Giffords v. Fed. Election Comm'n

Full title: GIFFORDS, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

Court: United States District Court, District of Columbia

Date published: Oct 14, 2021

Civ. Action 19-1192 (EGS) (D.D.C. Oct. 14, 2021)

Opinion

Civ. Action 19-1192 (EGS)

10-14-2021

GIFFORDS, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.

Emmet G. Sullivan, United States District Judge.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Plaintiff Giffords-a nonpartisan, nonprofit 501(c)(4) organization headquartered in Washington, D.C.-brings this lawsuit against Defendant the Federal Election Commission ("FEC" or the "Commission") alleging that the Commission has failed to act upon four administrative complaints filed with the agency under the Federal Election Campaign Act ("FECA"), 52 U.S.C. § 30109(a)(8)(A). See Compl., ECF No. 1 ¶¶ 1-5, 8.^[1] Pending before the Court are FEC's motion to dismiss, or in the alternative, for summary judgment, see Mem. Supp. Def. FEC's Mot. Dismiss, Alternative, Summ. J. ("Def.'s Mot."), ECF No. 41-1; and Giffords' cross-motion for summary judgment, see Mem. Supp. Cross-Mot. Sum. J. & Opp'n ("Pl.'s Cross-Mot."), ECF No. 48. 1 Upon consideration of the motions, the responses, the replies thereto, the applicable law, and the entire record, the Court DENIES FEC's motion and GRANTS Giffords' motion.

[1] When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF page number, not the page number of the filed document.

I. Background

A. Statutory and Regulatory Background

1. FECA Enforcement

The FEC an independent agency with six Commissioners-is responsible for enforcing FECA. See 52 U.S.C. § 30106(b)(1) . Congress enacted FECA to prevent money from corrupting or appearing to corrupt the positions taken by candidates for federal office and those candidates' actions while in office. See Citizens United v. FEC, 558 U.S. 310, 344 (2010). FECA provides the Commission with broad investigatory powers in service of that mission. See 52 U.S.C. § 30107.

Any person or entity may file a complaint alleging a violation of FECA with the Commission. Id. § 30109(a)(1). When a complaint is filed, the FEC notifies the respondents named in the administrative complaint within 5 days, and the respondents are then given an opportunity to respond to the allegations within 15 days. Id. § 30109(a) (1)- (2). After the response period has elapsed, taking into account any granted extensions of time to file, the FEC's Office of General Counsel evaluates the submissions and determines whether the matter should be referred to the agency's Alternative Dispute Resolution Office, 2 Administrative Fine Program, or Enforcement Division, or if it should be recommended for dismissal. Def.'s Mot., ECF No. 4 1-1 at 14. If a matter has been assigned to the Enforcement Division, the assigned staff attorneys prepare and send a report to the Commission recommending whether it should find that there is "reason to believe" that the FECA has been violated or whether it should dismiss the matter. 11 C.F.R. § 111.7. The FEC's Commissioners then vote on whether the complaint provides "reason to believe" a violation of the FECA has occurred. 52 U.S.C. § 30109(a) (1)-(2). If the Commission finds no reason to believe or otherwise terminates its proceedings, the Commissioners who voted against taking that action should issue a statement explaining their votes. Common Cause v. EEC, 84 2 F.2d 436, 449 (D.C. Cir. 1988). But if four or more Commissioners find reason to believe that FECA was or will soon be violated, then the Commission proceeds to investigate the alleged violation described in the administrative complaint. Id. § 30109(a)(2). The Commission is authorized to request answers to written questions, subpoena documents, and take depositions during its investigation. Id. § 30107(a)(1)-(5).

At the conclusion of the investigation, the statute authorizes the FEC's General Counsel to recommend that the Commission vote on whether there is "probable cause to believe" that the FECA has been violated. Id. § 30109(a)(3). The General 3 Counsel prepares a report to the Commission recommending wh.at action should be taken. 11 C.F.R. § 111.16. Based on the evidence and additional submissions from the respondents, the Commissioners then vote to determine whether there is ""probable cause to believe" that a violation occurred. 52 U.S.C. § 30109(a) (3)-(4). If four Commissioners find "probable cause to believe" that a violation occurred, the General Counsel attempts to arrive at an agreement with the party accused of committing a violation. "This agreement typically involves an admission of violations, a plan for remedial action to correct any violations, and a provision for the payment of civil penalties." See Citizens for Responsibility & Ethics in Nash. v. FEC, 164 F.Supp.3d 113, 117 (D.D.C. 2015). If the General Counsel is unable to obtain an agreement, the FEC has the option of filing suit in federal district court to seek compliance and the imposition of penalties. 52 U.S.C. § 30109(a)(6).

If the Commission determines that no violation occurred or dismisses the administrative complaint for some other reason, the complainant has an opportunity to seek judicial review of that determination. Id. § 30109(a)(8)(A). A complainant may also seek judicial review should the Commission "fail to act" on a complaint within 120 days. Id. If the court finds that the Commission's dismissal or failure to act was "contrary to law, " the court can "direct the Commission to conform with [that] declaration within 30 days." Id. § 30109(a)(8)(C).

B. Factual Background

The basic facts of this case are not in dispute. In trie latter half of 2018, Giffords filed four administrative complaints with the Commission alleging "millions of dollars of illegal, unreported, and excessive political contributions." Compl., ECF No. 111; Def.'s Mot., ECF No. 41-1 at 20-21; Pl.'s Cross-Mot., ECF No. 48 at 9.

The Campaign Legal Center ("CLC") filed the first of the four administrative complaints with the FEC on July 16, 2018. See Compl., ECF No. ¶ 2. The administrative complaint was amended on August 16, 2018, to include Giffords as a complainant. See Id. The FEC designated the first administrative complaint as Matter Under Review ("MUR") 7427. Id. ¶ 56. Giffords and CLC filed a second administrative complaint, designated at MUR 7497, on September 17, 2018, see Id. ¶¶ 3; and they filed a supplement to the complaint alleging additional facts on February 8, 2019, see Id. They also jointly filed a third administrative complaint, designated as MUR 7524, on October 22, 2018. Id. ¶¶ 60-61. Giffords and CLC filed the fourth and final administrative complaint, designated as MUR 7553, on December 7, 2018. Id. ¶¶ 62-63.

The administrative complaints each alleged that two National Rifle Association of America ("NRA") entities, the NRA Political Victory Fund ("NRA-PVF") and the NRA Institute for Legislative Action ("NRA-ILA"), made unlawful contributions to then-President Trump's presidential campaign and to several Senate campaigns.^[2] See Def.'s Mot., ECF No. 41-1 at 20-21; Pl.'s Cross-Mot., ECF No. 48 at 9. In particular, Giffords alleged that “[s]ince at least the 2014 election cycle, the NRA-PFV and the NRA-ILA have coordinated with candidate campaigns to develop advertisements through a common vendor, using a shell company associated with political consulting firm On Message," and "[s]ince at least the 2016 election cycle, the NRA-PVF and the NRA-ILA have coordinated with candidate campaigns to place advertisements in complementary fashion, including on the same stations and programs, using shell companies associated with media strategy firm National Media." Compl., ECF No. 1 ¶ 32. Plaintiff alleged that "[b]y coordinating their advertising strategy in this manner, the NRA-PVF and the NRA-ILA have made up to $35 million in contributions to candidate campaigns since the 2014 election, in excess of the contribution limits, in violation of the source restrictions, and without the disclosure required under federal law," including "up to $25 million in coordinated, illegal contributions to the Trump campaign in 2016." Id. ¶ 33.

[2] According to Giffords, the candidates for federal office included Thorn Tillis, Tom Cotton, and Cory Gardner in 2014; Ron Johnson and Donald Trump in 2016; and Matt Rosendale and Josh Hawley in 2018. See Compl., ECF No. 1 5 10.

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[XXXXX] the Commission lost the required quorum necessary to vote on the matters. Id.; see also 52 U.S.C. § 30109(a)(2). Excepting a short period of time that lasted from June 5, 2020 to July 3, 2020, the PEC did not regain its quorum until December 2020. See Pl.'s Notice Regarding FEC Quorum, ECF No. 65 at 1-2.

Once it regained quorum, [XXXXX]

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C. Procedural History

Plaintiff Giffords filed this lawsuit on April 24, 2019. See Compl., ECF No. 1. Giffords seeks declaratory and injunctive relief against the FEC for the alleged failure to timely act on four administrative complaints Giffords initiated in 2018. Id. ¶¶ 55-63. Giffords reguests that the Court declare that the FECs purported failure to act on its administrative complaints within 120 days was contrary to law under 52 U.S.C. § 30109(a)(8)(A). Id. ¶ 66. Giffords also seeks a court order compelling the FEC to conform with the declaration within thirty days after the entry of the Court's declaration. Id. at 20 ¶ 2.

On December 6, 2019, FEC filed a motion to dismiss, or in the alternative, for summary judgment. See Def.'s Mot., ECF No. 41. Giffords filed an opposition and cross-motion for summary judgment on December 23, 2019, see Pl.'s Cross-Mot., ECF No. 48; and FEC filed its reply and opposition on January 13, 2020, see Def.'s Reply, ECF No. 55. Giffords filed its reply on January 21, 2020. Pl.'s Reply, ECF No. 60. On June 1, 2021, the Court granted Giffords' motion to expedite consideration of the parties' cross-motions for summary judgment. See Min. Order: (June 1, 2021) . The motions are ripe for adjudication.

II. Legal Standard

"Because no material facts are in dispute, it is appropriate to resolve this matter on summary judgment." Democratic Senatorial Campaign Comm. v. FEC (DSCC), No. 95-0349, 1996 WL 34301203, at *3 (D.D.C. Apr. 17, 1996). Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In determining whether a genuine issue of material fact exists, a court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In ruling on cross-motions for summary judgment, a court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006); Winston & Strawn LLP v. F.D.I.C., No. 061120, 2007 WL 2059769, at *3 (D.D.C. July 13, 2007).

III. Analysis

In the context of ruling upon cross-motions for summary judgment regarding a "failure to act" claim under Section 30109(a)(8), the Court must determine whether the Commission acted "contrary to law" in handling the administrative matters. 52 U.S.C. § 30109(a)(8). The standard for determining whether an agency's failure to act is contrary to law is whether its failure to take action is arbitrary and capricious. Common Cause, 489 F.Supp. at 744. "Factors the Court may consider in making its determination include the credibility of the allegation, the nature of the threat posed, the resources available to the agency, and the information available to it, as well as the novelty of the issues involved." Id.; see also In re Nat'l Cong. Club, Nos. 84-5701, 84-5719, 1984 WL 148396, at *1 (D.C. Cir. Oct. 24, 1984) (per curiam). In addition, it is appropriate for the Court to consider the guidelines the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") outlined in Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984):

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling

statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

Id. at 80 (citations and internal quotation marks omitted). Although the FEC's decision whether or not to investigate "is entitled to considerable deference, the failure to act in making such a determination is not." DSCC, 1996 WL 34301203, at *4.

Upon consideration of the Common Cause and TRAC factors, discussed below, the Court finds that the FEC has unreasonably delayed its consideration of Plaintiff's administrative complaints.^[3]

[3] The Court shall not address Plaintiff's arguments that the Commission's delay gives rise to the appearance of impropriety because the D.C. Circuit has explained that courts "need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed." TRAC, 750 F.2d at 80 (internal quotation marks omitted).

A. Credibility of the Allegations

The Court finds that the allegations in the administrative complaints are credible. First, [XXXXX]