WASHINGTON (Legal Newsline) – A federal court document revealed that the U.S. Justice Department could intervene in a “citizen suit” launched by the watchdog foundation Citizens for Responsibility and Ethics in Washington (CREW) against the American Action Network (AAN).
“If the defendant [AAN] renews the constitutional challenge described in paragraph 1, the United States will again consider whether its intervention in this suit is necessary and appropriate,” Acting Assistant Attorney General Jeffrey Clark said in a Sept. 11 DOJ letter filed with the U.S. District Court for the District of Columbia.
Paragraph 1 is where a defendant (AAN) files a notice of constitutional challenge, questioning a citizen-lawsuit (filed by CREW), and serves the question on the U.S. attorney general for a determination.
"We are encouraged by the Department of Justice's interest in this matter and look forward to its potential intervention during the summary judgment phase," Ian Prior, Spokesperson for American Action Network, said. "As demonstrated by the response to our 2018 Freedom of Information Act request, the statute in question provides a public relations incentive for one FEC Commissioner to abstain from voting in order to divert the matter from the executive branch to private activist groups for enforcement in the court. Simply put, that is an unacceptable and dangerous deviation from the constitutional separation of powers and we are hopeful that the United States of will join us in that argument
Officials of CREW filed a complaint in 2012 contending that AAN is a conservative organization spending millions on advertising designed to elect conservative political candidates and, therefore, is a political action committee and under law should be required to reveal its donors.
The AAN is accused of shielding “dark money.”
Critics of CREW contend it is a liberal left-leaning organization composed of foundations and labor unions and not the bipartisan watchdog promoting accountability in government and elections it says it is.
AAN Spokeswoman Courtney Alexander said the nonprofit would fight CREW's challenge and called it the latest is a series of frivolous lawsuits seeking to force disclosure of the group's donors.
The case raises the question if the executive branch of the federal government should give way to the courts to decide if a conservative group is required to reveal its donors?
According to a Legal Newsline report, the AAN has spent almost $50 million on campaigns from 2010-16 through television advertisements, but AAN members maintain that was for a discussion of issues. CREW alleges it was used to promote Republican candidates for office or to attack their opponents.
Currently the AAN has been donating to the Congressional Leadership Fund (CLF), described as a “super political action committee” and controlled by conservatives in the U.S. House of Representatives.
The group spent $25 million during 2018, and $20 million so far this year, the report said.
The AAN and the CLF reportedly share office space and staffers.
CREW activists maintain the AAN is violating the Federal Election Campaign Act (FECA) of 1971, which requires donors to be identified. The Federal Election Commission (FEC), a federal regulatory agency that is supposed to enforce campaign finance laws, has declined to mandate this, previously deadlocking twice on votes.
A report in Bloomberg said the FECA allows a court challenge if the FEC splits along party lines evenly and dismisses an enforcement complaint. The commission twice tossed out CREW’s complaint against the AAN, the report said.
On Sept. 30, 2019, U.S. Judge Christopher Cooper said the CREW lawsuit could proceed. It was the first ruling on a motion to dismiss a citizen suit brought under the FECA.
With the resignation of one of the four voting members of the Federal Elections Commission in July, the body lacks a quorum necessary to decide the matter. Also in July, the AAN asked the Trump Justice Department to fend off the CREW lawsuit.
Jesse Panuccio, a New York attorney and former acting assistant attorney general at DOJ, told Legal Newsline in August that the matter remains to be decided. He predicted it will move higher up the court ladder before it’s decided.
“The district court in this case has sided with the plaintiffs on several occasions, but the important issues in this case will likely ultimately be decided by the D.C. Circuit or the Supreme Court,” he said. “I have no information about timing.”
Ian Prior, a spokesman for the AAN, told the Washington Times in July, as quoted in Legal Newsline, that allowing the CREW suit to continue could set a dangerous precedent.
“If CREW were to prevail, it would dramatically alter the separation of powers between the executive branch and the courts,” Prior said. “Attorney General Bill Barr has long been an advocate of a strong and independent executive branch, and it is important that the Department of Justice join this suit to prevent a political organization from hijacking an executive branch prosecution and using the courts to weaken our American system of checks and balances.”