UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) CITIZENS FOR RESPONSIBILITY AND ) ETHICS IN WASHINGTON,

) ) Plaintiff, ) ) v. ) Case Number 1:04CV02145 (JDB) ) FEDERAL ELECTION COMMISSION, ) REPLY ) Defendant. ) ____________________________________) DEFENDANT FEDERAL ELECTION COMMISSIONS REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT In response to the FECs summary judgment motion, Plaintiff Citizens for Responsibility and Ethics in Washington (CREW) concedes that, to establish informational injury, it is required to show harm to its programmatic activities, which must be concrete and specific. CREW Brief at 17.1 However, CREW utterly fails to show what concrete and specific activities have been harmed by its purported lack of information about the value of the so-called contact list, which is not a commercial mailing list, much less whether CREW programatically engages in any allegedly injured activities, i.e., as a routine part of its daily operations. Instead, CREW largely rests upon assertions of harm to abstract policy interests, which it admits have been found insufficient to establish an injury-in-fact. Id. at 16. Moreover, CREW ignores the substantial information that CREW already has received about the contact list (including an approximation of its highly-subjective value), fails to explain what, if anything, it has done with this information, and sidesteps the fact that it only nominally alleged a lack of information in its

All references to CREW Brief are to Plaintiffs Memorandum of Points and Authorities in Opposition to Defendants Motion for Summary Judgment. 1

administrative complaint. Finally, CREW concedes that prudential standing requirements apply. Id. at 28. For this reason as well, CREW lacks standing to sue, since it is undisputed that CREW is a non-profit 501(c)(3) corporation that does not vote, is not affiliated with any candidate, political party, or political committee, and does not participate in or contribute to political campaigns in any way. See Plaintiffs Response to Defendant FECs Statement of Material Facts at 3. Therefore, the FEC respectfully requests this Court to grant its motion and dismiss CREWs Complaint. ARGUMENT I. CREW HAS FAILED TO SHOW AN ARTICLE III INJURY CREWs failure to show an Article III injury starts with a fundamental misconception of the showing required to withstand the Commissions motion. Because this is a motion for summary judgment, not a motion to dismiss, the Court is not required to accept as true CREWs allegations, and it is improper for CREW to suggest otherwise by relying on Rule 12 cases in its section on legal standard[s]. See CREW Brief at 11 (citing Kowal v. MCI Communications Corp., 16 F.3d 1271 (D.C. Cir. 1994), and Warth v. Seldin, 422 U.S. 490 (1975)). In response to a summary judgment motion, [CREW] can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts showing that it has standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As the party invoking federal jurisdiction, it is CREWs burden to show that it has standing, not the Commissions burden to show that standing is lacking. Id. A. CREW Has Not Shown a Concrete and Specific Injury Caused by a Lack of Information About the Value of the Contact List

CREW has failed to demonstrate specific facts showing that it has suffered a concrete and particularized injury. Id. at 560-61. Indeed, CREWs alleged injury is not even addressed

in its factual background section. See CREW Brief at 4-10. As for the rest of its brief, CREW offers only generalized assertions of harm, unsupported by any evidence in the record other than its counsels declaration, and in some cases no evidence at all. In a typical example, CREW asserts (Brief at 18) that it wants to know the value of the list to engage in concrete and specific programmatic activities. However, it never explains what those supposedly concrete and specific activities are. It simply states, without further elaboration, that they involv[e] public education and outreach. Id. See also CREW Brief at 17 (stating that CREW is seeking information of tangible use, but failing to articulate any such tangible uses, other than to state that they would involve educat[ing] the public about the electoral process and the influences to which candidates for public office are subject). What specific public education and outreach activities CREW might have in mind is left entirely to speculation. CREWs counsel does not explain in her declaration what those activities might be, or even state that CREW would, in fact, publicize a more precise appraisal of the lists value if it were to obtain one. For this reason alone, CREWs Complaint must be dismissed for lack of standing because CREW has failed to provide any evidence (much less specific evidence) that it has a concrete use for this information. Cf. Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (plaintiff had standing to sue where it provided a fairly detailed description of how the information would prove useful to it). At best, CREW is seeking information about the value of the list for broadly-articulated goals such as ensuring the integrity of government officials and empowering citizens. See FECs Opening Brief at 13 (citing Complaint 6).2 See also CREW Brief at 16-17 (the FEC is

All references to FECs Opening Brief are to Defendant Federal Election Commissions Memorandum of Points and Authorities in Support of Its Motion for Summary Judgment. 3

correct that CREW seeks and uses information to expose government corruption and to empower citizens). These are precisely the sort of abstract interests that have been held insufficient to support standing. See Lujan, 504 U.S. at 573-77; Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997); Ctr. for Law & Educ. v. United States Dept of Education, 315 F. Supp.2d 15, 24 (D.D.C. 2004) (frustration of an organizations objectives is the type of abstract concern that does not impart standing). In fact, CREW admits that such broad purposes, by themselves, have been found insufficient to establish an injury-in-fact, and that it is required to show underlying harm to its programmatic activities, which must be concrete and specific. CREW Brief at 16-17. B. CREW Has Not Shown an Injury to Its Abstract Policy Interests

Even if harm to CREWs abstract interests were constitutionally cognizable, CREW has failed to show how information about the precise value of the list would help it empower citizens or ensure the integrity of government officials. In any event, the value of this noncommercial list is inherently subjective and is not readily subject to precise quantification, although the Commission already has articulated its own rough estimate of the lists value. For these reasons as well, CREW has failed to show an informational injury. 1. The Alleged Harm to the Interests Asserted by CREW Is Speculative

Information about the value of the list obviously will not empower citizens to vote for or against President Bush, since he is prohibited from running for reelection.3 FECs Opening

CREW mischaracterizes the FECs position in asserting that the FECs argument here [is] that a plaintiff has standing to sue for violations of the FECA only during the course of that candidates election campaign[.] CREW Brief at 25. What is important is not that the 2004 election is over, but that President Bush may not seek reelection in 2008. In Kean for Congress Comm. v. FEC, No. 04-0007 (D.D.C. Jan. 25, 2005), slip op. at 18, this Court held that the speculative nature of [candidate] Keans future may enter into the injury-in-fact analysis under Akins, but found that there was no reason to doubt that he would run again. Here, there is 4

Brief at 20. Although CREW suggests (Brief at 25) that this information could affect the outcome of mid-term elections, it does not explain how this might be so. In contrast to the plaintiffs in FEC v. Akins, 524 U.S. 11 (1998), all of whom were voters, CREW is an organization without members and it does not assert that it will use information about the value of the list for voting purposes. Nor has CREW produced evidence of any voter who has claimed that this information would be helpful in voting for candidates for Congress, none of whom were involved in the lists transfer between Americans for Tax Reforn (ATR) and the Bush campaign. Thus, this case is on all fours with Alliance for Democracy v. FEC, 335 F. Supp.2d 39, 48 (D.D.C. 2004) (Alliance I), where the court dismissed the plaintiffs action under 2 U.S.C. 437g(a)(8) for lack of standing because they failed to show how information about the precise value of a mailing list could have a concrete effect on plaintiffs voting in future elections involving different candidates. CREWs efforts to distinguish Alliance I (Brief at 22-24) are strained, and CREW does not even attempt to distinguish the courts later decision in Alliance for Democracy v. FEC, No. 04-CV-00127 (D.D.C. Mar. 4, 2005) (Alliance II), which also dismissed the plaintiffs second action for lack of standing.4 The plaintiffs in Alliance I & II did not have more information about the value of a list than CREW does here. See Alliance II, slip op. at 5-6 (noting that the Commission did not determine the actual monetary value of the list, and that the [c]onciliation [a]greement [did] not require [the respondents] to disclose and report the monetary

more than reason to doubt that President Bush will run again it is constitutionally prohibited. Thus, CREW cannot show the sort of likelihood of future injury that is necessary to obtain injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (standing to seek injunction depends on whether plaintiff is likely to suffer future injury).
4

As previously noted (FECs Opening Brief at 19 n.10), Alliance I was a delay case, whereas Alliance II was a dismissal case like the one here. 5

value of the mailing list). Moreover, CREWs suggestion that Alliance I was decided exclusively on mootness grounds is also incorrect. The court adopted alternative rationales for finding a lack of jurisdiction; mootness is discussed in parts III.A and III.B (335 F. Supp.2d at 42-47), and standing in part III.C (id. at 47-48). In any event, Alliance II focused exclusively on standing, and the court reached its decision in that case on several independent grounds. In the alternative, CREW asserts that the value of this list would be useful information for the public in evaluating the role and influence of ATR and Grover Norquist on President Bush and his policies, as well as ATRs role generally in the political process. Sloan Decl., 5. However, CREW already has a wealth of information at its disposal, which it is free to relate to the public, concerning the role and influence of ATR and Norquist. For example, CREW already knows, among other things, the following information from several publicly-available sources, including the General Counsels report: 1. Norquist is actively involved in creating a conservative grass roots movement (Complaint, Ex. B at 3), and was able to arrange a personal meeting with Ken Mehlman, the campaign manager for Bush-Cheney 04, FEC Ex. B. ATR also seeks to advance the conservative agenda. Complaint, Ex. B at 4. When Norquist met with Mehlman, he gave Mehlman various materials, including (i) a memorandum identifying 592 center-right coalition meeting attendees in 33 states, and (ii) descriptions of coalition meetings in 22 states that were accompanied, in most cases, by lists of attendees. FEC Ex. A at 4.5 Norquist assisted in organizing these state coalitions, and holds his own weekly strategy sessions with conservative activists that include senior Republican leaders such as Bill Frist. FEC Ex. B. The state coalition meetings organized by Norquist are typically attended by members from an array of business, social, and political groups,

2.

3.

4.

All references to FEC Exs. A-K are to the exhibits submitted in connection with the FECs Opening Brief. Subsequent references to FEC Exs. L-N are to the exhibits submitted in connection with this reply brief. 6

representing taxpayers, gun owners, social conservatives, college republicans, non-union contractors, the Republican Party, and elected officials. FEC Ex. A at 5. Representatives from Bush-Cheney 04 attended some of these state coalition meetings. Id. at 5, 11. This information is more than sufficient to inform voters that ATR and Norquist support President Bush and his policies, and specifically how they supported him (i.e., by organizing meetings of conservative activists and passing attendee and other information to his campaign). Indeed, if Bush-Cheney 04 had reported this as a contribution, CREW would know far less about this transaction than has been revealed to it by the Commissions decision here. CREW does not allege that it has publicized this information, much less that it has incorporated this information into a report such as the Addicted to Porn report referenced in its brief. See infra p. 12. Indeed, CREW does not even assert that it has plans to publish a report on the role of ATR and Norquist, or on the influence of any of the Presidents campaign contributors. Consequently, there is no reason to believe that the precise monetary value of the list is necessary to help CREW accomplish its abstract mission, or that CREW even would use this information for any programmatic activities. What CREW really is interested in knowing is not the role and influence of Norquist and ATR, or the precise level of their support for the President, but rather that their support was illegal. See infra pp. 13-15. This is not, however, an interest that can support standing. Common Cause, 108 F.3d at 418; see FECs Opening Brief at 17-18. In any event, the Commission already has found reason to believe that ATR, Norquist, Mehlman, and BushCheney 04 violated the FECA, so CREW already has that kind of information as well. Complaint, Ex. A; FEC Ex. I.

2.

The Contact List Does Not Lend Itself to a Precise Monetary Appraisal

Even ignoring the speculative nature of CREWs alleged harm, CREW fails to show how a precise monetary value for this list can be calculated or readily ascertained. The documents comprising this list do not constitute a commercial mailing list or a refined list of proven donors or volunteers. FEC Ex. A at 9 n.13. Indeed, these documents are not a single list at all, but rather a collection of materials from various center-right coalition meetings that happens to identify people who chose to attend. Id. at 4-5.6 Therefore, even though the Commission concluded that the list had some limited value, its exact monetary worth is not readily ascertainable. Id. at 8 n.12.7 This renders CREW's alleged injury from a lack of information about the list doubly speculative, since the information that CREW seeks is itself speculative under the circumstances. In Alliance I & II, the Commission was presented with an actual mailing list, professionally developed at a cost of nearly $2 million, which had been rented on the open market through a broker for a specified sum of money, yet a majority of Commission members still could not agree on the precise value of the list. Alliance II, slip op. at 14 & n.8. For example, one Commissioner believed that the list should be valued on a cost-of-development basis, and therefore proposed that the Commission find probable cause to believe that it constituted an excessive contribution of $1.7 million. Statement of Reasons of Commissioner

It is misleading for CREW to refer to these materials as a mailing list. See Sloan Decl., 6. CREW offers no reason to believe that anyone has ever used these materials for mailings to the people mentioned therein.

Because 2 U.S.C. 441b prohibits corporate contributions of any size, the Commission had no need to determine the precise value of the list in order to find reason to believe that the FECA was violated.

Weintraub at 1. See also Statement of Reasons of Commissioners Mason and Toner at 2, 9.8 Two other Commissioners believed that these development costs did not have any relevance in determining the market value of the list[,] which they believed might safely be assessed at $40,000[,] based on a fixed amount of $0.50 per name. Statement of Reasons of Commissioners Mason and Toner at 9-10. Still other Commissioners, as well as the General Counsel, looked in large part to the rental income derived from the mailing list in determining its approximate value. Statement of Reasons of Commissioners Weintraub, Thomas, and McDonald at 3-4.9 As a result, the court in Alliance II concluded that further administrative proceedings would have been pointless, since there [was] no reason to believe that [they] would have resulted in a finding of the exact value of the list. Slip op. at 15. In this case, it would be even harder to arrive at a precise value, since there is no evidence that the documents in question were ever rented or sold, or even that there was a commercial market for them. Nor is there any formula for determining how much the value of the list should be discounted to take account of the mitigating factors referenced in the General Counsels report, including the fact that some of the meeting and attendee information already was publicly available for free on ATRs website. FEC Ex. A at 11. Accordingly, CREW cannot base its alleged informational injury on the Commissions failure to identify the precise value of the list, since there [is] no single, objective value that could be attached to the list. Alliance II, slip op. at 15.

All statements of reasons referenced herein are available on the FECs website. For instructions on how to locate these materials, see the FECs Opening Brief at 10 n.3. The underlying MUR (matter under review) in Alliance I & II was MUR 5181. Commissioner Weintraub viewed this as an alternative approach to the cost method referenced above.

The General Counsels conclusion that the size of the contribution was limited (FEC Ex. A at 10) already provides CREW with a rough indication of the level of ATRs and Norquists support for the Bush campaign. CREW is not entitled to require the Commission to make its own independent assessment of the lists value. See Alliance II, slip op. at 13-14 ([T]he FECA does not require the FEC to determine the monetary value of the mailing list. As such, requiring the FEC to quantify the value of the list would place an obligation on the FEC beyond what is required by the FECA.).10 C. CREWs Programmatic Activities Have Not Been Directly and Adversely Affected

Regardless of whether CREW has articulated some abstract injury, it has not shown that its alleged lack of information about the value of the list impinge[s] on [its] daily operations or make[s] normal operations infeasible. Akins v. FEC, 101 F.3d 731, 735 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998). See also Common Cause, 108 F.3d at 417 (organization suing on its own behalf must show that discrete programmatic concerns are being directly and adversely affected); id. at 420 (Sentelle, J., concurring). It is undisputed that CREW is a non-profit 501(c)(3) corporation. CREWs Response to FECs Statement of Material Facts at 2. As such, CREW does not vote, is not affiliated with any candidate, political party, or political committee and, like the plaintiffs in Common Cause, 108 F.3d at 419 n.1, does not

Whether the Commission properly exercised its prosecutorial discretion to take no further action in response to CREWs administrative complaint is not the subject of the present motion for summary judgment based on CREWs lack of standing. However, to respond briefly to CREWs attacks, we note that the Commission reviewed all of the materials that it received from the administrative respondents, that Bush-Cheney 04 and Ken Mehlman in no way suggested that they provided the Commission with anything less than what they received from Norquist and ATR, and that the materials appeared to be of limited value on their face for the plain reasons set forth in the General Counsels report. It is CREW, not the FEC, that is making suppositions about the value of the list untethered to any factual support in the record, based on secondhand newspaper articles of no evidentiary value. See CREW Brief at 26. 10

10

participate in or contribute to political campaigns in any way. See CREWs Response to FECs Statement of Material Facts at 2. Consequently, CREW lacks the sort of programmatic concerns related to the electoral process that are necessary for an organization to bring suit under 2 U.S.C. 437g(a)(8), and it has not otherwise demonstrated a cognizable injury to its daily operations. Indeed, no court that has analyzed the Article III question has ever found that a nonpolitical government watchdog group such as CREW has standing to bring suit under section 437g(a)(8). See Judicial Watch v. FEC, 180 F.3d 277, 278 (D.C. Cir. 1999) (Judicial Watch I); Common Cause, 108 F.3d at 418; Alliance II, slip op. at 11; Alliance I, 335 F. Supp.2d at 47-48; Judicial Watch v. FEC, 293 F. Supp.2d 41, 45-48 (D.D.C. 2003) (Judicial Watch II). By contrast, in other cases where standing has been found, the plaintiffs were either voters or political actors who had a direct stake in federal elections. See Akins, 524 U.S. at 15 (suit brought by a group of voters); Kean for Congress (suit brought by congressional candidates campaign committee); Buchanan v. FEC, 112 F. Supp.2d 58, 60 & n.1 (D.D.C. 2000) (suit brought by presidential candidate Patrick Buchanan, his campaign committee, the Reform Party, and two registered voters); Natural Law Party of the United States v. FEC, 111 F. Supp.2d 33, 36 (D.D.C. 2000) (suit brought by the Natural Law Party and its 1996 presidential and vice-presidential candidates). Here, CREW concedes that it does not have any members (CREWs Response to FECs Statement of Material Facts at 3), and it has not demonstrated that it disseminates campaign finance data or literature to the general public on a programmatic or routine basis as part of its daily operations. Cf. Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 937-38 (D.C. Cir. 1986) (plaintiff organization had standing to sue where routine information-dispensing activities, carried out as part of its daily operations, were

11

inhibited), cert. denied, 502 U.S. 938 (1991). Although CREW denies that it does not systematically collect or disseminate campaign finance data or literature, Plaintiffs Response to FECs Statement of Material Facts at 5 (citing Sloan Decl., 7), CREWs two proffered examples of such activity hardly qualify as routine or programmatic. To the contrary, they show that CREW has engaged in such activity only sporadically, and then only after its administrative complaint in this case was dismissed and its lawsuit was underway. CREW was formed in October, 2002. Sloan Decl., 2. However, it does not point to any campaign finance-related activity until March 10, 2005, FEC Ex. L, when it authored a report concerning campaign contributions to members of Congress from corporations allegedly connected with pornography. Sloan Decl., 7. Although CREW also directs the Court to a website devoted to Jack Abramoffs lobbying activities, id., this website was not launched until even later, on April 14, 2005. FEC Ex. M. The ad hoc nature of these activities and the fact that CREW waited almost 2 years before undertaking them belies CREWs assertion that disseminating such information is at the heart of what it does. CREW Brief at 15. In any event, CREWs citation to the Addicted to Porn report and the Abramoff website only highlights CREWs failure to point to any similar report regarding ATR or President Bushs contributors. CREW certainly does not need to know the value of the materials at issue here for its two existing reports, since those already have been published and deal with entirely unrelated subjects. Moreover, [t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed. Lujan, 504 U.S. at 571 n.4 (emphasis in original). CREW filed its Complaint in this Court on December 13, 2004, nearly three months before the Addicted to Porn report was published or the Abramoff website was launched. Therefore,

12

CREW may not rely on those activities to support standing, and there is no evidence that CREW had ever engaged in any public information programs involving campaign finance activity at the time it filed its complaint.11 II. THIS CASE IS INDISTINGUISHABLE FROM COMMON CAUSE AND REQUIRES THE SAME OUTCOME Even if CREW did lack information, that was not the focus of its administrative complaint. What CREW really sought was for the Commission to get the bad guys, Common Cause, 108 F.3d at 418, i.e., the administrative respondents, for direct and serious violations of federal campaign finance law, Complaint, Ex. B at 1. In its prayer for relief, CREW sought punishment against the respondents, not information from them. Id. at 5 (requesting the Commission to conduct an investigation, declare the respondents to have violated the federal campaign finance laws and impose sanctions). Although CREW notes that it did include a general boilerplate invitation for the Commission to take such further action as may be appropriate, and that such further action could have included an order to disclose and report (Brief at 19), this misses the point that relief is not what CREW itself requested.12 This is not a case like Akins or Buchanan, where the central component of the plaintiffs underlying administrative complaint was that an entity had failed to register and report as a political committee. CREWs central allegation was that the administrative respondents made

In its Complaint, CREW alleged that it had been hindered in [the] programmatic activity of filing FEC complaints. Complaint 7-8. In response to the Commissions summary judgment motion, it now concedes that this is not a basis for finding injury-in-fact. See CREW Brief at 18 (CREW is not alleging that it has been hindered in filing administrative complaints.). In any event, the record demonstrates that CREW has continued to file administrative complaints subsequent to the one in MUR 5409, which gave rise to this action. See Plaintiffs Response to Defendant FECs Statement of Materials Facts at 5. In any event, [t]he FEC itself cannot fashion coercive relief by issuing orders. To obtain such relief it must apply to the courts itself[.] Buckley v. Valeo, 424 U.S. 1, 280 n.26 (White, J., concurring in part and dissenting in part). See generally 2 U.S.C. 437g(a)(6).
12

11

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and accepted an illegal contribution, and its reporting claim (in Count III) was secondary to and derivative of this primary claim (in Counts I and II). Even in Count III of its administrative complaint, dealing with the alleged reporting violation, CREW simply objected that the respondents had fail[ed] to report to the FEC the master contact list as a contribution made and received[.] Complaint, Ex. B at 15. It was only in CREWs complaint to this Court that CREW specifically sought, for the first time, the value of the list. Although CREW objects (Brief at 20 n.7) that it is ludicrous for the FEC to suggest that CREWs one-sentence reporting claim in its administrative complaint is too insignificant to confer standing, CREWs administrative complaint is indistinguishable from the one in Common Cause. In that case, Common Cause also alleged (FEC Ex. N at 3, 7) a reporting violation under 2 U.S.C. 434 that was secondary to Common Causes primar[y] allegations concerning excessive contributions and expenditures. Common Cause, 108 F.3d at 418. The very first sentence of Common Causes administrative complaint reads: This Complaint charges that the National Republican Senatorial Committee (NRSC) has knowingly and willfully violated the Federal Election Campaign Act, 2 U.S.C. 431, et seq., as amended (FECA), by making contributions and expenditures in connection with the 1998 Montana U.S. Senate campaign of Conrad Burns in excess of the NRSCs contribution and expenditure limits, and by failing to report those contributions and expenditures accurately[.] FEC Ex. N at 1 (emphasis added). Despite the fact that Common Cause expressly alleged that the respondents failed to accurately report the contributions in that case, and included four additional paragraphs dealing with this alleged reporting violation in its administrative complaint, see id. at 7, 26-28, the D.C. Circuit held that Common Causes reporting allegation was nominal and insufficient to support standing. Common Cause, 108 F.3d at 418. There is absolutely no reason to reach a different result here. Indeed, CREWs reporting claim (Complaint, Ex. B at 15), which is (i) limited to a single sentence following the full explication

14

of its unlawful contribution claims and (ii) accompanied by only one earlier paragraph (id. at 12) at the tail end of its factual allegations section, is even more nominal than the reporting claim found insufficient in Common Cause. Although CREW raises a question (Brief at 19 n.6) about whether the D.C. Circuit might have decided Common Cause differently if that case had come before the court after the Supreme Courts decision in Akins, the D.C. Circuit has never backed away from Common Cause, and has cited Common Cause with approval in several post-Akins decisions, including Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001), and Judicial Watch I. In fact, the D.C. Circuit in Akins reached the same result on standing as the Supreme Court, and only later (after the panel and en banc opinions were released) decided Common Cause.13 CREW vastly overreads the Supreme Courts holding in Akins. According to CREW (Brief at 16), the central holding of Akins is that denial of information which must be disclosed under a statute is in and of itself, enough to establish standing, regardless of whether the plaintiff can show any actual need for the information in question. If that were true, the Supreme Court would not have needed to address the Akins plaintiffs claim that the information would help them. Akins, 524 U.S. at 21. The Court not only addressed this claim, but held that because there was no reason to doubt it, consequently the Akins plaintiffs had suffered a concrete and particularized injury. Id. This reasoning, which formed the basis for the Supreme Courts holding in Akins, is binding. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996) (When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound). Moreover, this This Court is bound to follow D.C. Circuit precedent until it is overruled either by an en banc court or the Supreme Court. Maxwell v. Snow, __ F.3d __, 2005 WL 1249487, * 4 (D.C. Cir. May 27, 2005). Common Cause was not overruled by Akins, and the D.C. Circuit has continued to treat it as valid precedent, as shown by Judicial Watch I and Wertheimer.
13

15

reasoning is entirely consistent with Common Cause and subsequent cases holding that, to establish Article III standing, a plaintiff must show that the information it is being denied is both useful in voting and required by Congress to be disclosed. Common Cause, 108 F.3d at 418 (emphasis added); Judicial Watch II, 293 F. Supp.2d at 47 n.10 (emphasis added).14 In short, there is nothing inconsistent about the results or the rationales in Akins and Common Cause; differences in facts simply warranted different outcomes. Because this case is akin to Common Cause rather than Akins in every material respect, the result reached in Common Cause should apply. First, CREW is a non-voting, non-partisan good government organization very similar to Common Cause.15 By contrast, the plaintiffs in Akins were a group of voters. 524 U.S. at 15. Second, both CREW and Common Cause primarily alleged excessive contribution claims in their administrative complaints, and only nominally asserted reporting violations under the FECA relating to these discrete contributions. See supra pp. 13-15. The essence of the Akins plaintiffs claim was very different: they asserted that the American Israel Public Affairs Committee (AIPAC) had failed to register and report as a political committee, Akins, 524 U.S. at 16, and that as a result, they had been completely denied access to any information about AIPACs receipt and disbursement of funds, and thus had no Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), a race discrimination case decided under section 804(d) of the Housing Act, does not undermine this controlling FECA authority. In that case, the plaintiff organization had standing to sue because its efforts to assist minorities in gaining equal access to housing ha[d] been frustrated by the defendants discriminatory practice of steering away black renters, not strictly because of a denial of information. Rainbow/PUSH Coalition v. FCC, 396 F.3d 1235, 1240-41 (D.C. Cir. 2005) (citing Havens Realty, 455 U.S. at 379). Because CREW has not shown that its programmatic activities are being frustrated, Havens Realty is not on point. See Rainbow/PUSH Coalition, 396 F.3d at 1241 (distinguishing Havens on this basis).
14

15

The stated purposes of these two groups are strikingly similar. Common Cause promotes open, honest, and effective government and political representation. FEC Ex. N at 2, 2. CREW is committed to ensuring the integrity of government officials and dedicated to empowering citizens to have an influential voice in government decisions and in the governmental decision making process. Complaint 6. 16

way to determine whether a particular candidate was even supported by AIPAC. Alliance II, slip op. at 16 (citing Akins, 524 U.S. at 20). Third, neither CREW nor Common Cause specifically requested the Commission to release or obtain the release of information. Common Cause, 108 F.3d at 418; id. at 419 (Sentelle, J., concurring). On the other hand, the Akins plaintiffs explicitly asked the FEC to order AIPAC to make public the information that FECA demands of a political committee. Akins, 524 U.S. at 16. Thus, CREW is incorrect that Akins is on all fours with the instant case. CREW Brief at 14. On the facts of this case, Common Cause controls. III. CREW DOES NOT HAVE PRUDENTIAL STANDING UNDER THE FECA Finally, CREW acknowledges (Brief at 28) that prudential standing requirements apply, but it does not squarely address how it falls within the zone of interests of the FECA. See Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 704 (D.C. Cir. 1994) (Parties regulated by a statute or those whom it protects fall within its zone of interest). CREW does not participate in political campaigns and does not assert that it is regulated by the FECA. Nor does it assert that the FECA is intended to protect nonpolitical organizations, as opposed to voters or political committees. It is undisputed that, [a]t most, CREW has a general interest in good government. FECs Opening Brief at 27. The fact that Congress inten[ded] to cast the standing net broadly when enacting the FECA, CREW Brief at 28 (citing Akins, 524 U.S. at 19), does not mean that standing is limitless. In this case, CREW pushes the envelope too far. As a non-profit 501(c)(3) corporation, CREW concedes that it does not vote, is not affiliated with any candidate, political party, or political committee, and does not participate in or contribute to political campaigns in any way. See Plaintiffs Response to Defendant FECs Statement of Material Facts at 3.

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Indeed, CREW is not even seeking to vindicate its own informational rights, but rather the right of citizens to be informed about the activities of government officials. Complaint 6 (emphasis added). This reliance on the rights of others contravenes the Supreme Courts first prudential principle that the plaintiff generally must assert [its] own legal rights and interests, and cannot rest [its] claim to relief on the legal interests or rights of third parties. Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 808 (D.C. Cir. 1987) (quoting Valley Forge Christian College v. Americans United for the Separation of Church & State, Inc., 454 U.S. 464, 474 (1982); Warth, 422 U.S. at 499). Moreover, CREWs reliance on the right of citizens to be informed is also inconsistent with CREWs own admission that it does not rest its claim of injury from the denial of information on harm to the public interest in general. CREW Brief at 18. The judicial process is not a vehicle for the vindication of the value interests of concerned bystanders. Valley Forge Christian College, 454 U.S. at 473. The fact that CREW may have a special interest in the subject of government or ethics is not enough. Lujan, 504 U.S. at 563. At most, that is what CREW has demonstrated here. CONCLUSION For the foregoing reasons, the Federal Election Commission requests the Court to grant its summary judgment motion, and dismiss CREWs Complaint for lack of standing.

Respectfully submitted, /s/ Lawrence H. Norton General Counsel /s/ Richard B. Bader Associate General Counsel (D.C. Bar # 911073)

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/s/ David Kolker Assistant General Counsel (D.C. Bar #394558) /s/ Kai Richter Attorney FOR THE DEFENDANT FEDERAL ELECTION COMMISSION 999 E Street, N.W. Washington, D.C. 20463 (202) 694-1650 (202) 219-0260 (FAX) June 3, 2005

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