Gottlieb v. Federal Election Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 3, 1998 Decided May 22, 1998

No. 97-5125

Alan Gottlieb, et al.,

Appellants

v.

Federal Election Commission,

Appellee

Appeal from the United States District Court

for the District of Columbia

(95cv01923)

Harold Richard Mayberry, Jr. argued the cause and filed

the briefs for appellants.

David Kolker, Attorney, Federal Election Commission, ar-

gued the cause for appellee. With him on the brief were

Lawrence M. Noble, General Counsel, and Richard B. Bader,

Associate General Counsel.

Before: Silberman, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This is an appeal from the

judgment of the district court dismissing for lack of standing

a suit brought by four individuals and three organizations.

See Gottlieb v. FEC, No. 95-1923 (D.D.C. May 8, 1997). The

suit alleged that the Federal Election Commission's dismissal

of an administrative complaint filed by these appellants was

"contrary to law," 2 U.S.C. s 437g(a)(8)(C).

The individual appellants are Alan Gottlieb, Michael A.

Siegel, Todd Herman, and Joseph P. Tartaro, all registered

voters who supported candidates opposing William J. Clinton

in the 1992 presidential election. The organizational appel-

lants are the Center for the Defense of Free Enterprise and

the Second Amendment Foundation, both tax-exempt organi-

zations who promote free enterprise or the right to bear

arms, and the American Political Action Committee ("Ameri-

PAC"), a multicandidate political action committee which

spent about $6,600 opposing the election of President Clinton

in the 1992 general election.

The administrative complaint, filed on March 9, 1995,

charged that President Clinton's 1992 primary campaign com-

mittee violated the Presidential Primary Matching Payment

Account Act and Commission regulations. The alleged viola-

tion dealt with the transfer of contributions earmarked for

the primary campaign into the General Election Legal and

Accounting Compliance Fund. The Commission dismissed

the complaint on August 16, 1995, after three of the six

Commission members found no violation.

The Presidential Primary Matching Payment Account Act,

26 U.S.C. ss 9031-9042, provides federal funds "matching"

individual private campaign donations of $250 or less, up to an

overall ceiling. Id. s 9034. The Act subsidizes only the

primary campaign, not the costs of campaigning in the gener-

al election. Although candidates technically are "ineligible"

to receive matching funds after the primary election, id.

s 9033(c)(1)(A) & s 9032(2), they may continue to receive

such funds to offset "net outstanding campaign obligations"

accrued during the primary. 11 C.F.R. s 9034.1(b). "Net

outstanding campaign obligations" are essentially "the

amount of [the] campaign's qualified obligations as of the date

of ineligibility less the value of its assets on that date."

LaRouche v. FEC, 28 F.3d 137, 139 (D.C. Cir. 1994) (empha-

sis added). The Commission's implementing regulations per-

mit a candidate to receive matching funds only if "the sum of

the contributions received on or after the date of ineligibility

plus matching funds received on or after the date of ineligibil-

ity is less than the candidate's net outstanding campaign

obligations." 11 C.F.R. s 9034.1(b). Each private contribu-

tion diminishes the total amount of primary campaign debt,

and consequently the total amount of matching funds a

candidate is permitted to receive. To enforce this require-

ment, the Commission requires the candidate to submit a

statement of net outstanding campaign obligations within

fifteen days after his nomination; with each new request for

matching funds after the nomination the candidate must

submit a revised statement of such obligations. 11 C.F.R.

s 9034.5(a) & (f)(1).

Appellants contend that after President Clinton received

the Democratic Party's nomination, his campaign transferred

$1.4 million in private contributions to the Clinton-Gore '92

General Election Legal and Accounting Compliance Fund

("Compliance Fund"), instead of using that money to offset its

outstanding primary campaign debts. According to appel-

lants, this violated 11 C.F.R. s 9003.3(a)(1) (1994),1 which

permits only transfers of funds "in excess of any amount

needed to pay remaining primary expenses...." Appellants

further charged that in reporting later private contributions

to the Commission, the Clinton campaign did not record the

contributions it had transferred to the Compliance Fund. As a

result, the primary campaign received $1.4 million more in

matching funds than it was entitled.

Under the Federal Election Campaign Act of 1971, as

amended, 2 U.S.C. ss 431-455, "[a]ny person" who believes

__________

1 This regulation has since been amended. We cite to the

regulation in place at the time of the alleged violation.

that the Act has been violated may file a complaint with the

Commission. Id. s 437g(a)(1). Complaints are investigated

only if four of the six Commissioners vote that there is

"reason to believe" a violation has occurred. Id. s 437g(a)(2).

After conducting an investigation, the Commission votes

again on whether there is "probable cause" to believe the law

has been violated. Id. s 437g(a)(4)(A)(i). Here, the Commis-

sion agreed to investigate, but ultimately dismissed the com-

plaint after three of the six Commissioners found no violation.

Appellants' suit in the district court, filed under 2 U.S.C.

s 437g(a)(8)(A), sought an order declaring the Commission's

dismissal of the administrative complaint contrary to law and

an order directing the Commission to conform its conduct to

the declaration within 30 days. The only question before us

is whether the district court properly dismissed the suit for

lack of standing. That is, have appellants suffered an "injury

in fact--an invasion of a legally protected interest which is (a)

concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical"; is their injury "fairly ...

trace[able]" to the challenged action; and is the injury "like-

ly" to be redressed by a favorable decision of the court?

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(internal citations and quotations omitted).

Appellants identify three separate injuries stemming from

the Clinton primary campaign's transfer of contributions into

the Compliance Fund: AmeriPAC suffered "competitive inju-

ry"; the voters not only suffered a diminution in their ability

to influence the political process but also the candidates they

supported were put at a disadvantage.2

As to AmeriPAC's "political competitor" theory, we have

never completely resolved this "thorny issue." Common

Cause v. FEC, 108 F.3d 413, 419 n.1 (D.C. Cir. 1997); Akins

v. FEC, 101 F.3d 731, 737 (D.C. Cir. 1997) (en banc), cert.

granted, 117 S. Ct. 2451 (1997); Fulani v. Brady, 935 F.2d

__________

2 In their complaint, appellants also allege "informational inju-

ry" and injury to their First Amendment interests. Because they

have not made these claims in their appellate briefs, we do not

address them.

1324 (D.C. Cir. 1991). AmeriPAC thinks our opinion in

Fulani--a case in which we concluded the appellant lacked

standing to sue the Internal Revenue Service--supports its

position. We think the opposite. Fulani, a minor party

candidate in the 1988 Presidential election, sought to invali-

date the tax-exempt status of the sponsor of the Presidential

debates, which had excluded her from participating. We

rejected Fulani's contention that she had "competitor stand-

ing" to bring suit: She was not in a position to be granted

tax-exempt status, and thus was not in competition for that

benefit. See Fulani, 935 F.2d 1324; but see Fulani v.

League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.

1989). We speculated that "[a]rguably" Fulani would have

had standing "if the IRS were depriving Fulani of a benefit

that it afforded to others similarly placed...." Fulani, 935

F.2d at 1328.

AmeriPAC's "competitor standing" argument suffers the

same flaw. Like Fulani, the organization challenges a gov-

ernment benefit granted to a third party. AmeriPAC cannot

claim standing as a "competitor" of the Clinton campaign

because it was never in a position to receive matching funds

itself. Only another candidate could make such a claim. Our

conclusion is consistent with the line of cases granting stand-

ing to economic competitors. See Clarke v. Securities Indus.

Ass'n, 479 U.S. 388, 403 (1987); Investment Co. Inst. v.

Camp, 401 U.S. 617, 620 (1971); Arnold Tours, Inc. v. Camp,

400 U.S. 45, 46 (1970); Association of Data Processing Serv.

Orgs. v. Camp, 397 U.S. 150, 151 (1970). Those decisions also

require that the plaintiff "show that he personally competes

in the same arena with the same party to whom the govern-

ment has bestowed the assertedly illegal benefit." In re

United States Catholic Conference, 885 F.2d 1020, 1029 (2d

Cir. 1989). For "[o]nly then does the plaintiff satisfy the rule

that he was personally disadvantaged." Id.

As to the four voters, the supposed injury to their "ability

to influence the political process" rests on gross speculation

and is far too fanciful to merit treatment as an "injury in

fact." See, e.g., Kardules v. City of Columbus, 95 F.3d 1335,

1348-53 (6th Cir. 1996). In a case such as this one, where the

"asserted injury arises from the government's allegedly un-

lawful regulation (or lack of regulation) of someone else,"

standing will often be difficult to establish. Lujan, 504 U.S.

at 562. This is because "one or more of the essential ele-

ments of standing 'depends on the unfettered choices made

by independent actors not before the courts and whose exer-

cise of broad and legitimate discretion the courts cannot

presume either to control or to predict.' " Id. (quoting

ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)). The

individual appellants say their support for rival candidates

was rendered less effective because the Clinton campaign had

greater funds with which to sway voters. That conclusion

rests on a series of hypothetical occurrences, none of which

appellants can demonstrate came to pass.

For instance, appellants suppose that as a result of the

allegedly illegal transfer of contributions into the Compliance

Fund, the Clinton primary campaign received $1.4 million

more in matching payments from the federal government

than it was entitled. But the matching payments at issue--

received after Clinton became the Democratic nominee--went

to retire the primary campaign's outstanding debt. None of

those funds were employed in a manner that would have

diminished the voters' influence over the general election.

Nor did the transfer to the Compliance Fund directly infuse

the Clinton-Gore general election campaign with funds with

which to influence public opinion in Clinton's favor. The

Compliance Fund pays for the legal and accounting services

required for compliance with campaign finance laws. Com-

mission regulations prohibit use of those funds for election-

eering activity, see 11 C.F.R. s 9003.3(a)(2), and appellants do

not contend that this rule was violated.

Appellants also think the transfer into the Compliance

Fund allowed the Clinton campaign to funnel more of its post-

primary contributions directly into campaigning. That is not

necessarily so. Had the transfer never occurred, the Compli-

ance Fund might simply have made do with less, or contribu-

tors might have been willing to give more. Either way, the

total amount of funds available for electioneering then would

have remained the same. Even if the transfer enriched the

Clinton-Gore campaign, appellants have not suggested how

this money was used to influence public opinion. For all we

know, any excess funds could have been used for better hotel

accommodations, more comfortable transportation, or bright-

ening up the decor at campaign headquarters--purposes

which at least arguably did not directly counter or even

diminish appellants' attempts to influence the electorate.

And under any circumstances, it is unclear how their influ-

ence as voters was diminished. The Clinton campaign may

have received extra funds, but this did not prevent the voters

from engaging in any of the numerous activities open to all

politically active citizens. They were free to raise funds to

support their own candidates, volunteer their time to work on

those campaigns, and vote for the candidate of their choice.

The individual voters attempt to tie their supposed injury

to that suffered by candidates opposing Clinton in the 1992

campaign. They believe that a competing candidate "clearly"

would have standing under these circumstances. Therefore,

voters have standing to seek relief against "unfair treatment"

burdening these candidates. They cite decisions recognizing

that, in some circumstances, the interests of candidates and

voters are so intertwined that an injury to the candidate

causes correlative harm to voters. E.g., Anderson v. Cele-

brezze, 460 U.S. 780 (1983); Bullock v. Carter, 405 U.S. 134,

143 (1972); Duke v. Cleland, 5 F.3d 1399, 1403 n.2 (11th Cir.

1993); Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir. 1989),

overruled on other grounds by Lightfoot v. Eu, 964 F.2d 865

(9th Cir. 1992); Thorsted v. Gregoire, 841 F. Supp. 1068, 1073

(W.D. Wash. 1994), aff'd on other grounds sub nom. Thor-

sted v. Munro, 75 F.3d 454 (9th Cir. 1996); Williams v.

Adams County Bd. of Election Comm'rs, 608 F. Supp. 599,

600 (S.D. Miss. 1985).

Appellants' argument goes nowhere. The cases recogniz-

ing a link between harm to candidates and a derivative harm

to voters also require that the voters have themselves suf-

fered a concrete and personalized injury. Such injury arises

when the candidate is prevented from appearing on a ballot

altogether, as when the state charges a prohibitively high

filing fee to run in a primary election (as in Bullock), or when

the filing deadline is set unrealistically early (as in Anderson).

Ballot eligibility requirements and term limits also prevent

candidates from appearing on the ballot, directly impinging

on the voters' ability to support that candidate. See Thor-

sted, 841 F. Supp. at 1073. We do not necessarily have to

agree with all of these decisions. It is enough to point out

here that the analogy appellants wish to draw fails. The

extra infusion of funds into the Clinton campaign did not

impede the voters from supporting the candidate of their

choice. See Buckley v. Valeo, 424 U.S. 1, 94 (1976) ("denial of

public financing to some Presidential candidates is not restric-

tive of voters' rights").

Appellants also invoke our decision in International Associ-

ation of Machinists & Aerospace Workers v. FEC, 678 F.2d

1092 (D.C. Cir.) (en banc), aff'd mem., 459 U.S. 983 (1982).

We do not understand why. The case did not concern the

diminution of individual voters' influence on an election. We

made this plain: The plaintiffs brought suit "as Union mem-

bers, as corporate shareholders, and on behalf of corporate

employees, not as voters." 678 F.2d at 1098 (emphasis add-

ed). They challenged laws permitting corporate PACs to

solicit funds from executive and administrative employees.

We held that the union's influence had been diminished

"relative" to the corporate PACs, creating the type of compet-

itive injury described earlier in this opinion. Id. Nowhere

does our en banc opinion mention the sort of injury the

individual voters allege here.

Although at the complaint stage of the proceedings appel-

lants needed only to make "general factual allegations of

injury," Lujan, 504 U.S. at 561, they have not managed to

meet even this low threshold. The speculative, amorphous

claims of injury they have put forward do not satisfy Article

III's "case" or "controversy" requirement.

Affirmed.