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JOHN HAGELIN, ET AL. v. FEC

On June 10, 2005, the U.S. Court of Appeals for the District of Columbia found that the FEC’s decision to dismiss an administrative complaint, which asserted that the Commission on Presidential Debates (CPD) was partisan and therefore could not lawfully sponsor Presidential debates, was supported by substantial evidence and therefore not contrary to law.  The appeals court held that, given the highly deferential nature of judicial review of the Commission’s decision to dismiss a complaint, the district court erred when it based its ruling against the FEC on the court’s own evaluation of the CPD’s explanation of its actions, rather than an examination of whether substantial evidence supported the FEC’s conclusion that CPD’s actions were not partisan.  The Court of Appeals reversed the District Court for the District of Columbia’s earlier judgment and remanded the case to the District Court with instructions to enter judgment for the FEC.  

Background

John Hagelin, Ralph Nader, Patrick Buchanan, Howard Phillips, Winona LaDuke, the Natural Law Party, the Green Party of the United States and the Constitution Party had asked the U.S. District Court for the District of Columbia to find that the Commission’s dismissal of an administrative complaint dated June 17, 2003, was arbitrary, capricious and contrary to law. On August 12, 2004, the District Court had granted in part and denied in part the motion for summary judgment brought against the FEC.  It also granted in part and denied in part the FEC’s cross-motion for summary judgment.  On October 6, 2004, the District Court granted the FEC’s motion to stay its decision in the case, pending appeal.   


Source:  
 FEC Record -- August 2005 [PDF]; April 2004 [PDF]; June 2004 [PDF]; August 2004 [PDF]; September 2004 [PDF]; November 2004 [PDF].

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HASSAN v. FEC

On September 28, 2012, the U.S. District Court for the District of Columbia dismissed a suit brought against the Commission by Abdul Karim Hassan. The plaintiff had sought a judgment that the Presidential Election Campaign Fund Act is unconstitutional and invalid, and that the requirement in Article II of the U.S. Constitution that the President be a natural born citizen has been effectively repealed or otherwise undermined by the Fifth and Fourteenth Amendments. On March 11, 2013, the United States Court of Appeals for the District of Columbia Circuit affirmed.

Background

The Presidential Election Campaign Fund Act and the Presidential Primary Matching Payment Account Act provide for public funding of eligible candidates running for President. See 26 U.S.C. 9001-9013 and 9031-9042, respectively.

Mr. Hassan, a Guyana native who is a naturalized U.S. citizen, asserts that he is a candidate for the Democratic nomination for the U.S. Presidency in 2012 and 2016. Last year, in Advisory Opinion (AO) 2011-15, the Commission concluded that Mr. Hassan’s constitutional ineligibility to hold the office of President renders him ineligible to receive primary matching funds under the Primary Matching Payment Account Act. Assuming he would similarly be found ineligible for general election funding, Mr. Hassan filed suit on December 8, 2011, with the U.S. District Court for the District of Columbia, challenging the Presidential Election Campaign Fund Act on Constitutional grounds, and asking for a three-judge panel to hear the case.

Analysis

On September 28, 2012, the district court granted the Commission’s motion to dismiss the suit and denied the plaintiff’s motion for a three-judge court. In its opinion, the court found that Hassan did not have standing to bring his claims. In particular, the court held that in order to allege a sufficient injury, and thus demonstrate standing, the plaintiff would have had to show that he is the nominee of a political party or that his nomination was imminent. Based on Mr. Hassan’s limited campaign activity, the court ruled that he had failed to make the necessary showing and therefore lacked standing. The court also noted that the U.S. Court of Appeals for the Second Circuit had recently concluded that Mr. Hassan lacked standing in a similar case. See Hassan v. United States, 441 F. App’x 10, 11-12 (2nd Cir. 2011), cert. denied, 132 S. Ct. 1016 (2012).

Regarding the plaintiff’s claims involving the natural born citizen requirement, the district court noted that Mr. Hassan had unsuccessfully brought suit on these same claims in five other jurisdictions, and agreed with those five other court decisions that the natural born citizen requirement to become President has not been implicitly repealed by the Fifth and Fourteenth Amendments.

On March 11, 2013, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's ruling. The court of appeals also affirmed the district court’s conclusion that the natural born citizen requirement in the constitution has not been implicitly repealed.

Source: FEC Record-- April 2013; November 2012

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HAWAII RIGHT TO LIFE, INC. v. FEC (1:02CV02313)

On November 26, 2002, the U.S. District Court for the District of Columbia granted the motions of Hawaii Right to Life, Inc., (HRTL) for a temporary restraining order and a preliminary injunction. The order and injunction bar the Commission from acting inconsistently with the court's finding that HRTL is currently a so-called "MCFL-corporation," and is thus exempt from the Federal Election Campaign Act's (the Act) ban on corporate expenditures in connection with federal elections. On December 16, 2002, the court entered a final order that effectively converted the preliminary injunction into a permanent injunction.

Court Complaint

In a complaint filed on November 22, 2002, the plaintiff asked the court to find that it qualifies for a constitutionally-mandated exception from the Act's prohibition on corporate expenditures in connection with a federal election. See FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986). In the alternative, HRTL challenged the constitutionality of the Commission's definitions of "electioneering communication" and "expressly advocating." 11 CFR 100.29 and 100.22. HRTL planned, among other things, to air radio ads in advance of the Hawaii special elections to fill the remainder of the late Patsy Mink's term in the current Congress and her seat in the next Congress.

HRTL asserted that it could run these ads because it met the requirements of a protected nonprofit corporation under MCFL, even though it did not meet the test of a "qualified nonprofit corporation" under the Commission's regulations at 11 C.F.R. 114.10(c). HRTL also claimed that these ads would contain issue advocacy rather than express advocacy, and that it would be unable to participate in its planned activity unless the court enjoined the Commission from enforcing against HRTL the "electioneering communication" and "expressly advocating" regulations.

Qualified nonprofit corporations

Under Commission regulations a corporation is considered a "qualified nonprofit corporation" if it meets the following criteria:

HRTL alleged that it meets some but not all of these criteria because it engages in business activities, such as selling pins and T-shirts, and because it hopes to receive some contributions from business corporations. The plaintiff contended that the Commission's criteria for identifying "qualified nonprofit corporations" are too narrow and that, because its business activities and corporate contributions are de minimis, it should qualify for the exemption under the Supreme Court's decision in MCFL.

Requested Relief

HRTL asked that the court, among other things:

In case the court did not find that HRTL is an "MCFL-corporation," HRTL asked the court to find, in the alternative, that the Commission's definitions of "electioneering communication" at 11 CFR 100.29 and "expressly advocating" at 11 CFR 100.22(b) are unconstitutional, unlawful, invalid and beyond the Commission's statutory authority.

Based on the allegations in HRTL's complaint and motions, the Commission conceded that HRTL should be treated as a "qualified nonprofit corporation" for 2002. Nonetheless, HRTL submitted an affidavit declaring that it had received contributions, or commitments for contributions, from business corporations in an amount not expected to exceed $50, which it claimed prevented it from qualifying under the regulations as a "qualified nonprofit corporation."

Preliminary Injunction and Final Order

The court ruled that HRTL currently is a nonprofit organization that qualifies under the MCFL decision (as interpreted in the D.C. Circuit) for the exemption from the ban on corporate expenditures, despite the fact that it engages in de minimis business activities and receives insubstantial sums from business corporations. In FEC v. National Rifle Association, the court held that $1,000 in contributions from for-profit corporations in a single year was de minimis, and therefore did not disqualify the NRA from treatment as an exempt "MCFL-corporation" during that year.1 254 F.3d 173 (D.C. Cir. 2001).

On December 16, 2002 , at the request of the parties, the court entered a final order, which declares that, as of the time of this ruling, HRTL qualifies as an "MCFL-corporation," and enjoins the Commission from acting inconsistently with the order. The court chose not to rule at any time on HRTL's challenge regarding the constitutionality of Commission regulations.

FOOTNOTES:

1 See the August 2001 [PDF].


Source:   FEC Record -- January 2003 [PDF].

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HEARN v. FEC

On July 10, 2008, the U.S. District Court for the Western District of Louisiana granted the FEC’s motion to dismiss this case, finding that Ms. Hearn lacked standing to bring the suit. The court complaint filed by Gloria Hearn sought judicial review of two final determinations by the FEC that Ms. Hearn’s campaign committee and its treasurer failed to file timely disclosure reports.

Background

Commission regulations require House campaign committees, among others, to file all reports and statements electronically if their total contributions or total expenditures exceed, or are expected to exceed, $50,000 in a calendar year. 2 U.S.C. §434(a)(11)(A)(i); 11 CFR 104.18(a)(1)(ii). Reports filed on
paper do not satisfy the filing obligations for these committees. 11 CFR 104.18(a)(2).

On October 5, 2007, Ms. Hearn, a candidate for the U.S. House of Representatives in the 2006 election, filed a complaint in the U.S. District
Court for the Western District of Louisiana challenging two administrative
fines the Commission levied against her campaign committee and its treasurer for failure to file disclosure reports. In her complaint, Ms. Hearn alleged that her campaign committee filed paper copies of the reports on time, then re-filed the reports electronically after the Commission informed the committee that it should have filed electronically. According to the complaint, the Commission imposed fines of $5,000 and $3,500 for the two violations.

The plaintiff asked the court to waive the administrative fines imposed by the Commission.

Court Decision

The FEC made its final determinations and imposed civil penalties on Ms. Hearn’s campaign committee and the committee’s treasurer, not on Ms. Hearn herself. Under the Federal Election Campaign Act, only a person against whom an adverse determination was made may request judicial review of an FEC determination. 2 U.S.C. §437g(a)(4)(C)(iii). As a result, the court found that Ms. Hearn lacked statutory standing to ask the district court to review the FEC’s actions. The court granted the FEC’s motion to dismiss and dismissed the case without prejudice.


Source:
  FEC Record -- January 2008 [PDF]; September 2008 [PDF].

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HERRON FOR CONGRESS v. FEC

On November 8, 2012, the United States District Court for the District of Columbia rejected a challenge to the Commission’s dismissal of an administrative complaint Herron for Congress filed in connection with its 2010 campaign. The court ruled that it lacks jurisdiction to decide the merits of the case because the claim is moot and because the plaintiff lacks standing.

Background

Herron for Congress was the principal campaign committee of Roy Herron, the Democratic nominee in the 2010 race for the 8th District of Tennessee. On September 29, 2010, the committee filed a complaint with the FEC, alleging that the opposing campaign, Steven Fincher for Congress, had obtained a bank loan for $250,000, but had reported it as a loan from Rep. Fincher to his committee. The complaint further alleged that the loan had been obtained outside the ordinary course of business as it had been insufficiently collateralized.

After investigation, Commission staff found that the loan was improperly reported, but the Commission did not find reason to believe that the loan was insufficiently collateralized, nor did it find reason to believe that the Fincher Committee knowingly and willfully violated the Federal Election Campaign Act. The Commission voted to close the file. Herron for Congress challenged that decision by filing suit in the US District Court for the District of Columbia, alleging that the Commission’s dismissal of its administrative complaint was contrary to law.

Ruling

The court found that Herron for Congress’s claim was moot, as the election during which it claimed to be wronged was in the past, its results irreversible, and that it was thus “impossible for this or any court to grant meaningful relief with respect to that election.” The court stated that it was up to Herron for Congress to demonstrate that its claim was not moot by showing that the controversy is “capable of repetition, yet evading review.” Because Mr. Herron is only “considering” a future run for office, and because his campaign committee could not therefore demonstrate that it will be subjected to the same allegedly unlawful action again, the court concluded that Herron for Congress’s case was moot.

The court further found that Herron for Congress lacks standing, as its claim is based on nothing more than, “the generalized interest in having the FEC act in a lawful manner.”  This did not give rise to standing. Under any approach to Herron for Congress’s case, the court concluded that it merely sought an opinion that “might prove helpful to a campaign [Mr. Herron] has not yet decided to launch,” and that the court thus lacks jurisdiction. The court denied Herron for Congress’s motion for declaratory and injunction relief and granted the FEC’s cross motion for summary judgment.

Source:   FEC Record -- October 2011; December 2012

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HETTINGA v. FEC

Pursuant to 2 U.S.C. §437g(a)(8), on July 12, 1984, Mr. Ralph M. Hettinga sought injunctive relief against the FEC for failing to act on his administrative complaint within 120 days. The suit was filed in the U.S. District Court for the District of Columbia. (Civil Action No. 84-2082) In the complaint filed with the FEC on March 6, 1984, Mr. Hettinga had alleged that eight unions had violated 2 U.S.C. §441b by making prohibited in-kind contributions to the Mondale Presidential campaign. The unions had allegedly provided telephone services and equipment and office space to the Mondale campaign at less than fair market value.

On July 24, 1984, the court issued an order requiring the FEC to submit information on its handling of Mr. Hettinga's complaint (i.e., a chronology of events with regard to the FEC's processing of the complaint). This submission, as well as all future submissions, was subject to a protective order issued by the court. By the terms of the protective order, plaintiff and defendant agreed that:

Stating that it could not determine whether plaintiff had met the burden for injunctive relief until after the court had examined the FEC documents, the court denied plaintiff's motion for injunction, without prejudice.

On August 8, 1985, the court granted the FEC's motion to dismiss the suit and ordered the records unsealed.


Source:
  FEC Record -- September 1984, p. 11.

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HISPANIC LEADERSHIP FUND, INC. v. FEC

On October 4, 2012, the U.S. District Court for the Eastern District of Virginia issued its Memorandum Opinion and Order in Hispanic Leadership Fund, Inc. v. FEC. The court found that three of the Hispanic Leadership Fund’s (HLF) five proposed advertisements reference a clearly identified federal candidate and are thus electioneering communications. The court also found that the electioneering communications provisions of the Federal Election Campaign Act (the Act) are not unconstitutional as applied to HLF’s proposed advertisements.

Background

Under the Act and Commission regulations, an electioneering communication is any broadcast, cable or satellite communication that 1) references a clearly identified candidate for federal office; 2) is publicly distributed within certain time periods before an election; and 3) is targeted to the relevant electorate. 2 U.S.C. §434(f)(3)(A)(i); 11 CFR 100.29(a). A candidate is “clearly identified” if the candidate’s name, nickname, photograph, or drawing appears in the communication, or the identity of the candidate is otherwise apparent through an “unambiguous reference” such as “the President,” “your Congressman,” or “the incumbent,” or through an unambiguous reference to his or her status as a candidate such as “the Democratic presidential nominee” or “the Republican candidate for Senate in the State of Georgia.” 11 CFR 100.29(b)(2). See also 2 U.S.C. §431(18); 11 CFR 100.17.

On April 18, 2012, American Future Fund (AFF) sought an advisory opinion asking whether eight proposed television advertisements referenced “clearly identified federal candidate[s]” under the Act. Although the Commission rendered a decision on three of the advertisements, it was unable to approve a response by four affirmative votes regarding the remaining advertisements, which used terms such as “this Administration,” and “the White House” (with visual depictions of the White House), and included an unidentified audio clip of President Obama’s voice. (See AO 2012-19.)

On August 10, 2012, HLF filed a complaint inthe U.S. District Court for the Eastern District of Virginia. HLF wanted to produce advertisements similar to those proposed by AFF, but alleged that the advertisements were not produced due to the FEC’s “failure to correctly apply [the Act] and controlling precedent” to the five advertisements in the AFF advisory opinion. HLF stated that its proposed advertisements referred to “the administration” or “this administration;” used the phrase “the White House” or contained images of the White House; or contained an audio clip of President Obama’s voice without any other reference to the President. HLF claimed that its proposed advertisements were not electioneering communications because they did not reference a clearly identified federal candidate.

Analysis and Decision

Regarding whether or not HLF’s advertisements referenced a clearly identified federal candidate under the Act, HLF argued that the court should adopt a non-context-specific standard that asked whether the terms in the advertisements were explicit and unambiguous without regard to the context of the term’s usage. However, the court rejected this argument as contrary to the Act and concluded that it must “look both to the context of the reference as well as to the meaning of the reference itself.” The court determined that the ordinary meaning of the statutory phrase “apparent by unambiguous reference” is that “the identity of the federal candidate would be apparent, i.e., clear to a reasonable, objective person viewing the advertisement in the context of the reference.”

In applying its context-specific standard, the district court found that three of the advertisements referred to clearly identified candidates and were thus electioneering communications. Within the context of an advertisement about national executive branch policy, the court found that the terms “the White House” and “the Administration,” along with references to the policies and actions of the President and images of the White House, were unambiguous references to a clearly identified federal candidate because they could only be reasonably understood to refer to the current President. It also found that an advertisement that referred to “the parents of government run healthcare” together with a textual reference to “the White House” was also a clear reference to President Obama.

In contrast, the court found that the advertisement that included an unidentified audio clip of President Obama was not an electioneering communication. The court concluded that since there were no other references to the President in the advertisement and because the voice was unidentified, an objective listener may not recognize the voice as President Obama’s. The court also concluded that an advertisement that directed viewers to call “the White House” to express their opinions about oil supply policy without any other reference to President Obama was not an electioneering communication.

Finally, the court rejected HLF’s as-applied challenges to the Act’s electioneering communication disclosure provisions ruling that the challenges erroneously allege a misapplication of the statute when three of the advertisements were, in fact, electioneering communications. The court denied HLF’s request for an injunction and declared that the electioneering provisions at 2 U.S.C §434 are constitutional as-applied to HLF’s proposed advertisements.

Source: FEC Record -- October 2012; November 2012

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HOLLENBECK v. FEC

On July 27, 1998, the U.S. District Court for the District of Columbia granted the FEC's motion to dismiss this case for lack of standing.

Thomas Hollenbeck, a Pennsylvania resident, had filed suit against the FEC after it had dismissed his administrative complaint alleging that a 1994 candidate for federal office had accepted excessive loans.

In order to show standing, a plaintiff must meet the requirements found in Article III of the Constitution-injury in fact, causation and redressability. The court concluded that Mr. Hollenbeck did not meet the requirements for standing because he failed to allege a "concrete and particularized injury" that came about as a result of a violation of the Federal Election Campaign Act. Mr. Hollenbeck, the court said, only vaguely alleged an injury, claiming violations of his First and Fourteenth Amendment rights and the need to protect the public from abuses by federal candidates.


Source:
  FEC Record -- April 1998 [PDF]; September 1998 [PDF].

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HOOKER v. ALL CAMPAIGN CONTRIBUTORS

Hooker v. All Campaign Contributors

On June 7, 2000, John Jay Hooker filed a lawsuit broadly challenging the constitutionality of all campaign contributions. Mr. Hooker alleged that campaign contributions are both a "backdoor property qualification" for voting rights and bribes of public officials and are, thus, illegal.

On October 18, 2000, the U.S. District Court for the Middle District of Tennessee, Nashville Division, granted the defendants' request to dismiss this case. The court found that:

This case was subsequently argued as Hooker v. Sundquist.

Hooker v. Sundquist

On November 9, 2000, Mr. Hooker appealed this case to the U.S. Court of Appeals for the Sixth Circuit.

On September 25, 2001, the appeals court affirmed the district court's decision dismissing this case. The court of appeals agreed with the district court that:


Source:
  FEC Record -- August 2000 [PDF]; January 2001 [PDF]; April 2001 [PDF]; and December 2001 [PDF].

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HOOKER v. FEC

On October 23, 1996, the U.S. District Court for the Middle District of Tennessee dismissed this case for lack of prosecution.

John Jay Hooker, who billed himself as a potential candidate for the presidency in 1996, had asked the court to declare it unconstitutional for candidates who seek federal office to accept out-of-state contributions for their campaigns.

He also had asked the court to issue a permanent injunction against candidates who solicit, accept or use contributions from outside their home states; force the sitting Congress to address the situation; and notify states that they have a right to prohibit out-of-state contributions in federal elections.


Source:
  FEC Record -- January 1997 [PDF].

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HOOKER v. FEC (3-99-0794)

On April 12, 2000, the U.S. District Court for the Middle District of Tennessee granted the FEC's motion to dismiss John Jay Hooker's constitutional challenges concerning interstate campaign contributions and the Presidential Primary Matching Payment Act.

Mr. Hooker had alleged that the Federal Election Campaign Act preempts state laws that prohibit interstate campaign contributions, which he believes are unconstitutional. The court barred this challenge because Mr. Hooker had raised and litigated the same issue in prior cases that were dismissed.

Mr. Hooker had also contended that the Presidential Primary Matching Payment Act was unconstitutional because Congress lacked the power to enact it and because it violated the Guarantee Clause of the Constitution. The court dismissed this challenge for lack of standing.


Source:
  FEC Record -- June 2000 [PDF].
992 F. Supp. 2d 740 (M. D. Tenn. 2000)

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HOPFMANN v. FEC

Background

In filing the suit with the U.S. District Court for the District of Columbia in December 1982, Mr. Hopfmann petitioned the court to declare that the FEC's dismissal of an administrative complaint, which he had filed in September 1982 against Senator Edward M. Kennedy (D-Mass.) and the Committee to Re-Elect Senator Kennedy, was contrary to law. See 2 U.S.C. §437g(a)(8)(A). Mr. Hopfmann also asked the district court to certify to a U.S. appeals court certain constitutional challenges involving FEC actions and the Federal Election Campaign Act (the Act). 2 U.S.C. §437h.

In seeking the Massachusetts State Democratic Party's endorsement as candidates for the U.S. Senate, both Mr. Hopfmann and Senator Kennedy participated in the Party's May 1982 pre-primary convention. Under the Party's "15 percent Rule," only candidates receiving at least 15 percent of the votes cast at the Party's pre-primary convention appear on the state's primary ballot. Senator Kennedy obtained ballot access by receiving at least 15 percent of the votes cast at the convention. Mr. Hopfmann, on the other hand, failed to receive ballot access because he received less than 15 percent of the total votes cast.

In the administrative complaint he had filed with the FEC, Mr. Hopfmann claimed that, since the convention vote had resulted in the Party's exclusive endorsement of Senator Kennedy, the convention had the authority to nominate a candidate and therefore met the election law's definition of an "election."1 Based on this assumption, Mr. Hopfmann alleged that Senator Kennedy and his campaign committee had failed to file timely pre-election reports and may have received excessive contributions. See 2 U.S.C. §§434(a),(b) and 441a(f), respectively.

District Court's Ruling

On March 8, 1984, the U.S. District Court for the District of Columbia issued an opinion in Alwin E. Hopfmann v. FEC, which granted both the FEC's motion for summary judgment and its motion to dismiss certain constitutional challenges brought by Mr. Hopfmann in the suit. (Civil Action No. 82-3667)

The district court found that the FEC's decision to dismiss the complaint was "'sufficiently reasonable' to merit [the] Court's deference." Specifically, the court held that the FEC General Counsel's report on the complaint adequately set out the Commission's reasons for dismissing the case. Moreover, the FEC's determination was consistent with previous FEC decisions.

With regard to constitutional challenges raised by Mr. Hopfmann, the court concluded that "plaintiff's challenges do not raise substantial constitutional questions, are frivolous and are not based on any coherent legal theory."

Appeals Court's Ruling

On May 13, 1985, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's ruling that the FEC's decision to dismiss an administrative complaint filed by Alwin Hopfmann was not contrary to law (Civil Action No. 82-03667). The appeals court also affirmed the district court's decision to dismiss the constitutional questions involving FEC actions and the election law. The court found that Mr. Hopfmann's "appeal was so meritless as to be frivolous" and, as a penalty, ordered him to pay the Commission's attorneys' fees. Moreover, the appeals court found that Mr. Hopfmann's appeal "should properly be dismissed in view of appellant's failure to comply with orders of this court." The appeals court's ruling followed a July 1984 ruling in which the court had denied expedited consideration of Mr. Hopfmann's appeal.

In affirming the district court's decision that the FEC's dismissal of Mr. Hopfmann's complaint was "'sufficiently reasonable' to merit [the] Court's deference," the appeals court noted that the agency "has consistently held that in order for a convention to constitute an 'election' under 2 U.S.C. §431(1)(B), the convention must actually nominate a candidate, rather than...narrow the field of candidates on the primary ballot....Inasmuch as write-in candidates were permitted by state law in the 1982 Massachusetts primary, Senator Kennedy did not secure the Democratic nomination until he won the party's primary. In consequence, the Massachusetts Democratic Convention of 1982 was not an 'election' under the FECA." Consequently, there were no separate reporting requirements for the convention.

As to Mr. Hopfmann's constitutional claims, the court found that "it is not within the FEC's province to determine whether Massachusetts ' primary system satisfies the federal Constitution. That is a claim that Mr. Hopfman must make, if at all, to the courts; we take note in this respect of an adverse decision in litigation brought by Mr. Hopfmann claiming that the Massachusetts system was unconstitutional. Hopfmann v. Connolly, 746 F.2d 97 (1st Cir. 1984)."

The court described one of Mr. Hopfmann's court papers as "filled with invective and scurrilous comments...." Since he had failed to comply with two court orders, the court found dismissal of his appeal justifiable under court rules. The court stated that "having considered the merits of the case, we conclude that the appeal is in any event utterly without merit....We firmly admonish counsel for appellant to refrain in any future filings in this court from engaging in unprofessional, inappropriate comments and outrageous name-calling." On July 19, 1985, the court denied Mr. Hopfmann's petition for rehearing en banc.

Petition for Certiorari

On December 26, 1985, the Supreme Court denied a petition for a writ of certiorari filed by Mr. Hopfmann. He had sought Supreme Court review of the appeals court ruling.

On May 5, 1986, the Supreme Court denied Mr. Hopfmann's petition for rehearing.

FOOTNOTES:

1 The Act defines an election to include "a convention or caucus of a political party which has authority to nominate a candidate." 2 U.S.C. §431(1)(B).


Source:
  FEC Record -- May 1984, p. 8; September 1984, p. 11; July 1985, p. 7; September 1985, p. 3; February 1986, p. 3; and June 1986, p. 9.
Hopfmann v. FEC, No. 84-5201 (D.C. Cir. May 13, 1985) (unpublished opinion), aff'd, 762 F.2d 138 (D.C. Cir.), cert. denied, 474 U.S. 1038 (1985).

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FRIENDS FOR HOUGHTON v. FEC (01-6444)

On July 23, 2002, the U. S. District Court for the Western District of New York denied Plaintiff's motion for summary judgment, granted the Commission's motion for summary judgment and dismissed the case.

Background

On September 13, 2001, Friends for Houghton (the Committee) filed a complaint in the U.S. District Court for the Western District of New York, appealing a civil money penalty for failure to timely file the Committee's 2000 Pre-Primary Report.

Section 437g(b) of the Federal Election Campaign Act (the Act) requires the Commission to notify any principal campaign committee of a House or Senate candidate that may have failed to file a required pre-election report or a quarterly report before an election of its failure to file such report, prior to taking action against that committee. If the committee does not file the report within four business days of the notification, the Commission must publish, before the election, the name of that committee as having failed to file the report. If the committee demonstrates that the report had been timely filed or files the report within the four business days, the Commission will not publish its name before the relevant election.

Additionally, under the Commission's Administrative Fine program, election-sensitive reports1 are subject to the schedule of penalties for "late" reports if they are filed after their due date, but more than four days before an election. Committees filing later than that, or failing to file at all, are subject to the schedule of penalties for reports that are "not filed."

According to the allegations in the complaint, Congressman Amo Houghton was a candidate in the New York primary held September 12, 2000. As a result, his campaign committee was required to file a pre-primary report on August 31. On September 1, the Commission sent a notice to the Committee indicating that it may have failed to file its pre-primary report, and that it would have four business days from the date of the notice to file the report. Because of the Labor Day holiday, the fourth business day after the Commission's September 1, 2000, notice was September 8. The Committee filed the report on that day.

On October 17, 2000, the Commission found reason to believe that the Committee and its treasurer had violated 2 U.S.C. §434(a), which requires the timely filing of reports by political committees. Having filed its pre-primary report less than five days before the election, the committee was subject to the schedule of penalties for reports that are "not filed." The Commission assessed a civil money penalty in the amount of $9,000 in accordance with 11 CFR 111.43. In its complaint, the Committee asked the court to order the Commission to modify both its determination that the Committee was a nonfiler and its assessment of the civil money penalty.

Decision

The court observed that while the Commission's notice informed the Committee that the Commission was considering taking action against it and provided the Committee with a four business-day window to file its report and avoid the publication of its name, "Section 437g(b) does not . . . attach any additional significance to the four business-day rule. More specifically, 437g(b) does not indicate that, by filing within four business days, the late filing is excused [and] that the person avoids a monetary penalty."

Thus, while a committee has four additional business days to file a report in order to avoid the publication of its name before the election, neither the Act nor Commission regulations provide a grace period for calculating a penalty under the Administrative Fine program.

The court dismissed the case.

FOOTNOTES:

1 Election sensitive reports are those filed immediately before an election and include pre-primary, pre-special, pre-general, October Quarterly and October monthly reports.


Source:
  FEC Record -- September 2002 [PDF].

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