United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2006 Decided January 12, 2007
No. 06-5014
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
FEDERAL ELECTION COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv02145)
Anne L. Weismann argued the cause for appellant. With her
on the briefs was Melanie Sloan.
David B. Kolker, Attorney, Federal Election Commission,
argued the cause for appellee. With him on the brief were
Richard B. Bader, Associate General Counsel, and Vivien Clair,
Attorney.
Before: RANDOLPH, GARLAND and GRIFFITH, Circuit
Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
2
Opinion concurring in the judgment filed by Circuit Judge
GARLAND.
RANDOLPH, Circuit Judge: This is an appeal from an order
of the district court granting summary judgment in favor of the
Federal Election Commission. Citizens for Responsibility and
Ethics in Washington (CREW) sought judicial review of the
Commission’s dismissal of CREW’s administrative complaint.
The issue is whether CREW has standing to challenge the
Commission’s decision.
I.
During the 2004 presidential election campaign, Grover
Norquist gave Ken Mehlman a list of conservative activists in
thirty-seven states. Norquist is president of Americans for Tax
Reform, a § 501(c)(3) tax-exempt corporation. Mehlman was
campaign manager of Bush-Cheney ’04. A reporter from The
Washington Post witnessed the transaction and reported it.
Relying on the newspaper story, CREW filed a complaint with
the Commission alleging that the list constituted an in-kind
corporate campaign contribution in violation of the Federal
Election Campaign Act, 2 U.S.C. § 441b(a); that if, instead, the
list constituted a personal contribution by Norquist, its value
exceeded his $2,000 contribution limit under § 441a(a)(1)(A);
and that Bush-Cheney ’04 violated § 434(a)-(b) by failing to
report the list as a contribution. The complaint named as
respondents Norquist, Americans for Tax Reform, Mehlman,
and Bush-Cheney ’04. As relief, CREW requested that the
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.” Bush-
Cheney ’04 and Americans for Tax Reform defended on the
grounds that the materials Norquist provided to Mehlman were
3
not confidential, were accessible from publicly available sources
including Americans for Tax Reform’s website, and did not
represent a campaign contribution because they had no market
value.
The Commission’s General Counsel sought to determine
whether the list constituted a “contribution” – that is, a “gift,
subscription, loan, advance, or deposit of money or anything of
value” made for the purpose of influencing a federal election.
2 U.S.C. § 431(8)(A)(i). He requested that the administrative
respondents provide a copy of the materials given to Mehlman.
Bush-Cheney ’04 submitted one version of the documents;
Americans for Tax Reform submitted a slightly different
version, explaining that it had updated the materials since
providing them to Mehlman and had not kept a copy of the
original list. The materials, which are described in great detail
in the General Counsel’s Report to the Commission, included a
map of thirty-six states in which “Center-Right Coalition”
meetings had taken place, descriptions of some of the meetings,
and lists of attendees. The General Counsel recommended to
the Commission that it find reason to believe that the transaction
constituted a prohibited corporate contribution under § 441b(a),
find no reason to believe that the transaction constituted an
excessive personal contribution exceeding $2,000 under
§ 441a(a)(1)(A), and find reason to believe that Bush-Cheney
’04 violated § 434(b) by failing to report the in-kind
contribution.
Although the General Counsel concluded that the materials
had some value, the value was “small,” the list had only a
limited “impact,” and amounted only to a “limited contribution”
to Bush-Cheney ’04. He determined that the materials would be
of little assistance in organizing Bush-Cheney ’04’s
conservative base: the individuals identified in the list were
doubtless already aware of and supportive of the President’s re-
4
election campaign; with few exceptions, the materials focused
on state and local issues; and Bush-Cheney ’04 already had
some of the information and portions of it were posted on
Americans for Tax Reform’s website. “[I]n order to devote the
Commission’s limited resources to more significant cases,” the
General Counsel therefore recommended that the “Commission
exercise its prosecutorial discretion and take no further action
and close the file in this matter.”
The Commission voted to adopt the General Counsel’s
recommendations, but did not issue a separate joint statement.1
We therefore infer that the General Counsel’s report sets forth
the Commission’s rationale for ending its inquiry into CREW’s
administrative complaint. See, e.g., FEC v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 38 & n.19 (1981);
Nat’l Rifle Ass’n of Am. v. FEC, 854 F.2d 1330, 1333 n.7 (D.C.
Cir. 1988). The Commission notified CREW of its action,
provided a copy of the General Counsel’s report, and stated that
materials relating to the matter would be placed on the public
record within thirty days, see 11 C.F.R. § 111.20(a), which they
were.
After the election, CREW filed this action pursuant to 2
U.S.C. § 437g(a)(8)(A), which states that “Any 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.” CREW’s complaint sought
a declaration that the Commission’s “failure to require reporting
1
Commissioner Michael E. Toner issued a personal
“Statement of Reasons,” concluding that CREW’s complaint “should
have been dismissed based on prosecutorial discretion with no reason-
to-believe finding.” See FEC, Statement of Reasons (Nov. 23, 2004)
(Toner, Comm’r), http://eqs.nictusa.com/eqs/searcheqs (enter 5409 as
case number).
5
and disclosure of the value of the master contact list . . . was
contrary to law.” The district court, Bates, J., granted summary
judgment in favor of the Commission on the ground that CREW
lacked standing to litigate its claims. The court reasoned that
CREW suffered no injury in fact because the precise dollar
value of the list would not be useful either to voters generally or
to CREW in particular. See Citizens for Responsibility and
Ethics in Wash. v. FEC, 401 F. Supp. 2d 115, 120-22 (D.D.C.
2005). Moreover, because CREW’s administrative complaint
did not seek to discover the precise dollar value of the list, the
court found that CREW’s “endeavor is tantamount to seeking
enforcement of the law.” Id. at 122.
II.
To establish standing, CREW claims to have suffered the
requisite injury in fact, see Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992), because it is being deprived of one
piece of information about the list not posted on the
Commission’s website – namely, what the list was worth. One
might wonder why the case is not moot. The election is over;
President Bush is constitutionally barred from running again;
and Vice President Cheney has announced that he will not run.
Unlike the plaintiffs in FEC v. Akins, 524 U.S. 11 (1998), who
wanted certain information so that they could make an informed
choice among candidates in future elections, CREW cannot
vote; it has no members who vote; and because it is a
§ 501(c)(3) corporation under the Internal Revenue Code, it
cannot engage in partisan political activity.
CREW claims it is still suffering an injury because if it
knew the actual value of the list, it could better inform the public
of the relationship between Norquist and the Bush
Administration. See Br. for Appellant 17-18. This seems highly
attenuated. CREW describes itself as an organization devoted
6
to protecting “the rights of citizens to be informed about the
activities of government officials and to ensuring the integrity
of those officials.” Id. at ii. But any citizen who wants to learn
the details of the transaction between Norquist and Mehlman
can do so by visiting the Commission’s website, which contains
the list and a good deal more. This is why the district court
ruled, 401 F. Supp. 2d at 121, that the list’s precise value – if
that could be determined – would add only a trifle to the store of
information about the transaction already publicly available.
See Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S.
214, 231 (1992) (“[T]he venerable maxim de minimis non curat
lex (‘the law cares not for trifles’) is part of the established
background of legal principles against which all enactments are
adopted, and which all enactments (absent contrary indication)
are deemed to accept.”).
Like the district court, we see other problems with the
remaining two prerequisites to standing – causation and
redressability, see Lujan, 504 U.S. at 560-61. CREW complains
about the Commission’s “failure to require [Bush Cheney ’04]
to comply with [the Act’s] reporting and disclosure
requirements.” Br. for Appellant 18. But the Commission has
no authority to order anyone to report anything. If, after a
“reason to believe” determination, the Commission finds
“probable cause” to believe that someone has violated the Act,
it must attempt to negotiate a conciliation agreement. See 2
U.S.C. § 437g(a)(4)(A)(i). Nothing in the Act requires that
disclosure of information be part of such an agreement. If
negotiation proves unsuccessful, the Commission may decide to
bring an enforcement action in federal district court. See id.
§ 437g(a)(6)(A). There is no requirement that the Commission
seek, or that a court grant, a particular form of redress in such an
action.
7
The Commission also tells us that it does not place precise
values on in-kind contributions. That is the responsibility of the
person or entity who must report the contribution. See Alliance
for Democracy v. FEC, 362 F. Supp. 2d 138, 145 (D.D.C. 2005).
The Commission’s responsibility is to disclose what others
report. See id.; 2 U.S.C. §§ 434(a)(11)-(12), 437g(a). CREW
does not question the Commission’s position on this score.
Short of a Commission enforcement action in district court,
further administrative proceedings will thus boot CREW
nothing. At this stage, judicial review of the Commission’s
refusal to act on complaints is limited to correcting errors of
law. See 2 U.S.C. § 437g(a)(8). Yet CREW agrees with the
Commission’s reason-to-believe determinations and expresses
satisfaction that it received “a publicly disclosed ruling that the
administrative respondents violated the law.” Br. for Appellant
22. CREW must disagree with the Commission’s judgment that
its resources were better employed on other, more important
matters. But we do not know what legal principle CREW thinks
the Commission thereby violated, or in terms of standing, how
CREW’s alleged harm is “fairly traceable” to a Commission
determination resting “upon an improper legal ground.” Akins,
524 U.S. at 25. No one contends that the Commission must
bring actions in court on every administrative complaint. The
Supreme Court in Akins recognized that the Commission, like
other Executive agencies, retains prosecutorial discretion. See
id; Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156-59
(D.C. Cir. 2006).
Many similar considerations underlie our decision in
Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) (per
curiam), on which the Commission relies. See Cass R. Sunstein,
Informational Regulation and Informational Standing: Akins
and Beyond, 147 U. PA. L. REV. 613, 658-59 (1999). Common
Cause’s administrative complaint charged that a national party’s
8
committee and its state counterpart made contributions and
expenditures in a state senatorial election campaign exceeding
the legal limits and then failed to report them. After an
investigation, the General Counsel recommended that the
Commission find probable cause. The Commission deadlocked
and therefore dismissed the complaint. Common Cause, 108
F.3d at 418. To establish its standing to sue, Common Cause
claimed that the injury to it and its members consisted of the
lack of information that would have been provided if the
Commission had pursued its complaint, filed an action in court,
and won a court order requiring the national and state
committees to report the contributions and expenditures. Unlike
CREW, Common Cause was a membership organization and its
members were voters. Yet we dismissed the case for lack of
standing.
The important consideration was that Common Cause’s
administrative complaint sought, as relief, only “the
investigation and imposition of monetary penalties . . ..” Id.
CREW’s request to the Commission also sought an
investigation, a declaration that respondents had violated federal
campaign finance laws, and the imposition of “sanctions.” As
we have already mentioned, the Commission does not itself have
coercive power. And even if it did, CREW never mentioned its
desire to have the list precisely valued and never hinted that this
is what it had in mind as a “sanction.” It is of no consequence
that CREW also requested in its administrative complaint “such
further action as may be appropriate.” Lujan specifically
demanded a showing of injury that is “concrete and
particularized,” not one that is indirectly inferred. 504 U.S. at
560. Given the precedent established in Common Cause and the
9
lack of any meaningful distinction between that case and this
one, we must hold that CREW lacks standing.2
Affirmed.
2
See LaShawn v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en
banc). CREW seeks to avoid this result on the basis that Common
Cause “must yield” to the Supreme Court’s later decision in Akins.
Br. for Appellant 22. The short answer is that we have never
overruled Common Cause and we have applied its holding and
rationale after Akins. See Judicial Watch, Inc. v. FEC, 180 F.3d 277,
278 (D.C. Cir. 1999); Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C.
Cir. 2001); Am. Soc’y for the Prevention of Cruelty to Animals v.
Ringling Bros. & Barnum & Bailey Circus, 317 F. 3d 334, 337 (D.C.
Cir. 2003).
GARLAND, Circuit Judge, concurring in the judgment:
I agree with the court that there is no meaningful distinction
between this case and Common Cause v. FEC, 108 F.3d 413
(D.C. Cir. 1997), and on that ground conclude that CREW lacks
standing to litigate its challenge to the Commission’s decision.