Jan 26, 2005 -- Federal Judge Allows Key 527 Suit to Go Forward
Court Rejects FEC Arguments on Standing

FOR IMMEDIATE RELEASE: January 26, 2005
Press Contact: Mark Glaze, 202-271-0982

A federal judge has refused to dismiss a suit challenging the Federal Election Commission's failure to act on a complaint against a 527 group for its activity against New Jersey Republican state senator Thomas Kean Jr. in his 2000 congressional campaign. Lawyers for the Campaign Legal Center are representing the Kean campaign.

The FEC moved to dismiss the complaint on grounds that the Kean for Congress Committee lacked legal "standing" to sue, arguing that the Committee was now "moribund" and had suffered no injury that could be addressed by the Court. The agency has frequently deployed a legal strategy of claiming that harm to a plaintiff cannot be proved in an election that has already taken place.

"As the FEC comes under increasing scrutiny for its failures to enforce the law, the agency has repeatedly attempted to knock plaintiffs out of court on the grounds they lack standing to sue rather than deal with the merits of their complaint, generally to avoid responsibility for their failures to act," said Gerry Hebert, litigation director at the Campaign Legal Center and lead counsel in the case. "The judge in this case properly rejected their standing arguments and decided to hold them accountable. As a result, the FEC will now be forced to explain why it failed to address a clear violation of campaign finance law in the Kean matter."

The case arises from a complaint filed by the Kean for Congress Committee in 2000 alleging that a "stealth PAC" 527 group called "Council for Responsible Government" (CRG) spent around $200,000 on communications expressly advocating Kean's defeat without properly registering with the FEC as a political committee and making the necessary disclosure of its activities.

More than three years after the complaint was filed, the agency's General Counsel concluded that the group should have registered and reported as a federal political committee because its "major purpose" was to support and oppose federal candidates, and it did engage in "express advocacy" urging Kean's defeat. The General Counsel went further, stating that "there is no indication that [CRG] engaged in any other type of activity."

Following a common pattern on controversial matters, the Commission deadlocked on a 3-3 vote and took no action on the complaint. Three Commissioners refused to join the conclusion of their colleagues and the non-partisan General Counsel, explicitly refusing to follow a section of the Commission's own regulations defining "express advocacy," claiming it was unconstitutional - a position inconsistent with the Supreme Court's decision in McConnell v. FEC .

The current suit seeks to overturn the FEC's failure to act on the 2000 complaint on grounds that the Commissioners' rejection of the General Counsel's recommendation was arbitrary and capricious. The complaint argues that the three Commissioners who refused to take action against CRG misapplied the "express advocacy" standard set forth in controlling Supreme Court precedent, ignored the FEC's own regulation governing express advocacy, took out of context and/or wholly ignored pertinent facts, and failed to address pertinent provisions of the federal election laws.

U.S. District Court Judge Thomas Bates rejected the FEC's motion to dismiss based on lack of standing, holding that the Supreme Court's 1998 decision in FEC v. Akins established that an "informational injury" can serve as the basis for legal standing. Under that theory, the Kean Committee has a legal interest in obtaining information about CRG's activities that it cannot acquire if the FEC does not act on its complaint, said the court.

"This case will require the FEC to explain its failures to treat a 527 as a political committee when that committee has plainly attempted to influence an election," Hebert said. "The case will have serious ramifications for the 527 activity that took place in 2004 and the pending FEC complaints against them." Hebert added: "Forcing the FEC to address the complaints made against 527 activity will also have consequences for the 2006 election cycle and beyond."

To read the judge's decision, click here.

To view the Kean Committee's filings, click here.

To view the FEC's filings, click here.