Gottlieb v. Federal Election Com'n

• Decision Date: 22 May 1998
• Docket Number: No. 97-5125,97-5125
• Citation: 330 U.S. App. D.C. 104,143 F.3d 618
• Parties: Alan GOTTLIEB, et al., Appellants, v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 618

143 F.3d 618

330 U.S.App.D.C. 104

Alan GOTTLIEB, et al., Appellants, v. FEDERAL ELECTION COMMISSION, Appellee.

No. 97-5125.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 3, 1998.

Decided May 22, 1998.

Appeal from the United States District Court for the District of Columbia (95cv01923).

Harold Richard Mayberry, Jr. argued the cause and filed the briefs for appellants.

David Kolker, Attorney, Federal Election Commission, Washington, DC, argued the cause for appellee. With him on the brief were Lawrence M. Noble, General Counsel, and Richard B. Bader, Associate General Counsel, Washington, DC.

Before: SILBERMAN, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This is an appeal from the judgment of the district court dismissing for lack of standing a suit brought by four individuals and three organizations. See Gottlieb v. FEC, No. 95-1923 (D.D.C. May 8, 1997). The suit alleged that the Federal Election Commission's dismissal of an administrative complaint filed by these appellants was "contrary to law," 2 U.S.C. § 437g(a)(8)(C).

The individual appellants are Alan Gottlieb, Michael A. Siegel, Todd Herman, and Joseph P. Tartaro, all registered voters who supported candidates opposing William J. Clinton in the 1992 presidential election. The organizational appellants are the Center for the Defense of Free Enterprise and the Second Amendment Foundation, both tax-exempt organizations who promote free enterprise or the right to bear arms, and the American Political Action Committee ("AmeriPAC"), a multicandidate political action committee which spent about $6,600 opposing the election of President Clinton in the 1992 general election.

The administrative complaint, filed on March 9, 1995, charged that President Clinton's 1992 primary campaign committee violated the Presidential Primary Matching Payment Account Act and Commission regulations. The alleged violation dealt with the transfer of contributions earmarked for the primary campaign into the General Election Legal and Accounting Compliance Fund. The Commission dismissed the complaint on August 16, 1995, after three of the six Commission members found no violation.

The Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042, provides federal funds "matching" individual private campaign donations of $250 or less, up to an overall ceiling. Id. § 9034. The Act subsidizes only the primary campaign, not the costs of campaigning in the general election. Although candidates technically are "ineligible" to receive matching funds after the primary election, id. § 9033(c)(1)(A) & § 9032(2), they may continue to receive such funds to offset "net outstanding campaign obligations" accrued during the primary. 11 C.F.R. § 9034.1(b). "Net outstanding campaign obligations" are essentially "the amount of [the] campaign's qualified obligations as of the date of ineligibility less the value of its assets on that date." LaRouche v. FEC, 28 F.3d 137, 139 (D.C.Cir.1994) (emphasis added). The Commission's implementing regulations permit a candidate to receive matching funds only if "the sum of the contributions received on or after the date of ineligibility plus matching funds received on or after the date of ineligibility is less than the candidate's net outstanding campaign obligations." 11 C.F.R. § 9034.1(b). Each private contribution diminishes the total amount of primary campaign debt, and consequently the total amount of matching funds a candidate is permitted to receive. To enforce this requirement the Commission requires the candidate to submit a statement of net outstanding campaign obligations within fifteen days after his nomination; with each new request for matching funds after the nomination the candidate must submit a revised statement of such obligations. 11 C.F.R. § 9034.5(a) & (f)(1).

Appellants contend that after President Clinton received the Democratic Party's nomination, his campaign transferred $1.4 million in private contributions to the Clinton-Gore '92 General Election Legal and Accounting Compliance Fund ("Compliance Fund"), instead of using that money to offset its outstanding primary campaign debts. According to appellants, this violated 11 C.F.R. § 9003.3(a)(1) (1994), ¹ which permits only transfers of funds "in excess of any amount needed to pay remaining primary expenses...." Appellants further charged that in reporting later private contributions to the Commission, the Clinton campaign did not record the contributions it had transferred to the Compliance Fund. As a result, the primary campaign received $1.4 million more in matching funds than it was entitled.

Under the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-455, "[a]ny person" who believes that the Act has been violated may file a complaint with the Commission. Id. § 437g(a)(1). Complaints are investigated only if four of the six Commissioners vote that there is "reason to believe" a violation has occurred. Id. § 437g(a)(2). After conducting an investigation, the Commission votes again on whether there is "probable cause" to believe the law has been violated. Id. § 437g(a)(4)(A)(i). Here, the Commission agreed to investigate, but ultimately dismissed the complaint after three of the six Commissioners found no violation.

Appellants' suit in the district court, filed under 2 U.S.C. § 437g(a)(8)(A), sought an order declaring the Commission's dismissal of the administrative complaint contrary to law and an order directing the Commission to conform its conduct to the declaration within 30 days. The only question before us is whether the district court properly dismissed the suit for lack of standing. That is, have appellants suffered an "injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; is their injury "fairly ... trace[able]" to the challenged action; and is the injury "likely" to be redressed by a favorable decision of the court? Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted).

Appellants identify three separate injuries stemming from the Clinton primary campaign's transfer of contributions into the Compliance Fund: AmeriPAC suffered "competitive injury"; the voters not only suffered a diminution in their ability to influence the political process but also the candidates they supported were put at a disadvantage. ²

As to AmeriPAC's "political competitor" theory, we have never completely resolved this "thorny issue." Common Cause v. FEC, 108 F.3d 413, 419 n. 1 (D.C.Cir.1997); Akins v. FEC, 101 F.3d 731, 737 (D.C.Cir.1997) (en banc), cert. granted, --- U.S. ----, 117 S.Ct. 2451, 138 L.Ed.2d 210 (1997); Fulani v. Brady, 935 F.2d 1324 (D.C.Cir.1991). AmeriPAC thinks our opinion in Fulani--a case in which we concluded the appellant lacked standing to sue the Internal Revenue Service--supports its position. We think the opposite. Fulani, a minor party candidate in the 1988 Presidential election, sought to invalidate the tax-exempt status of the sponsor of the Presidential debates, which had excluded her from participating. We rejected Fulani's contention that she had "competitor standing" to bring suit: She was not in a position to be granted tax-exempt status, and thus was not in competition for that benefit. See Fulani, 935 F.2d 1324; but see Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.1989). We speculated that "[a]rguably" Fulani would have had standing "if the IRS were depriving Fulani of a benefit that it afforded to others similarly placed...." Fulani, 935 F.2d at 1328.

AmeriPAC's "competitor standing" argument suffers the same flaw. Like Fulani, the organization challenges a government benefit granted to a third party. AmeriPAC cannot claim standing as a "competitor" of the Clinton campaign because it was never in a position to receive matching funds itself. Only another candidate could make such a claim. Our conclusion is consistent with the line of cases granting standing to economic competitors. See Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 403, 107 S.Ct. 750, 759, 93 L.Ed.2d 757 (1987); Investment Co. Inst. v. Camp, 401 U.S. 617, 620, 91 S.Ct. 1091, 1093-94, 28 L.Ed.2d 367 (1971); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46, 91 S.Ct. 158, 159, 27 L.Ed.2d 179 (1970); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Those decisions also require that the plaintiff "show that he personally competes in the same arena with the same party to whom the government has bestowed the assertedly illegal benefit." In re United States Catholic Conference, 885 F.2d 1020, 1029 (2d Cir.1989). For "[o]nly then does the plaintiff satisfy the rule that he was personally disadvantaged." Id.

As to the four voters, the supposed injury to their "ability to influence the political process" rests on gross speculation and is far too fanciful to merit treatment as an "injury in fact." See, e.g., Kardules v. City of Columbus, 95 F.3d 1335, 1348-53 (6th Cir.1996). In a case such as this one, where the "asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else," standing will often be difficult to establish. Lujan, 504 U.S. at 562, 112 S.Ct. at 2137. This is because "one or more of the essential elements of standing 'depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.' " Id. (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 2044, 104 L.Ed.2d 696 (1989)). The individual appellants say their support for rival candidates was rendered less effective...