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.
`
`
`
`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.
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