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Combat Veterans for Congress PAC (“CVCP”) is a nonconnected federal PAC. On October 19, 2009, CVCP registered with the FEC and named Michael Curry as both Treasurer and Custodian of Records.
Around the time of the 2010 general election, CVCP submitted three reports to the FEC after the filing deadlines. As a result, the Commission began administrative enforcement proceedings against CVCP and found reason to believe that CVCP and its treasurer, in his official capacity, violated 2 U.S.C. § 434(a) by failing to file the reports on time. The Commission proposed fines totaling $8,690 for the violations.
Captain Joseph John, Chairman of CVCP, challenged the Commission’s findings by asserting that the conduct of Mr. Curry, who had since resigned as treasurer, made it impossible for CVCP to file its reports on time. CVCP also argued that the penalties should not be imposed because Mr. Curry was solely liable in his personal capacity for the conduct that resulted in the fines. The Commission confirmed the penalties against CVCP and its successor treasurer David Wiggs, in his official capacity, in a Final Determination dated October 27, 2011.
CVCP and Mr.Wiggs filed a Petition for Review with the district court on December 7, 2011 arguing, among other things, that Mr. Curry was solely liable in his personal capacity for failing to file the reports on time; that the Commission’s failure to mitigate the penalties was an abuse of discretion; that the regulations limiting the acceptable excuses for failure to file a report are unnecessarily narrow; and that the Commission failed to provide CVCP an in-person hearing.
In rejecting CVCP’s first argument, the court found no evidence that Congress intended to impose liability on treasurers in their personal capacity to the exclusion of committees and treasurers in their official capacity. The court noted that the clear text of the Federal Election Campaign Act (the “Act”) and Commission regulations require political committees and treasurers to file periodic reports of receipts and disbursements. See 2 U.S.C. 434(a)(1) and (4); 11 CFR 104.5(c). The court also noted the Commission’s policy and practice is to name as respondents in enforcement matters the political committee and its current treasurer, in his or her official capacity as treasurer and agent of the committee. Although the Commission could find a treasurer personally liable due to willful or reckless acts, the court concluded that FECA would not prohibit simultaneous liability for committees and treasurers in their official capacity.
The court also deferred to the FEC’s decision not to prosecute Mr. Curry in his personal capacity citing the Commission’s considerable prosecutorial discretion and no evidence that the Commission abused its discretion. The court noted that the case before it was not the proper vehicle for CVCP to challenge the Commission’s failure to take action against Mr. Curry because such challenges were available only under 2 U.S.C. § 437g(a)(8)(A). But even if such a challenge were proper here, the FEC held broad discretionary power in deciding whether to investigate and pursue a claim under the Act. The court also rejected CVCP’s arguments that the FEC failed to mitigate the CVCP fines, finding the fines compliant with statutory guidelines, and similarly rejected CVCP’s argument that the FEC’s best efforts regulations are arbitrary and capricious.
Finally, the court rejected CVCP’s various claims of Constitutional violations, finding them undeveloped and unsupported. It also rejected CVCP’s claim that it was unlawful for the Commission to decline to grant an in-person hearing, finding that the phrase “opportunity to be heard” can be interpreted to include not merely oral, but written advocacy, and that a decision regarding the need for an in-person hearing is properly left to the agency.
Source: FEC Record -- December 2013