Wertheimer v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2001 Decided October 26, 2001

No. 00-5371

Fred Wertheimer, et al.,
Appellants

v.

Federal Election Commission,
Appellee

Appeal from the United States District Court
for the District of Columbia
(00cv02203)

Paul A. Engelmayer argued the cause for appellants.
With him on the briefs were Roger M. Witten, Daniel H.
Squire, and Joshua D. Weinberg.

Richard B. Bader, Associate General Counsel, Federal
Election Commission, argued the cause for appellee. With
him on the brief was Vivien Clair, Attorney. Lawrence M.
Noble, General Counsel, entered an appearance.

 Before: Garland, Circuit Judge; Silberman and
Williams,* Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
Silberman.

Opinion concurring in the judgment filed by Circuit Judge
Garland.

Silberman, Senior Circuit Judge: Fred Wertheimer, Scott
Harshbarger, and Archibald Cox appeal from the district
court's dismissal of their suit for lack of subject matter
jurisdiction. They sued under section 9011(b) of the Presi-
dential Election Campaign Fund Act1 seeking construction of
the terms "contribution" and "expenditure" within the mean-
ing of that Act. We affirm on grounds that appellants lack
standing.

I.

Fred Wertheimer is the current president of Democracy 21
and a former president of Common Cause, two organizations
whose purpose is the modification of campaign financing.
Scott Harshbarger is the current president of Common
Cause. Archibald Cox is chairman emeritus of Common
Cause. They voted in the 1996 presidential election and, at
the time this suit was filed, intended to vote in the 2000
presidential election. Their allegations are that, notwith-
standing the Fund Act's prohibition on presidential candi-
dates accepting contributions from private sources, during the
1996 and 2000 presidential campaigns the two major political
parties were funding campaign advertisements furthering the
election of their respective presidential nominees in close
coordination with those candidates. Essentially their suit
seeks a declaration that expenditures by political parties that
further the election of their respective presidential candi-
dates, and that are coordinated with those presidential candi-
dates, constitute contributions to and expenditures by such

__________
* Senior Judge Williams was in regular active service at the time
of oral argument.

1 26 U.S.C. s 9001 et seq. (2000).

presidential candidates within the meaning of the Fund Act,
and as a corollary, major party candidates who have chosen
public funds may not coordinate with their respective political
parties on party expenditures that further that candidate's
election.

In order to understand appellants' claim--and their alleged
standing--one has to carefully consider the interrelationship
between the Fund Act and the Federal Election Campaign
Act of 1971, as amended (FECA).2 The Fund Act also passed
in 1971 established a voluntary program of public financing of
the general election campaigns of eligible major and minor
party nominees for the office of President of the United
States.3 It established the Presidential Election Campaign
Fund, the size of which is determined by a tax checkoff option
through which each individual taxpayer may designate on his
federal income tax return that three dollars be transferred to
the Fund. Appellants allege that at least one of them desig-
nated on his federal income tax return that three dollars be
transferred to the Fund. To receive a specified amount of
public funding for use in their general election campaigns,
participating major party presidential nominees must be cer-
tified as eligible by the Federal Election Commission (FEC)
and must agree not to accept private campaign contributions
for the general election campaign, except to the extent that
the Fund is insufficient to provide the statutorily specified
amount to each candidate. Such a candidate must also agree
not to incur "qualified campaign expenses" in excess of his
public entitlement. These expenses include those incurred by
the candidate of a political party for the office of President to
further his election and those by his authorized committee to
further his election. An expense shall be considered as
incurred by a candidate if it is incurred by an authorized
person. Participating candidates must also agree that they

__________
2 2 U.S.C. ss 431-455 (2000).

3 Congress also enacted the Presidential Primary Matching Pay-
ment Account Act, 26 U.S.C. ss 9031-9042, which establishes a
voluntary system of public financing for major and minor party
primary elections.

and their authorized committees will submit their campaign
accounts for a post-election Commission audit of qualified
campaign expenses and pay any amounts required to be
repaid pursuant to statute. The Act does not, however,
require candidates to publicly disclose their campaign fi-
nances.

We are authorized to review Commission action under the
Fund Act. It also authorizes individuals eligible to vote for
President to institute "such actions, including actions for
declaratory judgment or injunctive relief, as may be appro-
priate to implement or contrue [sic] any provision of this
chapter." (Emphasis added). A three-judge panel hears
lawsuits brought under section 9011(b), with direct appeal to
the Supreme Court. But an individual district court judge
may consider threshold jurisdictional challenges prior to con-
vening a three-judge panel. See Gonzalez v. Automatic Emp.
Credit Union, 419 U.S. 90 (1974); Ruess v. Balles, 584 F.2d
461, 464 n.8 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978).

Publicly and privately financed candidates for federal office
are also subject to FECA, which imposes limits upon the
amounts that individuals, corporations, political committees,
and political parties can contribute to a candidate for federal
political office. It limits the amount these individuals or
entities can spend in coordination with a candidate, treating
these expenditures as "contributions to" a candidate for pur-
poses of FECA. The Commission refers to these expendi-
tures as "coordinated expenditures" or "441a expenditures."
See 2 U.S.C. s 441a(a)(7)(B)(i); s 441a(d)(2); Colorado Re-
publican Campaign Comm. v. FEC, 518 U.S. 604 (1996).
"Contributions" and "expenditures" are defined as covering
only those contributions and expenditures that are made "for
the purpose of influencing any election for Federal office." 2
U.S.C. s 431(8)(A)(i), (9)(A)(i). As of May 2001, for entities
other than candidates, authorized committees, and political
party committees, any "expenditure for general public politi-
cal communication that includes a clearly identified candidate
and is coordinated with that candidate, an opposing candidate
or a party committee supporting or opposing that candidate is
both an expenditure under 11 C.F.R. 100.8(a) and an in-kind

contribution under 11 C.F.R. 100.7(a)(1)(iii)." 11 C.F.R.
100.23 (2001). Prior to promulgating this broader definition,
the Commission deadlocked 3-3 on whether to pursue its
counsel's finding that the 1996 Clinton campaign made illegal
coordinated expenditures and accepted illegal contributions
from the Democratic National Committee (DNC). The Com-
mission has six voting members, no more than three of whom
may be affiliated with the same political party, and any
formal agency action requires the affirmative vote of four
members. The Commissioners disagreed over whether the
political party's expenditures were, in fact, "coordinated ex-
penditures," which seems to have been the impetus for this
lawsuit. On the heels of the Supreme Court's decision in
FEC v. Colorado Republican Campaign Committee, 121
S. Ct. 2351 (2001), the Commission is engaged in rulemaking
to extend this May 2001 regulation of coordinated expendi-
tures to political parties.

All federal candidates and political committees must file
periodic reports with the Commission detailing all their re-
ceipts as well as their contributions, expenditures, and other
disbursements. Section 434(b)(2) requires that these reports
disclose contributions from political party committees and, for
an authorized committee of a candidate for the office of
President, certain federal funds. The Commission's imple-
menting regulations require national political party commit-
tees to report for public disclosure their "soft money" dis-
bursements and donations received. FECA further requires
political parties to report "the total amount of all disburse-
ments" and to delineate 441a coordinated expenditures. A
candidate is not, however, required to report as contributions
coordinated expenditures by his political party.

The Commission has exclusive jurisdiction with respect to
the civil enforcement of FECA. However, a private party
may file a sworn administrative complaint alleging violations
with the Commission. After investigation, the Commission
determines whether there is "probable cause to believe" that
a violation has occurred. If the Commission dismisses an
administrative complaint, petitioners may seek review of the
Commission's determination in the United States District
Court for the District of Columbia. Democracy 21 and

Common Cause have filed an administrative complaint with
the Commission making essentially the same allegations of
illegal coordination, contributions, and expenditures as appel-
lants make in this suit.

In this case, appellants alleged that the Commission's
failure, as yet, to implement and construe the Act to identify
coordinated expenditures by the major political parties to
further the election of their publicly financed nominees as
impermissible "contributions" and "expenditures" injured
them in three distinct ways. First, the FEC's failure de-
prived them of required information about the source and
amount of candidates' financing. Second, the FEC's failure
prevented them from determining whether publicly financed
candidates were abiding by the law in forgoing private contri-
butions and in refusing to make expenditures in excess of the
public grant. Third, the FEC's inaction interfered with their
right to direct that their $3 income tax return checkoff be
used in a lawful fashion.

The district court dismissed appellants' suit prior to con-
vening a three-judge panel. It held that appellants' second
and third alleged injuries were insufficient to confer Article
III standing and appellants do not rely on those alleged
injuries on appeal. The court concluded that it lacked subject
matter jurisdiction under section 9011(b) to consider appel-
lants' claim that the Commission's failure to implement and
construe the Fund Act deprived them of information about
the source and amount of the presidential candidates' financ-
ing because section 9011(b) "only empowers federal district
courts 'to implement or con[s]true' " the Fund Act. And "to
consider Plaintiffs' inadequate disclosure claim, the Court
would have to implement and construe FECA, not the Fund
Act, because FECA is the law that governs the disclosure
requirements about which Plaintiffs complain."

II.

The Commission supports the district court's determination
that it lacked subject matter jurisdiction because appellants'
claim is not really for an interpretation of the Fund Act, but

rather for an interpretation of similar but not identical lan-
guage in FECA, which includes the disclosure requirements.4
Appellants argue that it is likely that the two statutes would
be interpreted in pari materia, which is by no means obvious,
but, in any event, the court's reasoning seems to us to sound
more applicable to cause of action considerations than to
subject matter jurisdiction. The district judge, however,
lacked authority, by herself, to dismiss on cause of action
grounds.

Be that as it may, we think appellants lack standing-which
is, of course, jurisdictional. The Commission disputes all
three elements of appellants' standing claim: injury, causa-
tion and redressability. Causation and redressability are
challenged on similar reasoning that led the district court to
dismiss. The Commission argues that an interpretation of
the Fund Act will not necessarily or even likely lead to the
interpretation of similar language in FECA so that redressa-
bility is missing. And to reverse the analysis (which normally
follows) causation is defective because the Commission's al-
leged failure to interpret language in the Fund Act did not
cause the Commission to make any determination with re-
spect to FECA. In other words, whether considering this
problem from the vantage point of causation or redressability
the interpretation of the Fund Act and FECA are indepen-
dent variables.

As if this were not enough the Commission also asserts
that appellants fail the prudential standing test as well be-
cause this is not an "appropriate" action within the meaning
of section 9011(b). If we were to grant appellants relief in
construing the Fund Act, on the theory that the Commission
would be obliged or likely to construe FECA in pari materia,
we would be interfering implicitly with the Commission's
exclusive authority to enforce FECA.

Although recognizing the tenuous nature of appellants'
claimed interrelationship between the two statutes we prefer
to rest our decision on appellants' failure to assert an injury

__________
4 Compare the use of the term "qualified campaign expense" in
the Fund Act, 26 U.S.C. s 9002(11), with the use of the term
"expenditure" in FECA, 2 U.S.C. s 431(9)(A).

in fact because that is the logical anterior question in any
standing analysis. Appellants rely on FEC v. Akins, 524 U.S.
11 (1998), which holds that a voter suffers cognizable injury
under FECA when it is deprived of information that the Act
requires be disclosed. See also Akins v. FEC, 101 F.3d 731,
735 (D.C. Cir. 1997) (en banc) (comparing cases), vacated and
remanded on other grounds, 524 U.S. 11 ("We have recog-
nized in our 'informational injury' cases that a party may be
entitled to sue in federal court to force the government to
provide information to the public (and thereby to it) if the
government's failure to provide or cause others to provide
that particular information specially affects that party."). On
the other hand, as the Commission points out, the govern-
ment's alleged failure to "disclose" that certain conduct is
illegal by itself does not give rise to a constitutionally cogniza-
ble injury. See Common Cause v. FEC, 108 F.3d 413, 417
(D.C. Cir. 1997). "To hold that a plaintiff can establish injury
in fact merely by alleging that he has been deprived of the
knowledge as to whether a violation of the law has occurred
would be tantamount to recognizing a justiciable interest in
the enforcement of the law. This we cannot do." Id. at 418.
Cf. Akins, 524 U.S. at 24.

The Commission contends, and we agree, that, under the
Akins test, appellants have failed to show either that they are
directly being deprived of any information or that the legal
ruling they seek might lead to additional factual information.
To be sure, presidential candidates are subject to FECA's
disclosure and reporting requirements. And FECA requires
political parties to report each disbursement and to label
coordinated expenditures as a discrete category. Yet, appel-
lants' counsel did not dispute that all political parties current-
ly report all disbursements or that each transaction appel-
lants allege is illegal is reported in some form. During oral
argument, counsel for appellants was asked what facts, specif-
ically, were not being disclosed. Counsel responded that the
"fact" of "coordination" was being withheld. But "coordina-
tion" appears to us to be a legal conclusion that carries
certain law enforcement consequences.

 It is perhaps conceivable that certain facts are necessarily
implied by the label "coordinated." If they are, appellants
did not make clear what were those facts (nor did they make
this argument to the district court or in their briefs). As far
as we can determine, appellants do not really seek additional
facts but only the legal determination that certain transac-
tions constitute coordinated expenditures. If so, candidates
would be required to report allegedly coordinated expendi-
tures, which currently only political parties disclose, as dis-
bursements.5 But that would mean that appellants only seek
the same information from a different source. Any such
increase in information resulting from the imposition of dupli-
cative reporting requirements seems trivial.

Although both sides' presentation of the current disclosure
and reporting requirements was somewhat confusing, appel-
lants bear the burden of showing their standing, and they
simply failed to establish that the ruling sought would yield
anything more than a legal characterization or duplicative
reporting of information that under existing rules is already
required to be disclosed.

* * * *

The judgment of the district court is affirmed.

So ordered.

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

 Garland, Circuit Judge, concurring in the judgment: Ap-
pellants contend that in the absence of the judicial declaration
they seek, they are deprived of information that a political
party committee has coordinated its expenditures with its
presidential candidate. The FEC responds, and appellants
do not dispute, that political party committees are already
required to report and to identify such coordinated expendi-
tures as s 441a(d) expenditures in their FECA filings. FEC
Br. at 34-35; see 2 U.S.C. s 434(b)(4)(H)(iv), (6)(B)(iv); 2
U.S.C. s 441a(d)(2); Fed. Election Comm'n v. Colorado Re-
publican Fed. Campaign Comm., 121 S. Ct. 2351, 2352, 2371
(2001). Because appellants' briefs fail to articulate how a
judicial declaration would provide them with additional infor-
mation, they have failed to satisfy their burden of establishing
standing to bring this action. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).