USCA Case #22-5164 Document #1954295 Filed: 07/11/2022 Page 1 of 24 

[ORAL ARGUMENT NOT YET SCHEDULED] 

Nos. 22-5164, 22-5165 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION 

Defendant-Appellee, 

45COMMITTEE, INC., 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia 

OPPOSED MOTION TO HOLD APPEALS IN ABEYANCE 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 
USCA Case #22-5164 Document #1954295 Filed: 07/11/2022 Page 2 of 24 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................................................................ii 

INTRODUCTION

ADDENDUM 

...................................................................................................1 

BACKGROUND......................................................................................................4 

ARGUMENT .........................................................................................................12 

CONCLUSION......................................................................................................15 

CERTIFICATE OF COMPLIANCE................................................................16 

CERTIFICATE OF SERVICE ..........................................................................17 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Am. Petroleum Inst. v. EPA, 

683 F.3d 382 (D.C. Cir. 2012)........................................................................... 14 

Basardh v. Gates, 

545 F.3d 1068 (D.C. Cir. 2008) ......................................................................... 13 

Citizens for Resp. & Ethics in Wash. v. FEC, 

164 F. Supp. 3d 113 (D.D.C. 2015) .................................................................... 7 

Citizens for Resp. & Ethics in Wash. v. FEC, 

243 F. Supp. 3d 91 (D.D.C. 2017) ...................................................................... 7 

Citizens for Resp. & Ethics in Wash. v. FEC, 

993 F.3d 880 (D.C. Cir. 2021)........................................................... 2, 5, 6, 7, 13 

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988)............................................................................. 5 

Crossroads Grassroots Pol’y Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015)............................................................................. 5 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ........................................................................... 7 

Devia v. Nuclear Regul. Comm’n, 

492 F.3d 421 (D.C. Cir. 2007)........................................................................... 14 

Heckler v. Chaney, 

470 U.S. 821 (1985) .............................................................................................. 7 

United States v. Quinn, 

475 F.3d 1289 (D.C. Cir. 2007) ......................................................................... 14 

Wheaton Coll. v. Sebelius, 

703 F.3d 551 (D.C. Cir. 2012)........................................................................... 13 

STATUTES 

52 U.S.C. § 30106 ................................................................................................. 4, 5 

52 U.S.C. § 30107 ..................................................................................................... 5 

52 U.S.C. § 30109 ............................................................................... 3, 5, 6, 8, 9, 10 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Pub. L. No. 92-225, 86 Stat. 3 (1972) ......................................................................4 

OTHER AUTHORITIES 

11 C.F.R. § 111.9 ......................................................................................................6 

11 C.F.R. § 111.20 ....................................................................................................6 

Shane Goldmacher, Democrats’ Improbable New F.E.C. Strategy: 

More Deadlock Than Ever, N.Y. TIMES (June 8, 2021) .................................8 

Matter Under Review 5024 (Nov. 4, 2003) ............................................................7 

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INTRODUCTION 

In March 2020, Campaign Legal Center sued the Federal Election 

Commission (FEC) for allegedly failing to act on the Center’s administrative 

complaint against 45Committee, Inc. After the Commission failed to appear 

or defend itself, the district court (Jackson, J.) ruled on November 8, 2021, that 

the Commission had unlawfully failed to act and gave the agency 30 days to do 

so. The Commission did not respond by that deadline. On April 21, 2022, the 

court therefore issued a final judgment declaring that the Center could bring 

a citizen suit against 45Committee under the Federal Election Campaign Act 

of 1971 (the Act). The Center then sued 45Committee the next day, April 22, 

in a case now pending before Judge Mehta. 

In response to a Freedom of Information Act (FOIA) request, the 

Commission nevertheless revealed that it had in fact acted on the Center’s 

administrative complaint shortly after the Center had sued the agency. On 

June 23, 2020, the bipartisan, six-member Commission voted on the matter, 

but the Center’s administrative complaint evidently failed to garner the four 

votes necessary to initiate an enforcement action. At that point, the 

Commission was required to notify the parties that the administrative 

proceedings were over and to release the voting records along with any 

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statements of reasons by the Commissioners. Had it done so, Judge Jackson 

could not have authorized the Center’s citizen suit against 45Committee on the 

erroneous premise that the Committee had failed to act. 

But things took a wrong turn. The three Commissioners who voted in 

favor of initiating an enforcement action—but who failed to secure the 

necessary fourth vote—blocked the Commission from notifying the parties of 

the agency’s action and from defending against the Center’s lawsuit. Through 

this policy of concealment, these Commissioners subjected 45Committee to a 

citizen suit authorized on the false premise that the agency had never acted on 

the Center’s administrative complaint. After learning of this concealment, 

45Committee sought post-judgment intervention in order to appeal, but Judge 

Jackson denied the request on timeliness grounds. 

In order to fully defend itself in both these appeals and the Center’s 

citizen suit pending before Judge Mehta, 45Committee needs the FEC to 

provide unredacted voting records and any statements of reasons associated 

with the Center’s administrative complaint. If, as seems likely, those materials 

reveal that the decision by the Commissioners who voted against enforcement 

was “based even in part on prosecutorial discretion,” that decision will qualify 

as “not reviewable” in court, Citizens for Resp. & Ethics in Wash. v. FEC, 993 

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F.3d 880, 882 (D.C. Cir. 2021) (CREW), and 45Committee will be better 

positioned to advance these appeals and mount a defense before Judge Mehta. 

Unlike in the similar pair of pending appeals brought by Heritage Action for 

America (Nos. 22-5140, 22-5167), however, the Commission has steadfastly 

refused to release its unredacted voting records and any statements of 

reasons. To secure those materials, 45Committee is pursuing both a FOIA 

lawsuit against the FEC, No. 1:22-cv-502 (D.D.C.) (Jackson, J.), as well as an 

action under the Administrative Procedure Act (APA) challenging the 

Commission’s policy of concealment, No 1:22-cv-1749 (D.D.C.) (Mehta, J.) 

Given that background, these consolidated appeals should be placed into 

abeyance pending the disposition of 45Committee’s FOIA and APA suits. It 

makes little sense to plow ahead with these appeals when resolution of the 

merits question here—whether the Center may bring a citizen suit against 

45Committee under 52 U.S.C. § 30109(a)(8)(C)—is likely to be significantly 

affected by consideration of these materials. If 45Committee secures these 

documents and uses them to conclusively defeat the Center’s citizen suit, 

45Committee will drop these appeals. Holding these appeals in abeyance thus 

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will conserve judicial and party resources by potentially obviating any need to 

resolve these appeals, without any material prejudice to the Center.1 

BACKGROUND 

1.a. Congress enacted the Federal Election Campaign Act of 1971 to 

regulate the financing of federal election campaigns. Pub. L. No. 92-225, 86 

Stat. 3 (1972). Congress subsequently amended the Act to create the FEC— 

an independent agency run by six presidentially-appointed Commissioners— 

and granted the agency “exclusive jurisdiction” over the Act’s civil 

enforcement. 52 U.S.C. § 30106(b)(1). 

To prevent any one political party from wielding the Commission’s 

enforcement powers for partisan gain, Congress carefully structured the FEC 

to consist of no more than three members affiliated with the same political 

party. Id. § 30106(a). In addition, Congress directed that “[a]ll decisions” of 

the Commission concerning “the exercise of its duties and powers” must be 

made “by a majority vote” of the Commissioners. Id. § 30106(c). 

1

 45Committee has conferred with Campaign Legal Center about this motion, 

and the Center opposes the relief requested. The FEC has not appeared in 

this matter and there is no counsel of record to notify. Nonetheless, out of an 

abundance of caution, counsel for 45Committee contacted the FEC’s Office of 

General Counsel by email, informing the Commission of 45Committee’s 

intention to file this motion and asking for the Commission’s position. The 

Commission did not respond. 

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Congress further provided that a private party may lodge an 

administrative complaint with the Commission alleging a violation of the Act. 

Id. § 30109(a)(1). After reviewing the complaint, along with any response, the 

FEC must vote on whether there is “reason to believe” that the respondent 

has committed a statutory violation. Id. § 30109(a)(2). Unless there is “an 

affirmative vote of 4” Commissioners that such a “reason to believe” exists, 

the FEC cannot proceed further with investigation or enforcement. Id.; see 

id. §§ 30106(c), 30107(a)(9). 

Instead, when “there are fewer than four votes” to proceed, the FEC 

“dismisses the administrative complaint.” Crossroads Grassroots Pol’y 

Strategies v. FEC, 788 F.3d 312, 315 (D.C. Cir. 2015). That remains true in the 

context of so-called “deadlock dismissals”—situations where the Commission 

splits in its vote (typically on a 3-3 basis) on whether to find reason to believe 

a violation has occurred and lacks the four votes necessary to proceed any 

further. Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988); see, e.g., 

CREW, 993 F.3d at 882-83; Crossroads, 788 F.3d at 315. 

When the Commission dismisses an administrative complaint—or fails 

to act on it within 120 days after the complaint has been filed—the private 

party that sought the agency’s enforcement may sue the FEC in the D.C. 

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district court. 52 U.S.C. § 30109(a)(8)(A). If the court declares that the 

Commission’s dismissal or failure to act was “contrary to law,” then the FEC 

has 30 days “to conform with such declaration.” Id. § 30109(a)(8)(C). If—but 

only if—the Commission fails to conform by that deadline, the private party 

may bring its own “civil action to remedy” the alleged statutory violation 

involved in the administrative complaint. Id. 

b. When a deadlock dismissal occurs, the Commission must publicly 

disclose that fact. Congress directed that “[i]f the Commission makes a 

determination that a person has not violated [the] Act ... the Commission shall 

make public such determination.” Id. § 30109(a)(4)(B)(ii). And FEC 

regulations provide that “[i]f the Commission finds no reason to believe, or 

otherwise terminates its proceedings, the General Counsel shall so advise both 

complainant and respondent by letter,” 11 C.F.R. § 111.9(b), and “make public 

such action and the basis therefor” within 30 days of that letter, id. § 111.20(a). 

In addition, “[w]hen the Commission lacks four votes to proceed, the 

commissioners who voted against enforcement must state their reasons why,” 

which are “then treated as if they were expressing the Commission’s rationale 

for dismissal.” CREW, 993 F.3d at 883 n.3 (cleaned up). Such statements allow 

reviewing courts to determine “whether reason or caprice” drove the agency’s 

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decision. Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 

(D.C. Cir. 1987) (R.B. Ginsburg, J.). If a deadlock dismissal is “based even in 

part on prosecutorial discretion,” however, it is “not reviewable” under the 

Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821 (1985). CREW, 

993 F.3d at 882. 

In light of these requirements, the Commission for decades addressed 

deadlock dismissals through a policy of administratively closing the 

enforcement-matter file, notifying the parties, and releasing the voting 

records as well as any statements of reasons. See, e.g., FEC’s Partial Mot. to 

Dismiss at 12, Citizens for Resp. & Ethics in Wash. v. FEC, 243 F. Supp. 3d 

91 (D.D.C. 2017) (No. 16-cv-259), Dkt. 12 (explaining that “[a]s a result of” a 

“three-to-three” “split vote, the Commission closed the file”); FEC’s Motion 

to Dismiss at 11, Citizens for Resp. & Ethics in Wash. v. FEC, 164 F. Supp. 3d 

113 (D.D.C. 2015) (No. 14-cv-1419), Dkt. 5 (“If at least four of the FEC’s six 

Commissioners vote to find such reason to believe, the Commission may 

investigate the alleged violation; otherwise, the Commission dismisses the 

administrative complaint.”); Matter Under Review 5024 (Nov. 4, 2003) 

(deciding by a 6-0 vote to close the file and send the appropriate notices after 

splitting 3-3 on whether there was reason to believe a violation had occurred). 

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This public release then allows the aggrieved administrative complainant to 

challenge the FEC’s deadlock dismissal in court under 52 U.S.C. § 30109(a)(8). 

Recently, however, the FEC—at the behest of Commissioners Walther, 

Broussard, and Weintraub—has adopted a new policy. As the New York 

Times reported in 2021, based in part on interviews with Commissioner 

Weintraub, these three Commissioners “are declining to formally close some 

cases after the Republicans vote against enforcement” in order to “leave[] 

investigations officially sealed in secrecy and legal limbo.” Shane Goldmacher, 

Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever, 

N.Y. TIMES (June 8, 2021), https://tinyurl.com/3zdp9sej. The same three 

Commissioners are then “blocking the F.E.C. from defending itself in court 

when advocates sue the commission for failing to do its job.” Id. By making 

federal courts “believe” that “deadlocked cases are unresolved” through this 

new policy, these three Commissioners are trying to “open the door for outside 

advocacy groups to directly sue ... in federal court.” Id. 

On May 13, 2022, the FEC’s other three Commissioners—Chairman 

Dickerson and Commissioners Cooksey and Trainor—issued a statement 

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condemning this new policy. 1:22-cv-1115 Dkt. 17-3.2 As they explained, the 

FEC—acting through Commissioners Walther, Broussard, and Weintraub— 

has “weaponiz[ed] a nominal housekeeping act,” “affirmatively misled 

respondents,” and “intentionally shielded” its actions “from both judicial and 

public review.” Id. at 2, 5. They also revealed that this policy had been applied 

to “eight enforcement matters” before the FEC at that time, even though 

“votes have been taken” and “statements of reasons have been included in the 

file by the commissioners declining to move forward.” Id. at 2-3. 

2.a. These appeals concern one of those eight enforcement matters. 

On August 23, 2018, the Center, along with an individual named Margaret 

Christ, lodged an administrative complaint with the FEC alleging that 

45Committee had violated the Act by failing to disclose the identities of its 

contributors. Dkt. 1-1. Within a week, the Commission acknowledged receipt 

and designated the matter as Matter Under Review 7486. Dkt. 11-4. 

On March 24, 2020, the Center sued the Commission in district court, 

alleging that the FEC had failed to act on the Center’s administrative 

complaint and that this inaction was contrary to law under 52 U.S.C. 

2

 “Dkt.” refers to district-court docket entries in the case below, whereas 

entries in related cases are designated by the case number before “Dkt.” 

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§ 30109(a)(8)(A). Dkt. 1. When the Commission failed to enter an appearance 

or otherwise defend against the lawsuit, the clerk of court entered default 

against the FEC on May 28, 2020. Dkt. 10. The Center later moved for a 

default judgment days, on June 1, 2020. Dkt. 11. 

On November 8, 2021, the court issued an order granting the Center’s 

motion. Dkt. 25. The court found that “the FEC has not taken any action on 

the administrative complaint,” and that this “failure to act is contrary to law.” 

Dkt. 24 at 5, 18. It therefore directed the Commission to “act on the complaint 

within thirty days pursuant to 52 U.S.C. § 30109(a)(8)(C).” Dkt. 25 at 1. 

On December 9, 2021, the Center sought a declaration that the 

Commission had failed to conform to the default-judgment order. Dkt. 26. The 

court granted the request on April 21, 2022, ruling that the Commission “has 

not taken any action on the complaint” since the default-judgment order 

entered over “five months” before and that the Center may therefore “bring 

an action to enforce the FECA against” 45Committee under 52 U.S.C. 

§ 30109(a)(8)(C). Dkt. 32 at 1, 6. The next day, April 22, the Center filed a 

citizen lawsuit against 45Committee. No. 1:22-cv-1115 (D.D.C.) (Mehta). 

b. Within a week, 45Committee moved to intervene before Judge 

Jackson on April 28 in order to appeal the court’s April 22 final judgment. Dkt. 

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33. As 45Committee explained, the Commission had responded to a FOIA 

request by producing a heavily-redacted vote certification confirming that the 

FEC had in fact acted on the Center’s administrative complaint by voting on 

it on June 23, 2020—well over a year before Judge Jackson’s December 8, 2021 

deadline. Dkt. 33-1 at 7-8; see Dkt. 31-2. And given that the Commission has 

not taken any further action on the administrative complaint since June 23, 

2020, it evidently voted to dismiss it on that date. 

On May 13, Judge Jackson denied the motion to intervene on the 

premise that it was not timely. Dkt. 37. On June 6, 45Committee filed notices 

of appeal of the final judgment authorizing the citizen suit and the denial of 

the intervention motion. Dkts. 39-40. This Court consolidated the appeals. 

c. Since filing these appeals, 45Committee has been pursuing two 

lawsuits seeking further confirmation that the Commission dismissed the 

Center’s administrative complaint on June 23, 2020. 

First, after the FEC denied 45Committee’s administrative appeal 

requesting unredacted voting records and any statements of reasons, 

45Committee filed a FOIA lawsuit against the Commission on February 25, 

2022. No 1:22-cv-502 (D.D.C.) (Jackson, J.). In that case, the FEC has 

“admit[ted] that the Commission has taken previous votes on the 

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administrative complaint against 45Committee.” 1:22-cv-502 Dkt. 12 at 2. 

Briefing on cross-motions for summary judgment is scheduled to conclude on 

August 26, 2022. 

Second, 45Committee filed an APA action against the Commission on 

June 17, 2022, challenging its concealment policy and seeking an order 

compelling the FEC to release the unredacted voting records and any 

statements of reasons. No. 1:22-cv-1749 (D.D.C.) (Mehta, J.). The APA 

complaint was served on June 21, 2022, and the FEC must respond by August 

22, 2022. 

Meanwhile, 45Committee has asked Judge Mehta to stay proceedings in 

the Center’s direct lawsuit pending resolution of its FOIA action, APA 

challenge, and these appeals. 1:22-cv-1115 Dkt. 17-1 at 26. If 45Committee 

obtains the relevant materials from the FEC, it intends to move to dismiss the 

Center’s direct lawsuit, just as Heritage Action for America did in a similar 

case last week. See 1:22-cv-1248 Dkt. 20. 

ARGUMENT 

This Court should place these appeals into abeyance pending the 

disposition of 45Committee’s FOIA lawsuit in No. 1:22-cv-502 before Judge 

Jackson and its APA challenge in No. 1:22-cv-1749 before Judge Mehta. This 

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Court “[o]ften” issues abeyance “orders in light of other pending proceedings 

that may affect the outcome of the case before” it. Basardh v. Gates, 545 F.3d 

1068, 1069 (D.C. Cir. 2008) (collecting cases addressing petitions for review). 

The “prospect” that “[r]esolution of” another proceeding “may entirely, or 

partially, moot” the case before this Court “militates in favor of holding” it in 

“abeyance,” given the “‘longstanding policy of the law to avoid duplicative 

litigative activity.’” Id. 

This Court should follow that practice here. If 45Committee obtains the 

unredacted voting records and any Commissioner statement of reasons 

through its FOIA or APA lawsuits, it plans to move to dismiss the Center’s 

direct lawsuit pending before Judge Mehta. Those materials will likely 

confirm that, as in the case of Heritage Action for America, the June 23, 2020 

vote on the Center’s administrative complaint resulted in a deadlock dismissal 

based at least in part on prosecutorial discretion. At that point, Judge Mehta 

will be compelled to dismiss the Center’s citizen suit. See CREW, 993 F.3d at 

882. And if that dismissal is not appealed, this Court will never have to resolve 

these appeals. Accordingly, if this Court does “not decide the merits of 

appellants’ challenge ... now,” it “may never need to.” Wheaton Coll. v. 

Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (cleaned up). 

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That is a paradigmatic basis for abeyance. This Court routinely holds 

cases in abeyance to “conserve judicial resources.” United States v. Quinn, 

475 F.3d 1289, 1291 (D.C. Cir. 2007); see, e.g., Am. Petroleum Inst. v. EPA, 683 

F.3d 382, 386-87, 390 (D.C. Cir. 2012); Devia v. Nuclear Regul. Comm’n, 492 

F.3d 421, 426 (D.C. Cir. 2007). There is no reason to take a different approach 

here. Holding these appeals in abeyance will not materially prejudice the 

Center, which has already filed its citizen suit and should be content to leave 

the rulings below undisturbed for as long as possible. To the contrary, 

granting abeyance here would save the Center and 45Committee, both 

nonprofit organizations, from the burden of having to needlessly litigate 

“issues on appeal that may ultimately be mooted by” events elsewhere. 

Quinn, 475 F.3d at 1291. 

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CONCLUSION 

This Court should place these appeals into abeyance pending the 

disposition of the FOIA lawsuit in 45Committee, Inc. v. FEC, No. 1:22-cv-502 

(D.D.C.) (Jackson, J.), and the APA challenge in 45Committee, Inc. v. FEC, 

No. 1:22-cv-1749 (D.D.C.) (Mehta, J.). 

Dated: July 11, 2022 Respectfully submitted, 

/s/ Brett A. Shumate 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 

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CERTIFICATE OF COMPLIANCE 

1. This document complies with the word limit of Fed. R. App. P. 

27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. 

App. P. 32(f) and D.C. Circuit Rule 32(e)(1), this document contains 2911 

words. 

2. This document complies with the typeface and type-style 

requirements of Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and (a)(6) because 

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word in 14-point Century Expd BT typeface. 

/s/ Brett A. Shumate 

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CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 11th day of July 2022, I filed the 

foregoing motion using this Court’s Appellate CM/ECF system, which 

effected service on all parties. 

/s/ Brett A. Shumate 

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ADDENDUM 
USCA Case #22-5164 Document #1954295 Filed: 07/11/2022 Page 23 of 24 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

45COMMITTEE, INC., 

Movant-Appellant. 

Nos. 22-5164, 22-5165 

CERTIFICATE OF PARTIES AND DISCLOSURE STATEMENT 

A. Parties and Amici 

The appellant in this Court and the movant in the district court is 

45Committee, Inc. (45Committee). 

The appellee in this Court and plaintiff in the district court is the 

Campaign Legal Center. The appellee in this Court and defendant in the 

district court is the Federal Election Commission. 

The New Civil Liberties Alliance and Institute for Free Speech 

appeared as amici curiae in the district court. 

B. Disclosure Statement 

45Committee, Inc. is a 501(c)(4) nonprofit organization, has no parent 

corporation, and no publicly held corporation owns ten percent or more of its 

stock. 
USCA Case #22-5164 

Dated: July 11, 2022 

Document #1954295 Filed: 07/11/2022 Page 24 of 24 

Respectfully submitted 

/s/ Brett A. Shumate 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant