CREW Sues the Federal Election Commission over Case Dismissals
Citizens for Responsibility and Ethics in Washington (CREW) and Melanie Sloan, its executive director, recently filed a lawsuit against the Federal Election Commission (FEC) for continually dismissing cases without providing information about the decisions. Those who file complaints with the FEC are often unable to legally challenge the commission's dismissal actions or obtain the reasons for the dismissals.
CREW v. Federal Election Commission seeks to end the dismissal of cases without explanation, requesting a declaratory judgment under the Administrative Procedure Act that the FEC's actions are "arbitrary, capricious, and contrary to law." CREW also seeks an injunction to force the FEC to provide explanations for closed cases within the 60-day statute of limitations set forth by the Federal Election Campaign Act (FECA).
The FEC must legally provide statements of reasons after a case is dismissed so parties can meet the FECA-required deadline to file an appeal in federal court. FEC rules also require documents be placed in the public record within 30 days after an enforcement case is closed. However, when the FEC either delays or fails to release such information, the commission successfully avoids legal action. The lawsuit calls on the FEC to file statements of reasons in a timely fashion.
The lawsuit states, "CREW and [its Executive Director] Ms. Sloan are harmed when the FEC arbitrarily and capriciously dismisses their complaints without providing the reasons for the dismissal prior to the 60-day period in which complainants must file a petition as such dismissals effectively deprive CREW and Ms. Sloan of their statutory rights to judicial review."
The suit documents specific cases and highlights the FEC's poor response to plaintiffs and failure to issue any statement of explanation within 60 days. Three of the cases were filed by CREW, including a prominent case stemming from the 2004 presidential election involving November Fund, a 527 organization. CREW filed the complaint in September 2004, only to find out four years later that the case was dismissed on a 3-3 deadlocked vote. This was well past the deadline for a court challenge.
Another complaint was filed by CREW in March 2007 against a political action committee of former Rep. Duncan Hunter (R-CA). CREW was informed more than three years later that the FEC found reason to believe that provisions of FECA had been violated, yet the agency took no action and closed the file. No documents were ever placed in the public record.
Larger complaints about the FEC, particularly regarding the issue of declining enforcement, have resurfaced with CREW's lawsuit. This is not a new topic of concern, as similar cases have occurred over the past few years where commissioners decided against pursuing possible campaign finance violations. These decisions have often resulted from deadlocked, party-line stalemates between the three Democratic and three Republican commissioners. Because of the 3-3 votes, the commissioners regularly defy its counsel's recommendations to pursue enforcement. CREW's press release about its current lawsuit asserts there is "a pattern and practice of dismissing complaints because the Republican and Democratic commissioners are deadlocked 3 to 3, particularly in controversial cases."
The Center for Competitive Politics disparaged CREW's actions "as part of its advocacy campaign to increase political speech regulation. Many [complaints], if not most, go nowhere–unsupported by law or evidence. Like some of these complaints, the current lawsuit looks less like a serious attempt to address a legal issue and more like a P.R. gambit."
CREW's Sloan noted the substantive nature of the group's lawsuit, saying the commission "is deliberately manipulating the law to conceal its decisions in the hopes of running out the clock on any potential appeals of its decisions. This is wrong, and it must stop."
CREW's concerns about the commission mirror those of some in Congress, including two lawmakers who have suggested changes to the FEC's makeup as a solution to many of the commission's problems. Sens. Russ Feingold (D-WI) and John McCain (R-AZ) introduced the Federal Election Administration Act (S. 1648) in August 2009 to replace the FEC with a three-member administrative body called the Federal Election Administration. The odd number of members is intended to prevent deadlocked votes, and no more than one individual would be from the same political party. There has been no action on this bill.