Orloski v. Federal Election Com'n

• Citation: 795 F.2d 156
• Decision Date: 11 July 1986
• Docket Number: No. 85-5012,85-5012
• Parties: , 55 USLW 2058 Richard J. ORLOSKI, Appellant, v. FEDERAL ELECTION COMMISSION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 156

795 F.2d 156

254 U.S.App.D.C. 111, 55 USLW 2058

Richard J. ORLOSKI, Appellant, v. FEDERAL ELECTION COMMISSION, Appellee.

No. 85-5012.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 17, 1985.

Decided July 11, 1986.

Richard J. Orloski, pro se.

Carol A. Laham, Federal Election Com'n, with whom Charles N. Steele, General Counsel and Richard B. Bader, Asst. General Counsel, Federal Election Com'n were on brief, for appellee.

Before ROBINSON, Chief Judge, BORK, Circuit Judge, and SWYGERT, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. ^*

Opinion for the Court filed by Senior Circuit Judge SWYGERT.

SWYGERT, Senior Circuit Judge:

In this case, we review the Federal Election Commission's method for determining whether corporate funding of an event sponsored by an incumbent congressman is illegal under the Federal Election Campaign Act, 2 U.S.C. Secs. 431 et seq. (1982) ("the Act").

Richard J. Orloski appeals from an order of the district court affirming the Federal Election Commission's refusal to investigate his complaint that supporters of Representative Donald L. Ritter violated the Act by sponsoring an event funded in part by corporations shortly before the 1982 federal election. We affirm.

This litigation arises from the 1982 congressional election in the Fifteenth District of Pennsylvania. Orloski, the Democratic candidate, lost the election to the incumbent Republican candidate, Ritter. On September 30, 1982 Orloski filed a complaint with the Federal Election Commission ("the FEC" or "the Commission"). On November 10, 1982 the FEC gave notice to the parties that there was no "reason to believe" that the Act had been violated. Orloski sought review of the determination in the federal district court. The original complaint was dismissed by the district court by joint stipulation on May 26, 1983 to give Orloski an opportunity to present to the FEC additional factual allegations to support his original complaint. The district court also granted summary judgment in favor of the Commission based on Orloski's original complaint. A new complaint, containing these old, as well as new, factual allegations was filed on June 11, 1983.

In his supplemental complaint, Orloski alleged the following facts. Approximately thirty-eight days before the election, on September 25, 1982, the Lehigh Valley Senior Citizens Advisory Committee organized by Ritter sponsored a picnic for more than one thousand senior citizens. Ritter had a poor voting record on senior citizens' issues and had been given a "zero" rating by the National Council of Senior Citizens. Ritter's poor voting record was a major issue in the campaign, and Ritter had never before planned or given a senior citizens' picnic. At the picnic Ritter spoke to the group and indicated to them that he was working to save Social Security benefits and that "as long as he was in Congress, he was committed to that goal."

Orloski further alleged that Ritter's reelection campaign workers, including Ritter's campaign manager, Alex Rosza, planned and attended the picnic. The park where the picnic was held was ringed with posters urging the reelection of Ritter, and red, white, and blue campaign labels and buttons reading "Don Ritter--Congress" were worn by the workers, which were paid for by Ritter's reelection committee. Senior citizens' literature determined by the Franking Commission to be political was distributed. McCormack Equipment, Inc. provided free bus transportation to the picnic; HGF Management Corporation and Newhart Foods, Inc. provided free food. Ritter personally paid for other services that were not in-kind contributions.

According to Orloski, the three corporations first stated that they were not donating the services because the picnic was a political event and, under the Act, corporate donations to political events are illegal. Later the corporations admitted making the donations, claiming that the picnic was a non-political event. Orloski further alleged that one of Ritter's campaign aides stated that the corporate busing and food donations were in-kind donations to the Senior Citizens Advisory Committee and that it solicited and received in-kind donations to hold political rallies for Ritter.

In addition to making these allegations, Orloski stated that the same people who solicited funds for the Ritter for Congress Committee solicited the corporate donations for the picnic, that two of the corporations making the donations were run by traditional Republican contributors who had in the past contributed to Ritter's reelection campaign, and that Orloski supporters had been physically prohibited from attending the closed picnic and from handing out their own campaign literature. Finally, Orloski alleged that, after the picnic, the Senior Citizens Advisory Committee paid for radio advertisements supporting Ritter's reelection; that the Senior Citizens Advisory Committee did not meet in 1982; and that therefore it could not have planned the event.

Based on the foregoing allegations, Orloski claimed that the picnic was a political rally in support of Ritter's reelection campaign and, as a result, the Ritter for Congress Committee, the Senior Citizens Advisory Committee, and the three corporations had violated various provisions of the Act. Specifically, the Senior Citizens Advisory Committee violated the Act by failing to register with the FEC as a political committee, see 2 U.S.C. Sec. 433; the three corporations violated the Act by making corporate contributions to the Ritter Campaign Committee and to the Senior Citizens Advisory Committee to finance the picnic, see 2 U.S.C. Sec. 441b(a); the Ritter for Congress Committee and the Senior Citizens Advisory Committee violated the Act by receiving corporate contributions, see 2 U.S.C. Sec. 441b(a).

Pursuant to 2 U.S.C. Sec. 437g(a)(1), the FEC solicited a response to these allegations. On October 22, 1982 and August 12, 1983 J. Jackson Eaton, attorney for the Ritter Campaign Committee, responded on behalf of the Ritter for Congress Committee, the Senior Citizens Advisory Committee, and the three corporations. He denied that the picnic was a political rally in support of Ritter's reelection. He stated that no one at the picnic expressly advocated the reelection of Ritter or the defeat of Orloski or solicited or accepted contributions on behalf of Ritter, and he asserted that no campaign speeches were made, no campaign literature was passed out, no campaign staff members were present, and no posters or other campaign material were available except those distributed by Orloski's staff. He also stated that the Senior Citizens Advisory Committee was one of several issue-oriented, non-political, non-partisan advisory groups established by Ritter several years before.

Eaton further asserted that the material available at the picnic consisted of Social Security handbooks, Medicare handbooks, retirement literature, and consumer brochures. He submitted a senior citizens' report bearing Ritter's name that was available at the picnic and noted that it had previously been distributed to constituents through Ritter's congressional office by franked mail. He also observed that notice of the picnic had been included in a mailing approved by the Franking Commission.

He did not deny that free food and transportation were provided by McCormack Equipment, Inc., Newhart Foods, Inc., and HCF Management Corporation, or that Rosza, Jeff Werley, and Joseph McHugh were at the picnic. He stated, however, that Rosza was not the campaign manager or a campaign staff member at that time. Rather, he was a member of Ritter's legislative staff and Lehigh Valley administrator for Ritter. Ritter's campaign manager was John Kachmar. Werley and McHugh were congressional staff members. After the picnic McHugh became assistant campaign manager, at which time he took a leave of absence from the congressional office. Eaton submitted copies of payroll authorizations showing that Kachmar and McHugh had been terminated from the congressional payroll.

Eaton also submitted a copy of the name-tags worn by each person attending the picnic indicating that the tags did not have Ritter's name printed on them. He also stated that Ritter's congressional staff members may have worn tags identifying them as part of Ritter's staff, but that no election tags were used.

Eaton also addressed the issue of the mailing of correspondence to Ritter's constituents which was approved by the Franking Commission. He responded that the Commission does not approve the mailing of political material at any time and does not approve the use of franking privileges sixty days prior to an election regardless of the nature of the literature. Therefore, he argued that Orloski's allegation that the Commission had determined the mailer to be political was untrue.

Eaton further contended that the disputed radio advertisements only mentioned that Senior Citizens Advisory Committee had been formed by Ritter and did not suggest an endorsement. He submitted a copy of the text of the only radio advertisement that mentioned Senior Citizens Advisory Committee. He also indicated that Senior Citizens Advisory Committee met three times during 1982, and he submitted the congressional form letters that had been sent to Senior Citizens Advisory Committee members notifying them of the meetings. Finally, he denied that any physical threats were made by Ritter's staff to the Orloski representatives, and he submitted twenty-two photographs taken the day of the picnic in support of his contention that no campaign posters were at the event and no campaign buttons were worn.

Based on this information, and without giving Orloski an opportunity to respond, the FEC ruled (5-0), on November 8, 1983, there was "no reason to believe that the Act had been violated" and that, as a result, no further investigation was required. See 2...