Citizens for Responsibility and Ethics in Washington v. Federal Election Commission
243 F. Supp. 3d 91
| D.D.C. | 2017Background
- CREW (watchdog) and voter Nicholas Mezlak filed an FEC administrative complaint alleging Crossroads GPS failed to disclose donors who funded independent expenditures in multiple 2012 Senate races (Ohio, Virginia, Montana, Nevada, etc.).
- Key factual triggers: an anonymous $3 million matching pledge for the Ohio race communicated to Karl Rove and a high-dollar Tampa fundraiser where Crossroads GPS showed ads and solicited additional contributions.
- The FEC’s Office of General Counsel recommended dismissing the complaint, relying on the agency’s longstanding regulation—11 C.F.R. § 109.10(e)(1)(vi)—which requires disclosure only when a contribution is made to further a specific reported independent expenditure.
- The Commission deadlocked 3–3 and formally dismissed the complaint; plaintiffs then sued under the FECA and the APA alleging the dismissal was arbitrary and that the regulation conflicts with FECA.
- The FEC moved to dismiss the regulation challenge as time-barred under 28 U.S.C. § 2401(a); Crossroads GPS moved to bar APA relief, arguing FECA provides the exclusive review route for dismissal of an administrative complaint.
- Court held FEC’s motion to dismiss Count II (rule challenge) was denied as premature on jurisdictional timeliness grounds; Crossroads GPS’s motion was granted in part—APA relief barred for Counts I and III but allowed for Count II (direct challenge to the regulation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of direct challenge to 11 C.F.R. § 109.10(e)(1)(vi) | Regulation may be challenged despite 6-year statute because plaintiffs are "affected" by its application in dismissing their complaint | 28 U.S.C. § 2401(a) bars suit because regulation was promulgated >30 years ago | Denied FEC’s Rule 12(b)(1) motion; plaintiffs may raise the regulation challenge because they were affected by its application |
| Standing/injury from FEC dismissal | Denial of statutorily mandated disclosure is informational injury sufficient for standing | Plaintiffs’ injury is attenuated; administrative complainant has limited role and no monetary remedies | Plaintiffs have standing; denial of information is recognized injury under Akins and related D.C. Circuit precedent |
| Availability of APA review for FEC dismissal of administrative complaint (Counts I & III) | APA relief available for arbitrary/capricious dismissal | FECA’s § 30109(a)(8) provides an adequate, exclusive remedy precluding APA review | Granted Crossroads GPS’s motion as to Counts I and III; APA relief barred because FECA provides adequate remedy |
| Availability of APA review to challenge validity of FEC regulation (Count II) | FECA review does not address validity of implementing regulations; APA is proper avenue | FECA’s review is exclusive for FEC enforcement decisions | Denied Crossroads GPS’s motion as to Count II; APA review is proper for direct challenge to the regulation |
Key Cases Cited
- AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992) (agency rule may be reviewed when applied in adjudication dismissing an administrative complaint)
- Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) (those affected by an agency’s application of a rule may challenge it despite expired limitations)
- NLRB Union v. Fed. Labor Relations Auth., 834 F.2d 191 (D.C. Cir. 1987) (parties may directly attack substantive validity of long-standing regulations)
- Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) (FECA lacks provision for judicial review of regulations; such challenges proceed under the APA)
- Center for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (informational harms from denial of disclosure confer standing under the APA)
- Akins v. FEC, 524 U.S. 11 (1998) (failure to obtain statutorily mandated information constitutes injury in fact)