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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON

, ) ) Plaintiff, ) ) v. ) Case Number 1:04CV02145 (JDB) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) ____________________________________) DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION FOR SUMMARY JUDGMENT Defendant Federal Election Commission (“Commission”) hereby moves for summary judgment on the ground that Plaintiff Citizens for Responsibility and Ethics in Washington lacks standing to sue the Commission. In support of this motion, the Commission relies upon the accompanying memorandum of points and authorities and its statement of material facts not in genuine dispute. A proposed order also accompanies this motion. Respectfully submitted, /s/ Lawrence H. Norton General Counsel /s/ Richard B. Bader Associate General Counsel (D.C. Bar # 911073)

/s/ David Kolker Assistant General Counsel (D.C. Bar #394558) /s/ Kai Richter Attorney FOR THE DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street, N.W. Washington, D.C. 20463 (202) 694-1650 (202) 219-0260 (FAX) Date: April 15, 2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) ) FEDERAL ELECTION COMMISSION, ) ) Defendant. ) ____________________________________)

Case Number 1:04CV02145 (JDB) MEMORANDUM

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT The Federal Election Commission (“FEC” or “Commission”) moves for summary judgment in this action because Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) lacks standing to sue the Commission under 2 U.S.C. 437g(a)(8) for dismissing its administrative complaint. CREW’s asserted basis for standing is an alleged informational injury stemming from the fact that the Commission did not require Bush-Cheney ’04 to report, as an in-kind contribution, the value of a “contact list” of conservative activists that it received from Grover Norquist, president of Americans for Tax Reform, Inc. (“ATR”). However, CREW fails to show how the Commission’s action has caused it any injury. As a tax-exempt 501(c)(3) corporation, CREW cannot participate in electoral politics. CREW does not allege that it has any members, or even that it publishes campaign finance data. Although CREW does claim to have an amorphous interest group mission of “expos[ing] unethical and illegal conduct,” Complaint ¶ 7, this is not a constitutionally cognizable interest,

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and even if it were, there is no evidence that CREW has been hindered in this mission by being denied information about the precise value of the list. In fact, in the administrative proceedings before the Commission, CREW never even requested that the value of the contact list be disclosed. Rather, it simply sought a declaration from the Commission that Bush-Cheney ’04 and the other administrative respondents violated the law, and asked the Commission to impose sanctions against them. Under well-established circuit law, this desire to “get the bad guys” is simply insufficient to establish constitutional standing. Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997). In any event, CREW already has the information it proclaims to seek — and then some. In response to CREW’s administrative complaint, Bush-Cheney ’04 and the other administrative respondents expressed their view that the “contact list” (which was really a compilation of meeting materials) had no value because much of the information in it was publicly available, and produced the underlying documents comprising the list to the Commission. Although CREW disagrees with Bush-Cheney ’04’s assessment and characterizes the list’s value as “substantial,” Complaint for Declaratory Judgment and Injunctive Relief (“Complaint”), Ex. B at ¶ 11, this disagreement between the underlying parties only highlights the fact that CREW has not suffered an informational injury, since it obviously has enough information to form an opinion about the list’s value. Moreover, during the course of the administrative proceedings, the Commission made its own assessment of the value of the list (“limited”), FEC Ex. A at 10, and now that those proceedings are over, CREW has access to that assessment, to many of the underlying documents, and to a report from the FEC’s General Counsel categorizing and summarizing those documents. This constitutes far more information about the list than Bush-

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Cheney ’04 ever would have been required to report on its FEC disclosure statement, and CREW does not have standing to compel the production of additional information. As a tax-exempt organization that cannot vote and is prohibited by federal law from participating in political campaigns, CREW’s organizational mission also falls outside the “zone of interests” that the FECA was intended to protect or regulate. Therefore, CREW lacks not only constitutional standing, but also prudential standing, and this Court lacks jurisdiction. BACKGROUND A. The Federal Election Commission

The FEC is an independent agency of the United States government with exclusive jurisdiction to administer, interpret, and civilly enforce the FECA. See 2 U.S.C. 437c(b)(1), 437d(e) & 437(g). Under the Act, any person may file an administrative complaint with the Commission, alleging a violation of the FECA. 2 U.S.C. 437g(a)(1). On the basis of the allegations in the administrative complaint and any responses filed thereto, the Commission votes on whether there is “reason to believe” that a violation of the Act has occurred. 2 U.S.C. 437g(a)(2). If at least four of the Commission’s six members find “reason to believe,” the Commission is then authorized to conduct an investigation. Id. Upon completion of such an investigation, the Commission votes to determine whether there is “probable cause” to believe that a violation of the Act has occurred. 2 U.S.C. 437g(a)(4)(A)(i). If a majority of Commissioners find “probable cause,” the Commission may then vote to institute a civil suit to enforce the Act, 2 U.S.C. 437g(a)(6), but only after attempting to reach a voluntary conciliation agreement with the alleged violator. 2 U.S.C. 437g(a)(4)(A)(i). At any point in this administrative process, the Commission may dismiss the administrative complaint as a matter of prosecutorial discretion. FEC v. Akins, 524 U.S. 11, 25 (1998).

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If the Commission dismisses the administrative complaint, an “aggrieved” complainant may file a petition seeking judicial review of the Commission’s action in the United States District Court for the District of Columbia. 2 U.S.C. 437g(a)(8)(A). If the Court declares that the Commission’s dismissal of the administrative complaint was “contrary to law,” it may order the Commission to conform to the declaration within 30 days. 2 U.S.C. 437g(a)(8)(C). If the Commission fails to comply with such an order, the complainant may then bring a private civil action against the respondent to its administrative complaint. Id. B. CREW’s Administrative Complaint

CREW is a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code. Complaint ¶ 6. It does not allege that it is a membership organization. On February 4, 2004, CREW filed an administrative complaint with the FEC against Norquist, ATR, Bush-Cheney ’04, and Ken Mehlman (collectively, the “administrative respondents”), on the basis of two articles published in Forbes and the Washington Post. Complaint ¶ 16 & Ex. B; FEC Exs. B-C.1 In its administrative complaint, CREW alleged that Norquist, the president of ATR, provided Mehlman, the campaign manager for Bush-Cheney ’04, a contact list of conservative activists in 37 states, and that this list constituted an illegal inkind contribution under the Act. Complaint ¶¶ 17-19 & Ex. B. CREW’s administrative complaint contained three counts. In count one, CREW claimed that the alleged in-kind contribution violated the FECA’s ban on corporate contributions to

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References to “FEC Ex. __” are to the exhibits accompanying this motion for summary judgment and memorandum of law. 6

federal campaigns under 2 U.S.C. 441b(a) because Norquist made this alleged contribution on behalf of ATR, a non-profit corporation. Complaint, Ex. B at ¶¶ 4, 13. In count two, CREW alternatively claimed that if this alleged contribution was made by Norquist personally, and not on behalf of ATR, it exceeded the Act’s $2,000 limit on personal contributions under 2 U.S.C. 441a(a)(1)(A). Id. at ¶ 14. Finally, CREW alleged that Norquist, ATR, and Bush-Cheney ’04 violated 2 U.S.C. 434(a)-(b) by failing to report this alleged contribution to the Commission. Id. at ¶ 15. In its administrative prayer for relief, CREW “request[ed] that the Federal Election Commission conduct an investigation into these allegations, declare the respondents to have violated the federal campaign finance laws, impose sanctions appropriate to these violations and take such further action as may be appropriate.” Complaint, Ex. B at 5. However, CREW did not specifically request the Commission to get the administrative respondents to report the value of the contact list. C. The Administrative Proceedings

The Commission notified the administrative respondents of CREW’s allegations on February 11, 2004. FEC Ex. D. In response to these allegations, the administrative respondents denied that they had violated the FECA and asserted that the materials Norquist provided to Bush-Cheney ’04 were not confidential, could be gathered from publicly-available sources (including ATR’s website), and therefore did not constitute a “contribution” under the Act because those materials had no value. FEC Exs. E-F. The Commission’s General Counsel then reviewed the administrative complaint and asked the administrative respondents to provide the materials in question to the FEC voluntarily. In response, Bush-Cheney ’04 and Mehlman, on the one hand, and ATR and Norquist, on the

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other, furnished the FEC with two sets of similar, but not identical materials in late May of 2004. FEC Exs. G-H. Bush-Cheney ’04 and Mehlman stated that they were providing “a copy of the materials” requested by the General Counsel. FEC Ex. G. However, ATR and Norquist explained that they “did not keep a copy of the [documentation] in exactly the same form in which [it] was furnished to Mr. Mehlman, because the information is updated regularly ....” FEC Ex. H. Therefore, they provided the General Counsel with some memoranda that they believed they had given to Bush-Cheney ’04, as well as additional materials from ATR’s website. Id. After reviewing these materials and the rest of the file, the General Counsel prepared a report to the Commission on August 31, 2004. FEC Ex. A. In this report, the General Counsel categorized and described the materials provided to Bush-Cheney ’04, and noted that descriptions of so-called “center-right coalition” meetings and lists of attendees most closely resembled the “contact list” information referenced in CREW’s administrative complaint. Id. at 4-5. With respect to count one of CREW’s administrative complaint, the General Counsel recommended that the Commission find reason to believe that ATR made a prohibited in-kind corporate contribution, that Norquist consented to the contribution, and that Bush-Cheney ’04 and Ken Mehlman accepted the contribution, in violation of 2 U.S.C. 441b(a). FEC Ex. A at 10, 12. With respect to count two, the General Counsel recommended that the Commission find no reason to believe that Norquist made, or that Bush-Cheney ’04 accepted, an excessive individual contribution, because the materials in question appeared to have been donated by ATR, rather than by Norquist in his personal capacity. Id. Finally, with respect to count three, the General Counsel recommended that the Commission find reason to believe that Bush-Cheney ’04

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violated 2 U.S.C. 434 by failing to report the alleged contribution from ATR, but noted that ATR and Norquist had no corresponding reporting obligation under the Act. Id. at 11. Although the General Counsel concluded that the donated materials may have constituted “something of value” in violation of the FECA’s complete ban on corporate contributions, see 2 U.S.C. 441b(a), it was his view, for several reasons, that “the materials would seem to constitute only a limited contribution to the [Bush-Cheney ’04] Committee.” Id. at 10. First, Bush-Cheney ’04 already had some of the information that ATR supplied to it, and representatives from BushCheney ’04 actually attended some of the referenced meetings. Id. at 11. Second, these materials would be of little help in organizing Bush-Cheney ’04’s conservative base because the individuals and organizations identified in the materials were conservative activists likely to be aware of, and probably already supportive of, Bush-Cheney ’04’s campaign efforts. Id. at 10-11. Third, with minor exception, the meeting materials focused on state and local issues and did not discuss Bush-Cheney ’04 or the 2004 presidential election. Id. at 11. Finally, to the extent that some of the materials were publicly available on ATR’s website, that prior availability limited the value of Norquist’s providing them to the campaign. Id. Accordingly, the General Counsel recommended that the Commission dismiss the administrative complaint as a matter of prosecutorial discretion, in order to devote the Commission’s limited resources to more significant cases. Id. at 12. On October 19, 2004, the Commission met to consider CREW’s allegations. Following the General Counsel’s recommendations, the Commission found: 1. Reason to believe that ATR violated 2 U.S.C. 441b(a); 2. Reason to believe that Grover Norquist violated 2 U.S.C. 441b(a); 3. Reason to believe that Bush-Cheney ’04 and David Herndon, as treasurer, violated 2 U.S.C. 441b(a) and 434(b); 9

4. Reason to believe that Ken Mehlman violated 2 U.S.C. 441b(a); 5. No reason to believe that Grover Norquist violated 2 U.S.C. 441a(a)(1)(A); and 6. No reason to believe that Bush-Cheney ’04 and David Herndon, as treasurer, violated 2 U.S.C. 441a(f). Complaint, Ex. A; FEC Ex. I. Following the General Counsel’s recommendation, the Commission also voted 5-1 to close the file and take no further action. Id.2 On November 2, 2004, the Commission notified CREW of its decision, and indicated that “[d]ocuments related to the case [would] be placed on the public record within 30 days,” pursuant to the Commission’s Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 Fed. Reg. 70,426-27 (2003). Complaint, Ex. A. The Commission has since posted several documents in this matter on its website, www.fec.gov, including the letters and many of the underlying documents that the administrative respondents forwarded to the Commission.3 On December 15, 2004, CREW brought the present action in district court, pursuant to 2 U.S.C. 437g(a)(8), seeking judicial review of the Commission’s decision to take no further action against the administrative respondents. On February 11, 2005, the Commission filed its Answer and, inter alia, asserted lack of subject matter jurisdiction as one of its defenses.

The General Counsel’s Report (FEC Ex. A) serves as the basis for the Commission’s decision because the five Commissioners who voted to follow the General Counsel’s recommendation to find reason to believe and to close the file did not issue a separate statement of reasons. See FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 38 n.19 (1981). To retrieve the public file in this matter from the FEC’s website, click on the link for “enforcement matters,” then click on the link for “search closed MUR files,” and type in the case number, 5409. Alternatively, it is possible to go directly to the FEC’s enforcement query system search engine by typing in the URL address http://eqs.sdrdc.com/eqs/searcheqs. 10
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ARGUMENT I. CREW CANNOT DEMONSTRATE THAT IT HAS STANDING UNDER ARTICLE III This Court lacks subject matter jurisdiction in this case because CREW lacks standing to sue the Commission. Section 437g(a)(8) does not automatically confer standing.4 Common Cause, 108 F.3d at 419. Rather, it merely confers a right to sue the Commission upon parties who already meet the constitutional requirements for standing. Id. Standing requirements are jurisdictional, and when they are not met, as in this case, the action must be dismissed. See Whitman v. Arkansas, 495 U.S. 149, 155 (1990). A. Elements of Standing and Burden of Proof

To establish standing to sue, CREW must meet three separate constitutional requirements. First, it must show an injury in fact which is “concrete,” “distinct and palpable,” and “actual or imminent.” McConnell v. FEC, 540 U.S. 93, 225 (2003). Second, it must establish a causal connection between the alleged injury and the conduct complained of, i.e., that CREW’s alleged injury is fairly traceable to the Commission’s dismissal of its administrative complaint and not the actions of a third party. Id. Finally, it must show a “substantial likelihood” that its alleged injury will be redressed by its requested relief. Id. at 225-26. Together, these three elements constitute the “irreducible constitutional minimum” required for standing. Id. at 225. As the party invoking federal jurisdiction, CREW bears the burden of establishing each of these elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Alliance for Democracy v. FEC, No. 04-00127, slip op. at 9 (D.D.C. March 4, 2005) (“Alliance II”).

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CREW’s Complaint must “clearly” allege the facts necessary to support jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). See also McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936) (plaintiff “must allege in his pleading the facts essential to show jurisdiction”). These essential facts may not be gleaned from the briefs and arguments. FW/PBS, 493 U.S. at 235. Moreover, because the Commission has moved for summary judgment, CREW must support its jurisdictional allegations with evidence of “specific facts” demonstrating that it has standing to sue the Commission. Lujan, 504 U.S. at 561. Standing is not a “mere pleading requirement[],” but rather an “indispensable part of the plaintiff’s case,” which must be supported with the same manner and degree of evidence required to prove the merits of the plaintiff’s claims at each successive stage of litigation. Id. At the summary judgment stage, it is not sufficient for CREW to rely simply on “general factual allegations of injury.” Id. B. CREW Has Not Suffered an Injury In Fact 1. CREW Has Failed to Show that Its Programmatic Activities Are Being Directly and Adversely Affected

CREW, the only plaintiff in this case, is not a voter, candidate, or political committee. Rather, it is a nonprofit organization that has no members, and it is suing on its own behalf.5 CREW therefore must demonstrate direct harm to its programmatic activities to establish standing. Common Cause, 108 F.3d at 417.

Section 437g(a)(8) provides that “[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party ... may file a petition with the United States District Court for the District of Columbia.” 5 On its webpage, under the header “who we are,” CREW does not refer to any members and lists only three individuals — (1) Melanie Sloan, its executive director and counsel in this action; (2) a deputy director; and (3) a staff attorney. FEC Ex. J, reprinted from http://www.citizensforethics.org/about/whoweare.php. 12

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CREW has not even identified any discrete programmatic activities in which it is engaged, much less shown that these activities have been harmed because of CREW’s purported lack of information about the exact value of the contact list. At most, CREW has asserted abstract social interests in “empowering citizens,” “inform[ing] [them] about the activities of government officials,” and “ensuring the integrity of government officials.” Complaint ¶ 6. As a matter of law, these abstract social interests cannot confer standing. As the D.C. Circuit held in Common Cause: In those cases where an organization is suing on its own behalf, it must establish “concrete and demonstrable injury to the organization’s activities — with [a] consequent drain on the organization’s resources — constitut[ing] ... more than simply a setback to the organization's abstract social interests.... Indeed, [t]he organization must allege that discrete programmatic concerns are being directly and adversely affected by the challenged action.” 108 F.3d at 417 (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). See also Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40 (1976) (“an organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III”). Parroting the language of Common Cause in its Complaint, CREW asserts in conclusory fashion that its “programmatic activity” has been hindered, and that its “resources have been drained.” Complaint ¶¶ 8-9. However, CREW’s alleged harm is entirely vague and speculative, and supported by no specific facts. The only activity that CREW claims has been hindered is described in Paragraph 7 of its Complaint. In that paragraph, CREW vaguely alleges that “[i]n furtherance of its mission, CREW seeks to expose unethical and illegal conduct of those involved in government.” However, exposing government corruption is not a sufficiently concrete interest to establish standing. See Becker v. FEC, 230 F.3d 381, 389 (1st Cir. 2000)

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(“the harm done to the general public by corruption of the political process is not a sufficiently concrete, personalized injury to establish standing”), cert. denied, 532 U.S. 1007 (2001). Even if it were, CREW already knows that the Commission found “reason to believe” that the administrative respondents violated 2 U.S.C. 434(b) and 441b(a), yet CREW does not allege that it has ever publicized these findings. Indeed, CREW does not even allege that it has ever shared any information about any campaign finance data with anyone for any purpose. In these circumstances, it is wholly speculative how another estimation of the precise value of a single inkind contribution would have any concrete impact on CREW’s broad mission of “expos[ing] unethical and illegal conduct.” Complaint ¶ 7. The only specific activity that CREW alleges it undertakes in furtherance of this mission is “filing FEC complaints against contributors and recipients who, CREW believes, have violated federal campaign finance laws.” Complaint ¶ 7. However, Article III standing hinges on whether a litigant has a concrete and particularized interest in the underlying controversy, not on whether it has attempted to create a controversy by initiating an administrative proceeding. City of Orrville, Ohio v. FERC, 147 F.3d 979, 985 (D.C. Cir. 1998) (collecting cases). Thus, CREW cannot bootstrap Article III standing by filing a series of administrative complaints whose dismissals cause CREW no concrete and particularized injury.6 See Common Cause, 108 F.3d at 419 (“Common Cause cannot establish standing merely by asserting that the FEC failed to process its complaint in accordance with law.”). In any event, CREW has plainly not been hindered in filing administrative complaints. Although CREW alleges that it “is hindered in this programmatic activity when those who participate in campaigns (the candidates and those who contribute money to candidates) do not

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disclose the information regarding contributions and donations as required by federal law,” Complaint ¶ 8, such non-disclosures obviously did not prevent CREW from filing its administrative complaint here — indeed, they were the very genesis of its administrative complaint. Moreover, the proper standing inquiry in a suit filed under 2 U.S.C. 437g(a)(8) is whether the Commission’s dismissal of CREW’s administrative complaint has injured CREW’s alleged programmatic activity. Here, the filing of the administrative complaint necessarily came before the dismissal, so the later dismissal could not possibly have had any effect on the original filing. Finally, CREW does not offer any other reason why the Commission’s dismissal of its administrative complaint in this action could make it more difficult for CREW to file other administrative complaints. CREW’s conclusory allegation in Paragraph 9 that its “resources have been drained” is also insufficient to establish standing. The only basis for this assertion is that “CREW has expended both time and money in attempting to learn the value of the [contact] list by filing and in pursuing its administrative complaint....” Complaint ¶ 9. However, “[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.” National Taxpayers Union, 68 F.3d at 1434 (quoting Spann v. Colonial Village, 899 F.2d 24, 27 (D.C. Cir. 1990)). This position “would enable every litigant automatically to create an injury in fact by filing a lawsuit,” and “has been expressly rejected by the Supreme Court.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 799 n.2 (D.C. Cir. 1987) (citing Diamond v. Charles, 476 U.S. 54, 55 (1986)).

In fact, CREW’s administrative complaint in this case was the first such complaint that CREW had ever filed with the Commission. 15

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In sum, CREW has utterly failed to articulate any “discrete programmatic concerns,” let alone demonstrate that they are being “directly and adversely affected.” See Common Cause, 108 F.3d at 417. It therefore cannot demonstrate organizational standing under Article III. 2. CREW Is Not Seeking Information, But a Legal Declaration and Sanctions Against the Administrative Respondents

What CREW really desires is not to obtain more information about the value of the contact list, but for the Commission to declare a violation of the law and to punish the administrative respondents. In its prayer for relief in its administrative complaint, CREW never asked for information regarding the value of the documents that were given to Bush-Cheney ’04. Rather, CREW simply “request[ed] that the Federal Election Commission conduct an investigation into these allegations, declare the respondents to have violated the federal campaign finance laws, impose sanctions appropriate to these violations and take such further action as may be appropriate.” Complaint, Ex. B at 5. 7 In Common Cause, the D.C. Circuit addressed the same scenario and dismissed Common Cause’s action under section 437g(a)(8) for lack of standing. Similar to CREW, Common Cause primarily alleged violations of the FECA’s contribution and expenditure limits in its administrative complaint. Common Cause, 108 F.3d at 418. According to the Court, these nonreporting violations were clearly insufficient to establish an injury in fact. Id. See also Judicial Watch v. FEC, 180 F.3d 277, 278 (D.C. Cir. 1999) (“Judicial Watch I”) (analyzing Common Cause). While Common Cause also alleged reporting violations under the Act, the Court found

Contrary to CREW’s implication, the Commission is not authorized to impose sanctions unilaterally for the types of violations alleged; it may only seek sanctions in a voluntary conciliation agreement or from a court. See 2 U.S.C. 437g(a)(4)-(5), 437g(a)(6)(A). 16

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that these allegations were “nominal at best.” Id. at 418. More importantly, according to the Court: The relief requested by Common Cause consisted entirely of the investigation and imposition of monetary penalties .... In other words, what Common Cause desire[d] [was] for the Commission to “get the bad guys,” rather than disclose information. Id. Thus, it held that “Common Cause ha[d] no standing to sue for such relief.” Id. Here, as in Common Cause, CREW’s administrative complaint primarily alleged violations of the FECA’s contribution limits, focusing on those areas in counts one and two. Complaint, Ex. B at 4. Under Common Cause, it is clear that such non-reporting violations do not provide a basis for an informational injury. Although CREW also alleged reporting violations under the Act, it did not do so until the third and final count of its administrative complaint, and its one-sentence allegation was nominal. Complaint, Ex. B at 5. Finally, CREW’s requested relief consisted exclusively of a request for (1) an investigation, (2) an administrative declaration, and (3) the imposition of sanctions. Id. Conspicuously, CREW did not include a request for the information that it now claims is its central objective. Thus, CREW’s administrative complaint is indistinguishable from the one in Common Cause, and the same result should follow. Under well-established precedent, a plaintiff suing under section 437g(a)(8) cannot establish injury in fact merely by alleging that it has been deprived of “knowledge as to whether a violation of the law has occurred.” Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C. Cir. 2001); Judicial Watch I, 180 F.3d at 278; Common Cause, 108 F.3d at 418. Even if that were an Article III injury, however, in this case the Commission did not reject CREW’s allegations but instead found “reason to believe” that the respondents violated the Act. Thus, even though nothing in the FECA requires that violations of the Act must themselves be disclosed (see Common Cause, 17

108 F.3d at 418; Alliance II, slip op. at 19), the Commission did make public here its determination of “reason to believe” under 2 U.S.C. 437g(a)(2). Similarly, CREW’s interest in

sanctioning the administrative respondents is precisely the sort of “interest in the enforcement of the law” that does not support standing to sue under section 437g(a)(8). Id. Despite the intensity of its interest, CREW simply does not have standing to sue the Commission to “get the bad guys.” Common Cause, 108 F.3d at 418. 3. Even if CREW Were Truly Seeking Information, It Has Failed to Demonstrate That the Information It Seeks Is Useful in Voting

Even if Common Cause were not dispositive here, CREW cannot demonstrate a cognizable informational injury based on allegedly unknown information about the precise value of the contact list. To put CREW’s alleged informational injury in perspective, it is useful to note what CREW is — and is not — seeking as part of this lawsuit. First, CREW is not seeking to know whether information was given to the campaign, as this fact was reported in both Forbes and the Washington Post, and was the basis for CREW’s administrative complaint. FEC Exs. BC; Complaint, Ex. B. Second, CREW is not attempting to learn who donated or received this information. As set forth in the press articles and CREW’s administrative complaint, Norquist provided the information in question to Ken Mehlman in his role as campaign manager for BushCheney ’04. Id. These facts were also confirmed in the General Counsel’s Report, which is now public. FEC Ex. A. Finally, CREW is not even seeking to learn what information was given. The materials provided to Bush-Cheney ’04 are categorized and described in the General Counsel’s Report, FEC Ex. A at 4-5, and some of the actual documents are available on the

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FEC’s website.8 Rather, the only information CREW alleges it lacks is the value of the contact list. Complaint at 8 (prayer for relief) (emphasis added). In Alliance for Democracy v. FEC, 335 F.Supp. 2d 39 (D.D.C. 2004) (“Alliance I”), the court found that an interest in this type of information was insufficient to establish Article III standing to sue under section 437g(a)(8). In that case, the organizational plaintiff, along with two voter plaintiffs, alleged an informational injury stemming from the Commission’s alleged failure to require the administrative respondents to report the value of a mailing list provided to John Ashcroft’s 2000 campaign committee.9 However, those plaintiffs “failed to show how information about the precise value of a mailing list ... could have a concrete effect on ... voting in future elections involving different candidates.” Id. at 48. Therefore, the court dismissed their action for lack of subject matter jurisdiction, because the requested information regarding the value of the list would “yield no information about the mailing list itself or provide any other information useful in voting.” Id. at 47. In Alliance II, a case involving the same facts and parties, another district court judge recently came to the same conclusion. Alliance II, slip op. at 12.10 The FECA’s reporting requirements only require candidates to report the “amount” of contributions, not to provide copies of underlying documents that have value as in-kind contributions, such as the contact list itself at issue here. See 2 U.S.C. 434(b). The materials at issue here do not “appear to constitute commercial mailing lists of the kind at issue” in Alliance. FEC Ex. A at 9 n.13 (referencing MUR 5181, the underlying administrative matter at issue in Alliance). Although the “contact list” contains the names and addresses of various individuals, there is no evidence that it was in a form that could be commercially sold or rented for fundraising purposes. See FEC v. Christian Coalition, 52 F.Supp. 2d 45, 96 (D.D.C. 1999) (mailing lists have commercial value and are routinely rented for fundraising or other solicitation purposes). In Alliance I, the plaintiffs alleged that the FEC had unreasonably delayed in acting on their administrative complaint. Alliance I, 335 F.Supp. 2d at 41. In Alliance II, the plaintiffs alleged that the FEC had improperly dismissed their administrative complaint. Alliance II, slip op. at 11. Despite this difference in posture, “the facts and parties [were] identical.” Alliance II, 19
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These decisions are directly on point; indeed, the facts alleged by CREW are weaker than in Alliance I & II. CREW has not even alleged, much less shown, that information about the value of the contact list would be useful in voting, and it would be impossible for CREW to do so, for two independent reasons. First, the 2004 presidential election is now over, and President Bush — the only candidate whose campaign committee is implicated by CREW’s charges — is constitutionally barred from seeking a third term. See U.S. CONST., amend. XXII. Thus, it is clear that any information about the value of the list could not have an impact on “voting in future elections.” Alliance I, 335 F.Supp.2d at 48 (emphasis added). Yet, to demonstrate standing for the prospective relief it seeks, CREW must demonstrate an ongoing case or controversy. “In actions for injunctive relief, harm in the past … is not enough to establish a present controversy, or in terms of standing, an injury in fact.” American Society for the Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus, 317 F.3d 334, 336 (D.C. Cir. 2003). More fundamentally, since CREW is the only plaintiff here and it can neither vote nor (as a 501(c)(3) corporation) otherwise engage in partisan politics, it is impossible for it to find the information it seeks “useful in voting.”11 Common Cause, 108 F.3d at 418. Thus, CREW’s heavy reliance on the Supreme Court’s decision in Akins (see Complaint ¶ 13) is misplaced.

slip op. at 11. The Alliance II court “adopt[ed] the ruling in Alliance [I] — specifically that the plaintiffs lack[ed] standing — for the same reasons expressed in Alliance [I].” Alliance II, slip op. at 12. As a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code (Complaint ¶ 6), CREW is prohibited by law from participating in political campaigns. See 26 C.F.R. 501(c)(3)-1; Association of the Bar of the City of New York v. Commissioner, 858 F.2d 876, 881 (2d Cir. 1988), cert. denied, 490 U.S. 1030 (1989). 20
11

Although the Akins decision recognized “informational injury” as a basis for Article III standing in a suit brought under section 437g(a)(8), the plaintiffs in Akins were a group of voters, not a non-voting interest group dedicated to exposing unethical and illegal conduct. See Akins, 524 U.S. at 20. Instead of seeking an appraisal of a single, previously identified in-kind contribution, the Akins plaintiffs challenged a Commission ruling that the American Israel Public Affairs Committee (“AIPAC”) was not a “political committee” under the FECA, and therefore not required to disclose any of its donors or campaign-related contributions and expenditures. Id. at 15-16, 21. See also Alliance II, slip op. at 16 (finding it to be a “notable difference” that “the plaintiffs in Akins had been completely denied access to any information about AIPAC’s receipt and disbursement of funds, and thus had no way to determine whether a particular candidate was even supported by AIPAC”). Furthermore, in contrast to CREW, the Akins voter plaintiffs, the Supreme Court explained, had demonstrated why they needed the information in question: to “help them (and others to whom they would communicate it) to evaluate candidates for public office ... and to evaluate the role that AIPAC’s financial assistance might play in a specific election.” Id. at 21. Under these circumstances, the Supreme Court found that there was “no reason to doubt [the plaintiffs’] claim that the information would help them,” and the Court “consequently” held that they had suffered a concrete and particular informational injury. Id. at 21 (emphasis added). Here, there is every “reason to doubt” (id.) that CREW would find information about the precise value of the contact list useful in voting, or even in trying to influence the votes of others, since it is barred from engaging in those activities. Therefore, CREW does not have standing under Akins because it has failed to allege, much less provide evidence, that the item of information in question would assist it in electoral politics. See Becker, 230 F.3d at 389 (“what

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was important [about Akins] was that voters had been denied access to information that would have helped them evaluate candidates for office”). See also supra pp.10-14 (no standing based on any alleged injury to CREW’s programmatic activity). 12 4. CREW Already Has the Information It Claims to Lack

CREW also “has failed to allege an Article III injury because [it] already posses[es] the information [it] claim[s] to lack.” Alliance I, 335 F.Supp.2d at 48. As explained supra pp. 5, 8, 12, CREW already knows that the view of the administrative respondents is that the contact list had no value, and that the Commission found it had only “limited” value. See FEC Exs. E-F; FEC Ex. A at 10.13 Thus, CREW already knows the respondents’ and Commission’s appraisal of the contact list. CREW’s mere disagreement with these appraisals does not give it standing to sue the Commission to seek a different appraisal. See Diamond, 476 U.S. at 62 (“[t]he presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements”). To the contrary, it illustrates that CREW has not suffered any cognizable harm.

The precise value of the contact list is not even relevant to CREW’s non-justiciable “interest in enforcement of the law.” Judicial Watch I, 180 F.3d at 278; see supra pp. 15-16. It is undisputed that ATR donated the contact list, and all corporate contributions are prohibited by the FECA, regardless of their amount (except those that come from a corporation’s political action committee). See 2 U.S.C. 441b. Given this restriction, it makes no difference whether the list is worth one dollar or ten thousand dollars for the purpose of determining whether it constituted a prohibited in-kind contribution — even if CREW had standing to seek such a legal determination. Any further refinement of the Commission’s appraisal would be difficult because of the inherent subjectivity of estimating the value of information such as a list of names of supposed political activists in various states, much of which was already publicly available. See FEC Ex. A at 8 n.12 (“[I]t is difficult to ascertain a market value for unique goods such as the materials Grover Norquist provided to the [Bush-Cheney ‘04] Committee”). Accord, Alliance II, slip op. at 15 (noting that “there was no single, objective value that could be attached to the mailing list” in that case). 22
13

12

Instead of seeking additional factual information regarding something it does not know, CREW is essentially asking for administrative and judicial declaration of what it already believes — that “the master contact list created by Mr. Norquist constituted an in-kind contribution with substantial market value ....” Complaint, Ex. B at ¶ 11. In this regard, Judicial Watch v. FEC, 293 F.Supp.2d 41 (D.D.C. 2003) (“Judicial Watch II”), a decision dismissing a section 437g(a)(8) action brought by Judicial Watch and an alleged contributor to Senator Hillary Clinton’s campaign committee, is closely on point. In that case, the plaintiffs claimed that “Senator Clinton’s campaign committee failed to report approximately two million dollars in cash and in-kind contributions” donated by the alleged contributor. Id. at 44. In addition, they claimed that the FEC’s alleged failure to respond timely to the underlying administrative complaint caused them an “informational injury” because they were “deprived of information they sought when the administrative complaint was filed.” Id. at 43-44. However, the court rejected this assertion because “it appear[ed] unlikely that [the] administrative complaint [would] yield additional facts about [the Senator’s] alleged reporting violations that [the contributor] was not already aware of when he filed the administrative complaint ....” Id. at 47.14 Instead of seeking additional facts, the plaintiffs were “really seeking … a legal determination” based on known facts, and therefore the court dismissed their action for lack of standing. Id. The same reasoning applies here. Moreover, because the Commission has made information from its consideration of CREW’s administrative complaint public, CREW now has far more information concerning the contact list than Bush-Cheney ’04 ever would have been required to report on a single line of a

14

Although the contributor was the only person listed as a party to the administrative complaint, the court noted that the same reasoning applied to Judicial Watch. Id. at 45, 46 n.7. 23

disclosure report to the Commission.15 See FEC Ex. K at 5 (FEC Form 3P, Report of Receipts and Disbursements by an Authorized Committee of a Candidate for the Office of President or Vice President). During the course of the administrative proceedings, Bush-Cheney ’04 not only provided its view of the value of the contact list, but produced the meeting materials that comprised this “contact list” to the Commission. These raw documents are categorized and described in the General Counsel’s Report (FEC Ex. A at 4-5), and some of them are even reproduced on the FEC’s website.16 In Alliance II, the plaintiffs also had access to information on the FEC’s website, which “could be analyzed to determine the value of the mailing list” in that case. Alliance II, slip op. at 12. Like here, that information “far exceed[ed] what would normally be reported[.]” Id. at 13. Accordingly, the court “conclude[d] that the plaintiffs lack[ed] standing because they already ha[d] the information they [were] seeking and therefore ha[d] not suffered an informational injury.” Id. The same reasoning applies here. II. CREW CANNOT DEMONSTRATE PRUDENTIAL STANDING TO BRING THE PRESENT ACTION The foregoing deficiencies under Article III are not the only hurdle facing CREW; in addition, it must show that it meets prudential standing requirements. Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994). Because CREW cannot do so, its action also

15

Norquist and ATR had no reporting obligation because “no reporting obligation under the Act attaches to persons making political contributions, unless those persons are political committees.” FEC Ex. A at 11 (citing 2 U.S.C. 434).
16

The Commission is precluded by law and its own published statement of policy from placing on the public record all of the materials that the administrative respondents submitted to it. See AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003); Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 Fed. Reg. 70,426-27 (2003). 24

should be dismissed for lack of prudential standing. See Grand Council of the Crees of Quebec v. FERC (“Grand Council”) 198 F.3d 950, 954 (D.C. Cir. 2000) (dismissing plaintiffs’ action on prudential standing grounds, and declining to reach issue of constitutional standing, even though court had “very serious doubts” about whether the Article III requirements for standing were met). Under 2 U.S.C. 437g(a)(8) (emphasis added), “[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party” may seek judicial review of the Commission’s decision. Importantly, this language does not automatically allow any person whose complaint is dismissed by the Commission to file a petition for review. Instead, Congress chose to require that the party bringing suit also be “aggrieved.” This “statutory restriction that a party seeking review must be aggrieved ... imposes a prudential standing barrier” that CREW must overcome before asserting its claims. Liquid Carbonic, 29 F.3d at 704. The Supreme Court did not eliminate this prudential standing barrier in Akins; the Court instead held that a group of voters had cleared it. In that case, the majority did not dispute Justice Scalia’s fundamental assertion that “the Federal Election Campaign Act ... does not intend that all persons filing complaints with the Federal Election Commission have the right to seek judicial review of the rejection of their complaints.” Akins, 524 U.S. at 30 (Scalia, J., dissenting) (emphasis in original). Rather, the Justices disagreed about whether the Act is meant to protect voters, and whether voters have prudential standing under section 437g(a)(8). The Court’s holding was correspondingly narrow: Given the language of the statute and the nature of the injury, we conclude that Congress, intending to protect voters such as respondents from suffering the kind of [informational] injury here at issue, intended to

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authorize this kind of suit. Consequently, respondents satisfy “prudential” standing requirements. Akins, 524 U.S. at 20. The Court in Akins did not address whether the Act is intended to protect all interest groups or 501(c)(3) corporations. Indeed, this was not even imagined by Justice Scalia and the other dissenters, who complained merely that the majority’s opinion meant that “any voter can sue.” Akins, 524 U.S. at 30 (Scalia, J., dissenting) (emphasis in original). Therefore, prudential standing requirements still apply to CREW, a non-voting, tax-exempt organization. Subsequent case law confirms this interpretation. In Grand Council, 198 F.3d at 954-55, the D.C. Circuit rejected the plaintiffs’ contention, premised on Akins, that Congress “dispensed with prudential standing [under the Federal Power Act] by providing that ‘[a]ny person ... aggrieved by an order issued by the Commission’ ... may apply to have the order reheard.” Explaining the limited impact of Akins, the court held that “the purpose of the [Supreme Court’s] pronouncement [about the word ‘aggrieved’] was evidently only to recognize ‘person aggrieved’ as a congressional means of dispensing with traditional requirements of ‘legal right.’” Grand Council, 198 F.3d at 955. It then proceeded to analyze prudential standing and found that the environmental organization in that case lacked standing to sue. Id. at 959. Thus, prudential standing requirements still apply under the FECA, which contains similar “party aggrieved” language. Whether prudential standing is satisfied depends on whether the plaintiff’s asserted injury arguably falls within the “zone of interests” protected or regulated by the statute. Akins, 524 U.S. at 20 (citation omitted). This requirement asks “who may bring a particular challenge, not what particular challenge may be brought.” Liquid Carbonic, 29 F.3d at 705 n.7 (emphasis in original) (quoting Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 925 (D.C. Cir. 26

1989)). “Parties regulated by a statute or those whom it protects fall within its ‘zone of interest.’” Liquid Carbonic, 29 F.3d at 704. The FECA regulates persons and entities involved in federal elections — namely, candidates, political parties, and political committees — and those who wish to contribute to them or spend money on their behalf. However, CREW is not a candidate, political party, or political committee. See 2 U.S.C. 431(2), (4), (16). In fact, under the Internal Revenue Code, it is prohibited from participating in or contributing to political campaigns in any way. See supra p. 18 n.11. Thus, CREW does not fall within the zone of interests that the FECA seeks to regulate. Similarly, because CREW is an organization, it obviously is not a registered voter or eligible to vote. Thus, it does not fall within the zone of interests that Congress intended to protect by enacting the FECA. See Akins, 524 U.S. at 20 (by enacting the FECA, Congress was “intending to protect voters”); Judicial Watch II, 293 F. Supp.2d at 46 (describing “[i]nformational injury” as “that injury caused when voters are deprived of useful political information at the time of voting”). At most, CREW has a general interest in good government. This interest is not, however, specific to campaign finance law, and even if it were, “a ‘mere interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ... ‘aggrieved.’” Sierra Club v. Morton, 405 U.S. 727, 739 (1972). Therefore, CREW lacks prudential standing in this case. This Court’s recent pronouncements on the scope of section 437g(a)(8) support this conclusion. In Kean for Congress Comm. v. FEC, No. 04-0007, slip op. at 21 (D.D.C. Jan. 25, 2005), this Court held that “the relevant group intended to benefit from the FECA disclosure

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requirements stretches beyond voters to include political committees, candidates, and candidate committees.” Accord, Buchanan v. FEC, 112 F. Supp.2d 58, 65 n.6 (D.D.C. 2000) (“it is clear that candidates, political parties, and voters are within the ‘zone of interests’ protected by FECA”) (citing Akins, 524 U.S. at 20). Conspicuously absent from this list are interest groups or tax-exempt organizations. Indeed, CREW could not possibly be one of the “political actors” that Congress intended to regulate or protect, see Kean for Congress Comm., slip op. at 20, because it is entirely excluded by law from the political arena. See supra p.18 n.11. Therefore, it lacks prudential standing to maintain this action. III. CONCLUSION Because CREW lacks both constitutional and prudential standing to bring the present action, this Court should grant the Commission’s motion and dismiss CREW’s Complaint. Respectfully submitted, /s/ Lawrence H. Norton General Counsel /s/ Richard B. Bader Associate General Counsel (D.C. Bar # 911073) /s/ David Kolker Assistant General Counsel (D.C. Bar #394558)

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/s/ Kai Richter Attorney FOR THE DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street, N.W. Washington, D.C. 20463 (202) 694-1650 (202) 219-0260 (FAX) Dated: April 15, 2005

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