Gottlieb v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 3, 1998 Decided May 22, 1998

No. 97-5125

Alan Gottlieb, et al.,

Appellants

v.

Federal Election Commission,

Appellee

Appeal from the United States District Court

for the District of Columbia

(95cv01923)

Harold Richard Mayberry, Jr. argued the cause and filed
the briefs for appellants.

David Kolker, Attorney, Federal Election Commission, ar-
gued the cause for appellee. With him on the brief were
Lawrence M. Noble, General Counsel, and Richard B. Bader,
Associate General Counsel.

Before: Silberman, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This is an appeal from the
judgment of the district court dismissing for lack of standing
a suit brought by four individuals and three organizations.
See Gottlieb v. FEC, No. 95-1923 (D.D.C. May 8, 1997). The
suit alleged that the Federal Election Commission's dismissal
of an administrative complaint filed by these appellants was
"contrary to law," 2 U.S.C. s 437g(a)(8)(C).

The individual appellants are Alan Gottlieb, Michael A.
Siegel, Todd Herman, and Joseph P. Tartaro, all registered
voters who supported candidates opposing William J. Clinton
in the 1992 presidential election. The organizational appel-
lants are the Center for the Defense of Free Enterprise and
the Second Amendment Foundation, both tax-exempt organi-
zations who promote free enterprise or the right to bear
arms, and the American Political Action Committee ("Ameri-
PAC"), a multicandidate political action committee which
spent about $6,600 opposing the election of President Clinton
in the 1992 general election.

The administrative complaint, filed on March 9, 1995,
charged that President Clinton's 1992 primary campaign com-
mittee violated the Presidential Primary Matching Payment
Account Act and Commission regulations. The alleged viola-
tion dealt with the transfer of contributions earmarked for
the primary campaign into the General Election Legal and
Accounting Compliance Fund. The Commission dismissed
the complaint on August 16, 1995, after three of the six
Commission members found no violation.

The Presidential Primary Matching Payment Account Act,
26 U.S.C. ss 9031-9042, provides federal funds "matching"
individual private campaign donations of $250 or less, up to an
overall ceiling. Id. s 9034. The Act subsidizes only the
primary campaign, not the costs of campaigning in the gener-
al election. Although candidates technically are "ineligible"
to receive matching funds after the primary election, id.
s 9033(c)(1)(A) & s 9032(2), they may continue to receive

such funds to offset "net outstanding campaign obligations"
accrued during the primary. 11 C.F.R. s 9034.1(b). "Net
outstanding campaign obligations" are essentially "the
amount of [the] campaign's qualified obligations as of the date
of ineligibility less the value of its assets on that date."
LaRouche v. FEC, 28 F.3d 137, 139 (D.C. Cir. 1994) (empha-
sis added). The Commission's implementing regulations per-
mit a candidate to receive matching funds only if "the sum of
the contributions received on or after the date of ineligibility
plus matching funds received on or after the date of ineligibil-
ity is less than the candidate's net outstanding campaign
obligations." 11 C.F.R. s 9034.1(b). Each private contribu-
tion diminishes the total amount of primary campaign debt,
and consequently the total amount of matching funds a
candidate is permitted to receive. To enforce this require-
ment, the Commission requires the candidate to submit a
statement of net outstanding campaign obligations within
fifteen days after his nomination; with each new request for
matching funds after the nomination the candidate must
submit a revised statement of such obligations. 11 C.F.R.
s 9034.5(a) & (f)(1).

Appellants contend that after President Clinton received
the Democratic Party's nomination, his campaign transferred
$1.4 million in private contributions to the Clinton-Gore '92
General Election Legal and Accounting Compliance Fund
("Compliance Fund"), instead of using that money to offset its
outstanding primary campaign debts. According to appel-
lants, this violated 11 C.F.R. s 9003.3(a)(1) (1994),1 which
permits only transfers of funds "in excess of any amount
needed to pay remaining primary expenses...." Appellants
further charged that in reporting later private contributions
to the Commission, the Clinton campaign did not record the
contributions it had transferred to the Compliance Fund. As a
result, the primary campaign received $1.4 million more in
matching funds than it was entitled.

Under the Federal Election Campaign Act of 1971, as
amended, 2 U.S.C. ss 431-455, "[a]ny person" who believes

__________
1 This regulation has since been amended. We cite to the
regulation in place at the time of the alleged violation.

that the Act has been violated may file a complaint with the
Commission. Id. s 437g(a)(1). Complaints are investigated
only if four of the six Commissioners vote that there is
"reason to believe" a violation has occurred. Id. s 437g(a)(2).
After conducting an investigation, the Commission votes
again on whether there is "probable cause" to believe the law
has been violated. Id. s 437g(a)(4)(A)(i). Here, the Commis-
sion agreed to investigate, but ultimately dismissed the com-
plaint after three of the six Commissioners found no violation.

Appellants' suit in the district court, filed under 2 U.S.C.
s 437g(a)(8)(A), sought an order declaring the Commission's
dismissal of the administrative complaint contrary to law and
an order directing the Commission to conform its conduct to
the declaration within 30 days. The only question before us
is whether the district court properly dismissed the suit for
lack of standing. That is, have appellants suffered an "injury
in fact--an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical"; is their injury "fairly ...
trace[able]" to the challenged action; and is the injury "like-
ly" to be redressed by a favorable decision of the court?
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal citations and quotations omitted).

Appellants identify three separate injuries stemming from
the Clinton primary campaign's transfer of contributions into
the Compliance Fund: AmeriPAC suffered "competitive inju-
ry"; the voters not only suffered a diminution in their ability
to influence the political process but also the candidates they
supported were put at a disadvantage.2

As to AmeriPAC's "political competitor" theory, we have
never completely resolved this "thorny issue." Common
Cause v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir. 1997); Akins
v. FEC, 101 F.3d 731, 737 (D.C. Cir. 1997) (en banc), cert.
granted, 117 S. Ct. 2451 (1997); Fulani v. Brady, 935 F.2d

__________
2 In their complaint, appellants also allege "informational inju-
ry" and injury to their First Amendment interests. Because they
have not made these claims in their appellate briefs, we do not
address them.

1324 (D.C. Cir. 1991). AmeriPAC thinks our opinion in
Fulani--a case in which we concluded the appellant lacked
standing to sue the Internal Revenue Service--supports its
position. We think the opposite. Fulani, a minor party
candidate in the 1988 Presidential election, sought to invali-
date the tax-exempt status of the sponsor of the Presidential
debates, which had excluded her from participating. We
rejected Fulani's contention that she had "competitor stand-
ing" to bring suit: She was not in a position to be granted
tax-exempt status, and thus was not in competition for that
benefit. See Fulani, 935 F.2d 1324; but see Fulani v.
League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.
1989). We speculated that "[a]rguably" Fulani would have
had standing "if the IRS were depriving Fulani of a benefit
that it afforded to others similarly placed...." Fulani, 935
F.2d at 1328.

AmeriPAC's "competitor standing" argument suffers the
same flaw. Like Fulani, the organization challenges a gov-
ernment benefit granted to a third party. AmeriPAC cannot
claim standing as a "competitor" of the Clinton campaign
because it was never in a position to receive matching funds
itself. Only another candidate could make such a claim. Our
conclusion is consistent with the line of cases granting stand-
ing to economic competitors. See Clarke v. Securities Indus.
Ass'n, 479 U.S. 388, 403 (1987); Investment Co. Inst. v.
Camp, 401 U.S. 617, 620 (1971); Arnold Tours, Inc. v. Camp,
400 U.S. 45, 46 (1970); Association of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 151 (1970). Those decisions also
require that the plaintiff "show that he personally competes
in the same arena with the same party to whom the govern-
ment has bestowed the assertedly illegal benefit." In re
United States Catholic Conference, 885 F.2d 1020, 1029 (2d
Cir. 1989). For "[o]nly then does the plaintiff satisfy the rule
that he was personally disadvantaged." Id.

As to the four voters, the supposed injury to their "ability
to influence the political process" rests on gross speculation
and is far too fanciful to merit treatment as an "injury in
fact." See, e.g., Kardules v. City of Columbus, 95 F.3d 1335,
1348-53 (6th Cir. 1996). In a case such as this one, where the
"asserted injury arises from the government's allegedly un-

lawful regulation (or lack of regulation) of someone else,"
standing will often be difficult to establish. Lujan, 504 U.S.
at 562. This is because "one or more of the essential ele-
ments of standing 'depends on the unfettered choices made
by independent actors not before the courts and whose exer-
cise of broad and legitimate discretion the courts cannot
presume either to control or to predict.' " Id. (quoting
ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)). The
individual appellants say their support for rival candidates
was rendered less effective because the Clinton campaign had
greater funds with which to sway voters. That conclusion
rests on a series of hypothetical occurrences, none of which
appellants can demonstrate came to pass.

For instance, appellants suppose that as a result of the
allegedly illegal transfer of contributions into the Compliance
Fund, the Clinton primary campaign received $1.4 million
more in matching payments from the federal government
than it was entitled. But the matching payments at issue--
received after Clinton became the Democratic nominee--went
to retire the primary campaign's outstanding debt. None of
those funds were employed in a manner that would have
diminished the voters' influence over the general election.
Nor did the transfer to the Compliance Fund directly infuse
the Clinton-Gore general election campaign with funds with
which to influence public opinion in Clinton's favor. The
Compliance Fund pays for the legal and accounting services
required for compliance with campaign finance laws. Com-
mission regulations prohibit use of those funds for election-
eering activity, see 11 C.F.R. s 9003.3(a)(2), and appellants do
not contend that this rule was violated.

Appellants also think the transfer into the Compliance
Fund allowed the Clinton campaign to funnel more of its post-
primary contributions directly into campaigning. That is not
necessarily so. Had the transfer never occurred, the Compli-
ance Fund might simply have made do with less, or contribu-
tors might have been willing to give more. Either way, the
total amount of funds available for electioneering then would
have remained the same. Even if the transfer enriched the
Clinton-Gore campaign, appellants have not suggested how

this money was used to influence public opinion. For all we
know, any excess funds could have been used for better hotel
accommodations, more comfortable transportation, or bright-
ening up the decor at campaign headquarters--purposes
which at least arguably did not directly counter or even
diminish appellants' attempts to influence the electorate.
And under any circumstances, it is unclear how their influ-
ence as voters was diminished. The Clinton campaign may
have received extra funds, but this did not prevent the voters
from engaging in any of the numerous activities open to all
politically active citizens. They were free to raise funds to
support their own candidates, volunteer their time to work on
those campaigns, and vote for the candidate of their choice.

The individual voters attempt to tie their supposed injury
to that suffered by candidates opposing Clinton in the 1992
campaign. They believe that a competing candidate "clearly"
would have standing under these circumstances. Therefore,
voters have standing to seek relief against "unfair treatment"
burdening these candidates. They cite decisions recognizing
that, in some circumstances, the interests of candidates and
voters are so intertwined that an injury to the candidate
causes correlative harm to voters. E.g., Anderson v. Cele-
brezze, 460 U.S. 780 (1983); Bullock v. Carter, 405 U.S. 134,
143 (1972); Duke v. Cleland, 5 F.3d 1399, 1403 n.2 (11th Cir.
1993); Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir. 1989),
overruled on other grounds by Lightfoot v. Eu, 964 F.2d 865
(9th Cir. 1992); Thorsted v. Gregoire, 841 F. Supp. 1068, 1073
(W.D. Wash. 1994), aff'd on other grounds sub nom. Thor-
sted v. Munro, 75 F.3d 454 (9th Cir. 1996); Williams v.
Adams County Bd. of Election Comm'rs, 608 F. Supp. 599,
600 (S.D. Miss. 1985).

Appellants' argument goes nowhere. The cases recogniz-
ing a link between harm to candidates and a derivative harm
to voters also require that the voters have themselves suf-
fered a concrete and personalized injury. Such injury arises
when the candidate is prevented from appearing on a ballot
altogether, as when the state charges a prohibitively high
filing fee to run in a primary election (as in Bullock), or when
the filing deadline is set unrealistically early (as in Anderson).

Ballot eligibility requirements and term limits also prevent
candidates from appearing on the ballot, directly impinging
on the voters' ability to support that candidate. See Thor-
sted, 841 F. Supp. at 1073. We do not necessarily have to
agree with all of these decisions. It is enough to point out
here that the analogy appellants wish to draw fails. The
extra infusion of funds into the Clinton campaign did not
impede the voters from supporting the candidate of their
choice. See Buckley v. Valeo, 424 U.S. 1, 94 (1976) ("denial of
public financing to some Presidential candidates is not restric-
tive of voters' rights").

Appellants also invoke our decision in International Associ-
ation of Machinists & Aerospace Workers v. FEC, 678 F.2d
1092 (D.C. Cir.) (en banc), aff'd mem., 459 U.S. 983 (1982).
We do not understand why. The case did not concern the
diminution of individual voters' influence on an election. We
made this plain: The plaintiffs brought suit "as Union mem-
bers, as corporate shareholders, and on behalf of corporate
employees, not as voters." 678 F.2d at 1098 (emphasis add-
ed). They challenged laws permitting corporate PACs to
solicit funds from executive and administrative employees.
We held that the union's influence had been diminished
"relative" to the corporate PACs, creating the type of compet-
itive injury described earlier in this opinion. Id. Nowhere
does our en banc opinion mention the sort of injury the
individual voters allege here.

Although at the complaint stage of the proceedings appel-
lants needed only to make "general factual allegations of
injury," Lujan, 504 U.S. at 561, they have not managed to
meet even this low threshold. The speculative, amorphous
claims of injury they have put forward do not satisfy Article
III's "case" or "controversy" requirement.

Affirmed.