STATEMENT FOR THE RECORD IN FEC v. GOPAC
Vice Chairman John Warren McGarry
Commissioner Danny Lee McDonald
Commissioner Scott E. Thomas
We issue this brief statement to explain our vote to appeal the district court decision in FEC v. GOPAC, Civil Action No. 94-0828 (LFO) (D.D.C. Feb. 29, 1996). The district court ruled, in essence, that GOPAC should not be treated as a political committee required to disclose its federal election activity during the 1989-90 election cycle. This in spite of the fact that GOPAC (the name suggests GOP Action Committee) obviously is a partisan group, not an issue group, and the fact that GOPAC spent over $280,000 for solicitations that said, "With your help, we can break the liberal Democrats’ iron grip on the House of Representatives and build a new Republican majority."
In our view, the district court decision badly misconstrued the statute and prior judicial decisions. In addition, the court refused to give any deference to the Commission’s longstanding construction of the statutory term "political committee." The court thereby ignored the Supreme Court’s admonition that the FEC is particularly suited to interpret the statute and that deference to the FEC’s interpretation is appropriate.
We also wish to express our puzzlement with Chairman Lee Ann Elliott’s vote against appealing this matter. Having voted to sue GOPAC after failing to reach a conciliation agreement, Chairman Elliott declined to appeal the unfavorable district court ruling. This was not a case where the FEC was divided 3-3 at the administrative level on the question of whether GOPAC violated the law by failing to report its 1989-90 cycle activity. Rather, there was a Commission majority at the "reason to believe" determination (5-1 with Commissioner Elliott in favor and Commissioner Aikens opposed); there was a majority at the "probable cause to believe stage (4-1 with Commissioner Aikens opposed and Commissioner Elliott absent); and there was a 5-1 vote (Commissioner Elliott in favor and Commissioner Aikens opposed) to initiate the lawsuit against GOPAC. Chairman Elliott’s vote not to appeal suggests that she acquiesces in the district court’s interpretation of the statute. This seems contrary not only to her vote to initiate the lawsuit, but also the legal position she has repeatedly voted for when interpreting the term "political committee" in other Commission matters.
1. The district court’s interpretation of the law
The district court adopted a construction of the law that makes no sense. The court held to its view at the motion to dismiss stage:
In the circumstances here, if the Commission were able to establish that, at a particular point in time before GOPAC registered and began reporting, its major purpose was, in fact, to elect a particular federal candidate or particular federal candidates, then it should follow that GOPAC was, at that time, a political committee obligated to register and report.
FEC v. GOPAC, 871 F. Supp. 1466, 1470 (D. D. C. 1994). This test would mean that a group devoted exclusively to defeating the current Republican majority in the House or Senate could spend millions on ads saying "Let’s defeat each and every Republican running for Congress" without registering and reporting as a federal political committee because, in the district court’s view, it would not be targeting particular candidates. In addition, under the district court’s test, any PAC or party committee that devotes the majority of its candidate support activity (even activity on behalf of particular candidates) to the non-federal sphere would not have to register and report because the major purpose of the group would not be electing federal candidates.
Clearly, the district court’s test completely undermines congressional intent. If party committees, corporate PACs, union PACs, and nonconnected ideological PACs can spend unlimited sums on generic ads saying "Throw out the U.S. House Republicans" or "Vote against the Democrats running for the U.S. Senate" without any federal disclosure, or can simply make sure that the majority of their support for particular candidates is for non-federal candidates and thereby avoid federal disclosure, there will be huge gaps in what the public knows about the funding of federal campaigns. Such a construction also flies in the face of FEC advisory opinions and regulations applying congressional intent and relevant judicial precedent.
2. The district court’s failure to afford any deference to FEC precedent
The district court gave short shrift to any argument that the FEC’s longstanding construction of the statute should be accorded deference. (Indeed, the court gave little indication of understanding the FEC’s construction of the statute.) Instead, the district
court relied on a recent decision of the U.S. Court of Appeals for the D.C. Circuit indicating that traditional deference may not be appropriate where the interpretation of the statute touches on constitutional issues. Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995). However, the Supreme Court has signaled that in fact the FEC’s construction of the statute should be afforded deference:
[W]e note that the Commission is precisely the type of agency to which deference should presumptively be afforded. Congress has vested the Commission with "primary and substantial responsibility for administering and enforcing the Act," Buckley v. Valeo, 424 U.S. 1 (1976), providing the agency with "extensive rulemaking and adjudicative powers." Ibid. It is authorized to "formulate general policy with respect to the administration of this Act," §437d(a)(9), and has the "sole discretionary power" to determine in the first instance whether or not a civil violation of the Act has occurred. 424 U.S. at 112, n. 153. Moreover, the Commission is inherently bipartisan in that no more than three of its six voting members may be of the same political party, §437c(a)(1), and it must decide issues charged with the dynamic of party politics, often under the pressure of an impending election.
FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37 (1981); see also the dissent of Judge Wilkey at the lower level in the same case, 660 F.2d 773, 782, n. 2 (D.C. Cir. 1980) ("The Commission is the expert body charged by Congress with the coherent administration of elections . . . . Courts should tread lightly on these matters of party politics.").
While construction of the term "political committee" involves reading and applying earlier judicial analysis, the FEC is certainly capable of this task. Of course it is up to the courts to interpret the Constitution, but the FEC’s responsibility in the GOPAC case was to interpret the statutory term according to the guidance available. None of the cases cited by the district court addressed the specific question of whether a group engaged exclusively in partisan electoral politics, and spending over $280,000 for communications urging in a generic way that all Democratic members in the U.S. House should be defeated, is a "political committee" required to disclose its federal election activity. Buckley, supra, did not, since no specific facts were before the Court. FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) did not, since MCFL’s major purpose was not partisan electoral politics. FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 D.C. Cir.), cert. denied, 454 U.S. 897 (1981), dealt only with whether the contribution limits applied to donations to a draft committee (where no candidate yet exists) and left open whether the reporting rules would apply to a draft committee.
3. Conclusion
The district court’s decision is faulty in many respects and ought to have been appealed. To simply leave open the crucial issue of what constitutes a "political committee" for purposes of the disclosure provisions enacted by Congress is bewildering. To vote for one legal interpretation in advisory opinions and regulations and then refuse to appeal a contrary construction-- one that could eviscerate the disclosure provisions-- is beyond bewildering.
Up until this moment, the FEC had never had a partisan split over whether to appeal a case which, by majority vote, it brought to the district court and lost. For this to occur in a case that cries out for judicial clarification is doubly disturbing. The cloud of uncertainty left hanging over this matter is unfair not only to the public, but also to the parties in this matter who deserve a straightforward and final resolution of the allegations made against them. For all of these reasons, we believe that this case should have been entrusted to the appellate process.
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_________________________ ___________________________________
Date John Warren McGarry
Vice Chairman
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_________________________ ___________________________________
Date Danny Lee McDonald
Commissioner
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_________________________ ___________________________________
Date Scott E. Thomas
Commissioner