The nonpartisan, nonprofit organizations Free Speech For People (FSFP) and Campaign for Accountability (CfA) have filed their opposition to the Federal Election Commission’s (FEC) motion to dismiss their case challenging the FEC’s failure to investigate a five-year-old complaint regarding the Russian government’s unlawful foreign political spending in the 2016 election, at times in coordination with former President Trump’s campaign.

In December 2016, Free Speech For People and Campaign for Accountability filed an administrative complaint with the FEC against the Russian Federation and the Trump campaign. The complaint alleged that the Russian government paid for computer hacks, social media posts, and paid political advertisements to influence the 2016 election, and that the Trump campaign engaged in “coordination” with the Russian government.

The FEC’s nonpartisan professional career staff in its Office of General Counsel determined that there was “reason to believe” that the Russian government and the Trump campaign violated the Federal Election Campaign Act (FECA)  and failed to disclose unlawful foreign expenditures and contributions. 

Against the recommendation of the Office of General Counsel, however, the FEC deadlocked on whether to find “reason to believe” that the Trump campaign and Russian government had violated FECA. The FEC also took a separate vote on whether to exercise prosecutorial discretion to dismiss the case against the Trump Campaign–in other words, to determine that there are non-legal practical considerations for declining to proceed with an investigation. This vote failed; the FEC decided not to exercise prosecutorial discretion.

FSFP and CfA then filed a federal lawsuit against the FEC, seeking declaratory and injunctive relief for the Commission’s failure to proceed with investigations against the Trump campaign and the Russian Federation. The FEC now argues that, despite its failed prosecutorial discretion failed vote, it can still claim prosecutorial discretion to deprive the court of the ability to review the FEC’s failure to investigate these serious allegations against the Trump campaign.

In their opposition, FSFP and CfA argue that the Commission already decided not to exercise prosecutorial discretion to dismiss the Trump campaign and cannot now use that same argument to evade judicial oversight. FSFP and CfA also argued that courts have judicial oversight over FEC decisions even where the FEC does exercise prosecutorial discretion.

“It is undisputed that the Russian Federation spent millions of dollars to interfere with the 2016 U.S. elections, and the FEC’s own General Counsel found that the Russian government coordinated with the Trump campaign, but the FEC’s refusal to investigate means that we lack important information about this illegal spending: who paid, how much, to whom, and when,” said Courtney Hostetler, Senior Counsel at Free Speech For People. “Combating unlawful foreign interference in our elections should be a top priority for the FEC and we should be able to turn to the courts when the FEC fails to live up to its obligations under the law.”

If the court denies the FEC’s motion to dismiss, plaintiffs will be able to continue to challenge the FEC’s dismissal of the complaint as being “contrary to law” under the Federal Election Campaign Act.

Members of the General Counsel’s career staff recommended finding “reason to believe” that the Trump campaign violated the Federal Election Campaign Act (“the Act”) by coordinating with the Russian government, and soliciting and receiving illegal in-kind donations from the Russian government. The staff also recommended finding reason to believe that the Russian government itself violated the Act, by engaging in an illegal influence campaign in the 2016 election, failing to disclose the money spent on that campaign, and making prohibited in-kind contributions to the Trump campaign, including expending resources to hack Clinton-related servers at Trump’s request.

Read the full memorandum here.

Read more about the case here.