Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 1 of 9
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BUSH-CHENEY ‘04, et al.,
Plaintiff,
No. 1:04-CV-01612 (EGS)
v.
Answer
FEDERAL ELECTION COMMISSION,
Defendant.
DEFENDANT FEDERAL ELECTION COMMMISSION’S
ANSWER AND AFFIRMATIVE DEFENSES
Defendant Federal Election Commission (“FEC” or the “Commission”), through its
undersigned counsel, responds as follows to the numbered paragraphs of plaintiff’s complaint in
this litigation. The Commission responses do not reflect any review of information that might be
contained in a pending investigative file, since 2 U.S.C. 437g(a)(12)(A) prohibits the
Commission making public “[a]ny notification or investigation . . . without the written consent of
the person receiving such notification or the person with respect to whom such investigation is
made.” The Commission DENIES everything not specifically given a response:
1.
Paragraph 1 contains plaintiff’s characterizations of the matters complained of,
and plaintiff’s conclusions of law. The statutory provisions cited in paragraph 1 speak for
themselves. Therefore, no response is required.
2.
ADMIT that President George W. Bush signed into law the Bipartisan Campaign
Reform Act of 2002 (“BCRA”) on March 27, 2002. The remainder of paragraph 2 contains
plaintiff’s characterizations of matters complained of, and plaintiff’s conclusions of law. The
1
Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 2 of 9
provisions of BCRA and the Supreme Court’s decision in McConnell v. FEC, 124 S.Ct. 619
(2003), speak for themselves. Therefore, no further response is required.
3.
Paragraph 3 contains plaintiff’s characterizations of the matters complained of
and plaintiff’s conclusions of law. The Supreme Court's decisions in Buckley v. Valeo,
424 U.S. 1 (1976), and McConnell v. FEC, 124 S.Ct. 619 (2003), and the unidentified lower
court decisions referred to speak for themselves. Therefore, no response is required.
4.
The Commission is without knowledge or information sufficient to admit or deny
the allegations in paragraph 4.
5.
The Commission is without knowledge or information sufficient to admit or deny
the allegations in paragraph 5.
6.
ADMIT the allegations in the first sentence of paragraph 6, except for the legal
conclusion in that sentence which requires no response. The statement of Senator McCain and
FEC Advisory Opinion 2003-37 cited in the second and third sentences of paragraph 6 speak for
themselves. Therefore, no further response is required.
7.
Paragraph 7 contains plaintiff’s characterization of matters complained of and
plaintiff’s conclusions of law. DENY that the Commission has “improperly and inadequately”
implemented the law.
8.
Paragraph 8 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The newspaper article cited in the second sentence of paragraph 8
speaks for itself. Therefore, no further response is required.
9.
DENY.
10.
Paragraph 10 contains plaintiff’s conclusions of law. The decisions in
MCI Telecommunications. Corp. v. FCC, 627 F.2d 322 (D.C. Cir. 1980), and PEPCO v. ICC,
2
Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 3 of 9
702 F.2d 1026 (D.C. Cir. 1983), speak for themselves. Therefore, no further response is
required.
11.
Paragraph 11 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The district court’s decision in Rose v. FEC, 608 F.Supp. 1
(D.D.C. 1984), which was effectively overruled in FEC v. Rose, 806 F.2d. 1081, 1090-1091
and n. 17 (D.C. Cir. 1986), speaks for itself. Therefore, no further response is required.
12.
Paragraph 12 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The district court’s decision in Common Cause v. FEC,
692 F.Supp. 1397 (D.D.C. 1988), speaks for itself. Therefore, no further response is required.
13.
DENY.
14.
The first sentence of paragraph 14 contains plaintiff’s characterization of matters
complained of. The second sentence contains plaintiff’s conclusions of law, and the statutes
referred to in this paragraph speak for themselves; therefore, no further response is required.
15.
ADMIT.
16.
ADMIT that plaintiff Bush-Cheney ’04, Inc. registered with the Commission as a
political committee, and as the principal campaign committee for George W. Bush and
Richard B. Cheney for the November 2004 election for President and Vice-President of the
United States. The Commission is without knowledge or information sufficient to admit or deny
the remaining allegations in paragraph 16.
17.
The Commission is without knowledge or information sufficient to admit or deny
the allegations in paragraph 17.
18.
Paragraph 18 contains plaintiff’s conclusions of law; therefore, no response is
required.
3
Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 4 of 9
19.
DENY.
20.
ADMIT the first sentence of paragraph 20. The second sentence of paragraph 20
contains plaintiff’s characterization of matters complained of, and plaintiff’s conclusions of law;
therefore, no further response is required.
21.
DENY.
22.
DENY.
23.
DENY. Plaintiff is not an “office-holder” and has no “public responsibilities.”
24.
ADMIT that that defendant Federal Election Commission is an agency of the
United States government with its headquarters in Washington, D.C. The remainder of
paragraph 24 contains plaintiff’s conclusions of law; therefore, no further response is required.
25.
Paragraph 25 contains plaintiff’s conclusions of law, as to which no response is
required. The statutory provision cited by plaintiffs, 2 U.S.C. 437d(a)(8), speaks for itself.
26.
Paragraph 26 contains plaintiff’s conclusions of law, as to which no response is
required. The statutory provisions cited by plaintiff, 2 U.S.C. 433-434, speak for themselves.
27.
Paragraph 27 contains plaintiff’s conclusions of law, as to which no response is
required. The statutory provisions and Commission regulation cited by plaintiff speak for
themselves.
28.
Paragraph 28 contains plaintiff’s conclusions of law, as to which no response is
required. The Supreme Court’s decision in Buckley and the regulatory provisions cited by
plaintiffs in paragraph 28 speak for themselves; therefore, no further response is required.
29.
Paragraph 29 contains plaintiff’s conclusions of law. The Supreme Court’s
decision in McConnell, speaks for itself; therefore, no further response is required.
4
Case 1:04-cv-01612-EGS
30.
Document 7
Filed 11/19/2004
Page 5 of 9
Paragraph 30 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The statutory provision and the court decisions cited in
paragraph 30 speak for themselves. Therefore, no response is required.
31.
Paragraph 31 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The court decisions cited by plaintiff speak for themselves.
Therefore, no response is required.
32.
Paragraph 32 contains plaintiff’s conclusions of law. The decisions of the
Supreme Court and the three-judge district court in McConnell speak for themselves. Therefore,
no response is required.
33.
Paragraph 33 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. Justice Thomas’ dissent in McConnell speaks for itself.
Therefore, no further response is required.
34.
Paragraph 34 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. The Supreme Court’s decision in McConnell, and the statutory
provision cited in paragraph 34, speak for themselves; therefore, no further response is required.
35.
The first sentence of paragraph 35 contains plaintiff’s characterization of matters
complained of, and plaintiff’s conclusions of law, as to which no response is required. DENY
the second sentence of paragraph 35.
36.
Paragraph 36 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law, as to which no response is required. FEC Advisory Opinion
2003-37 speaks for itself; therefore, no further response is required.
5
Case 1:04-cv-01612-EGS
37.
Document 7
Filed 11/19/2004
Page 6 of 9
Paragraph 37 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. FEC Advisory Opinion 2003-37 speaks for itself; therefore,
no further response is required.
38.
Paragraph 38 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. FEC Advisory Opinion 2003-37 speaks for itself; therefore,
no further response is required.
39.
Paragraph 39 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. FEC Advisory Opinion 2003-37 and the regulatory provision
cited in paragraph 39, speak for themselves; therefore, no further response is required.
40.
Paragraph 40 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. FEC Advisory Opinion 2003-37 and the statutory provision cited
in paragraph 40, speak for themselves; therefore, no further response is required.
41.
Paragraph 41 contains plaintiff’s characterization of matters complained of, and
plaintiff’s conclusions of law. FEC Advisory Opinion 2003-37 speaks for itself; therefore,
no further response if required.
42.
ADMIT that on March 10, 2004, Bush-Cheney ’04 filed an administrative
complaint with the Commission. ADMIT that on March 31, 2004, Bush-Cheney ’04 and the
Republican National Committee filed an administrative complaint with the Commission.
The remainder of the first sentence of paragraph 42 describes these administrative complaints,
and no response is necessary because the administrative complaints speak for themselves.
ADMIT that no action by the Commission on those complaints has been made public, but only
because 2 U.S.C. 437g(a)(12)(A) prohibits the Commission from making public “[a]ny
6
Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 7 of 9
notification or investigation . . . without the written consent of the person receiving such
notification or the person with respect to whom such investigation is made.”
43.
Paragraph 43 contains plaintiff’s conclusions of law, as to which no response is
required. DENY that 2 U.S.C. 437g(a)(8) requires the Commission to act upon administrative
complaints within 120 days of filing. ADMIT that plaintiff filed a lawsuit, Bush-Cheney ’04 v.
FEC, No. 1:04-CV-1501 (JR) (D.D.C.) on September 1, 2004, and ADMIT that copies of the
administrative complaints referenced in paragraph 42 were attached to the judicial complaint in
that litigation. ADMIT that the Commission answered the complaint in that litigation on
November 1, 2004. ADMIT that Judge James Robertson denied plaintiff’s motion for
preliminary injunction in that case. The complaint, answer and transcript of the September 15,
2004 motion hearing in that case speak for themselves; therefore, no further response is required.
44.
ADMIT that, on March 11, 2004, the Commission published a Notice of Proposed
Rulemaking. 69 FR 11736 (Mar. 11, 2004). No response to plaintiff’s characterization of that
notice is necessary, because the Federal Register notice speaks for itself.
45.
Paragraph 45 contains plaintiffs' characterization of matters complained of, and
FEC Agenda Document 04-48 speaks for itself; therefore no response is required. Actions taken
at the Commission's May 13, 2004 open meeting are reflected in the publicly available minutes
of that meeting; those minutes also speak for themselves, therefore no response is required.
46.
DENY that the Commission took final agency action with respect to this
rulemaking in August 2004. Actions taken at the Commission's August 19, 2004 open meeting
are reflected in the publicly available minutes of that meeting; those minutes speak for
themselves, therefore no response is required. ADMIT that on October 28, 2004, the
7
Case 1:04-cv-01612-EGS
Document 7
Filed 11/19/2004
Page 8 of 9
Commission approved an Explanation and Justification and revised Final Rules for publication in
the Federal Register and transmittal to Congress.
47.
Paragraph 47 contains plaintiff’s conclusions of law, as to which no response is
required.
48.
DENY.
49.
DENY.
50.
The Notice of Proposed Rulemaking, cited in paragraph 50, speaks for itself;
therefore, no response is required.
51.
DENY.
52.
DENY.
53.
The first sentence of paragraph 53 contains plaintiff’s conclusions of law, as to
which no response is required. The decision in Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996),
speaks for itself. DENY the second sentence of paragraph 53.
54.
Plaintiff’s prayer for relief does not require a response, but insofar as an answer is
deemed necessary, the Commission DENIES that plaintiff is entitled to the requested relief or to
any relief whatsoever.
AFFIRMATIVE DEFENSES
1.
Plaintiff’s complaint, in whole or part, fails to state a claim upon which relief can
be granted.
2.
Plaintiff lacks standing to maintain this suit.
8
Case 1:04-cv-01612-EGS
3.
Document 7
Filed 11/19/2004
Page 9 of 9
Plaintiff’s suit was premature, since this suit was filed before the Commission’s
final agency action.
Respectfully Submitted,
/s/
Lawrence H. Norton
General Counsel
/s/
Richard B. Bader
Associate General Counsel
(D.C. Bar # 911073)
/s/
Colleen T. Sealander
Acting Assistant General Counsel
/s/
Robert W. Bonham III
Senior Attorney
(D.C. Bar # 397859)
November 19, 2004
FOR THE DEFENDANT
FEDERAL ELECTION COMMISSION
999 E Street, N.W.
Washington, D.C. 20463
(202) 694-1650
9