On June 13, 2019, Cohen Milstein and Free Speech for People, filed a “delay” lawsuit under the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30109(a)(8)(A), against the Federal Election Commission for their failure to act on an administrative complaint filed by Free Speech For People against American Media, Inc., Donald J. Trump for President, Inc., Donald J. Trump, and Michael Cohen, for violating the FECA by unlawfully arranging surreptitious payment of $150,000 to Karen McDougal for the purpose of influencing the 2016 presidential election.

FSFP filed the initial administrative complaint on February 16, 2018, an amendment to the complaint on April 26, 2018, and a second amendment to the complaint on July 26, 2018.

Case Background

The Federal Election Commission (“FECA”) was enacted to limit corruption in federal elections resulting from large individual financial contributions (both actually and the appearance of). FECA limits the dollar amounts and permissible sources of contributions to candidates and requires public disclosure of funds spent or received to influence federal elections. (Corporations are prohibited from making any contributions to federal candidates, and federal candidates are prohibited from accepting a corporate contribution.)

Candidate committees must report all contributions (including the value of in-kind contributions and coordinated expenditures) exceeding $200.

Any person who believes there has been a violation of FECA may file a sworn complaint with the FEC. Based on the complaint, the response from the person or entity alleged to have violated the Act, and facts and recommendations developed by the Office of General Counsel, the FEC decides whether there is “reason to believe” that a violation of FECA has occurred. If the FEC fails to act on an administrative complaint within the 120-day deadline, the complainant aggrieved by the FEC’s inaction may file a petition in the United States District for the District of Columbia.

On February 16, 2018, FSFP filed a sworn administrative complaint with the FEC against respondents American Media, Inc. (“AMI”) and Donald J. Trump for President, Inc. (“Trump Campaign”). FSFP filed the First Amendment and the Second Amendment on April 26, 2018 and July 26, 2018 respectively.

The administrative complaints requested an FEC investigation into the following allegations:

  1. AMI paid Ms. McDougal $150,000 to buy the rights to her life story, including an account of her alleged affair with Mr. Trump, in order to suppress her story for the purpose of influencing the 2016 election.
  2. Mr. Cohen, as an agent for the Trump Campaign, facilitated negotiations between AMI and Ms. McDougal, in order to suppress her story for the purpose of influencing the 2016 election.
  3. Mr. Trump, on behalf of the Trump Campaign, instructed Mr. Cohen to facilitate negotiations between AMI and Ms. McDougal, in order to suppress her story for the purpose of influencing the 2016 election.

Despite FEC acknowledging the receipt of the initial and first and second amended complaints, filed approximately 460 days ago, 390 days ago, and 300 days ago, respectively, the FEC has failed to take final action on FSFP’s administrative complaint to date.

Plaintiff is seeking injunctive relief on the FEC’s inaction.

The case name is: Free Speech For People v. Federal Election Commission, Case No. 1:19-cv-01722, U.S. District Court for the District of Columbia