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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND

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ETHICS IN WASHINGTON,

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11 Dupont Circle, N.W.

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Washington, D.C. 20036

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Plaintiff,

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v.

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Case No. 1:04CV02145(JDB)

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FEDERAL ELECTION COMMISSION

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999 E Street, N.W.

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Washington, D.C. 20463

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Defendant.

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Citizens for Ethics and Responsibility in Washington (“CREW”) brought this

lawsuit against the Federal Election Commission (“FEC” or “Commission”) based on the FEC’s

failure to enforce two provisions of the Federal Election Campaign Act (“FECA”), 2 U.S.C.

§§441b(a) and 434(b), in response to an administrative complaint filed by CREW. Specifically,

despite the evidence that Americans for Tax Reform (“ATR”), Grover Norquist, Ken Mehlman,

Bush-Cheney ‘04 (“BC ‘04"), and David Herndon as treasurer for BC ‘04, failed to report and

disclose to the FEC an in-kind contribution by ATR to BC ‘04 of a master contact list, the FEC

refused to take enforcement action. As a direct result of the FEC’s dismissal of CREW’s

administrative complaint, CREW was denied information that the FECA requires be made

public.

The FEC has now moved for summary judgment, arguing that CREW lacks standing to

maintain this suit. The FEC’s motion, however, rests on a crabbed and erroneous interpretation

of binding Supreme Court precedent, a mischaracterization of the nature of the relief CREW is

seeking through this action, and an inaccurate assessment of the record in this case and the

findings below. It is beyond dispute that neither ATR nor BC ‘04 has yet to report and disclose

to the FEC, and accordingly to the public, the value of the master contact list. It is also beyond

dispute that, notwithstanding its findings that there was reason to believe ATR, Grover Norquist,

BC ‘04, David Herndon, Ken Mehlman and BC ‘04 violated the reporting and disclosure

provisions of the FECA, the Commission refused to order them to report the value of the master

contact list. As the Supreme Court has made clear in a case nearly identical to the one before

this Court, “[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information

which must be publicly disclosed pursuant to statute.” Federal Election Comm’n v. Akins, 524

U.S. 11, 21 (1987). Through the direct actions of the FEC, CREW has failed to obtain the value

of the master contact list, information that must be disclosed publicly pursuant to the FECA.

Accordingly, CREW has standing to maintain this suit, brought in significant part for the express

purpose of compelling statutorily required disclosure of this information.

STATUTORY AND REGULATORY BACKGROUND

The Federal Election Campaign Act of 1971, as amended, was enacted to remedy any

“actual or perceived corruption of the political process.” FEC v. Akins, 524 U.S. at 14. Toward

that end, the FECA imposes extensive record keeping and disclosure requirements on a variety

of entities involved in the federal election process, including candidates and their authorized

committees. 2 U.S.C. §§434(a)-(b). These disclosure requirements were enacted to ensure

compliance with the FECA by “promot[ing] fair practices in the conduct of election campaigns

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for Federal political offices.” S. Rep. No. 92-580 at 1, reprinted in 1972 U.S.C.C.A.N. 1866

(1971). As the Supreme Court has recognized, the disclosure requirements “deter actual

corruption and avoid the appearance of corruption by exposing large contributions and

expenditures to the light of publicity.” Buckley v. Valeo, 424 U.S. 1, 67 (1976).

Political committees are defined to include “any committee, club, association or other

group of persons which receives” more than $1000 in “contributions” or makes more than $1000

in “expenditures” in any given year. 2 U.S.C. §431(4)(A). Political committees are required to

register with the FEC, appoint a treasurer, maintain names and addresses of contributors, track

the amount of purpose of disbursements, and file with the FEC reports listing donors giving

more than $200 per year, contributions, expenditures, and any other disbursements. Id. at

§§432-434. The FECA also prohibits contributions or expenditures by corporations in federal

elections. 2 U.S.C. §441b(a).

FECA defines “contributions” to include “any gift

or anything of value.” Id. at

§431(8)(A)(I). FEC regulations further define “anything of value” as including “all in-kind

contributions. Unless specifically exempted

the provision of any goods or services without

charge or at a charge which is less than the usual and normal charge for such goods or services is

a contribution.” 11 C.F.R. 100.52(d)(1). FEC regulations also cite as examples of in-kind

contributions “membership lists and mailing lists.” Id. And the FEC regulations define “usual

and normal charge for such goods” as “the price of those goods in the market from which they

ordinarily would have been purchased at the time of the contribution,” id. at 100.52(d)(2), in

other words their fair market value.

The FECA also created the Federal Election Commission, an independent federal agency

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with exclusive jurisdiction to enforce the Act’s provisions. 2 U.S.C. §§437c(b)(1), 437d(e), and

437(g). The FEC is authorized to initiate investigations of possible violations of FECA. Id. at

§§427g(a)(1) and (2). In addition, any “person” may file a signed, sworn administrative

complaint with the FEC alleging a violation of the FECA. Id. at §437g(a)(1). Upon receipt of

any complaint and responses to it, and any recommendation from the General Counsel of the

FEC, the Commission votes on whether there is a “reason to believe” a violation of FECA has

occurred. Id. at §437g(a)(2). Based on a vote of at least four of the six members of the

Commission that there is “reason to believe,” the Commission conducts an investigation of the

alleged violations. Id. Upon completion of the investigation, the Commission again votes to

determine whether there is “probable cause” to believe a violation of the Act has occurred. Id. at

437g(a)(4)(A)(I). If at least four Commission members find probable cause, the Commission

will attempt to reach a conciliation agreement with the alleged violator. Id. Absent such an

agreement, the Commission can then vote to initiate a civil suit to enforce the Act. Id. at

§437g(a)(6)(A).

A party to the administrative proceeding “aggrieved by an order of the Commission

dismissing a complaint” is authorized to file a petition for review with the United States District

Court for the District of Columbia. 2 U.S.C. §437g(8)(A). If the district court finds that the

FEC’s dismissal of the complaint was “contrary to law,” the court may issue a declaration to that

effect and direct the Commission “to conform” with such declaration within 30 days. Id. at

§437(g)(8)(c).

FACTUAL BACKGROUND

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

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Revenue Code. Complaint for Declaratory Judgment and Injunctive Relief (“Complaint”), ¶6,

Declaration of Melanie Sloan (“Sloan Decl.”), ¶2 (attached as Exhibit 1). CREW’s core mission

is the protection of the rights of citizens to be informed about the activities of government

officials and ensuring the integrity of government officials. Id. CREW is dedicated to

empowering citizens to have an influential voice in government decisions and in the government

decision-making process. Id. To advance its mission, CREW uses a combination of research,

litigation, advocacy, and public education. Id. One of its most effective tools is the

dissemination of information. Id.

CREW seeks specifically to expose unethical and illegal conduct of government officials.

Toward that end, CREW files FEC complaints against contributors and recipients who, CREW

believes, have violated federal campaign finance laws. Complaint, ¶7. By publicizing the results

of these efforts, CREW attempts to educate citizens regarding the integrity of our system of

government. Id.

Grover Norquist is the President of ATR and is often referred to as the “head of the right-

wing conspiracy.” Complaint, Exhibit B, ¶3. Among other things, he created the “K Street

Project,” which records and disseminates the party membership of and Republican donations

made by lobbyists, trade associations, and corporations doing business before Congress. Id.

ATR is a 502(c)(4) organization and non-profit corporation that advocates minimizing

the government’s power to tax and that works to defeat legislation increasing taxes. Id., ¶4. To

advance the conservative agenda, Mr. Norquist and ATR hold weekly meetings that include

members of Congress, lobbyists, senior White House and Hill staff, industry group leaders and

conservative policy makers. Id.

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Ken Mehlman was the Campaign Manager of Bush-Cheney ‘04. Prior to the campaign,

Mr. Mehlman was Deputy Assistant to the President and Director of Political Affairs and before

that he served as the National Field Director of Bush-Cheney ‘00. Id., ¶5.

Bush-Cheney ‘04 is the principal campaign committee for the effort to re-elect Messrs.

Bush and Cheney. The committee is registered with the FEC. Id., ¶6.

CREW filed the administrative complaint in part to gain access to information about a

master contact list of conservative activities compiled by Mr. Norquist and ATR and donated to

BC ‘04. Sloan Decl., ¶5. This list included information about conservative leaders from across

the country, hand-picked by Mr. Norquist, who would help organize the conservative base to

support BC ‘04's reelection campaign. Complaint, Exhibit B, ¶17. The master contact list

included conservative activists in 37 states that Mr. Norquist had spent five years recruiting and

training and who, themselves, coordinated weekly meetings attended by hundreds of grass root

supporters. Id., ¶18.

CREW’s administrative complaint alleged that the donation of the master contact list

constituted a “contribution” as defined by federal law. Id., ¶11. The complaint further alleged

that the contribution was illegal because, if made by ATR, it constituted an illegal corporate

contribution; if made by Mr. Norquist personally, it constituted an excessive contribution; and

because the contribution was not reported to the FEC as required by FECA. Id., ¶¶12-15. As

relief for these violations CREW requested that the FEC “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.” Id.

By letter dated November 2, 2004, the FEC advised CREW that, based on CREW’s

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complaint, the FEC had made the following findings:

Reason to believe that ATR violated 2 U.S.C. §441b(a) Reason to believe that Grover Norquist violated 2 U.S.C. §441b(a) Reason to believe the BC ‘04 and David Herndon, as treasurer, violated 2 U.S.C. §§441b(a) and 434(b) Reason to believe that Ken Mehlman violated 2 U.S.C. §441b(a) No reason to believe that Grover Norquist violated 2 U.S.C. §441a(a)(1)(A) No reason to believe that BC ‘04 and David Herndon violated 2 U.S.C. §441a(f)

Complaint, Exhibit A.

Notwithstanding these findings, the FEC “determined to take no further action in this

matter, and closed the file in this matter on October 19, 2004.” Id. The Commission also stated

its intent to place “[d]ocuments related to the case

on the public record within 30 days.” Id.

In its Memorandum of Points and Authorities in Support of its Motion for Summary Judgment

(“FEC Mem.”), the FEC stated that it has “since posted several documents in this matter on its

website,” FEC Mem. at 10, but did not state when those documents were posted.

The dismissal of CREW’s administrative complaint was preceded by the First General

Counsel’s Report, submitted to the Commission on August 31, 2004, in which FEC’s Counsel

expressed the view that although the donation of the mast contact list was a “contribution” under

the FECA, it “appears to be limited in size and impact.” The Counsel therefore recommended

that the Commission “exercise its prosecutorial discretion and take no further action and close

the file in this matter.” FEC, First General Counsel’s Report, 3-4 (August 31, 2004) (Complaint,

Exhibit C).

The General Counsel had received from BC ‘04 a copy of the materials obtained from

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Mr. Norquist. 1 According to FEC’s Counsel, these materials indicated that meeting and attendee

information was provided to ATR by various state Coalitions, at least some of which were

formed by ATR efforts, in response to ATR requests. Exhibit C, p. 5.

According to the Report, ATR and BC ‘04 asserted before the FEC that the materials

“were not a thing of value because they were not membership or mailing lists or proprietary,

confidential lists but rather were readily available on ATR’s website or otherwise publicly

available or readily available.” Id. at 8-9. The General Counsel found to the contrary, however,

stating that “circumstances surrounding some of the materials raise questions as to whether the

materials were in fact publicly or readily available.” Id. at 9. For example, the Report

concluded that apparently “ATR utilized its resources to obtain and compile state Coalition

meeting materials which were provided by Grover Norquist to [BC ‘04],” and that “these

materials contain information that may be of value in connection with the 2004 presidential

election.” Id. at 10. Nor did the record support the assertions of ATR and BC ‘04 that all of the

material was publicly or readily available. For example, none of the public sources, including

ATR’s website, “appears to contain the attendee lists that constitute much of the materials at

issue in this matter

[t]hese circumstances suggest that the substantial attendee lists in the

materials may not have been publicly available.” Id. at 9.

Based on these findings, the General Counsel concluded that “ATR utilized its resources

1 It is not certain that what the General Counsel received, in response to its request, is an exact duplicate of what ATR and Grover Norquist actually provided to BC ‘04. Counsel for ATR and Mr. Norquist claimed that they did not keep a copy of the donated materials “in the same form in which [they were] furnished to Mr. Mehlman.” Exhibit C, p.3 n.2. Their counsel furnished copies of documents that “they believe were included.” Id. Thus, there is no way to verify, based on the current record, that the materials examined by the FEC were the same materials given by ATR and Mr. Norquist to BC ‘04.

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to obtain and compile state Coalition meeting materials, which were provided by Grover

Norquist to the Committee. These materials contain information that may be of value in

connection with the 2004 presidential election.” Id. at 10.

Notwithstanding these findings, the General Counsel found that the materials seemed to

constitute “only a limited contribution to the Committee.” Id. Without the benefit of an actual

investigation, or any effort to determine the “usual and normal charge” for the materials, the

General Counsel surmised that because the individuals named in the materials are already active

in supporting “conservative issues,” they were “likely already to be aware of – and possibly

involved in the Committee’s efforts in connection with the 2004 election.” Id. at 11. From this

supposition, the General Counsel posited that the impact of the materials “may be limited.” Id.

He also found, again without any evidentiary support, that it was likely the campaign already had

some of the materials, and that if any of the materials were available on ATR’s website, “that

might serve to limit the value of the contribution.” Id.

Notably, the General Counsel’s report never dealt with the factual allegations in CREW’s

complaint that the master contact list, “mapped out and bound in a book,” was the product of five

years of intensive effort by Mr. Norquist to build a network that would “activate the conservative

base as it never had before.” Laura Blumenfeld, Sowing the Seeds of GOP Domination;

Conservative Norquist Cultivates Grass Roots Beyond the Beltway, The Washington Post,

January 12, 2004 (Exhibit A to CREW’s administrative complaint; attached as Exhibit B to FEC

Mem.). As The Washington Post reporter who observed the donation of the gift reported, Mr.

Mehlman’s response to the contribution was “Fabulous, Grover. Awesome

take that energy and harness it.” Id.

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We’re going to

On December 15, 2004, CREW filed the Complaint that is the subject of this suit.

CREW alleges that the FEC’s dismissal of the allegations in its administrative complaint that the

donation of the master contact list constituted an in-kind contribution, and that the failure to

report the contribution violated federal law is arbitrary, capricious, an abuse of discretion and

contrary to law. Complaint, ¶¶28, 29. For relief, CREW requests that the Court “[d]eclare that

the FEC’s failure to require reporting and disclosure of the value of the master contact list and

the FEC’s failure to find that ATR made and BC ‘04 accepted a corporation contribution was

contrary to law.” Id., Prayer for Relief. In addition, CREW has asked the Court to “[r]emand

the matter to the FEC with an order to conform to the declaration within 30 days.” Id.

On April 15, 2005, the FEC filed a motion for summary judgment arguing that CREW

lacks standing under Article III. The FEC claims that CREW has not suffered in injury in fact

and further that CREW cannot satisfy the prudential requirements for standing.

I. LEGAL STANDARD

ARGUMENT

Summary judgment should be granted only if the moving party has shown that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of

demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett,

477 U.S. 371, 323 (1986). The movant may do so by “identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’which it believes demonstrate the absence of a genuine issue of material fact.”

Id. (quoting Fed.R.Civ.P. 56(c)).

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While the non-moving party must produce more than a “scintilla of evidence,” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986), a court must “draw all justifiable inferences in

the nonmoving party’s favor and accept the nonmoving party’s evidence as true.” Greene v.

Amritsar Auto Services, Co., 206 F.Supp.2d 4, 7 (D.D.C. 2002). See also Kean for Congress

Committee v. FEC, No. 04-0007, slip op. At 7 (D.D.C. Jan. 25, 2005) (“Where, as here, the

defendants challenge the legal sufficiency of the plaintiff’s jurisdictional allegations, the district

court should take the plaintiff’s factual allegations as true, and draw all reasonable inferences in

the plaintiff’s favor.”) (citations omitted). A defendant seeking summary judgment for lack of

standing should not prevail “unless plaintiffs can prove no set of facts in support of their claim

which would entitle them to relief.” Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276,

365 U.S.App.D.C. 60, 65 (D.C. Cir. 1994). As the Supreme Court has made clear, “[f]or

purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing

courts must accept as true all material allegations of the complaint, and must construe the

complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).

II. CREW HAS SUFFERED AN INJURY IN FACT SUFFICIENT TO ESTABLISH ITS STANDING

The FEC contends that CREW lacks standing to maintain this suit, because it has not

suffered an injury in fact as required by Article III of the Constitution. The Commission appears

to concede the other two constitutional requirements for standing, that the injury be “fairly

traceable” to the challenged act, and that it be “likely to be redressed by the requested relief.”

Allen v. Wright, 468 U.S. 737, 750-51 (1984). 2 Together with an injury-in-fact, these three

2 Indeed, as this Court recognized in Kean for Congress Committee, “[i]f the injury-in- fact requirement is satisfied, the remaining elements of Article III standing – causality and

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requirements “constitute the ‘irreducible constitutional minimum’ of standing, which is an

‘essential and unchanging part’ of Article III’s case-or-controversy requirement, and a key factor

in dividing the power of government between the courts and the two political branches.”

Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771

(2000) (internal citations omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).

An organization suing on its own behalf has standing if it can establish:

concrete and demonstrable injury to the organizations’ activities – with [a] consequent drain on the organization’s

resources – constitut[ing]

to the organization’s social interests

organization must allege that discrete programmatic concerns

are being directly and adversely affected by the challenged action.

more than simply a setback

Indeed, the

Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (quoting National Taxpayers Union,

Inc. v. U.S., 68 F.3d 1428, 1433 (D.C. Cir. 1995)).

A. CREW Has Suffered An Informational Injury From the FEC’s Dismissal of Its Administrative Complaint Without Requiring the Disclosure of the Value of the Master Contact List.

Plaintiff’s challenge to CREW’s standing rests on four erroneous assertions: (1) that

CREW has not shown a direct and adverse affect to its programmatic activities; (2) that CREW

is not seeking information, but rather a legal declaration and sanctions; (3) that CREW has not

demonstrated that the information it seeks is useful in voting; and (4) that CREW already has the

information it claims it lacks. FEC Mem., pp. 12-24. As we show below, none of these

redressability – naturally follow because the action by FEC has plainly denied [plaintiff] the requested information and this Court could order the disclosure of that information.” Slip op. at

11-12.

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assertions is correct as a matter of fact. More fundamentally, the FEC’s arguments ignore

controlling Supreme Court precedent that compels the conclusion that because CREW has been

denied information to which it is statutorily entitled, it has standing to enforce that entitlement.

The Supreme Court’s decision in Federal Election Comm’n v. Akins, 524 U.S. 11 (1988),

provides the analytical framework for determining the standing of plaintiffs like CREW who

allege they have suffered an informational injury flowing from reporting violations. In Akins,

the plaintiffs were challenging the FEC’s dismissal of their administrative complaint, which

alleged that the American Israel Public Affairs Committee (“AIPAC”) was a “political

committee” as defined by the FECA, and was therefore subject to the Act’s disclosure

requirements. At the administrative level, the FEC determined that although AIPAC had made

expenditures that were campaign-related and had advocated for the election or defeat of

particular candidates, it was nevertheless not subject to FECA’s disclosure requirements. Id. at

17. The plaintiffs, a group of voters with views often contrary to those of AIPAC, challenged

that dismissal in federal court, where the FEC argued that they lacked standing because they had

not suffered an injury in fact. Id. at 19.

The Supreme Court disagreed, finding that the plaintiffs had satisfied both the prudential

and constitutional requirements for standing. Id. at 26. The Court first examined the statute

under which the plaintiffs had brought suit, 2 U.S.C. §437g(a)(8)(A), and that allows any

“aggrieved” party to file a complaint seeking review of the FEC’s dismissal of their

administrative complaint. The Court interpreted that statutory provision broadly, reasoning:

“[h]istory associates the word ‘aggrieved’ with a congressional intent to cast the standing net

broadly – beyond the common-law interests and substantive statutory rights upon which

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‘prudential’ standing traditionally rested.” Akins, 524 U.S. at 19 (citations omitted).

The Court next examined the nature of the injury alleged by the plaintiffs, specifically

their failure to obtain lists of AIPAC donors and campaign-related contributions and

expenditures, that they alleged the statute required AIPAC to disclose. Based on the historically

broad interpretation of “aggrieved” and the nature of the plaintiffs ’informational injury, the

Court concluded that plaintiffs had satisfied the “injury-in-fact” requirement for standing. The

Court reasoned that “Congress, intending to protect voters such as respondents from suffering

the kind of injury here at issue, intended to authorize this kind of suit.” Id. at 20. Of note, the

Court accepted readily the plaintiffs’ claims that without the information, they would be harmed

because the information “would help them (and others to whom they would communicate it) to

evaluate candidates for public office

and to evaluate the role that AIPAC’s financial

assistance might play in a specific election.” Id.

The Akins decision is on all fours with the instant case. Here, as in Akins, CREW filed

an administrative complaint alleging, in part, that ATR, Grover Norquist, and BC ‘04 failed to

report the contribution of the master contact list as required by the FECA. CREW based this

count of its administrative complaint on the same statutory provision relied upon by the Akins

plaintiffs for their claim that disclosure of the information was statutorily required, 2 U.S.C.

§§434(a). See Complaint, Exhibit B, ¶15. And like the Akins plaintiffs, CREW has suffered an

informational injury-in-fact from its inability to obtain information concerning the value of the

master contact list that is required to be disclosed under the FECA. As CREW has explained,

information concerning the value of the master contact list would help CREW fulfill its basic

mission, disseminating information that will inform and empower the public in its role in the

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government-decision making process. Sloan Decl., ¶¶3, 8. This is enough for CREW to satisfy

the injury-in-fact component of Article III standing. Compare Kean for Congress Committee,

slip op. at 15 (plaintiff established its standing under the Akins test where it had alleged a

statutory right to information under the FECA and how the information would be helpful to it).

B. CREW Has Demonstrated Harm to Its Central Programmatic Mission.

The FEC argues to the contrary that CREW does not have standing, because it has not

identified “any discrete programmatic activities in which it is engaged, much less shown that

these activities have been harmed because of CREW’s purported lack of information.” FEC

Mem., p. 13. The factual record is to the contrary, however, and sets forth with the requisite

specificity the harm CREW has suffered.

As the record reflects, CREW’s central programmatic mission is ensuring that the public

is informed about the conduct of government officials, to protect the integrity of our system of

government and the individuals who participate in that system. Sloan Decl., ¶¶2, 3, 7, 8. CREW

accomplishes this mission by disseminating information that it gathers from a variety of sources,

including the filing of administrative complaints with the FEC. Id., ¶3. CREW’s dissemination

of information is at the heart of what it does. For example, CREW recently published a report,

Addicted to Porn: How Members of Congress Benefit from Pornography, that details the

campaign contributions that members of Congress had received from corporations involved in

pornography. Id. at ¶7. CREW has also disseminated information through the internet.

Currently, for example, CREW’s web site 3 contains a link to a site, prepared by CREW, that

details the many activities of Jack Abramoff, a Washington lawyer and lobbyist currently under

3 That web site is www.citizensforethics.org.

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criminal investigation, and the many powerful individuals linked to Abramoff through such

things as campaign contributions. Id. It is CREW’s hope that by disseminating this type of

information, the public will be better able to evaluate the actions of our public officials and will

have a more effective voice, including in the voting booth. Id.

CREW is hindered in this core programmatic activity when those who participate in

campaigns – such as ATR, Grover Norquist and BC ‘04 –– do not disclose the statutorily

required information regarding contributions and donations. Id., ¶8. Absent information about

the value of the master contact list, CREW has been unable to advance its mission of educating

the public to ensure that the public continues to have a vital voice in government decisions. Id.

In addition, CREW’s resources have been drained by the denial of this key information.

When candidates and their donors fail to disclose the fact and amount of campaign contributions,

that information is not available on the FEC’s web site. CREW must accordingly expend time

and money attempting to ascertain the fact and value of such contributions through other means,

such as the filing of administrative complaints with the FEC. Id., ¶9.

The informational harm CREW has suffered is legally indistinguishable from the

informational harm suffered by the Akins plaintiffs. In arguing to the contrary, the FEC ignores

the central holding of Akins – that denial of this kind of information is, in and of itself, enough

to establish standing. CREW need only establish a statutory right to the information, which it

has done. But CREW need not, contrary to the arguments of the FEC, “further establish an

additional concrete and immediate harm.” Kean for Congress Committee, slip op. at 16.

That CREW uses this information for purposes that, by themselves, have been found

insufficient to establish an injury-in-fact, does not alter this conclusion. While the FEC is

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correct that CREW seeks and uses information to expose government corruption and to empower

citizens, FEC Mem. at 13, the harm here is not harm to a mere “abstract social interest,”id., but

rather the harm that flowed directly to CREW when it was denied information required by statute

to be disclosed publicly. The FEC has confused harm to an organization’s goal, which may be

broad, with harm to its programmatic activities, which must be concrete and specific. Indeed,

the very case to which the FEC cites as support for its argument that CREW’s alleged harm is

not “a sufficiently concrete interest to establish standing,” Becker v. FEC, 230 F.3d 381, 389 (1 st

Cir. 2000), 4 was careful to contrast cases like that before it, where the plaintiffs were alleging

only “voter-related injury”and therefore did not have standing, and cases like Akins and the

instant case, where “what was important was that the voters had been denied access to

information that would have helped them evaluate candidates for office, where such information

was specifically required by statute to be disclosed to the public.” Id. at 389 (citations omitted).

In short, CREW is seeking particular information of tangible use to its programmatic activities –

the value of the master contact list generate by ATR and Grover Norquist and donated to BC ‘04

– so that it can educate the public about the electoral process and the influences to which

candidates for public office are subject.

The FEC also takes issue with CREW’s contention that information such as the value of

the master contact list would be helpful in furthering CREW’s broad mission of “‘expos[ing]

unethical and illegal conduct.’” FEC Mem., p. 14 (quoting Complaint, ¶17). But here, as in

Akins, there is “no reason to doubt [CREW’s] claim that the information would help [it] (and

others to whom [CREW] would communicate it) to evaluate candidates for public office

4 See FEC Mem., p. 13.

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and

to evaluate the role that [ATR’s] financial assistance might play in a specific election.” Akins,

524 U.S. at 20. As this Court recognized in Kean for Congress Committee, it is enough that

CREW has alleged “how the information would be helpful to it.” Slip op. at 15. CREW does

not rest its claim of injury from the denial of information on harm to the pubic interest in general

or its broad programmatic goals. Rather, it is claiming that it was denied access to specific

information that by statute must be disclosed publicly, and seeks the information to engage in

concrete and specific programmatic activities involving public education and outreach.

In challenging CREW’s standing, the FEC also mischaracterizes the nature of CREW’s

injury. CREW is not alleging that it has been injured simply by the dismissal of its

administrative complaint, or that it has been “hindered in filing administrative complaints.” FEC

Mem. at 14. Nor is CREW merely seeking a legal declaration and sanctions against ATR,

Grover Norquist, and BC ‘04. Cf. FEC Mem. At 16. Rather, CREW is alleging that when the

FEC dismissed CREW’s administrative complaint without ordering the disclosure of the fact and

value of the master contact list, CREW suffered an informational injury. And as relief, CREW

has requested that this Court not only declare that the FEC’s failure to require ATR, Grover

Norquist and BC ‘04 violated the reporting and disclosure provisions of FECA, but that this

matter be remanded to the FEC “with an order to conform to the declaration within 30 days.”

Complaint, Prayer for Relief. Requiring the FEC to conform to this declaration would

necessarily require the FEC to order the disclosure of the value of the master contact list.

C. CREW Filed Its Administrative Complaint In Significant Part to Obtain The Value of the Master Contact List.

The FEC also faults CREW for failing to ask specifically for the disclosure of the master

contact list in its administrative complaint. FEC Mem., p. 16. Count III of the three-count

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complaint states that ATR, Mr. Norquist and BC ‘04 violated FECA by their failure to report to

the FEC the master contact list. In addition to declaratory relief and the imposition of sanctions,

CREW requested that the FEC “take such further action as may be appropriate.” Complaint,

Exhibit B. Clearly any appropriate further action for a finding that the disclosure and reporting

requirements had been violated would be an order to disclose and report. That such relief is

assumed by the nature of the violation undoubtedly accounts for why courts have not linked a

plaintiff’s standing based on claims of informational injury to a requirement that the

administrative complaint specify that the complainant was seeking disclosure of the information.

See, e.g., Kean for Congress Committee. 5

In this respect, CREW’s injury is very different than that claimed in Common Cause v.

FEC, 108 F.3d 413, 323 U.S.App.D.C. 359 (D.C. Cir.1997), a case on which the FEC places

heavy emphasis. In Common Cause, which preceded the Supreme Court’s decision in Akins, 6

the court found that the plaintiff lacked standing where it was seeking the imposition of

monetary penalties by the FEC, not the disclosure of information. Id. at 418, 364. According to

the Court, Common Cause was simply trying to “get the bad guys.” Id. This is in stark contrast

to CREW, which filed a three-count administrative complaint, of which one count was devoted

entirely to the failure by ATR, Grover Norquist and BC ‘04 to report and disclose specific

5 That is why in Buchanan v. FEC, a case cited by the FEC here (FEC Mem. at 28), where the plaintiff had alleged a violation of FECA’s reporting requirements and merely requested that the FEC act to correct the violations, the court found standing, because if the FEC had agreed with the plaintiff, an order correcting plaintiff’s illegal act of non-reporting “presumably would require it to register and report.” 112 F.Supp.2d 58, 67 (D.D.C. 2000).

6 Without the benefit of the Supreme Court’s sweeping analysis of standing based on informational injury there is at least a question whether the court that decided Common Cause would have reached the same conclusion post Akins.

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information, namely the value of the master contact list. 7 As this Court explained in Kean for

Congress Committee, Common Cause is distinguishable from cases like this one, where the

plaintiff is seeking information to which it has a statutory claim, because the plaintiff Common

Cause was “simply looking for information [it] wanted,” i.e., a determination “whether a

candidate violated the contribution limitation laws.” Slip op. at 18.

Equally inapposite are Wertheimer v. FEC, 268 F.3d 1070, 348 U.S.App.D.C. 1 (D.C.

Cir. 2001), and Judicial Watch v. FEC, 180 F.3d 277, 336 U.S.App.D.C. 342 (D.C. Cir. 1999),

on which the FEC also relies. Neither case dealt with the kind of injury claimed here –

informational injury – which the Supreme Court has recognized is sufficient to establish a

plaintiff’s standing. In Judicial Watch, the plaintiff’s complaint sought only information about

whether a violation of the FECA had occurred. In upholding the district court’s finding that the

plaintiff did not have standing, the D.C. Circuit explained that the Judicial Watch plaintiff had

failed to raise even “a nominal allegation of reporting violations. Nowhere in its administrative

or civil complaint did it even mention disclosure requirements or suggest that it desired

documents that the alleged violators were required to disclose.” 180 F.3d at 278, 336

U.S.App.D.C. at 343. This is in stark contrast to the instant suit, where one of the three counts in

the administrative complaint is devoted entirely to reporting violations and those violations make

up the entirety of the civil complaint filed before this Court.

Similarly, in Wertheimer, the court found that the plaintiff lacked standing because he

7 The FEC’s suggestion that because CREW included this count last in a one-sentence allegation, it should not be viewed as a significant enough part of its complaint to confer standing, FEC Mem. at 17, is ludicrous. One-third of the administrative complaint was devoted to this issue, and the issue forms the entirety of the complaint before this Court.

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was seeking a “legal determination that certain transactions [between candidates and political

parties] constitute coordinated expenditures.” 268 F.3d at 1075, 348 U.S.App.D.C. at 6.

Standing was lacking because, during oral argument, plaintiff’s counsel conceded that plaintiff

was not seeking the disclosure of specific facts concerning the value of the disputed list, as he

already had that information from a different source. Instead, the Wertheimer plaintiff was

seeking the disclosure of “the ‘fact’ of ‘coordination,’” id. at 1074-75, 5-6, and if he prevailed

he would receive no additional information. Here, by contrast, none of the administrative

respondents has reported the value of the mailing list and CREW has filed suit specifically to

gain access to this information.

D. CREW’s Purpose in Seeking the Master Contact List is Within the Scope of Groups Intended to Benefit From FECA’s Disclosure Requirements.

The FEC next argues that CREW cannot demonstrate a “cognizable informational injury,”

because it can neither vote nor engage in partisan politics and therefore has failed to demonstrate

that the information it seeks is useful in voting. FEC Mem., pp. 18-22. Through this argument

the FEC demonstrates a fundamental misunderstanding of the standing doctrine recognized by the

Supreme Court in Akins.

As CREW has explained, it is seeking the value of the master contact list for

dissemination to the public. Public dissemination of this information will serve CREW’s core

mission, educating the public to ensure public accountability by our government and public

officials. Sloan Decl., ¶¶3, 7-8. The complaint at issue here is one of a number of complaints

CREW has filed with the FEC in furtherance of its education and outreach activities. Id., ¶10.

Thus, CREW’s purpose in seeking the information is on all fours with the congressional intent

behind the reporting and disclosure requirements of the FECA – limiting actual and perceived

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corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 67 (1976) (“disclosure requirements deter

actual corruption and avoid the appearance of corruption by exposing large contributions and

expenditures to the light of publicity.”). This information is useful not only to voters in deciding

which candidates to elect, but also is revealing as to “the interests to which a candidate is most

likely to be responsive and thus facilitate[s] predictions of future performance in office.” Id.

Moreover, as this Court explained in Kean for Congress Committee in rejecting an

argument similar to that raised by the FEC here, “[t]here is nothing in the text of FECA limiting

that information to voters, nor would it seem to further the ends of FECA if voters were the only

political actors the information was intended to assist.” Slip op. at 20. As an organization formed

for the express purpose of “accumulating and disseminating information” that serves “a critical

role in the political process,” CREW plainly is within the scope of groups “intended to benefit

from the FECA disclosure requirements.” Id. at 21.

In arguing to the contrary, the FEC relies in Alliance for Democracy v. FEC, 335

F.Supp.2d 39 (D.D.C. 2004), in which the court concluded that the plaintiffs, who were claiming

an information injury, lacked standing. Notwithstanding this claim, the court found that the

plaintiffs already had the information that they claimed to lack, that the plaintiffs had failed to

show how the information would have a “concrete effect on [their] voting in future elections,”

and that because the administrative process had progressed as outlined in the FECA, the plaintiffs

had received “everything they are entitled to under the FECA.” Id. at 48.

CREW is situated very differently than the plaintiffs in Alliance for Democracy. First,

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CREW does not have the information it seeks, specifically the value of the master contact list. 8

As we have shown above, the denial of information that must be legally disclosed to the public

alone is sufficient to establish CREW’s standing.

Second, CREW has established how that information would have a “concrete effect” on

its ability to educate the public, as it is precisely this type of information that is revealing as to the

conduct of public officials and is informative in predicting “future performance in office.”

Buckley v. Valeo, 424 U.S. at 67. Information about the value of a contribution made by ATR is

also informative as to ATR’s role in the political process, now and in the future. Sloan Decl., ¶5. 9

Third, CREW has not received all that it is due from the administrative process, as the

FEC, despite its findings that the administrative respondents had violated the reporting and

disclosure requirements of the FECA, failed to required compliance with those statutory

provisions. In Alliance for Democracy, by contrast, the FEC had not only dismissed the

plaintiffs’ administrative complaint, but the administrative respondents had reached a final

8 While the FEC suggests CREW has all the information it needs because the Commission has made public some of the information submitted by the administrative respondents, FEC Mem. at 23, and the General Counsel’s Report categorizes (albeit in a general fashion) the underlying documents, id. at 24, this limited disclosure coupled with the FEC’s guess at what CREW needs is no substitute for the information required to be disclosed by FECA, and sought by CREW here.

9 CREW questions whether it need even make this showing, as the Supreme Court has recognized that denial of information required by statute to be made public is enough to establish standing, regardless of how, when, or whether that information might be used. So, for example, in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), a case cited by Akins that involved the Fair Housing Act, the Supreme Court held that “testers” – individuals posing as renters with no intent to rent or purchase a house or apartment – had standing to sue because section 804(d) of the Fair Housing Act establishes an enforceable right to truthful information concerning the availability of housing. 455 U.S. at 373-74. It did not matter to the Court that the testers had no intention to rent or buy the housing about which they had inquired.

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conciliation agreement. The court therefore concluded that the action was moot, given that the

Commission had completed its final action. 335 F.Supp.2d at 43. The court noted, however, that

“[h]ad the agency found no violation and dismissed the complaint, then it seems that plaintiffs

may be entitled to the information they seek so that they could determine whether or not to pursue

the action further.” Id. at 48. Here, while the FEC found a violation, it dismissed the matter

without ordering any relief, thereby depriving CREW of the information it sought and leaving it

free to pursue the action further in this Court.

E. CREW Has Demonstrated an Ongoing Case or Controversy.

The FEC also argues that because the 2004 election is now over and President Bush is

constitutionally barred from seeking another term, CREW cannot demonstrate an ongoing case or

controversy. FEC Mem. at 20. Under the FEC’s conception of standing, however, violations of

FECA could never be remedied once an election is over if the candidate will not run again. This

is not the statutory scheme Congress enacted. 10 Instead, Congress has required post-election

reporting of contributions received and expenditures made prior to election, see 2 U.S.C.

§434(a)(2)(A)(ii). Thus, Congress has determined as a matter of law that the value of in-kind

contributions is useful to voters, no matter when those contributions are disclosed. 2 U.S.C.

§434(b). As the en banc D.C. Circuit court opinion in Akins noted, “disclosure of past activities

would presumably affect voters in the future. If such injury were not redressable, once an

election ended virtually all electoral conduct would be beyond judicial review.” Akins v. FEC,

10 It is particularly odd for the FEC, the purported watchdog agency with exclusive jurisdiction to enforce FECA’s requirements, to argue that key provisions of that Act are unenforceable if redress is sought post-election.

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101 F.3d 731, 739 n.7 (D.C. Cir. 1997) (en banc), vacated on other grounds, 524 U.S. 11. 11

Accepting the FEC’s argument here that a plaintiff has standing to sue for violations of FECA

only during the course of that candidate’s election campaign would ignore Congress’ plain intent

to provide a continuing legal right to campaign information. 12

Moreover, as a factual matter the information CREW is seeking continues to be of value

even though President Bush will not run again for President. As the current President and head of

his party, President Bush exerts considerable influence on the outcome of many elections and

issues, current and future. It cannot be gainsaid that the outcome of mid-term elections is

influenced heavily by what and how the sitting President does.

Moreover, knowledge about the

campaign contributions of individuals and entities to BC ‘04 reflects the continuing influence

those individuals and entities have on the President’s formulation of national policies, information

of great continuing value to the public. Indeed, public interest in information like that at issue

here is at its apex when the information concerns a president. Thus, CREW’s interest in

disseminating this information to the public, and the concomitant harm to its programmatic

activities if it is denied the information, clearly establish its standing to sue for the disclosure of

11 The Supreme Court granted certiorari to address two issues: standing and a merits- related question. Both the Supreme Court and the en banc D.C. Circuit Court of Appeals (as well as the original panel decision) agreed that the Akins plaintiffs had standing, although the Supreme Court opinion was broader than the D.C. Circuit opinion. Ultimately, the Supreme Court vacated the Circuit court opinion because of the merits-related issue.

12 Moreover, as this Court found in Kean for Congress Committee, candidate committees like BC ‘04 are “far from ‘moribund’ at the end of an election.” Slip op., p. 21. Their existence continues post-election, as they are subject to continuing statutory obligations and may “take a number of steps after an election.” Id. at 22. Because a candidate committee “remains a viable

entity even after the specific election cycle

sought” sufficient to establish standing to sue. Id. at 24.

it can suffer injury from denial of the information

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the value of the master contact list.

The FEC also attempts to bring this case within the reach of prior decisions that found no

standing by arguing that here, as in Alliance for Democracy, supra and Judicial Watch, supra,

CREW already has the information it claims to lack. FEC Mem., pp. 22-24. The record is to the

contrary. There has been no genuine “appraisal” of the master contact list, contrary to the FEC’s

suggestion. See FEC Mem. at 22. Rather, the administrative respondents claimed that the contact

list had no value, a claim the FEC rejected. And the FEC, with no attempt to ascertain the list’s

“usual and normal charge” as the FEC regulations require, see 11 C.F.R. 100.54(d), concluded

that the list had only “limited” value. Complaint, Exhibit C. But that conclusion was based on

the supposition of the General Counsel that because the individuals named in the materials are

already active in supporting “conservative issues,” they were “likely already to be aware of – and

possibly involved in the Committee’s efforts in connection with the 2004 election.” Id. at 11.

From this the General Counsel surmised that the impact of the materials “may be limited.” Id.

He also found, again without any evidentiary support, that it was likely the campaign already had

some of the materials, and that if any of the materials were available on ATR’s website, “that

might serve to limit the value of the contribution.” Id.

The suppositions of the General Counsel, untethered to any factual support in the record,

cannot substitute for a genuine attempt to ascertain the fair market value of the master contact list.

They also ignore the record evidence that the list was, in fact, of great value. As the product of

five years of labor by an individual who has been identified as “the head of the right-wing

conspiracy,” Complaint, Exhibit B, ¶3, the list clearly proved valuable to BC ‘04. Indeed, when it

was presented to Mr. Mehlman, he is reported to have said,“Fabulous, Grover. Awesome

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We’re going to take that energy and harness it.” Laura Blumenfeld, Sowing the Seeds of GOP

Domination; Conservative Norquist Cultivates Grass Roots Beyond the Beltway, The Washington

Post, January 12, 2004.

Under similar circumstances the district court in FEC v. Christian Coalition, 52 F.Supp.2d

45 (D.D.C. 1999), easily concluded that a contact list like that at issue here was of value:

“Even

if the names on the

list were publicly available, the fact that the Coalition expended resources

to compile the list and cross-check it with the Coalition’s house files, created value that was

passed on to the

campaign.” Id. at 96. Here, too, the fact that the master contact list was

compiled by ATR and Grover Norquist based on five years of intensive effort by Mr. Norquist to

build a network that would “activate the conservative base as it never had before,” Laura

Blumenfeld, Sowing the Seeds of GOP Domination; Conservative Norquist Cultivates Grass

Roots Beyond the Beltway, The Washington Post, January 12, 2004, compels the conclusion that

the list is of more than “limited” value.

Nor is this a case where further administrative action will not yield any other information.

If CREW is successful in getting the FEC to require the disclosure of the value of the master

contact list, as required by law, CREW will have information which it does not yet have. This

case, then, is in a very different posture than Judicial Watch v. FEC, 293 F. Supp.2d 41 (D.D.C.

2003), which the FEC falsely claims is “closely on point.” FEC Mem., p. 23. The plaintiff in

Judicial Watch was a contributor to Senator Clinton’s campaign and was complaining about her

campaign’s alleged failure to report a cash and in-kind contribution made by the plaintiff himself.

Not surprisingly, given that the plaintiff was in full possession of all the facts concerning the

value of his contribution and was merely seeking a “finding by the Commission as to whether

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Senator Clinton violated the FECA.” 293 F.Supp.2d at 47, the court found that he lacked

standing. Here, by contrast, if CREW is successful in its complaint, it would “yield additional

facts,” id., about reporting violations by ATR, Grover Norquist and BC ‘04.

III. CREW SATISFIES THE PRUDENTIAL REQUIREMENTS FOR STANDING.

Finally, the FEC argues that CREW cannot meet the prudential standing requirements. Its

arguments are largely derivative of its arguments on constitutional standing and are equally

unavailing.

The FEC spends considerable time arguing that the prudential standing requirements

apply to CREW, FEC Mem. at 24-26, something CREW does not dispute. Indeed, the precise

issue in Akins was whether the plaintiffs had satisfied the prudential requirements for standing.

See 524 U.S. at 19.

The heart of the FEC’s prudential standing argument is that CREW does not fall within

the zone of interests that the FECA seeks to regulate or protect, because it is not a candidate,

political party, political committee, or registered or eligible voter. FEC Mem. at 27. But what the

FEC ignores is that Akins eased prudential standing requirements under the FECA, consistent

with Congress’ “intent to cast the standing net broadly.” 524 U.S. at 19. The Supreme Court did

so precisely because of FECA’s goal of eliminating actual or perceived corruption through the

reporting and disclosure requirements. See 524 U.S. 19-20, quoting Buckley v. Valeo, 424 U.S.

1, 26 (1976). As this Court has noted, “[t]here is nothing in the text of FECA limiting that

information to voters, nor would it seem to further the ends of FECA if voters were the only

political actors the information was intended to assist.” Kean for Congress Committee, slip op. at

20. CREW is an organization formed for the express purpose of disseminating publicly

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information such as the value of campaign contributions. In carrying out this key programmatic

mission, CREW is furthering Congress’ goal of bringing transparency to the political process.

Nor does Grand Council of the Crees v. FERC, 198 F.3d 950 (D.C. Cir. 2000), limit the

breadth of Akins, as the FEC suggests. The organizational plaintiffs in Grand Council lacked

standing because, as environmental organizations, they were not within the zone of interests of a

provision of the Federal Power Act that did not address environmental concerns. Id. at 956-57.

Far from prohibiting prudential standing for organizational plaintiffs, however, Grand Council

explicitly suggested that organizations suffering informational injuries were favored candidates

for prudential standing after Akins. See id. at 959 (“given the absence of any allegation by

petitioners of an ‘informational injury,’ compare FEC v. Akins

they are not ‘suitable

challengers of FERC’s failure to prepare an EIS”) (citations omitted).

CONCLUSION

For the foregoing reasons, the Court should deny Defendant’s motion for summary

judgment.

Respectfully submitted,

/s/

ANNE L. WEISMANN D.C. Bar No. 298190 Melanie Sloan D.C. Bar No. 434584 Citizens for Responsibility and Ethics in Washington 11 Dupont Circle, N.W. Washington, D.C. 20036 (202) 588-5565

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May 11, 2005

Attorneys for Plaintiff

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