Wertheimer v. Federal Election Commission
268 F.3d 1070
D.C. Cir.
2001
Check Treatment
Docket

*1 WERTHEIMER, Fred al., Appellants,

et COMMISSION,

FEDERAL ELECTION

Appellee.

No. 00-5371. Appeals,

United States Court Circuit.

District of Columbia Sept.

Argued 26, 2001.

Decided Oct. the cause Engelmayer argued

Paul A. him briefs appellants. With on the Witten, Squire, H. M. Daniel Roger Weinberg. D. and Joshua Bader, B. Associate General Richard Commission, Counsel, ar- Federal Election appellee. him on gued the cause for With Clair, Attorney. Vivien the brief was Counsel, Noble, en- Lawrence M. General appearance. tered an GARLAND, Judge; Before: Circuit WILLIAMS,* Senior SILBERMAN Judges. Circuit Opinion for the Court filed Senior Judge SILBERMAN. Circuit judgment in the filed Opinion concurring Judge Circuit GARLAND. SILBERMAN, Judge: Senior Circuit Wertheimer, Harshbarger, Scott Fred appeal from the district Cox Archibald * argument. the time of oral regular active service at Judge Williams was in Senior *2 dismissal of their suit for lack of order to understand court’s jurisdiction. They un- claim—and their alleged standing matter sued —one 9011(b) carefully der section of the Presidential has to consider the interrelation- Campaign seeking ship Election Fund Act1 con- between the Fund Act and the Feder- of the terms “contribution” and al Election Act Campaign struction of (FECA).2 “expenditure” meaning within the of that amended The Fund Act also appel- passed Act. affirm on a grounds voluntary pro- We 1971 established standing. gram public financing general lants lack of major campaigns eligible election

I. party minor nominees for the office of President of the United States.3 estab- presi- Fred Wertheimer is the current lished the Campaign Presidential Election Democracy presi- dent of 21 and a former Fund, the of which by size is determined Cause, organizations dent of Common two tax option through checkoff which each purpose is the of cam- whose modification taxpayer may designate individual on his paign financing. Harshbarger is the Scott federal income tax return that three dol- president Ar- current of Common Cause. Appel- lars be the Fund. transferred to chibald Cox is chairman emeritus of Com- allege lants desig- that at least one of them They presi- mon in the 1996 Cause. voted nated on his federal tax return income and, dential election at the time this suit three to the filed, dollars transferred Fund. was intended to vote the 2000 specified public To receive a amount of presidential allegations election. Their are funding general for use in their election that, pro- notwithstanding the Fund Act’s major pres- campaigns, participating party presidential accept- on hibition candidates sources, idential nominees must be certified eli- ing private contributions from gible by the Federal Election presidential the 1996 and cam- during (FEC) paigns major political parties agree accept pri- and must not to two funding campaign campaign gener- advertisements further- vate contributions for the respective presi- campaign, except the election of their al election to the extent dential nominees in close coordination with that the Fund is insufficient to Essentially statutorily specified those candidates. their suit amount to each candi- expenditures by agree seeks a declaration that date. a candidate must also Such political parties campaign expenses” that further the not to incur “qualified election of candidates, respective presidential public their entitlement. These excess his presi- expenses by and that are with include incurred those those candidates, of a for the office dential constitute contributions candidate to and such of President to further his election committee to fur- meaning by candidates within the of the Fund those his authorized Act, corollary, major party expense and as a ther his election. An shall be if it dates who have chosen funds considered as incurred candidate politi- person. Par- respective not coordinate is incurred authorized parties party expenditures ticipating agree cal that fur- candidates must also they authorized committees will ther that candidate’s election. and their (2000). 3.Congress also enacted the Presidential Pri- 1. 26 U.S.C. 9001 seq. et mary Matching Payment Account 9031-9042, §§ which establishes vol- §§ 22. U.S.C. 431-455 financing major untary system public party primary and minor elections. office.” U.S.C. any election for Federal post- for a campaign accounts submit their (9)(A)(i). (8)(A)(i), May As of § 431 qualified audit of election Commission candidates, autho- other than pay any amounts for entities campaign expenses committees, party com- pursuant to statute. repaid rized required to be *3 not, however, mittees, general for require any “expenditure The Act does in- campaign their publicly public political dates to disclose communication candidate and clearly finances. cludes a identified candidate, op- with that is coordinated authorized to review Commis We are party or a committee posing candidate It also under the Fund Act. sion action that candidate is supporting opposing or for eligible to vote authorizes individuals under 11 C.F.R. expenditure both an actions, includ President to institute “such 100.8(a) un- an in-kind contribution judgment or declaratory actions for 100.7(a)(l)(iii).” 11 C.F.R. der 11 C.F.R. relief, may appropriate to injunctive be (2001). this promulgating Prior to 100.23 implement any provision of [sic] or contrue definition, dead- broader the Commission added). A chapter.” (Emphasis pursue whether its locked 3-3 on panel brought lawsuits three-judge hears finding that the 1996 Clinton counsel’s 9011(b), appeal to under section with direct expen- coordinated campaign made Supreme But an individual Court. accepted illegal contributions ditures and judge may court consider thresh district from the Democratic National Committee prior to con jurisdictional challenges old (DNC). voting The has six Commission panel. vening three-judge a See Gonzalez members, no more than three of whom Union, 419 Emp. v. Automatic Credit U.S. political affiliated with the same (1974); 90, 289, 42 L.Ed.2d 249 95 S.Ct. agency formal action re- party, and Balles, 461, 464 n. 8 Reuss v. affirmative vote of four mem- quires the denied, 997, (D.C.Cir.), cert. 99 439 U.S. disagreed The over bers. Commissioners (1978). 598, L.Ed.2d 670 S.Ct. 58 political party’s expenditures privately financed candi- Publicly and were, fact, expenditures,” in “coordinated office are dates for federal also impetus to have been the which seems FECA, upon the imposes which limits of the Su- for this lawsuit. On heels individuals, corporations, amounts decision in FEC v. Colora- preme Court’s committees, political parties political Committee, Republican Campaign 533 do federal can contribute to a candidate for 431, 121 political limits the amount office. (2001), engaged the Commission is spend these individuals or entities can May reg- rulemaking to extend this candidate, treating coordination with a expenditures po- ulation of coordinated expenditures these as “contributions to” parties. litical The purposes candidate for of FECA. political All federal candidates and com- expenditures Commission refers to these reports periodic mittees must file “441a expenditures” as “coordinated detailing receipts all their expenditures.” See contributions, expenditures, well as their 441a(a)(7)(B)(i); 441a(d)(2); Colorado other Section disbursements. Republican Campaign Comm. 434(b)(2) reports requires that these dis- L.Ed.2d 518 U.S. 116 S.Ct. political party close contributions from “expen- “Contributions” and and, committees for an authorized commit- only covering are defined as ditures” for the office of Presi- expenditures that tee of a candidate those contributions and dent, influencing certain federal funds. Commis- purpose are made “for the regulations require make excess of the implementing sion’s Third, to re- grant. committees inter- national FEC’s inaction their “soft mon- public disclosure port right fered with their direct received. and donations ey” disbursements income tax return checkoff be used $3 political parties to requires further FECA lawful fashion. of all disburse-

report “the total amount appellants’ The district court dismissed and to delineate 441a coordinated ments” prior convening three-judge pan- suit not, A candidate is howev- expenditures. el. It held second and third er, required report as contributions injuries were insufficient to confer alleged his standing Article III do not party. *4 rely alleged injuries appeal. on those jurisdic- has exclusive subject it The court concluded that lacked respect to the civil enforcement tion with 9011(b) jurisdiction matter under section However, private party may of FECA. to claim that consider the Com- complaint al- file a sworn administrative implement failure to and mission’s con- the leging violations with Commission. deprived strue the Fund Act them of infor- de- investigation, After the Commission mation the source and amount of the about “probable termines whether there is financing candidates’ because oc- cause to violation has believe” 9011(b) “only empowers section federal an curred. If the Commission dismisses implement ‘to district courts or petitioners complaint, administrative ” the Fund Act. And “to con- con[s]true’ seek review of the Commission’s determi- inadequate sider Plaintiffs’ disclosure in nation the United States District Court claim, implement to the Court would have Democracy for the District of Columbia. FECA, Act, and construe not the Fund filed an ad- and Common Cause have governs because FECA is the law that the complaint with the Commis- ministrative which Plain- requirements disclosure about essentially allega- making sion the same complain.” tiffs coordination, contributions, tions appellants as make in II. this suit. the supports The Commission dis ease, appellants alleged determination that it lacked trict court’s failure, yet, implement Commission’s subject jurisdiction appel matter because identify and construe the Act to coordinat- really interpreta for an lants’ claim is not major political par- the ed Act, but rather for an tion of the Fund publicly to further the election of their

ties of similar but not identical interpretation impermissible “con- financed nominees FECA, in which includes the dis language injured “expenditures” tributions” requirements.4 Appellants argue closure First, ways. in the them three distinct likely that the two would that it is statutes required deprived FEC’s failure them of materia, interpreted pari in which is about the source and amount information obvious, but, event, the means no Second, financing. the of candidates’ to sound reasoning court’s seems to us prevented failure them from deter- FEC’s action consid applicable more to cause of publicly mining financed jurisdic than to matter erations forgoing law in abiding by dates were however, lacked refusing judge, tion. The district private contributions and 9002(11), "qualified with the use of the term Compare U.S.C. the use of term FECA, 431(9)(A). "expenditure” in campaign expense” in Fund herself, deprived when it is of information to dismiss on cause FECA authority, by requires the Act be disclosed. See grounds. of action 731, 735 also Akins v. think may, it we Be that as (D.C.Cir.1997) (en banc) (comparing is, course, juris- standing lack —which cases), on other vacated remanded disputes all The Commission dictional. 11, 118 grounds, 524 U.S. appellants’ standing elements of three (1998) (“We recognized in L.Ed.2d 10 have redressability. injury, claim: causation injury’ par- cases that a our ‘informational redressability are chal- Causation and court ty may be entitled sue federal reasoning that led the lenged on similar provide government to force the infor- court to The Commission district dismiss. (and it) if thereby mation to the interpretation of the Fund argues government’s provide failure to or likely even lead necessarily Act will not particular in- cause others interpretation language of similar to the specially party.”). formation affects that redressability missing. FECA so that (which hand, the other as the Commission analysis normal- On And to reverse the follows) out, points government’s alleged fail- ly causation is defective because to inter- alleged the Commission’s failure ure to “disclose” that certain conduct is *5 pret language in the Fund Act did not illegal by give itself does not rise to a any cause the to make deter- injury. Commission constitutionally cognizable See respect to other 413, mination with FECA. Common Cause v. 417 words, considering problem this (D.C.Cir.1997). plaintiff “To hold that a vantage point from the of causation or merely injury can establish fact al- redressability interpretation the of the deprived leging that he has been of the independent Fund Act and FECA are var- knowledge as to whether violation iables. law has occurred would be tantamount to justiciable recognizing interest the enough

As if this were not the Commis- enforcement of the law. This we cannot appellants that fail the sion also asserts Akins, do.” Id. at 418. at U.S. prudential standing test as well because Cf. 24, 118 S.Ct. 1777. “appropriate” not an action within this is 9011(b). If we meaning the of section contends, we grant appellants relief in constru- that, test, agree, appel- under the Akins theory the Fund on the have lants failed to show either obliged likely be Commission would they directly being deprived any are materia, pari construe FECA we would legal ruling they information or that the interfering implicitly be with the Commis- might seek lead to additional factual in- authority sion’s exclusive to enforce sure, presidential To formation. can- FECA. didates are to FECA’s disclosure reporting requirements. And FECA Although recognizing tenu requires political parties report each appellants’ ous nature of claimed interre disbursement and to label coordinated lationship the two statutes we between expenditures category. as discrete prefer to rest our decision Yet, appellants’ dispute did not counsel in fact injury failure to assert because political parties currently report that all logical question that is the anterior all disbursements or that each transac- standing analysis. Appellants rely on Akins, appellants report- allege tion is is FEC U.S. 118 S.Ct. (1998), During argument, ed in some form. oral which holds that a appellants asked what cognizable injury voter suffers under counsel' was GARLAND, concurring facts, being Judge, dis- Circuit were not specifically, judgment: in the responded closed. Counsel being was with- of “coordination” “fact” that in Appellants contend the absence appears to us But “coordination” held. seek, judicial they they declaration carries cer- conclusion that legal to be a deprived information that a are consequences. tain law enforcement expen party committee has coordinated its ditures with its candidate. that certain perhaps conceivable responds, do not The FEC label necessarily implied facts are are dispute, committees are, appellants did they If “coordinated.” already required report identify and to (nor clear what were those facts not make coordinated such the district argument make this they did 441a(d) expenditures § in their fil FECA briefs). As far as can in their we court or 34-35; Br. ings. FEC at see U.S.C. determine, appellants really not seek do 434(b)(4)(H)(iv), (6)(B)(iv); 2 U.S.C. only legal determi- additional facts but 441a(d)(2); Fed. Election Comm’n v. transactions constitute nation that certain Campaign Fed. Republican Colorado so, If expenditures. Comm., 2351, 2352, 121 S.Ct. report alleged- required dates would be 2371, 150 L.Ed.2d 461 Because cur- expenditures, which ly coordinated appellants’ briefs fail to articulate how a disclose, parties rently only political judicial declaration would them that would mean But disbursements.5 information, they have with additional infor- appellants only seek the same satisfy failed to their burden of establish Any such mation from a different source. bring action. See Lu ing standing to *6 resulting from the increase information Wildlife, 504 jan v. Defenders duplicative reporting require- imposition of trivial. ments seems

Although presentation sides’ both reporting require-

current disclosure and confusing, appellants

ments was somewhat showing standing,

bear the burden of they simply failed to establish yield anything more

ruling sought would duplicative legal

than a characterization of information that under exist-

reporting already required to be dis- ing rules MICHIGAN, Michigan State of closed. Department Environmental [*] [*] [*] [*] * * Quality, Petitioner, the district court is judgment affirmed. PROTECTION ENVIRONMENTAL AGENCY, Respondent. ordered.

So expressly candidate unless it dispute ed with the Appellants' seems to be real that he commissioner who has stated urges one for the candidate. a vote political party's not coordinat- ad is believes