FEC Seeks Dismissal of Lawsuit by Dark Money Trump Supporters

WASHINGTON — The Federal Election Commission asked a federal judge on Wednesday to dismiss a lawsuit filed by a nonprofit loyal to former President Donald Trump that accused the agency of violating the Administrative Procedures Act.

The 45Committee Inc., sued the FEC in June accusing the agency’s commissioners of concealing the fact they had dealt with an administrative complaint against the nonprofit.

The commissioners allegedly did this, the 45Committee says, to “manipulate the courts into enforcing [the Federal Election Commission Act] against respondents when in fact the agency has already voted on the merits of the administrative complaint and terminated the matter because fewer than four commissioners voted in favor of taking enforcement action.”

According to the Citizens for Responsibility and Ethics in Washington, a nonpartisan ethics watchdog organization, the 45Committee spent more than $21 million boosting then presidential candidate Trump during the final month of the 2016 election.

CREW claims the 45Committee was financed by more than $46 million raised from a small group of mega-donors, including 11 who wrote checks of $1 million or more.

It further goes on to claim the bulk of the 45Committee’s funding came from four separate $7.5 million contributions, totaling $30 million and accounting for 65% of the group’s revenue. 

As a 501(c)(4) of the tax code, 45Committee is not required to disclose its donors. However, The New York Times has reported that the group was “heavily funded” by casino owner Sheldon Adelson.

 In August 2018, the Campaign Legal Center filed an administrative complaint with the FEC claiming the 45Committee violated federal campaign finance law by failing to register as a political committee and disclose its donors.

In April of this year, the Campaign Legal Center sued the FEC saying the agency failed to act on its complaint. But the 45Committee claims that isn’t true, the Democrats on the commission are withholding records that would prove that, and as a result are exposing the committee to civil litigation.

“Under FECA, at least four commissioners must vote to find reason to believe that a violation of law occurred based on the complaint in order to proceed with enforcement and an investigation of the complaint’s allegations,” 45Committee said in a complaint filed in the U.S. District Court for the District of Columbia.

“Because the Commission was split in its vote on the merits of the administrative complaint, and did not garner four votes in support of enforcement, the matter was terminated,” it continued. “Pursuant to the APA, FECA, FEC regulations, and D.C. Circuit precedent, the commission’s general counsel was required to notify the parties of the termination of the proceedings and to publicly release the voting records and any statement of reasons by the commissioners.

“Instead of following the law, the commissioners who voted in favor of taking enforcement action against 45Committee — Vice Chair Steven T. Walther and Commissioners Shana M. Broussard and Ellen L. Weintraub — departed from longstanding policy and practice by voting against administratively closing the file in the matter involving 45Committee.

“So even though the matter against 45Committee was terminated because the commission lacked the votes to proceed to an investigation of the administrative complaint, the commission has not notified 45Committee of its action on the complaint or publicly disclosed the voting records or any statement of reasons, as required by law,” the complaint said.

The 45Committee claims Commissioners Walther, Broussard, and Weintraub are deliberately trying to leave the public and courts with the false impression that it has not taken action on CLC’s administrative complaint against 45Committee, thus deliberately subjecting the commission and 45Committee “to direct civil lawsuits on false pretenses.”

In its 52-page request for dismissal of 45Committee’s lawsuit, the FEC asserts that the committee’s claims are “precluded” because the judicial review provision of the Federal

Election Campaign Act … “is the exclusive means of challenging the FEC’s handling of administrative enforcement matters. 

“Courts have repeatedly dismissed comparable APA claims because only FECA review is available,” the filing says.

The FEC goes on to say 45Committee has failed to state a plausible claim for relief.

“The agency’s [ability to] conduct plaintiff challenges, namely decisions as to when to terminate enforcement proceedings, is committed to agency discretion and is therefore not reviewable under the APA,” the filing says. 

“Plaintiff’s allegations about how such matters end are belied by the text of FECA, the agency’s longstanding practices, and the deference courts give agencies in the conduct of their law enforcement proceedings,” the filing continues. “In addition, plaintiff’s claims as to the alleged ‘concealment policy’ fail because plaintiff does not challenge a final, discrete agency action, as required for APA review, and instead offers the type of generalized complaint about agency behavior that courts routinely dismiss. 

“By failing to point to more than a small handful of vaguely defined FEC enforcement matters, plaintiff falls far short of reaching the required threshold that it challenges a specific agency action.

“Indeed, plaintiff falls so short in its effort to show that it has a right to the information it seeks prior to closure of the administrative file — even in the enforcement proceeding in which it
is involved, let alone those involving only third parties — that plaintiff lacks standing to pursue its claims,” it concludes.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.