Common Cause v. Federal Election Com'n

• Decision Date: 30 December 1986
• Docket Number: Civ. A. No. 83-2199.
• Citation: 655 F. Supp. 619
• Parties: COMMON CAUSE, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

655 F. Supp. 619

COMMON CAUSE, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

Civ. A. No. 83-2199.

United States District Court, District of Columbia.

December 30, 1986.

Roger M. Witten, Carol F. Lee, Wilmer, Cutler & Pickering, Washington, D.C., for plaintiff.

Charles N. Steele, F.E.C., Washington, D.C., for defendant.

OPINION

JOHN GARRETT PENN, District Judge.

Plaintiff contends that defendant wrongfully dismissed a complaint alleging that five political committees supporting Ronald Reagan's 1980 campaign violated various provisions of the Federal Election Campaign Act. 2 U.S.C. § 431-455 (1982, Supp. III 1985). The parties have filed cross-motions for summary judgment which involve three issues arising under the FECA. The five committees named in the complaint are, (1) Americans For An Effective Presidency (AEP), (2) Americans For Change (AFC), (3) North Carolina Congressional Club (NCCC) (known today as National Congressional Club), (4) Fund For A Conservative Majority (FCM) and (5) National Conservative Political Action Committee (NCPAC). None of these committees was authorized under 2 U.S.C. § 432(e)(1), (3) to make expenditures on behalf of candidate Reagan.

After merging plaintiff's complaint with one filed earlier by the Carter-Mondale Reelection Committee, Inc. and the Democratic National Committee (hereinafter cited Carter-Mondale complaint) and after investigating the majority of the claims,¹ the defendant voted to close the file with no further action.

After a comprehensive review of the motions, the oppositions thereto, the voluminous record and counsels' oral argument, the Court concludes that defendant's actions were contrary to law on the issue raised concerning section 432(e)(4) and not contrary to law on the issue of impermissible coordination, section 441a(a). On the matter of defendant's refusal to investigate NCCC and AEP for violations of section 441a(a), the Court concludes that without an adequate explanation for such action, on the facts of this case, it is necessary to return the matter to the Commissioners.

I

AFC, FCM, NCPAC VIOLATED 2 U.S.C. § 432(e)(4)

The first legal issue to address is plaintiff's allegation that AFC, FCM and NCPAC violated section 432(e)(4) which deals with the use of a candidate's name in an authorized committee name. The statute states:

The name of each authorized committee shall include the name of the candidate who authorized such committee under paragraph (1). In the case of any political committee which is not an authorized committee such political committee shall not include the name of any candidate in its name.

2 U.S.C. § 432(e)(4) (1982, Supp. III 1985).

It is uncontested that the committees in question were not Reagan's authorized committees. Although the registered names did not contain Reagan's name, the evidence undeniably reveals that each committee held itself out to the public at times with a name that contained the word "Reagan". Defendant argues that these names were project names and thereby were not restricted by the mandate of section 432(e)(4). However, the facts show that potential contributors were urged to send their checks to "Reagan for President in '80" (AFC), "Ronald Reagan Victory Fund" (NCPAC) and "Americans for Reagan" (AFC). Reply envelopes were provided addressed to "Reagan for President '80" (AFC) and "Citizens for Reagan in '80" (FCM). AFC asked individuals to become members of state steering committees of "Reagan for President in '80" and "Ronald Reagan for President in '80".² Their headquarters answered the telephone, "Americans for Reagan". Plaintiff's Motion for Summary Judgment at 7. The general counsel's opinion, which was presumably followed by defendant³, reasoned that because the projects did not constitute separate political committees, as evidenced by the combined funds and personnel, section 432(e)(4) did not apply. Joint Ex. 9 at 53-54, Joint Ex. 10 at 56-58, Joint Ex. 11 at 66-68. The facts supporting the projects' non-independent nature support plaintiff's argument, however, and defendant's assertions cannot stand without a rational basis. It is precisely because the projects were so closely aligned with the committees that plaintiff believed the public would be easily confused and thereby assume that the use of Reagan's name meant that the committee was authorized.⁴

The Court is aware that it has limited review in such matters. If there exists a rational basis for the agency's decision, regardless of whether the Court might otherwise disagree, the decision will stand. In re Federal Election Campaign Act Litigation, 474 F.Supp. 1044, 1046 (D.D.C.1979), Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981), Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 102 S.Ct. 38, 45-46, 70 L.Ed.2d 23 (1981). With this in mind, the Court, nonetheless, concludes that defendant's interpretation defeats the plain meaning of the statute and the congressional intent.

Using the words of the statute, the defendant unreasonably focuses on the definition of "political committee" to the exclusion of the word "name" and its plain meaning. It is clear from a previous advisory opinion that the defendant considered the name of a committee as that which is presented to the public; not simply that which is registered officially in the records out of the public view. Federal Election Campaign Finance Guide (CCH), Advisory Opinion 1980-84. The statute cannot be interpreted literally so that common sense is read out of its meaning. The political machinery is powered by names and what those names symbolize and identify. Therefore, whatever names the committees presented to the public for identification must also constitute a "name" within the meaning of section 432(e)(4).⁵ To allow defendant's reasoning would be to allow political committees to emasculate the effectiveness of the rule. Both the plain understanding of the word "name" in the context of elections and the legislative intent to safeguard against confusion, leads the Court to conclude that defendant's decision, on the facts of this case, is contrary to law.

II

FAILURE TO INVESTIGATE ALLEGED SECTION 441a(a) VIOLATIONS (AEP AND NCC)

A brief summary of the procedural background is necessary for a full understanding of the second issue before this Court.

On July 2, 1980, about three months before plaintiff filed the administrative complaint, a similar complaint was filed by another party (Carter-Mondale complaint) alleging, inter alia, that AFC, FCM, NCPAC and NCCC had violated 2 U.S.C. § 432(e)(4) and that AFC, FCM, NCPAC, NCCC and AEP had violated section 441a(a). On August 15, 1980, the General Counsel submitted a report recommending that the defendants find reason to believe that AFC, FCM, NCPAC and NCCC had violated section 432(e)(4) and that AFC, FCM, NCPAC, NCCC and AEP had violated section 441a(a). Joint Ex. 3 at 375-390. The defendant found reason to believe all four committees had violated section 432(e)(4) and found reason to believe AFC, FCM and NCPAC had violated section 441a(a). However, contrary to the General Counsel's recommendation, by a 3-3 vote, the defendant reached no conclusion as to whether there was reason to believe AEP and NCCC had engaged in impermissible coordination. Joint Ex. 4 at 614-16. No explanation was submitted for the decision.

Subsequently, plaintiff filed a complaint raising similar allegations against the same parties cited in the Carter-Mondale complaint. After examining plaintiff's complaint, the General Counsel recommended that in the interest of administrative efficiency defendant should merge plaintiff's complaint with that of the Carter-Mondale complaint. On October 15, 1980, the complaints were merged. Defendant's Ex. 4 at 126.

An investigation was commenced which resulted, inter alia in the General Counsel's conclusion that further action would be fruitless because the investigation failed to find evidence revealing direct coordination. Joint Ex. 9 at 753-56, Joint Ex. 10 at 911-14, Joint Ex. 11 at 1165-69. Defendant voted on May 24, 1983 to close the file and dismiss the complaint. Joint Ex. 14 at 1371-72. Plaintiff argues that failure to investigate the allegations against AEP and NCCC was arbitrary and capricious and thereby contrary to law.

Pursuant to 2 U.S.C. § 437g(a)(2), an investigation may commence only upon the affirmative vote of four or more commissioners. Therefore, defendant correctly avers that the 3-3 vote effectively barred any further investigation of AEP or NCCC. It is not axiomatic, however, that the failure to sustain a vote statutorily sufficient for investigation, per se renders the action "lawful" or essentially beyond judicial review. Although the defendant is given broad discretionary powers to determine whether to investigate a complainant's claim, section 437g(a)(8)(A) plainly guarantees a party aggrieved by an order dismissing a complaint the right to seek judicial review. Whether there was a majority vote finding "no reason to believe" or a tie vote, the result is the same; the investigation is foreclosed and the complaint dismissed. Democratic Congressional Campaign Committee v. Federal Election Commission, 645 F.Supp. 169 (D.D.C. 1986).

The defendant's action in such matters is presumed to be lawful. Yet it is within the range of possibilities that the votes cast against investigation were founded on an impermissible basis. Therefore, courts have determined that judicial review is warranted regardless of the discretion afforded to prosecute or investigate. See Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 1857-59, 44 L.Ed.2d 377 (1975). The problem here is that defendant, with no explanation, acted completely counter to the General Counsel's recommendation to investigate all of the committees. To enable this Court to intelligently review the defendant's determination on this issue, some statement of...