Combat Veterans for Cong. Political Action Comm. v. Fed. Election Comm'n

• Decision Date: 28 July 2015
• Docket Number: No. 13–5358.,13–5358.
• Citation: 795 F.3d 151
• Parties: COMBAT VETERANS FOR CONGRESS POLITICAL ACTION COMMITTEE and David H. Wiggs, Treasurer, Appellants. v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 151

COMBAT VETERANS FOR CONGRESS POLITICAL ACTION COMMITTEE and David H. Wiggs, Treasurer, Appellants.

v.FEDERAL ELECTION COMMISSION, Appellee.

No. 13–5358.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 5, 2015.

Decided July 28, 2015.

Rehearing En Banc Denied Oct. 16, 2015.

Paul D. Kamenar argued the cause for appellants. With him on the briefs was Dan Backer.

Harry J. Summers, Assistant General Counsel, Federal Election Commission, argued the cause for appellee. With him on the brief were Kevin A. Deeley, Acting Associate General Counsel, and Robert W. Bonham III, Senior Attorney.

Before: HENDERSON, PILLARD and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

The basic facts are few and not in dispute. The Federal Election Commission in October of 2011 imposed an $8,690 fine on the Combat Veterans for Congress Political Action Committee and its treasurer, David Wiggs, in his official capacity. Combat Veterans incurred the fine for failing to meet three required reporting deadlines under the Federal Election Campaign Act. Combat Veterans sued the Commission, contesting the fine and charging that the Commission's procedural errors deprived it of the power to act.

Only one of Combat Veterans' claims gives us pause. It emerged during litigation that the Commission's voting procedures may contravene the Campaign Act. The Commission must secure “an affirmative vote of” four of its six Commissioners to initiate an enforcement action against a person who misses a filing deadline under the Act. 52 U.S.C. § 30109(a)(2). In polling its Commissioners to learn how they vote on an enforcement action, the Commission currently uses a voting procedure that counts as “affirmative votes” ballots that it distributes to the Commissioners but that Commissioners do not mark and return. There is a question whether it is lawful for the Commission to treat unmarked, unreturned ballots as affirmative votes.

Disposition of this case does not, however, require that we resolve the precise meaning of “affirmative votes” under the statute, and, in particular, whether the Commissioners' silent acquiescence may be treated as such votes. Combat Veterans has failed to show that the Commission's use of its allegedly flawed voting procedure caused it any prejudice. The challenged votes did not result in an investigation of Combat Veterans because the filings' lateness was readily apparent from information already in the Commission's possession. Moreover, the Commission's ultimate liability determinations on the late filing charges were made by unanimous tally votes on marked ballots. Because we conclude that the Commission's use of its voting procedure was harmless even if it was in error, we affirm the decision of the district court.

I.

A.

The Federal Election Commission administers the Federal Election Campaign Act, the statute that regulates campaign fundraising and financing for federal elections. See 52 U.S.C. §§ 30101 et seq.¹ The Campaign Act requires that political committees file periodic reports detailing their receipts and disbursements. Id.§ 30104(a)-(b). The Federal Election Commission is authorized to fine political committees that fail to meet the Act's reporting deadlines. Id. § 30109(a)(5)(A)-(B).

Deadlines are not all that the Commission superintends, however. The Commission's mandate is broad and its authority considerable. See id. § 30107. Substantively, the Act charges the Commission to enforce laws governing required public disclosures of campaign finance information, as well as limits on contributions to, and public funding of, federal election campaigns. As a procedural matter, the Act authorizes the Commission to conduct investigations, authorize subpoenas, administer oaths, receive evidence, and initiate civil actions. See id. Such an independent Commission holds potentially enormous power. It must decide “issues charged with the dynamics of party politics, often under the pressure of an impending election.” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981).

Congress sought to limit the Commission's powers through two safeguards. First, Congress tempered the Commission's powers through structure. See H.R.Rep. No. 94–917, at 3 (1976); see also Scott E. Thomas & Jeffrey H. Bowman, Obstacles to Effective Enforcement of the Federal Election Campaign Act, 52 Admin. L.Rev. 575, 590–93 (2000). Congress designed the Commission to ensure that every important action it takes is bipartisan. See Democratic Senatorial Campaign Comm., 454 U.S. at 37, 102 S.Ct. 38 ; Common Cause v. FEC, 842 F.2d 436, 449 n. 32 (D.C.Cir.1988). The Commission is comprised of six Commissioners. 52 U.S.C. § 30106(a)(1) ; see FEC v. NRA Political Victory Fund, 6 F.3d 821, 826–28 (D.C.Cir.1993) (holding unconstitutional statutory provision permitting two congressional officers to serve as ex-officio members). Of the six Commissioners, “[n]o more than [three] ... may be affiliated with the same political party.” 52 U.S.C. § 30106(a)(1) Many Commission actions require “the affirmative vote of 4 members of the Commission.” See id. § 30106(c) (cross-citing 52 U.S.C. §§ 30107(a)(6), (7), (8), (9) ). No Commissioner may “delegate to any person his or her vote or any decisionmaking authority or duty.” Id. The Commission cannot sub-delegate its central powers to committees of its members. See id. The four-affirmative-vote, non-delegation, and bipartisanship requirements reduce the risk that the Commission will abuse its powers. As the Committee Report accompanying the creation of the four-vote language explains: “[t]he four-vote requirement serves to assure that enforcement actions, as to which Congress has no continuing voice, will be the product of a mature and considered judgment.” H.R.Rep. No. 94917, at 3 (1976).

Congress further tempered the Commission's power by requiring a series of steps before the Commission takes enforcement action. See 52 U.S.C. § 30109(a) ; see also 11 C.F.R. § 111.3 –111.24 (enforcement process regulations); Thomas & Bowman, supra at 584–90. Before it may act, the Commission must find “reason to believe” that a violation of the Act has occurred. 52 U.S.C. § 30109(a)(2). Following such a determination, the Commission's General Counsel may then conduct an investigation. Id. If the outcome of the investigation warrants it, the Commission may then proceed to the next stage of the enforcement process by finding “probable cause to believe” a violation has occurred. Id. § 30109(a)(1)-(4). Following a finding of probable cause, the Commission “shall attempt” to resolve a matter by “informal methods of conference, conciliation, and persuasion, and ... enter into a conciliation agreement” with the respondent involved. Id. § 30109(a)(4)(A)(i). If informal measures are ineffective, the Commission may vote to file a de novo civil suit in federal district court to enforce the Campaign Act. Id. § 30109(a)(6). Notably, each of those three procedural stages—(1) a reason to believe determination, (2) a probable cause determination, and (3) the filing of a civil suit—requires “an affirmative vote of 4 of [the Commission's] members” before the Commission may proceed. Id. §§ 30109(a)(2), 30109(a)(4)(A)(i), 30109(a)(6).

B.

In 1999, Congress amended the Campaign Act to create a special, streamlined set of procedures for efficiently imposing fines on covered persons for routine filing and record-keeping violations, such as the late filings at issue here. See id. § 30109(a)(4)(C) ; 145 Cong. Rec. 16,260 (July 15, 1999) (statement of Rep. Maloney) (noting that the bill “contains several provisions that will help the agency operate more efficiently,” by mandating some electronic filing and creating “a system of ‘administrative fines'—much like traffic tickets, which will let the agency deal with minor violations of the law in an expeditious manner”); 145 Cong. Rec. 21,725 (Sept. 15, 1999) (statement of Rep. Maloney). With those amendments, Congress sought to make it easier for the Commission to enforce the Campaign Act's deadlines. As the Committee Report accompanying the amendments to the Act explains, the Administrative Fines Program “create[d] a simplified procedure for the FEC to administratively handle reporting violations.” H.R.Rep. No. 106–295, at 11 (1999).

An administrative fines proceeding under the amended Act thus involves fewer hurdles than other Commission enforcement proceedings. See 52 U.S.C. § 30109(a)(4)(C). To impose an administrative fine, the Commission makes a reason-to-believe determination just as it would in any potential enforcement proceeding. See id. § 30109(a)(2). The Commission then furnishes a person with “written notice and an opportunity to be heard before the Commission.” Id. § 30109(a)(4)(C)(ii). Once that notice and opportunity has been afforded, however, the streamlined administrative fines authority permits the Commission to find—without making a probable cause determination and without filing an action in district court—that the person violated the Act and require that she or he “pay a civil money penalty.” Id. §§ 30109(a)(4)(C)(i)(I), (II). In administrative fines proceedings, Congress shifted the burden of seeking judicial review in federal district court to the party against whom the Commission makes an adverse determination. Id. § 30109(a)(4)(C)(iii).

C.

The Commission uses a twenty-four-hour, no-objection procedure to make reason-to-believe determinations in administrative fines cases. The no-objection vote is one of two “circulation vote” procedures that the Commission set forth in Directive 52, FEC Directive 52 (Sept. 10, 2008), http://www.fec.gov/directives/directive_52.pdf, pursuant to its statutory authority to promulgate “rules for the conduct of its activities,” 52 U.S.C. § 30106(e). The other procedure is a tally vote. FEC Directive 52, supra at 2. The no-objection and tally vote...