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Public Citizen v. Federal Election Commission

United States Court of Appeals, District of Columbia Circuit

June 5, 2015

PUBLIC CITIZEN, ET AL., APPELLEES, CROSSROADS GRASSROOTS POLICY STRATEGIES, APPELLANT
v.
FEDERAL ELECTION COMMISSION, APPELLEE

Argued: February 20, 2015.

Page 313

Appeal from the United States District Court for the District of Columbia. (No. 1:14-cv-00148).

Thomas W. Kirby argued the cause for appellant. With him on the briefs were Michael E. Toner, Brandis L. Zehr, and Samuel B. Gedge.

Erin R. Chlopak, Attorney, Federal Election Commission, argued the cause for appellee Federal Election Commission. With her on the briefs were Kevin A. Deeley, Acting Associate General Counsel, and Greg J. Mueller and Charles Kitcher, Attorneys.

Before: ROGERS and BROWN, Circuit Judges, and GINSBURG, Senior Circuit Judge. OPINION filed by Circuit Judge BROWN.

OPINION

Page 314

Brown, Circuit Judge.

Crossroads GPS, the beneficiary of a favorable decision by the Federal Election Commission, moved to intervene as a defendant in a suit challenging the Commission's ruling. The district court denied intervention, finding Crossroads' interests were aligned with the FEC's Office of General Counsel's, which was defending the ruling. The court concluded the Office of General Counsel could adequately represent Crossroads' interests--even though the Office opposed Crossroads in the prior proceedings before the FEC, and even though the two parties disagree as to the administrative record and litigation strategy.

Aesop, an Ancient Greek famous for his fables, once wrote, " a doubtful friend is worse than a certain enemy." Recognizing that doubtful friends may provide dubious representation, " we have often concluded that governmental entities do not adequately represent the interests of aspiring intervenors." Fund for Animals, Inc. v. Norton, 322 F.3d 728, 736, 355 U.S.App.D.C. 268 (D.C. Cir. 2003). The same holds true in this case. The district court erred in denying Crossroads' motion for intervention as of right.

Page 315

I.

The Federal Election Campaign Act of 1971 (" FECA" or " Act" ), 52 U.S.C. § § 30101-30126, 30141-30146, regulates the financing of elections for federal office. For entities that qualify as " political committees," FECA requires compliance with certain requirements, such as registering with the FEC, filing periodic financial reports, and having a treasurer. See 52 U.S.C. § § 30101-30104.

The enforcement of FECA is triggered when a private party lodges a complaint with the FEC. Id. § 30109(a)(1). The Commission notifies the respondent and provides an opportunity to explain. Id. The Commission then reviews the complaint, and any response if one is filed, to determine whether there is " reason to believe" the respondent committed a violation. Id. § 30109(a)(2). If four of the six Commissioners conclude there is reason to believe a violation was committed, a full FEC investigation commences. Id. Conversely, if there are fewer than four votes, the FEC dismisses the administrative complaint. See id. § § 30106(c), 30109(a)(2).

If the Commission votes to dismiss the complaint, the administrative complainant may sue the Commission in the United States District Court for the District of Columbia. Id. § 30109(a)(8)(A). Judicial review under section 30109(a)(8)(A) is limited, and a district court will reverse the Commission's dismissal of a complaint only if it was " contrary to law." FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981).

When a court declares the Commission's dismissal contrary to law, the Commission has 30 days to " conform [its] declaration." 52 U.S.C. § 30109(a)(8)(C). But a court order cannot command a different outcome on remand; the Commission may reach the same outcome relying on a different rationale. See FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998).

In October 2010, Public Citizen and others (collectively " Public Citizen" ) filed an administrative complaint with the FEC against Crossroads GPS, a nonprofit corporation whose purpose is to " research, educat[e], and communicat[e]" about " policy issues of national importance." J.A. 60. The complaint alleged Crossroads violated FECA by " raising and spending significant amounts of money to influence the 2010 congressional elections" without complying with the organizational and reporting requirements applicable to federal " political committees." J.A. 8. Crossroads denied the allegations in a formal response.

The FEC's legal department, the Office of General Counsel, recommended the Commission " find reason to believe" Crossroads violated FECA by " failing to organize, register, and report as a political committee." J.A. 56. Upon voting, however, the Commission's six members divided evenly. Because of FECA's four-vote requirement, the Commission dismissed the complaint against Crossroads.

Public Citizen filed suit and contended the Commission's denial of the administrative complaint was contrary to law. Crossroads quickly filed a motion ...


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