United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2023 Decided July 9, 2024

No. 22-5336

CAMPAIGN LEGAL CENTER AND CATHERINE HINCKLEY 

KELLEY,

APPELLEES

v.

FEDERAL ELECTION COMMISSION,

APPELLANT

HILLARY FOR AMERICA AND CORRECT THE RECORD,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02336)

Greg J. Mueller, Attorney, Federal Election Commission, 

argued the cause for appellant. With him on the briefs was 

Kevin A. Deeley, Associate General Counsel.

Michael A. Columbo was on the brief for amicus curiae

Lee E. Goodman, Former FEC Chair and Commissioner, in 

support of appellant.
2

Tara Malloy argued the cause for appellees Campaign 

Legal Center and Catherine Hinckley Kelley. With her on the 

brief were Megan P. McAllen and Alexandra Copper.

Before: PILLARD and CHILDS, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: Congress enacted the Federal 

Election Campaign Act to remedy actual and perceived 

corruption in the electoral process. The Act improves electoral 

accountability by publicizing candidates’ financial backers and 

capping amounts they can give. To those ends, it requires 

individuals and organizations to limit and disclose the amounts 

they spend for “anything of value” with the purpose of 

influencing a federal election in cooperation with or at the 

suggestion of a political candidate or campaign. 52 U.S.C. 

§ 30101(8)(A). The Act and its implementing regulations 

provide that coordinated expenditures for electoral advocacy 

communications—via radio, television, or newspaper 

advertisements, for example—are subject to the Act’s dollar 

limits and disclosure requirements. Id. § 30116(7)(B)(i); 11 

C.F.R. §§ 109.20(b), 109.21. So is the estimated “usual and 

normal value” of any coordinated gift to the same effect, even 

if, for example, it was given by a media owner who did not 

have to shell out money to provide it. 11 C.F.R. §§ 104.13(a), 

100.52(d)(1). 

The same restrictions apply to paid advertising or 

placement on the internet—“communications placed or

promoted for a fee on another person’s website.” Id. § 100.26. 

But, unlike advertising in traditional media, promoting a 

candidate’s election on widely viewed internet platforms like 

blogs and social media sites is often free of charge. The Federal 
3

Election Commission accounted for that in a 2006 rule known 

as the “internet exception.” The Commission does not require

an individual or political committee to estimate and report the 

marginal costs of blogging or social media posting in 

coordination with a campaign, but instead exempts unpaid 

“communications over the Internet” from the contribution 

limitations and disclosure requirements that otherwise apply to 

coordinated political advocacy. Id.

Leaning heavily on that internet exemption, political 

action committee Correct the Record set out to engage in a wide 

range of coordinated activities to support Hillary Clinton’s 

2016 presidential campaign. In an administrative complaint 

filed with the Federal Election Commission, nonprofit

watchdog Campaign Legal Center alleges that Correct the 

Record spent close to $6 million in coordination with the 

Clinton campaign during the lead-up to the 2016 election, 

including to conduct polls, hire teams of round-the-clock factcheckers, and connect Clinton media surrogates with radio and 

television news outlets. Correct the Record publicized that it 

was coordinating all these activities with the Clinton campaign. 

But it characterized all of the committee’s myriad 

expenditures—from staff salaries and travel expenses to the 

cost of commissioning polls and renting offices—as “inputs” 

to unpaid communications over the internet. For that reason, 

neither Correct the Record nor the Clinton campaign 

designated any of Correct the Record’s expenditures as 

contributions to the campaign. 

This appeal concerns whether the Federal Election 

Commission dismissed Campaign Legal Center’s 

administrative complaint based on an indefensibly broad 

interpretation of the internet exemption. It also asks whether 

the Commission arbitrarily ignored plausible allegations, 

including Correct the Record’s own public pronouncements,
4

that Correct the Record planned to coordinate all its 

expenditures with the Clinton campaign. 

We hold that the Commission acted contrary to law in 

dismissing the complaint. Because we conclude that the 

internet exemption cannot be read to exempt from disclosure 

those expenditures that are only tangentially related to an 

eventual internet message or post, the Commission’s reading 

of the internet exemption stretches it beyond lawful limits. As 

to those expenditures that it deemed not to be covered by the 

internet exemption, the Commission acted contrary to law in 

dismissing the complaint for want of reason to believe the

relevant expenditures were coordinated with the campaign, 

despite plausible allegations that Correct the Record 

coordinated all its expenditures with Hillary for America—and 

openly acknowledged doing so. 

BACKGROUND

We described the statutory, regulatory, and procedural 

background of this case in Campaign Legal Center v. Federal 

Election Commission, 31 F.4th 781, 784-88 (D.C. Cir. 2022)

(CLC I). What follows is a summary of the context most 

relevant at this posture, drawing in part on our description in 

CLC I. 

A

In service of “remedy[ing] any actual or perceived 

corruption of the political process,” the Federal Election 

Campaign Act (FECA or the Act) imposes contribution limits 

and disclosure requirements on candidates, individual donors, 
5

and political committees. FEC v. Akins, 524 U.S. 11, 14

(1998); see CLC I, 31 F.4th at 784. 

FECA’s contribution limits set a dollar-value cap—$2,700 

during the 2016 election cycle—on the contributions a political 

committee or individual can make to any one candidate or his

authorized campaign committee. 52 U.S.C. § 30116(a)(1)(A);

CLC I, 31 F.4th at 784. Contributions include gifts and money 

given directly to a campaign, 52 U.S.C. § 30101(8)(A)(i), but

also coordinated expenditures—money spent by committees

and individuals “in cooperation, consultation, or concert, with, 

or at the request or suggestion of, a candidate, his authorized 

political committees, or their agents,” id. § 30116(a)(7)(B)(i); 

see FEC v. Colo. Repub. Fed. Campaign Comm., 533 U.S. 431, 

438 (2001). Any coordinated “purchase, payment, distribution, 

loan, advance, deposit, or gift of money or anything of value 

made by any person for the purpose of influencing any election 

for Federal office” is accordingly regulated as if it were a cash 

contribution. 52 U.S.C. § 30101(9)(A)(i).

That “functional, not formal, definition of ‘contribution,’” 

Colo. Repub. Fed. Campaign Comm., 533 U.S. at 438, is 

designed to “prevent attempts to circumvent the Act through 

prearranged or coordinated expenditures amounting to 

disguised contributions,” Buckley v. Valeo, 424 U.S. 1, 47 

(1976) (per curiam). The Act recognizes that “expenditures 

made after a ‘wink or nod’”—or with more explicit 

coordination—“often will be ‘as useful to the candidate as 

cash.’” McConnell v. FEC, 540 U.S. 93, 221 (2003) (quoting 

Colo. Repub. Fed. Campaign Comm., 533 U.S. at 442, 446), 

rev’d on other grounds, Citizens United v. FEC, 558 U.S. 310 

(2010). For that reason, the money an individual (or 

committee) spends creating a political advertisement in 

consultation with the candidate and airing it on television is a 

regulated campaign contribution, just like the money given 
6

directly to a candidate to enable her to produce and air the 

advertisement herself. 

In addition to per-donor, per-election cycle contribution 

limits, FECA imposes comprehensive disclosure requirements. 

Disclosure is essential “to expose large contributions and 

expenditures to the light of publicity and ensure that voters 

know exactly how a candidate’s campaign is financed.” CLC 

I, 31 F.4th at 784 (formatting modified). Political committees, 

commonly known as “PACs”—defined as any group of 

persons that receives or spends more than $1,000 on electoral 

advocacy during a calendar year, see 52 U.S.C. 

§ 30101(4)(A)—must publicly report any expenditure of more 

than $200, whether coordinated or not. See id.

§ 30104(b)(5)(A). They must also report all contributions of 

any amount made to a candidate or his campaign. Id. 

§ 30104(b)(4)(H)(i), (6)(B)(i). 

The Act imposes a twin obligation on the candidate’s 

authorized committee—the “principal campaign committee” 

(or, for simplicity, “campaign”) authorized to make and receive 

expenditures on behalf of the candidate. Id. § 30101(6). The 

campaign must disclose as separate line items all contributions 

from political committees and all expenditures “made to meet 

candidate or committee operating expenses.” Id. 

§ 30104(b)(4)(A); see id. § 30104(b)(2)(D). FEC regulations 

provide, moreover, that a candidate must report as his own 

expenditure what anyone else spends in coordination with him, 

unless the expenditure is otherwise exempted. 11 C.F.R. 

§ 109.20(b). 

All these disclosures must be made regularly in itemized 

public reports to the Federal Election Commission (FEC or 

Commission), and must include details like the dates, amounts, 

and purposes of the contributions and expenditures, as well as 
7

the name and address of the recipient campaign. 52 U.S.C.

§ 30104(b). 

FEC regulations set out special rules for one type of 

coordinated expenditure relevant to this case: those “made for 

a coordinated communication under 11 C.F.R. [§] 109.21.” 11 

C.F.R. § 109.20(b). A communication is considered a 

“coordinated communication,” and therefore reportable inkind donation, if, among other criteria, it is coordinated

political advocacy that is communicated “by means of any 

broadcast, cable, or satellite communication, newspaper, 

magazine, outdoor advertising facility, mass mailing, or 

telephone bank to the general public, or any other form of 

general public political advertising.” Id. § 100.26; see id. 

§ 109.21(c). 

Payments for coordinated communications “made for the 

purpose of influencing a Federal election,” are, like other 

coordinated expenditures, “contributions” to the candidate or 

her campaign that must be publicly disclosed. Id. § 109.21(b). 

They are also subject to the per-election-cycle ceiling on how 

much a donor may contribute to a single candidate. Id. As 

relevant here, that means that a candidate’s campaign 

committee (like Hillary for America) must disclose the money 

a political committee (like Correct the Record) spends on 

airtime for a coordinated radio advertisement. The campaign 

must disclose it both as a contribution it received and as an 

expenditure it made. Id. §§ 104.13(a), 109.21(b). And the 

political committee must disclose it as a contribution to the 

campaign. Id. § 109.21(b). In other words, the law treats 

money spent on a coordinated communication as equivalent to 
8

money given to a candidate that she then spends on her own 

political advertising. 

But an FEC rule affords different treatment to 

communications over the internet that are not “placed or 

promoted for a fee on another person’s website . . . or 

advertising platform”—like blog or social media entries that 

the poster does not have to pay to publish on the internet. Id. 

§ 100.26. That rule, known as the “internet exemption,”

exempts unpaid political ad postings on the internet from the 

scope of covered political-advocacy communications; such 

posts are therefore not “coordinated communications” under 

the regulations. Id. The upshot of this so-called “internet 

exemption,” which lies at the heart of this case, is that such 

unpaid internet communications are not themselves in-kind 

contributions. The campaign does not need to assign a 

monetary value to an unpaid blog entry or a post on a political 

committee’s own website and disclose it as an in-kind 

contribution on its reports to the FEC, even if the entry or post 

is written in coordination with the campaign, and even if its 

publication is valuable to the candidate. 

Another portion of the regulations making up this “internet 

exemption” provides that, “[w]hen an individual or group of 

individuals, acting independently or in coordination with any 

candidate, authorized committee, or political party committee, 

engages in Internet activities [like messaging, blogging, or 

maintaining a website] for the purpose of influencing a Federal 

election,” neither the individual’s “uncompensated personal 

services related to such Internet activities” nor her “use of 

equipment or services for uncompensated Internet activities” 

are an “expenditure” or “contribution” by that individual. Id. 

§ 100.94 (contribution); id. § 100.155 (expenditure). A

member of the public who pays for WiFi at an internet café to 

write and post a blog entry in coordination with a campaign
9

need not disclose as a campaign contribution the money he 

spent for the WiFi. See Internet Communications, 71 Fed. Reg. 

18589, 18605 (Apr. 12, 2006). But, the Commission’s

rulemaking clarifies, “a political committee’s purchase of 

computers for individuals to engage in Internet activities for the 

purpose of influencing a Federal election remains an 

‘expenditure’ by the political committee,” as does any salary 

the committee pays such individuals. Id. at 18606.

When the Commission promulgated them, it described 

those rules as “intended to ensure that political committees 

properly finance and disclose their Internet communications, 

without impeding individual citizens from using the Internet to 

speak freely regarding candidates and elections.” Id. at 18589. 

B

The six-member Federal Election Commission bears 

primary responsibility to enforce the Federal Election 

Campaign Act. 52 U.S.C. § 30106. The Act allows any person 

to file a complaint with the Commission reporting a violation 

of the statute, along with certain other federal election laws. Id.

§ 30109(a)(1). The FEC’s Office of General Counsel reviews 

each complaint and any response from the alleged violator and 

recommends to the Commission whether the complaint

provides “reason to believe” a violation has occurred. Id. 

§ 30109(a)(2). The commissioners then vote on whether there 

is such “reason to believe.” Id. 

If at least four commissioners—i.e., a bipartisan majority 

of the six-member body—vote in favor, the Commission will 

investigate and, depending on the investigation’s results, vote 

in favor of finding “probable cause to believe” that the accused 

person or entity violated the law and attempt conciliation. Id. 

§ 30109(a)(3)-(4). If conciliation fails, the Commission may,

on the affirmative vote of four members, file a civil action in 
10

federal court to enforce the violation, id. § 30109(a)(6)(A); at 

that stage, lack of majority support to sue will typically result 

in administrative dismissal. A majority of commissioners can 

also vote to dismiss a complaint at any time. Id. § 30109(a)(1); 

see also id. § 30106(c). 

As relevant here, “[a]ny party aggrieved” by the 

Commission’s dismissal of a complaint for want of reason to 

believe can seek review in federal court. Id. § 30109(a)(8)(A). 

If the court concludes that the naysayers on the Commission 

held the complaint inadequate on grounds that were contrary to 

law or arbitrary and capricious, the court may “declare that the 

dismissal of the complaint . . . is contrary to law, and may 

direct the Commission to conform with such declaration within 

30 days.” Id. § 30109(a)(8)(C); see Orloski v. FEC, 795 F.2d 

156, 161 (D.C. Cir. 1986). If the Commission remains 

unwilling to move forward on the complaint, no court will 

require it to do so. Rather, if the Commission fails to act on the 

court’s order within 30 days, FECA allows the private

complainant to initiate, in its own name, a civil action against 

the relevant committee or individual to seek to remedy the 

violation involved in the original complaint. 52 U.S.C. 

§ 30109(a)(8)(C).

To facilitate judicial review under section 30109(a)(8)(A), 

we have held that, where the Commission deadlocks—that is, 

fails to garner four votes to proceed with enforcement—and 

thereafter dismisses a complaint, the commissioners who voted 

against proceeding must issue a statement explaining their 

votes. Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 

1988) (citing Democratic Cong. Campaign Comm. v. FEC, 831 

F.2d 1131, 1132 (D.C. Cir. 1987)). We refer to a non-majority 

of commissioners who vote against proceeding as the 

“controlling” or “blocking” commissioners. Their statement of 

reasons is intended to explain why those commissioners saw 
11

no reason to believe a violation occurred, and thereby aid the 

reviewing court to “intelligently determine whether the 

Commission is acting ‘contrary to law.’” Democratic Cong. 

Campaign Comm., 831 F.2d at 1132 (citation omitted).

C

1

Campaign Legal Center is a nonpartisan watchdog group 

with a mission of “improving democracy and promoting 

representative, responsive, and accountable government for all 

citizens.” Am. Compl. ¶ 15 (Joint Appendix (J.A.) 41). In 

October 2016, Campaign Legal Center and its director, 

Catherine Hinckley Kelley (hereinafter referred to collectively 

as Campaign Legal Center or plaintiff) filed an administrative 

complaint with the FEC against political action committee 

Correct the Record and Hillary Clinton’s principal campaign 

committee, Hillary for America. Campaign Legal Center 

alleged that, in the lead-up to the 2016 presidential election, 

Correct the Record made, and the campaign accepted, up to 

$5.95 million in coordinated expenditures without disclosing 

them.

The key dispute is whether those expenditures were 

coordinated, and, if so, whether they were exempted from 

FECA’s requirements by the Commission’s “internet 

exemption.”

When Correct the Record split from its parent political 

action committee in 2015, it declared that, because it would 

“not be engaged in paid media” like radio or television 

advertisements, none of its activities would be subject to the 

disclosure requirements or contribution limits that typically

apply to coordinated expenditures. Campaign Legal Center 

Complaint to the FEC (FEC Compl.) ¶ 12 (J.A. 117) (quoting 
12

Press Release, Correct the Record, Correct the Record 

Launches as New Pro-Clinton SuperPAC (May 12, 2015)). 

The FEC complaint also pointed to the Washington Post’s 

reporting that “Correct the Record believes it can avoid 

[FECA’s] coordination ban by relying on a 2006 Federal 

Election Commission regulation that declared that content 

posted online for free, such as blogs, is off limits from 

regulation.” Id. ¶ 9 (J.A. 116) (quoting Matea Gold, How a 

Super PAC Plans to Coordinate Directly with Hillary Clinton’s 

Campaign, Wash. Post. (May 12, 2015), 

https://perma.cc/XA6Z-XFRX).

In its complaint to the Commission, Campaign Legal 

Center alleged that Correct the Record claimed all its spending 

came within the internet exemption, and that Correct the 

Record accordingly spent close to $6 million in coordination 

with Hillary Clinton’s campaign without designating any of 

that spending as a contribution to the Clinton campaign. 

Campaign Legal Center alleged that Correct the Record 

undertook various substantial projects with that $6 million, 

including the following:

Benghazi Hearing War Room: Correct the Record 

staffed a 30-person “war room” to publicly defend 

Hillary Clinton in real time during her testimony in 

late October 2015 before the House Select 

Committee on Benghazi. FEC Compl. ¶ 28 (J.A. 

123). Those paid staffers “put out 18 news releases” 

about Clinton’s testimony during the morning hours, 

“flood[ing] the emails of Washington reporters with 

a running, blow-by-blow critique” of the Committee. 

Id. ¶ 29 (J.A. 124). 

Real-Time Debate Polling Team: The next month, 

Correct the Record commissioned a polling firm to 
13

conduct a poll during the November 2015 

Democratic debate between Hillary Clinton and 

Bernie Sanders; the poll was later posted on the 

firm’s website and distributed to media. Id. ¶ 31 

(J.A. 126). 

Online Defense Team: Later, as the primary 

campaign was heating up in April 2016, Correct the 

Record announced its intention to invest more than 

$1 million into the “Barrier Breakers 2016 digital 

task force,” hiring “former reporters, bloggers, 

public affairs specialists, [and] designers” to “go 

after Clinton critics” online. Id. ¶ 40 (J.A. 130-31). 

Paid Surrogates Program: Correct the Record hired

QRS Newsmedia, a media consulting firm, “to help 

oversee an aggressive surrogate booking program, 

connecting regional and national [campaign]

surrogates”—popular public figures aligned with the 

candidate—“with radio and television news outlets 

across the country in support of Hillary Clinton.” Id.

¶ 51 (J.A. 135). 

Fact Checker Team: Correct the Record’s paid 

“researchers, communications experts and digital 

gurus monitor[ed]” myriad television news feeds, 

newspapers, and social media sites for “disparaging 

or misleading remarks about Clinton” and fought 

back with “point-by-point fact-checks quickly 

disseminated to the news media.” Id. ¶ 61 (J.A. 140).

By the end of the campaign, Correct the Record had allegedly 

created near-daily “lengthy research memos, professionally
14

produced videos, press releases, and other materials” praising 

Clinton and attacking her opponents. Id. ¶ 67 (J.A. 142).

In disclosure reports it filed with the FEC, Correct the 

Record represented that it spent close to $10 million during the

2016 election cycle. CLC I, 31 F.4th at 786. But it did not

specifically detail or designate any of that spending as a

contribution to the Clinton campaign. Id. Nor did the Clinton 

campaign itself declare any of Correct the Record’s 

expenditures as made on Clinton’s behalf, as is generally

required for campaign contributions. Id. 

In Campaign Legal Center’s view, that non-disclosure 

violated FECA and Commission regulations. Correct the 

Record claimed the mantle of the internet exception, but 

Campaign Legal Center asserts that most of Correct the 

Record’s coordinated activities “did not take place on the 

Internet at all.” FEC Compl. ¶ 93 (J.A. 153). 

2

The Commission’s General Counsel recommended the 

Commission find reason to believe that Correct the Record and 

Hillary for America violated FECA because Correct the 

Record’s activities were “systematically coordinated” with 

Hillary for America, and most of them could not “fairly be 

described as [spending] for ‘communications.’” General 

Counsel Report at 16, 20-21 (J.A. 196, 200-01). The bulk of 

the reported disbursements, the General Counsel explained,

were for non-communication-specific purposes. Some of the 

expenditures went toward salaries, travel, lodging, meals, rent,

and computers; others were “for explicitly mixed purposes 

such as ‘video consulting and travel’ and ‘communication 

consulting and travel.’” Id. at 9-10 (J.A. 189-90). None of 
15

those expenditures, in the General Counsel’s view, fell within 

the internet exception.

The General Counsel identified as illustrative Correct the 

Record’s commissioning of a poll during the November 2015 

Democratic debate. The General Counsel explained that the 

fact that the results of the poll were “subsequently transmitted 

over the internet” did not “retroactively render the costs of the 

polling” an exempt expenditure made for a coordinated 

communication. Id. at 20 (J.A. 200). The General Counsel saw

the costs of commissioning that poll, like most of Correct the 

Record’s expenditures, as a reportable in-kind contribution.

Accordingly, the General Counsel recommended that there was 

“reason to believe” that Correct the Record made—and Hillary 

for America accepted—“unreported excessive and prohibited 

in-kind contributions.” Id. at 25 (J.A. 205).

When the Commission reviewed the General Counsel’s 

recommendation, it had only four commissioners in place; the 

departures of several commissioners before their terms expired 

and the failure to promptly replace them meant that two of the 

six seats were vacant. See CLC I, 31 F.4th at 787. Those four 

commissioners deadlocked two to two along party lines on the 

“reason to believe” vote, leaving the FEC short of the four 

votes needed to authorize an investigation. Id. As required by 

our decision in Democratic Congressional Campaign 

Committee v. FEC, 831 F.2d 1131 (D.C. Cir. 1987), the two 

commissioners who voted against finding a “reason to believe”

issued a statement of reasons explaining their reasoning. 

In their statement, the blocking commissioners 

acknowledged that “expenditures made by any person in 

cooperation, consultation, or concert with, or at the request or 

suggestion of, a candidate . . . shall be considered . . . a 

contribution to such candidate.” Statement of Reasons at 9 
16

(J.A. 275) (quoting 52 U.S.C. § 30116(a)(7)(B)(i)). They 

nevertheless asserted that the FEC’s “internet exemption”

dictates that money Correct the Record spent for its unpaid

“online communications” is exempt from the Act’s 

contribution limits and disclosure requirements. Id. at 11 (J.A. 

277). In the controlling commissioners’ view, the internet 

exemption mandates that the “input costs”—money spent on 

activities one result of which is an internet communication—

“are treated as in-kind contributions only when the [resulting] 

internet communication itself is an in-kind contribution”—i.e., 

only when there is a fee charged for the online posting itself. 

Id. at 12 (J.A. 278). So they concluded that all “input costs” to 

unpaid internet messages or posts are exempt.

In other words, although the costs of commissioning a poll

plainly would not be exempt if Correct the Record bought 

space to advertise the poll’s results on the New York Times 

website or in the newspaper’s print edition, the blocking 

commissioners insisted Correct the Record’s expenditures

were exempt from disclosure because the polling firm later 

posted the poll without charge on its website. So, too, in their 

view, does the internet exemption apply to the salary of a 

blogger who “go[es] after Clinton critics” on social media, see, 

e.g., FEC Compl. ¶ 40 (J.A. 130-31), even though the salary of 

a staffer who communicates only with news reporters for 

earned news coverage is not. Moreover, to the extent certain 

money—like staff salaries or office rent—went to both internet 

communications and other activities, the commissioners

declined to fault Correct the Record’s failure to apportion such 

expenses and “exempt[] [from disclosure and contribution 

limits] only those component fees deemed essential for the 

internet communication’s placement.” Statement of Reasons 

at 13 (J.A. 279). Because they thought such accounting would

“eviscerate the internet exemption and the deliberate policy 
17

decisions behind it,” id. (J.A. 279), they treated all those shared 

overhead expenditures as fully exempt.

Notwithstanding their capacious construction of the 

internet exemption, the controlling commissioners rejected

Correct the Record’s representation that, because it would not 

“be engaged in paid media,” all of its activities were exempt 

from campaign finance laws. See FEC Compl. ¶ 12 (J.A. 117)

(quoting Press Release, supra). The commissioners recognized 

that some of Correct the Record’s activities were unrelated to 

internet communications—including Correct the Record’s 

training of media surrogates, its opposition research activities, 

and the resources expended contacting reporters. The 

controlling commissioners concluded that Correct the Record 

did not have to report those expenditures for a different reason: 

They viewed as insufficient the allegations and supporting 

information that Correct the Record coordinated those noninternet-related activities with Hillary for America.

In the face of Correct the Record’s announced intention to 

“work[] directly with the campaign” on all its pro-Clinton 

advocacy, FEC Compl. ¶ 27 (J.A. 123), the blocking 

commissioners reasoned that “coordination” was not a “status”

that attached to Correct the Record once it declared an intent to 

coordinate with the campaign, Statement of Reasons at 16 (J.A. 

282). Instead, they concluded that any finding of coordination 

would require a “transaction-by-transaction assessment”

determining that “specific [coordinated] conduct occurred with 

respect to particular expenditures.” Id. (J.A. 282). That 

detailed assessment was, in their view, lacking here. The 

allegations and information before the Commission instead 

generally suggested that, to the extent there was coordination,

Correct the Record “limited its interactions with Hillary for 

America to the very communications that the Commission had 
18

previously decided not to regulate,” id. (J.A. 282)—exempt 

internet communications. 

The Commission’s Chair issued a dissenting statement of 

reasons. In her view, many of Correct the Record’s activities—

including paying staff salaries, hiring trackers, commissioning 

a private polling firm, and hiring outside consulting firms—

were “off the internet” and thus not exempt from disclosure 

requirements and contribution limits. Dissenting Statement of 

Reasons at 6-7 (J.A. 290-91). And even at the complaint stage, 

the information before the Commission “in the form of press 

releases and public interviews with [Correct the Record’s]

officers,” provided reason to believe those activities were 

sufficiently coordinated to meet the statutory definition of a 

“contribution” subject to disclosure. Id. at 5 (J.A. 289). 

In the absence of a majority to move forward, the four 

commissioners eventually voted unanimously to close the file 

and thereby dismiss the case.

D

In August 2019, Campaign Legal Center filed suit in 

district court to challenge, as relevant here, the Commission’s 

dismissal of the administrative complaint as contrary to FECA. 

Still short two members, the divided four-member Commission 

failed to garner the four affirmative votes necessary even to 

appear in court to defend the agency. See 52 U.S.C. 

§§ 30106(c), 30107(a)(6). Over Campaign Legal Center’s 

objection, the district court permitted Correct the Record and 

Hillary for America to intervene as defendants. 

On consideration of the parties’ cross-motions for 

summary judgment, the district court initially held that the 

plaintiff lacked standing to challenge the FEC’s 

nonenforcement decision, reasoning that Campaign Legal 
19

Center had “no cognizable interest in learning which [of 

Correct the Record’s] activities were in fact coordinated” with 

the Clinton campaign. See Campaign Legal Ctr. v. FEC, 507 

F. Supp. 3d 79, 85 (D.D.C. 2020) (internal quotation marks 

omitted). 

We reversed and remanded. CLC I, 31 F.4th at 793. If 

Campaign Legal Center prevailed in its suit and the FEC 

eventually enforced the FECA violations against Correct the 

Record and Hillary for America, we explained, FECA and 

Commission regulations would require Correct the Record and 

Hillary for America to each “disaggregate its reporting to show 

the actual amounts of various expenditures” that were

coordinated with and therefore “in-kind contributions” to the 

Clinton campaign. Id. at 790. Then, Campaign Legal Center

would gain access to “FECA-required information,” including 

details as to coordination, that was currently unknown to 

them—which would, in turn, help it “evaluate candidates for 

public office.” Id. (quoting FEC v. Akins, 524 U.S. 11, 21 

(1998)). Campaign Legal Center had accordingly established 

an informational injury that was “fairly traceable” to the 

Commission’s dismissal of their complaint: “Should a 

reviewing court find that the Commission’s determinations are 

contrary to law, the agency’s action would be set aside and the 

case would likely redress [plaintiff’s] injury in fact.” Id. at 793. 

On remand, the district court ruled in plaintiff’s favor, 

holding the Commission’s dismissal of the complaint was 

contrary to law. Campaign Legal Center v. FEC, 646 F. Supp. 

3d 57, 59 (D.D.C. 2022). The court held that the controlling

commissioners’ statement of reasons espoused an

impermissible interpretation of FECA by “allow[ing] any 

coordinated expenditure to escape treatment as a contribution, 

so long as that expenditure somehow informs a blog post or 

improves a tweet.” Id. at 64. The court also held that it was 
20

arbitrary and capricious, and therefore contrary to FECA, for 

the commissioners to ignore “the overwhelming and public 

evidence” that Correct the Record operated with the principal 

purpose of coordinating all of the relevant activities with the 

Clinton campaign. Id. at 67. Accordingly, the district court 

remanded the matter to the Commission “to sketch the bounds 

of the internet exemption and to more fully analyze the facts 

before it,” and directed the Commission to conform with its 

decision within 30 days. Id. at 69 (citing 52 U.S.C. 

§ 30109(a)(8)(C)). 

Two weeks after the district court issued its summary 

judgment order, the FEC entered an appearance in the district 

court. It immediately filed a notice of appeal and a motion to 

stay the remand order pending appeal. While that stay motion 

was pending, the 30-day remand window elapsed and

Campaign Legal Center initiated a private suit against Correct 

the Record and Hillary for America under 52 U.S.C. 

§ 30109(a)(8)(C). The district court denied the stay. 

Campaign Legal Center v. FEC, No. 19-cv-2336, 2023 WL 

6608997, at *3-4 (D.D.C. Feb. 1, 2023). The imminent harm 

the FEC had cited in support of a stay was loss of the 

exclusivity of its civil enforcement authority if a private case 

were initiated but, given the expiration of the 30-day window 

for the Commission to conform with the district court’s 

judgment and Campaign Legal Center’s initiation of a private 

suit, the district court concluded “that ship has sailed.” Id. at 

*3. Hillary for America did, however, persuade the district 

court to stay Campaign Legal Center’s private suit against 

Correct the Record and Hillary for America pending resolution 

of this appeal. See Campaign Legal Ctr. v. Correct the Record, 

No. 23-cv-75, 2023 WL 2838131, at *5 (D.D.C. Apr. 2, 2023). 

We have jurisdiction under 28 U.S.C. § 1291. We review 

the district court’s grant of summary judgment de novo. See 
21

Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. 

Cir. 2013).

DISCUSSION

The Commission urges reversal, arguing that it acted 

consistently with FECA and Commission regulations.

Campaign Legal Center asserts that the Commission’s appeal 

is moot and forfeited, and alternatively defends the district 

court’s decision on the merits. We address the threshold 

questions of mootness and forfeiture before turning to the 

merits of the Commission’s dismissal. 

The Commission presses another argument on appeal, 

urging this court to limit the scope of the district court’s remand 

to the agency. The Commission casts this as a jurisdictional 

matter because, in its view, Campaign Legal Center lacks

standing to seek relief in federal court regarding claims that 

Correct the Record and Hillary for America violated FECA’s 

contribution limits or source restrictions. The Commission is 

mistaken. There is no such jurisdictional issue before this 

Court because the question posed by the Commission was not 

decided by the district court, nor is it before us. Campaign 

Legal Center merely asks this court to hold that the 

Commission incorrectly dismissed their complaint based on an 

erroneous interpretation of the internet exemption. Because 

what the Commission characterizes as a standing argument is

nothing more than a question regarding the scope of potential 

relief, we address that argument below, in connection with our 

consideration of the appropriate remedy.
22

A

1

Campaign Legal Center contends this appeal is moot 

because the district court’s remand order has no “continuing 

legal effects” on the Commission’s rights or obligations. Pl.’s

Br. 32. “[T]he [mootness] doctrine requires a federal court to 

refrain from deciding [a case] if events have so transpired that 

the decision will neither presently affect the parties’ rights nor 

have a more-than-speculative chance of affecting them in the 

future.” Am. Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir. 

2011) (quoting Clarke v. United States, 915 F.2d 699, 700-01 

(D.C. Cir. 1990)). 

Plaintiff’s theory of mootness is that the Commission, 

having defaulted on its opportunity to “conform” within 30 

days of the district court’s contrary-to-law ruling, is no longer 

a valid participant in their private right of action on remand. 

More specifically, they argue as follows: 52 U.S.C. 

§ 30109(a)(8)(C) affords the Commission 30 days to 

“conform” with a court’s declaration that the agency’s 

dismissal was “contrary to law.” The statute also provides that, 

if the Commission does not act during that 30-day window, the 

complainant (here, Campaign Legal Center) can, in its own 

name, bring a “civil action to remedy the violation involved in 

the original complaint.” 52 U.S.C. § 30109(a)(8)(C). Because 

that 30-day remand window expired in December 2023 before 

the district court acted on the FEC’s motion to stay, and 

because Campaign Legal Center has, in the meantime, initiated 

a private lawsuit against Correct the Record and Hillary for 

America, Campaign Legal Center asserts that it would be 

impossible for this court to grant the Commission any 

meaningful relief even if the Commission were to prevail on 

this appeal. 
23

That argument misapprehends FECA’s judicial review 

provision. Campaign Legal Center apparently assumes that, 

however we rule on its claim that dismissal was “contrary to 

law,” the Commission has foregone any further involvement in 

this matter by failing to act within 30 days of the district court’s 

remand order, as the statute requires. The Commission itself 

espoused a similar view in asking the district court to stay the 

remand order: It argued that, absent a stay, it would “face the 

dilemma of either taking action on the underlying 

administrative complaint” and risk “moot[ing] its appeal,” or 

appealing and, due to the passage of time, “permanently losing 

exclusive civil enforcement jurisdiction over the case by 

triggering a private right of action under 52 U.S.C. 

§ 30109(a)(8)(C).” Motion for Stay at 1-2, Campaign Legal 

Center v. FEC, No. 19-cv-2336 (D.D.C. Dec. 21, 2022), ECF 

No. 73. In denying the Commission’s stay request, the district 

court, too, treated the initial 30-day remand window as the 

Commission’s last opportunity to consider the matter. See 

Campaign Legal Center, 2023 WL 6608997, at *3. 

That assumption is mistaken. It attributes to Congress the 

highly implausible intent to afford the Commission an 

opportunity to appeal a district court’s adverse judgment 

conditioned on thereby forfeiting the opportunity to conform 

with the remand order in the event its appeal is unsuccessful. 

But the statute extends both the opportunity to appeal and to 

conform without casting each as a Hobson’s choice. After all, 

52 U.S.C. § 30109(a) not only mandates that the court allow 

the agency 30 days to “conform” with its declaration that the 

Commission’s dismissal was “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(C). It also entitles the Commission to appeal 

“[a]ny judgment of a district court under this subsection . . . to 

the court of appeals.” Id. § 30109(a)(9); see also id.

§ 30107(a)(6) (delegating to the Commission the power to 

“appeal any civil action in the name of the Commission”). 
24

Campaign Legal Center offers no reason to think that Congress 

meant to give the Commission an either/or choice: conform

with the district court’s remand order and give up the right to 

appeal, or appeal the district court’s contrary-to-law ruling and 

give up the chance to conform if the district court’s ruling is 

affirmed. 

The only way to effectuate both FECA provisions—the 

30-day remand window and the agency’s appeal right—is to

allow the agency to appeal and, if the district court’s contraryto-law decision is affirmed, afford the Commission on remand

30 days to “conform” with that affirmed judgment before the 

private right of action is triggered. In other words, FECA 

implicitly stays the 30-day remand window until the 

Commission’s opportunity to appeal has expired. 

Contrary to plaintiff’s assertion of mootness, then, our 

decision carries two important legal consequences for the 

parties before us. Whether we affirm the district court’s 

judgment will determine, first, whether the Commission will 

be subject to a remand order directing it to “conform” with the 

contrary-to-law declaration. Id. § 30109(a)(8)(C). Second, 

only if we affirm that the Commission’s dismissal was 

“contrary to law,” and only if the Commission fails to conform 

with such declaration on remand, can Campaign Legal Center 

maintain its private suit against Correct the Record and Hillary 

for America: After all, section 30109(a)(8)(C) allows a 

complainant to bring a civil action only after a court “declare[s] 

that the [Commission’s] dismissal of the complaint” was 

“contrary to law” and after the Commission fails to “conform 

with such declaration within 30 days.” If the dismissal was not 

“contrary to law,” or if it was but the Commission conforms 

with the declaration after a renewed remand, the Commission 

will retain the exclusive power “to initiate civil actions” to 
25

enforce FECA, and Campaign Legal Center’s suit will be 

dismissed. Id. § 30107(e). 

The Commission accordingly retains a stake in the 

outcome of this appeal, vitiating any claim of mootness.

2

Campaign Legal Center relatedly protests that the FEC’s 

“appeal must fail” because, by declining to appear in the 

district court, the Commission forfeited the arguments it now 

advances. Pl.’s Br. 25. That forfeiture is not fatal here because, 

based on the remaining parties’ and intervenors’ submissions, 

the district court entered judgment on the issues the 

Commission raises. The “general rule” that “this court will not 

entertain arguments not made in the district court” does not 

apply where “the district court nevertheless” heard and 

“addressed the merits of the issue.” Blackmon-Malloy v. U.S. 

Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir. 2009).

The district court allowed Correct the Record and Hillary 

for America to intervene to defend the Commission’s dismissal 

and raise the arguments that the then-absent Commission did 

not. The district court considered (and rejected) those 

arguments when it held that the controlling commissioners’ 

statement of reasons was contrary to FECA and arbitrary and 

capricious. Campaign Legal Ctr., 646 F. Supp. 3d at 64, 67. 

Although Campaign Legal Center objected to Correct the 

Record’s motion to intervene in the district court, it has not

challenged that intervention decision on appeal. “[B]ecause 

the district court passed upon” the contrary-to-law dispute 

“appellants now present to this court,” Blackmon-Malloy, 575 

F.3d at 707-08 (internal quotation marks omitted), the 

Commission’s appeal may proceed on the shoulders of Correct 

the Record and Hillary for America’s participation in district 

court. 
26

B

On the merits, we set aside the Commission’s dismissal of 

a complaint if it is “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(C). A dismissal is contrary to law if it is the

“result of an impermissible interpretation of the Act” or “if the 

[Commission’s] dismissal of the complaint, under a 

permissible interpretation of the statute, was arbitrary or 

capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161 

(citations omitted); see Campaign Legal Ctr. v. FEC, 952 F.3d 

352, 357 (D.C. Cir. 2020) (per curiam). Because the 

Commission’s dismissal rested in part on an impermissible 

interpretation of FECA and, to the extent it did not, was 

arbitrary and capricious, we affirm the decision of the district 

court that the dismissal was contrary to law.

1

Campaign Legal Center does not challenge the

Commission’s rule that unpaid internet communications, even 

though of value to a campaign, are not themselves campaign

contributions, and therefore are exempt from the Act’s 

contribution limits and disclosure requirements. And it

apparently agrees that at least some expenses antecedent to

unpaid internet communications—including “input costs” like

“video production or domain services expenses” for videos to 

be posted online—fall within the internet exemption. Pls.’ Br. 

23. The principal dispute before us is whether the Commission 

acted contrary to law in defining exempt “input costs” as 

broadly as it did. In particular, Campaign Legal Center 

challenges the Commission’s wholesale exemption of any

expenditure even a fraction of which contributed in some way 

to an eventual unpaid communication on the internet—an 

interpretation that exempts a virtually unlimited category of 

coordinated expenditures from regulation. 
27

The controlling commissioners adopted what they called a

“bright-line rule” that exempts from regulation under FECA all 

money spent “to produce an internet communication.”

Statement of Reasons at 13 (J.A. 279). The commissioners’ 

approach broadly exempts “staff time, computer usage, and

electricity,” as well as “additional overhead and other 

expenses, such as for travel and the services of consultants, 

graphic designers, videographers, actors, and other 

specialists.” Id. (J.A. 279). And the commissioners refused to 

require Correct the Record to separately account for and 

“allocate overhead expenses across internet communications” 

and “other activities,” on the theory that doing so would 

“eviscerate the internet exemption” and “potentially chill 

political speech online.” Id. (J.A. 279).

We hold that the Commission’s approach is contrary to 

FECA’s expansive definition of expenditures, 52 U.S.C. 

§ 30101(9)(A)(i), and its regulation of all expenditures made 

“in cooperation, consultation, or concert with, or at the request 

or suggestion of” a candidate or party, id. § 30116(a)(7)(B). By 

reading FEC regulations to exempt any expenditure even 

remotely or tangentially related to an eventual posting on the 

internet, the controlling commissioners pave a path for the very 

circumvention of campaign finance laws that FECA’s 

reporting requirement is designed to prevent. See Buckley, 424 

U.S. at 46-47. 

Take Correct the Record’s poll as an illustrative example. 

Both the General Counsel and the controlling commissioners 

singled out the poll for “special attention.” Statement of 

Reasons at 13 (J.A. 279); see General Counsel Report at 20 

(J.A. 200). The controlling commissioners determined that 

paying a polling firm for the underlying poll was “necessary to 

make” a subsequent internet communication: the blog post 

publishing the poll’s results online. Statement of Reasons at 
28

13 (J.A. 279). That sufficed, in their view, to render all the 

payments that went into conducting the poll, analyzing the 

data, and writing up the results exempt from disclosure as a 

contribution. Id. (J.A. 279). Commission counsel 

acknowledged at oral argument that money spent in 

coordination with a campaign to commission a poll for the 

candidate’s use would ordinarily be a campaign contribution. 

Oral Arg. Rec. 10:23-47; see 52 U.S.C. 

§§ 30101(9)(A)(i), 30116(a)(7)(B). But, under the controlling 

commissioners’ approach, none of that spending is a 

contribution so long as the Committee posts the results for free 

on a blog and, in so doing, delivers the commissioned poll 

results to the candidate. 

The commissioners offer no limiting principle for their 

expansive reading. When pressed at oral argument, 

Commission counsel answered only that, “in the Buckley 

speech context, we are not big on limits.” Oral Arg. Rec. 

15:42-49. As the district court warned, that approach 

essentially allows any “coordinated expenditure to escape 

treatment as a contribution, so long as that expenditure 

somehow informs a blog post or improves a tweet.” Campaign 

Legal Ctr., 646 F. Supp. 3d at 64. 

The apparent implication of the blocking commissioners’

refusal to “allocate overhead expenses across internet 

communications” and “other activities,” Statement of Reasons 

at 13 (J.A. 279), is even broader than the district court 

described. On their logic, an entity that blogs or tweets in 

coordination with a campaign arguably exempts all of its 

overhead expenses from regulation under FECA—no matter 

that some portion of those overhead expenses is entirely 

unrelated to the organization’s internet-related activities. 

Taken to its logical conclusion, that suggests a political action

committee wholly devoted to coordinating its spending “for the 
29

purpose of influencing an[] election for Federal office,” 52 

U.S.C. § 30101(9)(A)(i), need not disclose any portion of its 

rent, internet bills, or inventory costs as campaign 

contributions, so long as it spends a fractional portion of its 

time tweeting about its activities. Likewise, the implication 

seems to be that, if a political committee staffer spends some 

of her time blogging online, that committee can evade any 

requirement to report her salary as a campaign contribution. 

That cannot square with FECA’s plain text or purpose. As 

we explained in Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005), 

“if a communication involves ‘expenditure’ and is made ‘in 

cooperation, consultation, or concert with, or at the request or 

suggestion of’ a candidate or party—the provision’s two 

elements—then the FEC lacks discretion to exclude that 

communication from its coordinated communication rule.” Id.

at 99 (quoting 52 U.S.C. § 30116(a)(7)(B)). The blocking 

commissioners ignore that statutory limitation.

The blocking commissioners’ approach is also 

unrecognizable in the Commission’s own description of the 

internet exemption. The internet exception was never intended 

as a FECA-swallowing loophole enabling political committees 

to launder all their coordinated expenditures via unpaid internet 

postings. The commissioners who crafted it sought to “ensure 

that political committees properly finance and disclose their 

Internet communications.” 71 Fed. Reg. at 18589. Indeed, the 

Commission explicitly noted in summarizing the exemption 

that “a political committee’s purchase of computers for 

individuals to engage in Internet activities for the purpose of 

influencing a Federal election” remains a regulated 

“expenditure” by that political committee. Id. at 18606. By 

the same token, the Commission explained, an entity makes an

“in-kind ‘contribution’” by “providing software and Internet 

access for the specific purpose of enabling its employees to 
30

influence a Federal election through political Internet 

activities.” Id. 

The FEC fails to explain how the construction of the 

internet exemption it defends here squares with the statute’s 

regulation of coordinated expenditures. Relying on nothing but 

double bootstrapping, the Commission emphasizes “the 

agency’s prerogative to interpret FECA through the 

promulgation of the regulation itself,” FEC Br. 33, and defends 

its interpretation by reference to the notion that “an agency is 

bound by its own regulations,” Reply Br. 10 (internal quotation 

marks omitted). But the exemption does not effect wholesale 

deregulation of coordinated expenditures that contribute in 

some part to an eventual internet posting. See 11 C.F.R. 

§ 109.20(b). No legitimate agency prerogative is undermined 

by invalidating a legal view that conflicts with the statute and 

rule it purports to interpret. 

We have not been asked to decide in the first instance 

precisely which expenses can be exempt from regulation as 

inputs to unpaid internet communications. As did the district 

court, we conclude that the expert Commission should have an 

opportunity in the first instance to draw that line. It suffices for 

present purposes to hold that the line drawn by the blocking 

commissioners in this case unmistakably conflicts with the 

statutory text and purpose.

2

The two naysaying commissioners also declined to 

investigate allegations that Correct the Record’s non-internetrelated expenditures were made in coordination with the 

Clinton campaign. They recognized that, even under their 

broad interpretation of the internet exemption, not all of

Correct the Record’s expenditures in the lead-up to the 2016 

election were inputs to the organization’s internet 
31

communications. They acknowledged, for example, that 

Correct the Record’s research and tracking activities, surrogacy 

program, and contacts with reporters did “not relate directly to 

[its] internet communications.” Statement of Reasons at 14 

(J.A. 280). So they considered whether the money was spent 

“in cooperation, consultation, or concert with, or at the request 

or suggestion of” Hillary for America, and therefore required 

to be reported as in-kind contributions. See 11 C.F.R. § 109.20.

The commissioners saw no basis to investigate those 

expenditures, either. In their view, “[t]he information in the 

record indicates that Correct the Record limited its interactions 

with Hillary for America to the very communications that the 

Commission has previously decided not to regulate”—unpaid 

internet communications. Statement of Reasons at 16 (J.A. 

282). 

That conclusion fails to meaningfully account for the 

complaint’s allegations to the contrary—allegations citing to 

information that is already publicly available—which recount 

Correct the Record’s own public statements of coordination

with the Clinton campaign on all its activities, not just those the 

commissioners deemed related to internet postings. Take, for 

example, a May 2015 report in the Wall Street Journal quoting

a Correct the Record spokeswoman asserting that, because her 

group would make no ads explicitly advocating for or against 

a candidate, there would be “no restrictions on its ability to 

coordinate with Mrs. Clinton’s campaign.” FEC Compl. ¶ 10 

(J.A. 116) (emphasis added) (quoting Rebecca Ballhaus, Pro 

Clinton Group Sets Novel Strategy, Wall St. J. (May 12, 2015), 

https://www.wsj.com/articles/BL-WB-55199). The complaint 

also quotes a Time magazine article reporting that Correct the 

Record founder David Brock was working “on what he calls 

the ‘coordinated’ side of the Clinton campaign.” Id. ¶ 24 (J.A. 

122) (quoting Michael Scherer, Hillary Clinton’s Bulldog 
32

Blazes New Campaign Finance Trials, Time (Sept. 10, 2015), 

https://perma.cc/QJL3-33D8). “[S]ince [Correct the Record] 

does not pay for advertising advocating [Clinton’s] election,” 

Time magazine noted, “[Brock] says he can continue under 

current rules to talk to [Clinton] and her campaign staff about 

strategy, while deploying the unregulated money he raises to 

advocating her election online, through the press, or through 

other means of non-paid communications.” Id. (J.A. 122)

(quoting same). In the same vein, the Los Angeles Times 

reported on a Correct the Record spokeswoman’s insistence 

that “an FEC loophole means that the coordination regulation 

doesn’t apply to them because their work is posted only 

online.” Id. ¶ 27 (J.A. 123) (quoting Joseph Tanfani & Seema 

Mehta, Super PACs Stretch the Rules that Prohibit 

Coordination with Presidential Campaigns, L.A. Times (Oct. 

6, 2015), https://perma.cc/4N69-7BJY). 

The controlling commissioners dismissed that evidence

wholesale, labeling it a misguided attempt to transform 

“[c]oordination” into a “status,” such that “coordination in one 

activity can be imputed to other activities” without a 

“transaction-by-transaction assessment to determine whether 

specific conduct occurred with respect to particular 

expenditures.” Statement of Reasons at 16 (J.A. 282). To the 

contrary, it is Correct the Record, with its announced blanket 

intention to coordinate with Hillary for America on all its 

activities, that failed to particularize. One need not understand 

coordination as a “status” to take seriously allegations of 

Correct the Record’s own categorical public assertions that 

“the coordination regulation doesn’t apply to [it].” FEC 

Compl. ¶ 27 (J.A. 123) (quoting Tanfani & Mehta, supra). Far 

from suggesting that Correct the Record carefully calibrated its 

interaction with the Clinton campaign to respect the limits of 

the internet exemption, the complaint plausibly describes 
33

Correct the Record as entirely sidestepping disclosure of 

expenditures it avowedly coordinated with the campaign. 

The controlling commissioners’ conclusion that “Correct 

the Record limited its interactions with Hillary for America” to 

unpaid internet communications runs counter to the 

information before the agency, and was therefore arbitrary and 

capricious. See Orloski, 795 F.2d at 161; see also Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29, 43 (1983). And, considering Correct the Record’s public

admission that it planned to coordinate extensively with Hillary 

for America, it was unreasonable for the Commission to 

demand that Campaign Legal Center allege coordination as to 

each subcategory of activities. That is particularly true 

because, at this stage, the commissioners need identify only 

“reason to believe that [Correct the Record] has committed” a 

FECA violation in order to trigger its obligation to “make an 

investigation of such alleged violation,” 52 U.S.C. 

§ 30109(a)(2), that would allow the Commission to determine 

whether the alleged violation has evidentiary support. 

The Commission failed to explain how it concluded, in the 

face of the complaint and the publicly available sources it 

quotes, that it had no grounds for investigation. We 

accordingly hold that the blocking commissioners’ analysis of 

non-internet-related expenditures was arbitrary and capricious

and thus contrary to law. Orloski, 795 F.2d at 161. For the 

reasons explained above, see supra at 22-24, our affirmance of 

the district court’s contrary-to-law holding means the FEC will 

have an opportunity on remand to conform with our ruling. See

52 U.S.C. § 30109(a)(8)(C). 
34

C

That leaves only the FEC’s argument that Campaign Legal 

Center “lack[s] standing” as to four counts of the

administrative complaint that allege violations of FECA’s 

source restrictions and contribution limits. FEC Br. 26. Citing 

CLC I, the Commission reasons that Campaign Legal Center

hasstanding to challenge only the alleged disclosure violations, 

and accordingly urges us to “direct the district court to dismiss 

the complaint to the extent it seeks an order regarding” the 

source restrictions or contribution limits. Id. But the district 

court has not ordered the Commission to take any action 

specific to those counts, so this appeal need not address them. 

Plaintiff’s appeal of the legal sufficiency of the internetexemption and coordination allegations is supported by their 

standing to seek relief for informational injuries, which this 

court has already sustained. See CLC I, 31 F.4th at 783. We 

decline the Commission’s invitation to make an anticipatory 

ruling on a standing question, keyed to a specific form of relief,

that may never arise. 

The FEC’s argument rests on the misapprehension that, 

without a further caveat as to plaintiff’s standing, the district 

court’s remand order would require the FEC to take 

enforcement action on the source- and contribution-limit 

allegations whose dismissals the Commission believes plaintiff 

lacks standing to challenge in federal court. But the district 

court’s remand order did no such thing. It provided that:

Because the Commission’s decision was based on an 

impermissible interpretation of the Act and was 

otherwise arbitrary and capricious, its dismissal of 

Plaintiffs’ complaint was contrary to law. The Court 

leaves it to the expert Commission on remand to 

sketch the bounds of the internet exemption and to 
35

more fully analyze the facts before it. That exception 

must have real bounds, however, and the clear 

evidence of coordination discussed above shall 

inform the Commission’s analysis. . . .

For the foregoing reasons, the Court will grant 

CLC’s Motion for Summary Judgment, deny 

[Correct the Record’s], and direct the Commission to 

conform with this decision within 30 days. See 52 

U.S.C. § 30109(a)(8)(C).

Campaign Legal Ctr., 646 F. Supp. 3d at 69. The order requires 

the Commission to “sketch the bounds of the internet 

exemption and . . . more fully analyze the facts before it.” Id. 

Whether doing so will lead the Commission to take

enforcement action with respect to the source restrictions and 

contribution-limits claims is a question the district court did not

address.

That is for good reason. Plaintiff’s suit challenges only 

one FEC action: dismissal of the administrative complaint 

following the blocking commissioners’ conclusion that Correct 

the Record’s expenditures were not campaign contributions.

As we explained in CLC I, the informational injury—as to 

which plaintiff’s standing is settled—traces to that dismissal. 

A Commission determination that there was reason to believe

Correct the Record made contributions to Hillary for America

could result in additional disclosures of the amount of such 

contributions. CLC I, 31 F.4th at 783. Whether a future 

determination by the Commission that Correct the Record 

contributed to Hillary Clinton’s campaign may have other 

implications for the FEC’s treatment of Correct the Record’s 

expenditures is not at issue here. In any event, the Commission 

may choose, under a correct reading of the law, to enforce 

FECA’s contribution limits against Correct the Record and 
36

Hillary for America, regardless of whether Campaign Legal 

Center would have Article III standing to challenge the 

Commission’s failure to do so. We need go no further than 

directing remand to the expert Commission to “sketch the 

bounds of the internet exemption and . . . more fully analyze 

the facts before it.” Campaign Legal Ctr., 646 F. Supp. 3d at 

69. 

* * *

For the foregoing reasons, the judgment of the district 

court is affirmed. The matter is remanded to the district court 

with instructions to remand to the FEC consistent with 52 

U.S.C. § 30109(a)(8)(C) and the discussion herein.

So ordered.