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      FEC Record: Litigation
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      Bialek v. Mukasey

FEC Record: Litigation*Bialek v. Mukasey*August 1, 2008 On June 24, 2008, the U.S. Court of Appeals for the 10th Circuit affirmed the district court’s dismissal of plaintiff Barry Bialek’s suit against the U.S. Attorney General and the FEC, agreeing that the Attorney General has discretion over whether to investigate and prosecute criminal violations of the Federal Election Campaign Act (the Act) and is not required to wait for a referral from the Commission.  Background According to the complaint filed February 14, 2007, Mr. Bialek made contributions towards John Edwards’ 2004 Presidential campaign. In November 2005, the U.S. Attorney General began an investigation into possible violations of the Act by the plaintiff. See April 2007 Record. The plaintiff filed a complaint with the District Court in Colorado,alleging that the Commission mustrefer, by a vote of the majority ofthe Commission, a matter to the AttorneyGeneral prior to the AttorneyGeneral investigating or prosecutinga violation of the Act. In June 2007, the District Court granted the Commission’s motion to dismiss the plaintiff’s suit with prejudice, holding that the Attorney General’s discretion over whether to investigate a potential criminal violation of the Act does not require a referral from the Commission. See August 2007 Record. Court decision  The appellate court affirmed the district court’s decision. The appellatecourt agreed with the districtcourt that Congress did not expresslylimit the Attorney General’sauthority to investigate and prosecutecriminal violations of the Actand that the Commission’s actionsare not a prerequisite to the AttorneyGeneral’s investigation. The Act provides the Commissionwith exclusive jurisdiction toenforce the civil provisions of theAct. 2 U.S.C. 437c(b)(1). The Commissionmay refer a violation to theAttorney General if, by four votesof the Commissioners, the Commissiondetermines that there is probablecause to believe that a “knowingand willful” violation occurred. 2U.S.C. 437g(a)(5)(C). The plaintiff claimed that becausethe Act grants the Commissionexclusive jurisdiction over civilviolations and contains a referralprovision, criminal violations mustfirst be handled by the Commission,and the Attorney General mayonly become involved in the matteronce the Commission has voted torefer the violation. The appellatecourt agreed with the district court’srejection of the argument, holdingthat there is a presumption againstany limitation on the AttorneyGeneral’s prosecutorial authorityand Congress must show “clearand unambiguous” intent to restrictthe Attorney General’s authority toinvestigate and prosecute criminaloffenses. The Act does not explicitlylimit the Attorney General inany way. The court held that nothingin the plain language of the Actnor the legislative history required areferral prior to prosecution by theAttorney General. The appellate court found thatthe Commission and the Departmentof Justice have concurrentjurisdiction to investigate knowingand willful violations of the Act.Both agencies may initiate investigationsand make referrals to eachother. U.S. Court of Appeals for the Tenth Circuit, 07-cv-00321-WYDPAC.
 Author
          Meredith Metzler


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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