La Botz v. Fed. Election Comm'n

• Decision Date: 05 September 2012
• Docket Number: Civil Action No.: 11–1247 (RC).
• Parties: Dan LA BOTZ, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

889 F.Supp.2d 51

Dan LA BOTZ, Plaintiff,

v.FEDERAL ELECTION COMMISSION, Defendant.

Civil Action No.: 11–1247 (RC).

United States District Court,

District of Columbia.

Sept. 5, 2012.

Mark R. Brown, Columbus, OH, Oliver B. Hall, Washington, DC, for Plaintiff.

Harry Jacobs Summers, Robert William Bonham, III, David Brett Kolker, Federal Election Commission, Washington, DC, Anthony Herman, Covington & Burling LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

Denying the Fec's Motion to Dismiss

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

Dan La Botz is a member of Ohio's Socialist Party who ran an unsuccessful candidacy for the U.S. Senate in 2010. La Botz claims that he was unfairly excluded from three televised debates that took place in October 2010, the month preceding the election. He filed an administrative complaint with the Federal Election Commission (“FEC”), alleging that his exclusion from the debates violated the Federal Election Campaign Act (“FECA”). The FEC dismissed his complaint, and La Botz brought suit, claiming that the FEC's action was contrary to law. Now before the court is FEC's motion to dismiss under Rule 12(b)(1) for lack of jurisdiction and under Rule 12(b)(6) for failure to state a claim. Because the plaintiff has alleged that his injury is capable of repetition, yet evading review, the court has jurisdiction to adjudicate the merits. And because the court concludes that the FEC's decision was not supported by substantial evidence, the court will deny the FEC's motion and remand this matter back to the agency.

II. BACKGROUND

A. Legal Framework

The FECA prohibits corporations from making financial contributions in connection with any federal election. 2 U.S.C. § 441b(a). Yet in recognition of the importance that debates play in informing the electorate, the FECA allows corporations to defray the costs of nonpartisan televised debates. Id. § 431(9)(B)(ii) (allowing corporations to sponsor “nonpartisan activity designed to encourage individualsto vote or to register to vote”); Hagelin v. FEC, 411 F.3d 237, 238 (D.C.Cir.2005); see Hagelin v. FEC, 1996 WL 566762, at *3 (D.D.C. Oct. 1, 1996) (concluding that “the debate medium through the TV ... is not only important but probably vital and essential in today's world of electronic communication”). Accordingly, corporations may provide financial backing to organizations that stage debates, but only if certain conditions are met to ensure that the debates remain nonpartisan. 11 C.F.R. § 114.4(f). In particular, FEC regulations require that the debate staging organization may not “endorse, support or oppose political candidates,” id. § 110.13(a)(1), and the debate cannot be structured “to promote or advance one candidate over another,” id. § 110.13(b)(2). When determining which candidates may participate in the debate, the debate staging organization must employ “pre-established, objective criteria.” Id. § 110.13(c).

Any person who believes a violation of the FECA has occurred may file an administrative complaint with the FEC. 2 U.S.C. § 437g(a)(1). After receiving the complaint, the FEC may investigate the matter and determine the appropriate course of action. See generally id. § 437g(a)(2)-(6). If the FEC determines that no violation has occurred, it may dismiss the complaint. See id. § 437g(a)(8)(A); Hagelin, 411 F.3d at 239. A party whose complaint has been dismissed may then file a civil action in this court to challenge the legality of the FEC's decision. 2 U.S.C. § 437g(a)(8)(A).

B. Factual Allegations and Procedural History

On September 1, 2010, a consortium of eight newspapers known as the Ohio News Organization (“ONO”) announced that it was sponsoring a series of televised debates between the Democratic and Republican nominees in Ohio's U.S. Senate race. Pl.'s Opp'n at 7. The debates were scheduled to take place in October 2010, the month before the election. Id. La Botz claims that he was not included in any pre-debate negotiations with ONO, and he alleges that he never received any prior notice of the fact that the debates were to take place. Id. On September 21, 2010, La Botz filed an administrative complaint with the FEC, alleging that ONO violated federal regulations by failing to use “pre-established” and “objective” criteria when selecting the debate participants. Administrative Record (“AR”) 116–17.

The FEC investigated the complaint's allegations and solicited responses from ONO, as well as the Republican and Democratic campaigns' respective committees and treasurers. AR 117. The FEC's general counsel then issued a report which concluded that ONO's debate selection criteria did not violate FEC regulations. See generally AR 116–20. The report noted that ONO's criteria were consistent with a number of different factors the FEC had characterized as objective in prior cases, including the “percentage of votes by a candidate received in a previous election; the level of campaign activity by the candidate; his or her fundraising ability and/or standing in the polls; and eligibility for ballot access.” AR 119. The report thus concluded that there was “no reason to believe” that ONO violated the FECA. AR 120. Soon thereafter, the commissioners of the FEC unanimously voted to dismiss the complaint. AR 123. La Botz subsequently brought suit in this court, alleging that the FEC's decision was contrary to law. Now before the court is the FEC's motion to dismiss.

III. ANALYSIS

A. The Court Has Jurisdiction to Decide La Botz's Claim

Article III of the Constitution limits the power of federal courts to actual “Cases” and “Controversies.” U.S. CONST. art. III, § 2. From this requirement courts have derived several doctrines—including standing and mootness—to ensure that courts do not stray beyond the limits of their constitutionally allotted authority. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (noting that the several doctrines that elaborate upon Article III's case and controversy requirement are “founded in concern about the proper—and properly limited—role of the courts in a democratic society.”).

To meet the constitutional requirement of standing, a plaintiff must show that: (1) he has suffered an injury which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and conduct that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Courts assess standing by measuring the facts as they existed at the time the suit commenced. Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 324 (D.C.Cir.2009). Thus, standing must be ascertained from the facts as they existed when La Botz first filed his administrative complaint with the FEC in September 2010, two months before the election. See Natural Law Party of the U.S. v. FEC, 111 F.Supp.2d 33, 50 (D.D.C.2000).

La Botz alleges that he was injured when he was excluded from the debates. Pl.'s Opp'n at 20. If his exclusion violated the FECA, this injury suffices for the purposes of Article III. Buchanan v. FEC, 112 F.Supp.2d 58, 68 (2000) (concluding that the unfair exclusion from a presidential debate, in violation of FEC regulations, constituted an Article III injury); Natural Law Party, 111 F.Supp.2d at 49 (same). Of course, there are limits to who may assert this type of injury. For example, voters cannot assert standing based on their generalized interest in fair elections. Gottlieb v. FEC, 143 F.3d 618, 622 (D.C.Cir.1998); see Becker v. FEC, 230 F.3d 381, 389 (1st Cir.2000) (“[T]he harm done to the general public by corruption of the political process is not a sufficiently concrete, personalized injury to establish standing.”). But La Botz was no mere bystander—he was a candidate for office. And candidates who allege that they were forced to compete in an illegally structured campaign environment have stated a sufficient injury for the purposes of Article III. Shays v. FEC, 414 F.3d 76, 85 (D.C.Cir.2005); Natural Law Party, 111 F.Supp.2d at 44 (concluding that the “inability to compete on an equal footing” in an election “due to the application of allegedly biased criteria” constitutes an injury for the purposes of Article III); Buchanan, 112 F.Supp.2d at 65 (“When a debate sponsor uses subjective criteria for choosing the participants, the candidates are the ones who suffer a ‘concrete and particularized’ injury that would imminently deprive them of a fair opportunity to compete on equal footing with their rivals.” (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130)).

The second element of standing is easily satisfied here: causation may be established simply by alleging that the FEC failed to enforce the laws it was designed to implement. Buchanan, 112 F.Supp.2d at 68;Natural Law Party, 111 F.Supp.2d at 49.

Finally, La Botz must satisfy the third element by demonstrating that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130. In the electoral context, a plaintiff may satisfy the “redressability” prong by showing that the FEC could fairly reassess his complaint on remand. Of course, the court need not determine that La Botz will ultimately succeed. Buchanan, 112 F.Supp.2d at 69 (concluding that “the fact that an agency might not ultimately find in the plaintiffs' favor on remand does not destroy the plaintiff's [sic] standing to challenge the agency's decision”). It is enough that upon remand, the FEC could determine that ONO violated FEC regulations by using criteria that systematically disfavored third-party candidates. Id.

To be clear, La Botz does not need to show that any eventual success on remand would translate to success in the electoral...