CCP brief: The regulation Swallow is alleged to have violated is unconstitutional
Alexandria, VA – Attorneys at the Center for Competitive Politics (CCP) and a former Federal Election Commission (FEC) chairman late yesterday asked a federal judge to dismiss the FEC’s case against John Swallow. The filing said Swallow broke no law and that the regulation cited in the complaint is illegal and violates the First Amendment.
Under federal law, it is unlawful for a person to donate funds to a federal candidate via another person – a so-called “straw donor.” The FEC does not allege that Utah resident John Swallow did this. Rather, the FEC claims that Mr. Swallow provided advice that helped another person violate the federal prohibition on contributions in the name of another. Mr. Swallow denies all of these allegations. But, perhaps worse, Congress never created secondary liability – the practice of holding one party legally responsible for helping another – for this type of campaign finance violation. Not only is the FEC pursuing Mr. Swallow for something he did not do, it is pursuing him for violating a law that does not exist.
CCP is representing Mr. Swallow in his fight against the FEC. In this effort, CCP’s attorneys are joined by former FEC Chairman Scott E. Thomas, a former Democratic appointee to the Commission.
“The FEC’s pursuit of Mr. Swallow is a clear overreach of the agency’s constitutional authority, made especially dangerous by the fact that it concerns his speech rather than his actions,” said CCP Legal Director Allen Dickerson. “Only Congress may create liability, and it spoke clearly: the only people liable for a prohibited contribution in the name of another are the person making the contribution and his or her knowing conduits.”
The FEC is pursuing its civil complaint based on an unconstitutional regulation purporting to create secondary liability in such cases. But the FEC never provided notice to the public of its intent to enact such a regulatory scheme before it did so. And in any event, the FEC does not have the authority to impose such a rule in the first place because the unambiguous statute did not create secondary liability.
“Put simply, [the regulation] fails review under the Administrative Procedure Act and fails constitutional scrutiny. The Supreme Court has unambiguously held that administrative agencies may not simply read secondary civil liability into a statute, and that the power to create secondary civil liability lies with Congress alone,” reads CCP’s brief.
Courts have long restricted administrative agencies from acting outside of the laws they are charged with enforcing. If Congress wants to create secondary liability for contributions in the name of another, it can do so. The FEC cannot.
CCP is asking the court to dismiss the complaint against Mr. Swallow.
The Center for Competitive Politics is America’s largest nonprofit working solely to promote and defend First Amendment rights to free political speech, press, assembly, and petition. The case, Federal Election Commission v. Jeremy Johnson and John Swallow, is currently before the United States District Court for the District of Utah, Central Division.