CREW v. FEC (D.D.C. 1:14-cv-01419) (District court 2015)

On August 13, 2015, the United States District Court for the District of Columbia (the “Court”) granted the Commission’s motion to dismiss portions of a complaint filed by Citizens for Responsibility and Ethics in Washington (“CREW”). The claims that were the subject of the Commission’s motion alleged that the Commission’s dismissal of CREW’s administrative complaints had effectively created a “de facto regulation” that violated the Administrative Procedure Act (“APA”).

Background
In 2012, CREW and Melanie Sloan filed complaints with the FEC alleging that Americans for Job Security (MUR 6538) and American Action Network (MUR 6589) should have registered as political committees because their major purpose was the nomination or election of federal candidates. The Commission, by a vote of three to three, did not find reason to believe that either AJS or AAN had violated the Federal Election Campaign Act (“FECA”), and closed both cases.¹

On August 20, 2014, CREW filed suit against the FEC, seeking judicial review of the Commission’s dismissal of its administrative complaints under FECA’s judicial review provision, 52 U.S.C. § 30109(a)(8), and alleging that the Commission’s dismissal decisions effectively established a “de facto regulation” regarding the major purpose test, in violation of the APA. The Commission’s motion sought dismissal of CREW’s APA claims.

Decision
In granting the FEC’s motion to dismiss CREW’s APA claims, the Court noted that the APA “prescribes procedures for administrative agencies engaged in rulemaking,” but concluded that the decisions identified by CREW were “ordinary adjudications.” Even had these decisions announced a new interpretation, they would not be regulations within the meaning of the APA. The Court further stated that CREW has an adequate means to challenge the Commission’s dismissals of their complaints through FECA’s judicial review provision, which precludes APA review. As a result, the Court dismissed CREW’s claims based on the APA.

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¹ Under the Act, a political committee is a group that receives contributions or makes expenditures of more than $1,000 during a calendar year. 52 U.S.C. § 30101(4)(A). Beginning with its decision in Buckley v. Valeo, the Supreme Court has held only organizations whose “major purpose” is the nomination or election of a federal candidate can be considered “political committees” under the Act. See also FEC v. MCFL.

Resources:

• CREW v. FEC litigation page