John Doe 1, et al. v. Federal Election Commission

In recognition of the highly sensitive First Amendment realm in which it operates, the Federal Election Campaign Act (FECA) imposes strict limits on the disclosure of administrative enforcement proceedings conducted by the Federal Election Commission (FEC). The FEC is expressly prohibited from disclosing “[a]ny ... investigation” it conducts, or any information obtained in the course of attempting to negotiate a resolution to an investigation without the permission of the target, subject to the narrow exceptions for any “conciliation agreement” with a “respondent” and any “determination that a person has not violated” a federal election law. 52 U.S.C. §30109(a)(12), (a)(4)(B)(i)-(ii). Petitioners are a trust and trustee whose confidential election-related actions the FEC staff briefly investigated in the course of an investigation into four other entities. The FEC neither reached a conciliation agreement with petitioners nor reached a definitive no-violation determination with respect to them. Instead, three of the five voting commissioners voted not to pursue the investigation further given the novelty of the liability theory. Nonetheless, the Commission now seeks to disclose petitioners’ identities and link them to highly inflammatory accusations by the two commissioners who were outvoted, even though those accusations were never pursued, let alone found warranted. The question presented is: Whether, notwithstanding FECA’s express bar on prohibiting the disclosure of any investigation, and its careful constraints on the FEC’s disclosure powers,