in this 

case alleged wrongdoing by more than 150 individuals and entities, with an additional 17 added 

in the supplement. The other persons plaintiff believed should have been required to prepare 

responses to the complaint included, inter alia, 54 law firms, 98 individuals employed by law 

firms, 18 state Democratic parties, certain “John and Jane Doe Democratic Party employees,” 

and 13 individual officers, employees and agents of the 527 Group respondents. Furthermore, as 

discussed in supra Part II.B.1.a, the allegations against all of these individuals and entities 

hinged largely upon the involvement of the DNC and/or Kerry Committee in the alleged 

misconduct; therefore, resolving that critical issue by noticing a handful of entities could 

potentially resolve the case as to the remainder of the potential respondents. 

In addition, the fact that this administrative complaint was filed so long after the alleged 

illegal activities meant that, unlike cases that are filed in a more timely fashion, evidence was 

likely to be stale and a statute of limitations deadline was near. While the Commission is 

certainly capable of handling large administrative complaints, or ones alleging wrongdoing from 

years earlier, these factors are considerations in whether the Commission believes that expending 

resources on a particular matter is justified in context of the overall enforcement objectives of the 

agency. See generally Statement of Policy Regarding Commission Action in Matters at the 

Initial Stage in the Enforcement Process, 72 Fed. Reg 12,545, 12,546 (Mar. 16, 2007) 

(Commission will dismiss an administrative complaint “when the matter does not merit further 

use of Commission resources” due to, inter alia, “likely difficulties with an investigation”).12 

 

12 Plaintiff points to AFL-CIO v. FEC as evidence that the FEC is capable of an 

investigation of “more than 150” respondents and third-party witnesses. 177 F. Supp. 2d 48, 53 

& n.7 (D.D.C. 2001), aff’d on other grounds, 333 F.3d 168 (D.C. Cir. 2003). But the 

administrative complaints in that case were not speculative and were filed shortly after the 

alleged illegal activity. See 177 F. Supp. 2d at 52 (“Between December of 1995 and November 

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i. Notification of all Individuals and Entities Identified In The 

Administrative Complaint Would Have Created Unnecessary 

Burdens for Respondents 

As discussed above, both courts and the regulated community have indicated that naming 

individuals and entities as respondents to a MUR can be a serious burden. In this matter, the 

Commission drew the line between respondents and non-respondents in a way that attempted to 

properly balance the enforcement priorities of the Commission with the objective of minimizing 

the burdens on potentially innocent respondents. The Commission treated the DNC and Kerry 

Committee as respondents (as well as their treasurers and John Kerry personally) because the 

illegal in-kind contributions alleged in Count 1 of the complaint were allegedly directed by and 

for the benefit of those entities. See AR00857-58 (“Respondents initiated these legal 

proceedings with the knowledge and consent of [the DNC chairman] and John Kerry, and 

coordinated their efforts with the DNC, the Kerry-Edwards Campaign and at least 18 state or 

local Democratic Parties.”); AR00861 (“[T]he total value of the legal services that their law 

firms unlawfully contributed to the Kerry-Edwards Campaign greatly exceeds $2 million.”); 

AR00863 (“In summary, this Complaint proves that Respondents conspired on behalf of the 

Democratic Party and the Kerry-Edwards Campaign . . . .”). As a result, it made sense to 

proceed against those parties both because of their alleged culpability and their central role in the 

alleged conspiracy. 

By contrast, the non-respondents were more peripheral to the allegations in Count 1, 

allegations that rested largely on speculation. Although the administrative complaint was more 

 

of 1996, the FEC received eleven complaints alleging that Plaintiffs’ activities in connection 

with the 1996 election year violated FECA.”). Furthermore, many individuals were “added to 

the case as respondents and as third-party witnesses during the course of the investigation,” id. at 

53 n.7, a practice that would seem to be foreclosed by Nader’s suggestion that only the 

complainant determines the respondents. 

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than 100 pages long and provided detail regarding the alleged conduct of non-respondents, it was 

still speculative regarding the critical question of illegal conduct, namely, the involvement of the 

DNC and Kerry Committee. If the ballot challenges were conducted independently of the DNC 

and Kerry campaign, then the legal work painstakingly described in the administrative complaint 

did not constitute a contribution to either of those committees. Because the 18 state Democratic 

parties, 53 law firms, and 95 individual lawyers would have committed no violation if the DNC 

and Kerry Committee had not been involved, it made sense for the Commission to designate as 

respondents the entities likely to have information directly bearing on that issue. The 

Commission always retained the authority to designate additional respondents later if further 

developments had suggested merit to the allegations against some or all of the non-respondents. 

See supra Part II.B.3.a. 

Similarly, the Commission was entirely justified in treating SEIU as a non-respondent, 

because the administrative complaint was speculative as to the same critical issue of whether the 

DNC or Kerry Committee was involved in the alleged conspiracy to disrupt the Nader-Camejo 

petition drive in Oregon. Plaintiff attempts to get around this problem by alleging that SEIU 

violated the law by making independent expenditures rather than contributions. See Nader Mem. 

at 17-18. But this argument appears foreclosed by the Supreme Court’s holding in Citizens 

United v. FEC that corporations (and by extension, labor unions) have a constitutional right to 

make unlimited independent expenditures. 130 S. Ct. 876, 913 (2010). The Commission cannot 

bring an enforcement action against SEIU for violating a provision of FECA that was 

subsequently invalidated by the Supreme Court. See Harper v. Virginia Dep’t of Taxation, 509 

U.S. 86, 97-98 (1993) (Supreme Court holdings on federal law have retroactive application). 

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In contrast to the speculative nature of the first two counts of the administrative 

complaint, the allegation in Count 3, that the 527 Groups had failed to appropriately register as 

political committees, on its face was supported by more than mere speculation. The Commission 

therefore treated those 527 Groups as respondents.13 

The speculative nature of the allegations was a sufficient reason for the Commission to be 

concerned about imposing a burden upon so many potentially innocent respondents. In addition, 

the passage of time since the alleged illegality had the potential to make an investigation 

additionally burdensome. Reconstructing events that took place four years earlier can prove to 

be a challenge for even the most dutiful respondent. The Commission is entitled to consider that 

fact when designating respondents. 

ii. Notification of all Individuals and Entities Identified in 

the Administrative Complaint Would Have Caused 

Significant Delay 

As discussed above, the original administrative complaint was filed more than three and a 

half years after the underlying allegedly illegal conduct occurred, and the statute of limitations to 

obtain civil penalties is five years. See 28 U.S.C. § 2462. But the Commission’s enforcement 

process has a number of built-in steps that are designed to provide respondents with an ample 

opportunity to participate in the process. All respondents to a complaint are afforded fifteen days 

 

13 Although he references it in his judicial complaint (¶ 46), plaintiff appears to have 

abandoned his challenge to the Commission’s dismissal of Count 4, which involved a ballot 

challenge to a 2006 Pennsylvania Senate campaign in which Nader was not a candidate. Given 

his complete lack of Article III standing to bring such a claim, that abandonment makes sense. 

See Summers v. Earth Island Inst. 129 S. Ct. 1142, 1148 (2009) (citing Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 559-60 (1992)). Nader contends that money judgments obtained by law 

firms against Green Party 2006 Senate candidate Carl Romanelli helped to “effectively fr[ee]ze[] 

minor party and independent candidates out of Pennsylvania’s electoral process,” thereby 

harming Nader’s ability to engage in advocacy “for the rights of minor party and independent 

candidates and voters.” Nader Aff. ¶ 17. That allegation falls woefully short of establishing a 

concrete and particularized injury to him that was both caused by the Commission’s dismissal of 

Count 4 and redressable by this Court in a favorable decision. See Lujan, 504 U.S. at 559-60. 

Case 1:10-cv-00989-BAH Document 17 Filed 02/23/11 Page 35 of 40
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to respond from the time of actual receipt of notification. 11 C.F.R. § 111.6(a). Respondents 

often receive extensions of time to respond, as several of the respondents in this case did. See 

AR00588 (granting 30 day extension to DNC); AR00589 (granting 30 day extension to Kerry 

Committee); AR01451 (granting 38 day extension to The Ballot Project in exchange for tolling 

agreement); AR01611 (granting an additional 17 day extension to The Ballot Project in exchange 

for a tolling agreement); AR01453 (requesting additional time for ACT response). 

After the responses have been received or the time to receive them has elapsed, the FEC 

then reviews the complaint and any responses filed thereto to determine whether there is “reason 

to believe” that a violation of FECA has occurred or is about to occur. 2 U.S.C. § 437g(a)(2); 

11 C.F.R. § 111.7. If four or more Commissioners vote that there is reason to believe a violation 

has or will occur, the Commission undertakes an investigation of the alleged violation, which 

may include the subpoena of documents, depositions, written questions, and other methods of 

information gathering. 2 U.S.C. § 437g(a)(2); 11 C.F.R. § 111.9-12. After completion of an 

investigation, the Commission votes yet again on whether there is “probable cause” to believe 

FECA has been violated. 2 U.S.C. § 437g(a)(3). If at least four Commissioners find that there is 

probable cause a violation occurred, the respondent receives another notification. 11 C.F.R. 

§ 111.17. The statute then requires a conciliation period of at least thirty days after probable 

cause is found (or a shorter period immediately before an election). 2 U.S.C. § 437g(a)(4)(a); 

see also 11 C.F.R. § 111.18. At the conclusion of the conciliation period, if no agreement has 

been reached between the Commission and a respondent, the Commission must vote again by 

affirmative vote of four Commissioners before it may seek enforcement of FECA in federal 

district court. 2 U.S.C. § 437g(a)(6)(A); 11 C.F.R. § 111.19. 

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Congress chose these procedures so that the Commission can make an informed decision 

about whether a violation probably occurred and merits redress, and so that respondents have a 

meaningful opportunity to participate in the process. See Perot v. FEC, 97 F.3d 553, 559 (D.C. 

Cir. 1996) (noting that FEC enforcement procedures are “purposely designed to ensure fairness 

not only to complainants but also to respondents” and that “a court is not free to disregard that 

congressional judgment.”). But because the process is time consuming, the Commission urges 

complainants to file as soon as possible. See Guidebook for Complainants and Respondents on 

the FEC Enforcement Process, at 6, http://www.fec.gov/em/respondent_guide.pdf (“Complaints 

should be filed as soon as possible after the alleged violation becomes known to the complainant 

in order to preserve evidence and the Commission’s ability to seek civil penalties in federal 

district court within the five-year statutes of limitations period (measured from the time of the 

violation) . . . .”). 

In this case, having to investigate 150 additional respondents would have greatly slowed 

the progress of the MUR, which would have been problematic both for reasons of staleness and 

the approaching statute of limitations.14 Any difficulties in dealing with some respondents — 

either before a “reason to believe” finding or during an investigation — could have delayed the 

case against all respondents sufficiently to threaten the Commission’s ability to complete its 

work during the short window between the delayed filing of Nader’s administrative complaint 

and the end of the statute of limitations period. 

 

14 Although unrelated to the Commission’s initial determination about the appropriate 

respondents, the Commission notes that plaintiff filed two supplements to the administrative 

complaint, approximately four months and twenty months after the initial filing, respectively, as 

well as a corrected administrative complaint to fix a signature issue. Each of these filings was 

also provided to respondents, and they were given an opportunity to respond. Had the 

Commission been dealing with over 150 respondents, each of these supplemental and corrected 

filings could have threatened to further delay the consideration of the MUR. 

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31 

The Commission’s determination to limit the number of respondents was intended to 

enable an efficient resolution. The agency made the reasonable determination to restrict the 

number of respondents, thereby streamlining the process and making it far more likely that an 

investigation, if necessary, could be completed before the statute of limitations period elapsed. 

The Commission retained the authority to designate additional respondents had it obtained any 

information from the DNC, the Kerry Committee, or any of the 527 Groups, that, for example, 

the Kerry Committee was coordinating and supervising a particular law firm litigating ballot 

challenges against Nader-Camejo. See supra Part II.B.3.a. In that event, the Commission could 

have named additional respondents and expanded its investigation to include other parties. 

iii. Notification of all Individuals and Entities Identified In The 

Administrative Complaint Would Have Required 

Disproportionate Commission Resources 

As stated above, the Commission has great discretion regarding how to allocate its 

limited resources. See supra Part II.A. That consideration was of particular importance for an 

investigation as large as the one contemplated by this administrative complaint. Had the 

Commission decided to treat as respondents all of the individuals and entities that were named in 

the administrative complaint, the Commission would have had to devote substantially more 

resources to this matter. As discussed above, an FEC investigation may include document 

subpoenas, depositions, written questions, and other methods of information-gathering. In this 

case, the relevant documents and witnesses were spread throughout the country. The 

Commission faced the prospect of serving subpoenas all over the country and dealing with over 

150 respondents in a case that was several years old and based on speculative accusations. 

The resources that would have been expended on this MUR would necessarily have been 

diverted from other priorities at the agency. The Commission reasonably concluded that the 

investment of time and energy in treating all persons referenced by plaintiff as respondents, 

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32 

given all of these considerations, was unjustified by the facts presented in the administrative 

complaint. 

c. It Was Reasonable To Make No Recommendations As To 

Non-Respondents 

The Commission’s general practice when analyzing the potential liability of nonrespondents is to make no recommendation as to them. AR001730.05 n.2 (citing MUR 5237 

(Friedman, et al.)). Both the statute and regulations make clear that the Commission cannot 

proceed with an investigation against an entity that has not been given notice and an opportunity 

to respond. See 2 U.S.C. § 437g(a); 11 C.F.R. § 111.6(b). In this case, for the reasons stated 

above, the Commission disposed of all the allegations against the respondents, either through 

dismissal or a finding that there was no reason to believe a violation occurred. All of the 

allegations against the non-respondents were inextricably linked with the allegations against the 

respondents. For example, the Commission’s determination that there was no reason to believe 

that the Kerry Committee had accepted illegal contributions (in the form of coordinated 

expenditures) necessarily meant that neither the law firms and lawyers, nor SEIU, had given the 

Kerry Committee illegal contributions. Similarly, the allegation that the 18 state and local 

Democratic parties helped to coordinate these illegal contributions to the Kerry Committee was 

precluded by the Commission’s finding of “no reason to believe” as to the Kerry Committee. It 

was therefore reasonable for the Commission to continue to treat the remaining individuals and 

entities as non-respondents and to close the MUR without making a recommendation as to them. 

III. CONCLUSION 

Plaintiff has moved for summary judgment in his favor arguing that the Commission 

acted “contrary to law” in the handling of his administrative complaint. For the reasons stated 

above, however, the Commission’s resolution of Nader’s administrative complaint was 

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33 

reasonable. The Court should therefore grant summary judgment in favor of the FEC and deny 

the plaintiff’s motion for summary judgment. 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

February 23, 2011 

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