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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CAMPAIGN )

LEGAL CENTER, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-0809 (ABJ)

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FEDERAL ELECTION )

COMMISSION, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION AND ORDER

45Committee, Inc. (“45Committee”), which previously sought and received leave to file a 

brief in this case as an amicus curiae pursuant to Local Civil Rule 7(o)(2), see Mot. of 

45Committee for Leave to File Amicus Br. [Dkt. # 28] (“Mot. to File Amicus Br.”); Min. Order 

(Jan. 24, 2022) (granting the motion for leave to file an amicus brief); Amicus Br. of 45Committee 

[Dkt. # 31] (“Amicus Br.”), has moved to intervene as a party now that the case is closed. See

Expedited Mot. of 45Committee to Intervene for the Purpose of Appeal [Dkt. # 33]; see also Mem. 

of P. & A. in Supp. of the Expedited Mot. of 45Committee to Intervene for the Purpose of Appeal 

[Dkt. # 33-1] (“Mot. to Intervene”). Plaintiff opposes the motion, see Pl. Campaign Legal Center’s 

Opp. to Mot. to Intervene [Dkt. # 34] (“Opp.”), and defendant Federal Election Commission

(“FEC”), which has failed to defend this action, has not responded to the motion or advised the 

Court of its position. The motion is now fully briefed. See Corrected Reply in Supp. of Mot. to 

Intervene [Dkt. # 36] (“Reply”).

For the following reasons, the motion will be DENIED.

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LEGAL STANDARD

A party seeking to intervene as of right under Federal Rule of Civil Procedure 24(a) must 

satisfy four requirements: “(1) the application to intervene must be timely; (2) the applicant must 

demonstrate a legally protected interest in the action; (3) the action must threaten to impair that 

interest; and (4) no party to the action can be an adequate representative of the applicant’s 

interests.” Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008), quoting SEC v. Prudential 

Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998). A movant that seeks to intervene as a defendant

must also demonstrate that it has constitutional standing. Crossroads Grassroots Policy Strategies 

v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015).

A party seeking permissive intervention “may” be permitted to intervene if it is “given a 

conditional right to intervene by a federal statute” or has “a claim or defense that shares with the 

main action a common question of law or fact.” Fed. R. Civ. Proc. 24(b)(1). “As its name would 

suggest, permissive intervention is an inherently discretionary enterprise.” EEOC v. Nat’l 

Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998).

ANALYSIS

The first requirement is that the motion to intervene “must” be timely. Karsner, 532 F.3d 

at 885. In order to determine whether a motion is timely, courts must consider “all the 

circumstances, especially weighing the factors of time elapsed since the inception of the suit, the 

purpose for which intervention is sought, the need for intervention as a means of preserving the 

applicant’s rights, and the probability of prejudice to those already parties in the case.” Id. at 886.

“Courts are generally reluctant to permit intervention after a suit has proceeded to final 

judgment, particularly where the applicant had the opportunity to intervene prior to 

judgment.” Acree v. Rep. of Iraq, 370 F.3d 41, 49 (D.C. Cir. 2004), abrogated on other grounds 

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by Rep. of Iraq v. Beaty, 556 U.S. 848 (2009). But “a post-judgment motion to intervene is not 

untimely if the putative intervenor acts as soon as it is clear that the parties will not represent its 

interests.” Amarin Pharms. Ir. Ltd. v. Food & Drug Admin., 139 F. Supp. 3d 437, 444 (D.D.C. 

2015), citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 395–96 (1977).

Here, the movant had ample opportunity to seek to intervene before the case came to its 

conclusion, and one cannot find that 45Committee acted as soon as it was clear that no party would 

represent its interests.

The complaint in this case was filed on March 24, 2020, more than two years ago, and it 

was clear from the start that the movant, 45Committee, had a potential interest in the dispute. 

Compl. [Dkt. # 1] at 1–2, 15.1

 Plaintiff informed the Court that it had filed an administrative 

complaint with the FEC which alleged that 45Committee “violated the Federal Election Campaign 

Act (‘FECA’) by failing to register as a political committee and failing to file reports disclosing 

its contributors, expenditures, and debts.” Compl. at 1. Plaintiff sought an order declaring that 

the FEC’s failure to act on its administrative complaint was contrary to law under 52 U.S.C. 

§ 30109(a)(8)(A). Compl. at 14. The FEC did not answer or otherwise respond to the complaint, 

which was the movant’s first hint that defendant was not going to represent its interests.

On May 27, 2020, plaintiff filed an affidavit highlighting the fact that the FEC had not 

answered and asking the Clerk of Court to enter a default. Affidavit in Supp. of Default [Dkt. # 9]. 

The Clerk did so on May 28. Entry of Default [Dkt. # 10]. On June 1, 2020, plaintiff filed a 

motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b), asking the Court 

1 The facts underlying this lawsuit are described in the Court’s previous Orders and 

Memorandum Opinion, including particularly its November 8, 2021 opinion. See Mem. Op. 

[Dkt. # 24] at 1–5.

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to enter “an order declaring that the FEC’s failure to act is contrary to law in violation of 52 U.S.C. 

§ 30109(a)(8)(C), and directing the FEC to conform within 30 days.” Pl.’s Mot. for Default J. 

Against Def. FEC [Dkt. # 11] at 1–2. By that point, 45Committee was plainly on notice that no 

one was defending the case and that the case could have a direct impact on it.

As of September 1, 2019, the agency lacked the quorum that it needed to take any action, 

including to defend this case, see Pl.’s Notice Regarding the FEC’s Quorum [Dkt. # 13] at 1, and 

the June 2020 motion for default judgment remained pending as the Court awaited further events. 

On August 11, 2020, plaintiff informed the Court that the agency had briefly gained its full 

complement of Commissioners, but that another had resigned, and once again there was no 

quorum. See id. The motion for default judgment was held in abeyance for some time, and on 

January 29, 2021, plaintiff filed a notice informing the Court that the FEC had recently “announced 

the full restoration of the agency’s quorum with the swearing in of three new Commissioners.” 

Pl.’s Second Notice Regarding the FEC’s Quorum [Dkt. # 16] at 1.

Since the FEC had been without a quorum for much of the time the motion for default 

judgment was pending, the Court entered an order on March 11, 2021 denying plaintiff’s motion 

“without prejudice to a renewed motion if defendant does not enter an appearance in this case by 

May 1, 2021.” Order [Dkt. # 17] at 4. The agency did not meet the deadline, and on May 5, 2021, 

plaintiff renewed its motion for default judgment, requesting again that “the Court enter an order 

declaring that the FEC’s failure to act is contrary to law in violation of 52 U.S.C. § 30109(a)(8)(C), 

and directing the FEC to conform within 30 days.” Pl.’s Renewed Mot. for Default J. Against Def. 

FEC [Dkt. # 18] (“Pl.’s Renewed Mot.”) at 4. Once again, the movant had sufficient information 

to be well aware that the FEC was not going to defend its own, much less 45Committee’s, interests.

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The Court granted plaintiff’s renewed motion on November 8, 2021. See Order [Dkt. # 25]

(“Defendant’s failure to act on plaintiff’s administrative complaint is contrary to law and it is 

ORDERED that defendant act on the complaint within thirty days pursuant to 52 U.S.C. § 

30109(a)(8)(C).”).

When the agency did not act on the complaint in accordance with the November 2021 

Order, plaintiff came back to the Court with another motion on December 9, 2021, “respectfully 

request[ing] that the Court issue an order declaring that the FEC has failed to conform to this 

Court’s Default Judgment Order” and authorizing plaintiff to file a civil suit against “45Committee 

directly.” Pl.’s Mot. for an Order Declaring that Def. has Failed to Conform to the Default J. Order 

[Dkt. # 26] at 2; see also id. at 5 (“An order finding that the FEC has failed to conform will enable 

CLC to move expeditiously – where the FEC has not – to remedy 45Committee’s flagrant and 

continuing FECA violations.”).

If the default judgment was not enough to get the movant to sit up and take notice, this 

unfurled a red flag in its direction. So what did it do?

On January 7, 2022, 45Committee moved to file an amicus brief addressing plaintiff’s 

motion. Mot. to File Amicus Br. An attorney entered an appearance on 45Committee’s behalf on 

the same date. Appearance of Counsel [Dkt. # 29]. The Court granted the motion over plaintiff’s 

objection, Min. Order (Jan. 24, 2022), and the amicus brief was filed. See Amicus Br. 

45Committee took no further action.

Three months later, on April 21, 2022, the Court entered an order granting plaintiff’s 

motion. See Order [Dkt. # 32] (“Apr. 2022 Order”) at 6 (“As the agency has not complied with 

the Court’s November 8, 2021 Order within the time specified, it is hereby ORDERED that 

plaintiff may bring an action to enforce the FECA against the alleged violator pursuant to 52 U.S.C. 

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§ 30109(a)(8)(C).”). In its Order, the Court fully considered the arguments the would-be 

intervenor had advanced in its amicus brief, and it concluded that “the objections contained in the 

brief submitted by 45Committee are not convincing and do not justify further delay.” Id. at 3–6.

With the issuance of the order granting plaintiff’s motion for a declaration that the FEC 

had failed to conform to the Court’s order and authorizing plaintiff to sue 45Committee directly, 

the case was terminated. Civil Case Terminated (Apr. 21, 2022). 

One week later, 45Committee filed the pending motion to intervene, stating for the first 

time that “45Committee now seeks to intervene for the purpose of appealing the Court’s subject 

matter jurisdiction to issue the April 21 Order authorizing CLC’s direct lawsuit against 

45Committee.” Mot. to Intervene at 2.

Under all of those circumstances, the motion to join a terminated case that had been 

pending for two years without any sign that defendant would take steps to protect movant’s 

interests can hardly be found to be timely.

The Supreme Court recently discussed the first Karsner factor, the amount of time that has 

passed during which the movant could have sought intervention, in Cameron v. EMW Women’s 

Surgical Ctr., P.S.C., 142 S. Ct. 1002 (2022). 45Committee cites Cameron for the proposition that 

the test to be applied is whether motions are filed “soon after the movant learned that the 

[defendant] would not appeal.” Mot. to Intervene at 9, quoting Cameron, 142 S. Ct. at 1012. But 

that is not what the Supreme Court said in Cameron; it explained that “the most important 

circumstance relating to timeliness is that the [movant] sought to intervene as soon as it became 

clear that the [movant’s] interests would no longer be protected by the parties in the case.” 

Cameron, 142 S. Ct. at 1012 (internal quotation marks omitted, emphasis added). “Timeliness is 

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an important consideration in deciding whether intervention should be allowed,” and “[t]imeliness 

is to be determined from all the circumstances.” Id.

Here, 45Committee did not act with alacrity once it became clear that its interests would 

not be protected by the agency. While it suggests in its reply brief that there has been “newlydiscovered evidence,” see Reply at 7, its own filings in this case establish that it has known the 

factual information it now claims justifies intervention for four months. See Mot. to File Amicus 

Br. at 1 (“Two days ago, on January 5, 2022, in response to a Freedom of Information Act (‘FOIA’) 

request, 45Committee for the first time obtained from the FEC a previously undisclosed official, 

stamped vote certification showing that the FEC long ago – on June 23, 2020 – ‘took . . . actions’

on the underlying administrative complaint at issue in this case, by holding votes on the 

complaint.”) (emphasis omitted).

Further, the January 2022 amicus brief specifically pointed out that the agency was not 

defending the action, see Amicus Br. at 1 (noting the agency’s lack of appearance), so the movant 

cannot contend that it was not well aware by that time that the agency would not represent its 

interests. And 45Committee has known full well for some time what plaintiff’s proposed course 

of action would be. Yet the movant offers no explanation for its failure to seek intervention in 

January and its decision to file an amicus brief instead – and the difference was made clear by the 

Court at that time. See Min. Order (Jan. 24, 2022) (“The amicus is not a party to this case, so to 

the extent the brief goes beyond offering its position on whether the pending motion for an 

order [Dkt. # 26] should be granted or denied, and it seeks affirmative relief . . . it is improper.”).

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Although 45Committee correctly points out that other entities in its position have been 

granted intervention,2 Mot. to Intervene at 5–6, those cases establish precisely why this particular 

2 While the movant is aware of prior cases involving default, see Mot. to Intervene at 6, 

citing Campaign Legal Ctr. v. FEC, 334 F.R.D. 1, 1 (D.D.C. 2019) (permitting a third party to 

intervene to defend an election-related suit in which the FEC had defaulted), it also argues that its 

untimely motion should be granted because the FEC has taken “unprecedented and unlawful 

actions” in this case. Reply at 6. As troubling as the failure of a federal agency to appear might 

be, it is unfortunately far from unprecedented. In fact, as pointed out by another amicus in this 

case, the FEC has often failed to take action on administrative complaints or to defend itself in 

court over the past several years. See Institute for Free Speech Amicus Curiae Br. [Dkt. # 23] at 

5–11 (characterizing the situation as a “scheme to overcome deadlocks and delegate the FEC’s 

enforcement authority to private actors”). 

This state of affairs is no secret, and the D.C. Circuit has taken note of it as well:

The Federal Election Campaign Act (FECA) requires that “[a]ll decisions 

of the” Federal Election Commission (FEC) “with respect to the exercise of 

its duties and powers under the provisions of this Act shall be made by a 

majority vote of the members of the Commission.” 52 U.S.C.

§ 30106(c). Because the FEC is comprised of three Democratic appointees 

and three Republican appointees, see id. § 30106(a)(1), FECA thus requires 

that all actions by the Commission occur on a bipartisan basis. The statute 

does not instruct how to handle a “deadlock vote,” that is, a vote in which 

three members wish to proceed on a given enforcement action and three 

oppose such action. This situation, as one might expect, occurs with some 

frequency.

Citizens for Resp. & Ethics in Washington v. FEC, 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, 

J., concurring). So while 45Committee may be appropriately chagrined, the agency’s failure to 

defend this litigation was not “unprecedented,” and it grew out of the FEC’s unique structure and 

enacting legislation.

This leaves not only 45Committee but the plaintiff, Campaign Legal Center, and countless 

others in a dire situation. The Supreme Court has explained that the disclosure provisions added 

to the FECA in the Bipartisan Campaign Reform Act were intended to prevent independent groups 

from running advertisements “‘while hiding behind dubious and misleading names,’” so that 

“citizens [could] ‘make informed choices in the political marketplace.’” Citizens United v. FEC, 

558 U.S. 310, 367 (2010), quoting McConnell v. FEC, 540 U.S. 93, 197 (2003), and emphasized 

that it is this transparency that is supposed to ensure the integrity of the electoral process. See id. 

at 371 (“transparency enables the electorate to make informed decisions and give proper weight to 

different speakers and messages”). Yet the country has endured election cycle after election cycle 

with no one home at the FEC to oversee and enforce compliance with the FECA and the laws 

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request is untimely, as they involve motions to intervene at much earlier stages of litigation. See, 

e.g., Crossroads, 788 F.3d at 320 (FEC defended the action but intervention was nonetheless 

justified; “[t]he Commission has never questioned timeliness, most likely because Crossroads filed 

an intervention motion before the FEC had even entered an appearance”); Campaign Legal Ctr.,

334 F.R.D. at 3–6 (FEC declined to defend a civil suit regarding its failure to prosecute an 

administrative complaint, and the entities who were respondents to the administrative complaint 

moved to intervene; “[t]he application [was] certainly timely, since Intervenors moved to intervene 

less than two months after the plaintiffs filed their complaint and before the defendant filed an 

answer or was required to do so”) (internal quotation marks and brackets omitted). Movants who 

act before an answer was due or an appearance had even been entered by a defendant can hardly 

be compared to movants who wait for more than two years – until after default judgment has been 

granted and the order to conform has been issued – to attempt to intervene.

The second and third factors, the purpose of intervention and the need for intervention to 

protect the movant’s interests, merge in this case. 45Committee asserts that this Court must 

consider that its intended purpose in seeking to intervene includes challenging the existence of

subject matter jurisdiction. And it is true that the D.C. Circuit has emphasized that “a highly 

governing the financing of political campaigns. The stalemate is not a partisan problem –

politicians on both sides have decried the flow of cash from vaguely identified organizations to 

their opponents. It is an American problem, and it is inconsistent with the foundational principles 

of democracy that were supposed to be left standing after Citizens United. See 558 U.S. at 339 

(“The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a 

precondition to enlightened self-government and a necessary means to protect it.”).

It is beyond the power of this Court or the scope of this case to address the ongoing 

paralysis at the agency, as it is inherent in FEC’s structure, but the Court will add its voice to those 

suggesting that it may well be time for Congress to act. See Citizens for Resp., 923 F.3d at 1143 

(Griffith, J., concurring) (“[P]erhaps this is just a hole in the statutory scheme that only Congress 

can fill.”).

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tenable challenge to the District Court’s subject matter jurisdiction” is a weighty interest, “given 

the District Court’s independent obligation to assure itself of its own jurisdiction.” Acree, 370 

F.3d at 50.

The problem is that there is no question that the district court has subject matter jurisdiction 

to hear a claim that the FEC has failed to act on an administrative complaint. See 52 U.S.C. 

§ 30109(a)(8)(A) (“Any party aggrieved by . . . a failure of the Commission to act on such 

complaint during the 120-day period beginning on the date the complaint is filed, may file a 

petition with the United States District Court for the District of Columbia.”). 45Committee’s 

argument – that a June 2020 vote recorded in agency records before the Court ever entered its 

order constituted the statutorily required “action” on the complaint – goes to the merits of 

plaintiff’s complaint. See Mot. to Intervene at 5 (“If granted party status, 45Committee intends to 

argue on appeal that the FEC’s voting records show that the Commission has acted on CLC’s 

administrative complaint in compliance with the Court’s November 8 order.”). 

Furthermore, 45Committee’s claimed jurisdictional argument is based on a theory that is

better characterized as far-fetched than “highly tenable.” See Apr. 2022 Order at 5 (“The 

documents 45Committee received in response to its request provide no evidence that the FEC ever 

‘took action’ on the initial administrative complaint, much less that it voted to dismiss the 

complaint.”). And it is hard to say that intervention is needed to protect this theory when 

45Committee is the entity that chose not to try to intervene and raise the issue until now. 

Finally, while any potential lack of subject matter jurisdiction warrants close attention, the 

belated challenge must be balanced against the fourth factor: prejudice to the parties (in this case, 

just the plaintiff). See Karsner, 532 F.3d at 886 (timeliness inquiry includes “the probability of 

prejudice to those already parties in the case”). Parties deserve some level of finality and cannot 

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be expected to litigate cases indefinitely, and this plaintiff would be seriously prejudiced by the 

belated intervention given how long this relatively simple case has been pending; the amount of 

time that has gone by while plaintiff’s motions for default judgment were pending; and the length 

of time that has elapsed since the actions that led to the underlying administrative complaint. 

45Committee’s activities were centered around the 2016 election, but plaintiff has endured the 

failure to act on its administrative complaint, filed in 2018, until now. See Compl. ¶¶ 15–29. None 

of these delays have been due to plaintiff’s lack of diligence or effort, and plaintiff has expressed

its understandable frustration with the slow pace of these proceedings several times already. See, 

e.g., Pl. Campaign Legal Center’s Status Report [Dkt. # 27] at 2 (“Plaintiff respectfully requests 

that the Court grant its pending motion for the reasons stated therein, ECF No. 26, and in light of 

the FEC’s continued failure to conform to the Default Judgment Order. If a status conference 

would be of assistance to the Court, counsel for Plaintiff could be available for such a conference 

notwithstanding the upcoming holidays.”). In the time that 45Committee declined to move to 

intervene, plaintiff consistently pushed for resolution of this case.

This is not a case in which the defendant’s approach to the litigation changed and interested 

parties were forced to address changed circumstances. See Cameron, 142 S. Ct. at 1012 (“The 

attorney general’s need to seek intervention did not arise until the secretary ceased defending the 

state law, and the timeliness of his motion should be assessed in relation to that point in time.”).

Nor is this a situation in which the defendant made a strategic decision not to appeal that could not 

have been predicted in advance. See McDonald, 432 U.S. at 393–94 (“[T]here was no reason for 

the [movant] to suppose that [plaintiffs] would not later take an appeal until [movant] was advised 

to the contrary after the trial court had entered its final judgment.”). The agency has been 

completely consistent in failing to defend this action every day for the last two years and two 

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months, and plaintiff has sought the same relief throughout the entire life of the case. Because 

45Committee failed to file a timely motion, the motion for intervention as of right is DENIED. 

The motion to intervene permissively is DENIED for the same reason; Federal Rule of Civil 

Procedure 24(b) requires a “timely motion,” just as Rule 24(a) does, and the Court finds in its 

discretion that the motion should be denied.

AMY BERMAN JACKSON

United States District Judge

DATE: May 13, 2022

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