Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 1 of 20 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

AB PAC, )

)

Plaintiff, ) Civ. No. 22-2139 (TJK)

)

v. )

) MEMORANDUM IN SUPPORT OF

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS

)

Defendant. )

)

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT

Lisa J. Stevenson Jacob Siler (D.C. Bar No. 1003383)

(D.C. Bar No. 457628) Assistant General Counsel

Acting General Counsel jsiler@fec.gov

lstevenson@fec.gov

Shaina Ward (D.C. Bar No. 1002801)

Kevin Deeley Attorney

Associate General Counsel sward@fec.gov

kdeeley@fec.gov

FEDERAL ELECTION COMMISSION

November 4, 2022 1050 First Street NE

Washington, DC 20463

(202) 694-1650
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 2 of 20 

TABLE OF CONTENTS

BACKGROUND .......................................................................................................................2

I. THE FEC AND FECA’S ADMINISTRATIVE

ENFORCEMENT PROCESS........................................................................................2

II. AGENCY PROCEEDINGS RELATED

TO PLAINTIFF’S ADMINISTRATIVE COMPLAINT..............................................4

ARGUMENT.............................................................................................................................6

I. AB PAC LACKS ARTICLE III STANDING TO COMPEL

THE COMMISSION TO ACT ON ITS EXCESSIVE

CONTRIBUTION CLAIM............................................................................................6

A. Standard of Review............................................................................................6

B. AB PAC Does Not Have Standing to Ask This Court to

Compel the Commission to Enforce a Contribution Limit

Against a Third Party.........................................................................................8

C. AB PAC Lacks Standing to Pursue Its Claim of Excessive

Contributions Because it is Not a Competitor Candidate ..................................9

D. AB PAC’s Allegations About the Activity of Other

PACs Do Not Establish Standing ....................................................................12

CONCLUSION........................................................................................................................14

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 3 of 20 

TABLE OF AUTHORITIES

Cases

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) ............................................................................ 6

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

Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017) ................................................................. 6

Campaign Legal Ctr. v. FEC, 860 F. App’x 1 (D.C. Cir. 2021) (per curiam) ............................... 8

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).................................................................. 4, 11

267 F. Supp. 3d 50 (D.D.C. 2017)............................................................................................... 8

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

363 F. Supp. 3d 33 (D.D.C. 2018)............................................................................................. 13

Citizens for Resp. & Ethics in Washington v. Am. Action Network,

410 F. Supp. 3d 1 (D.D.C. 2019)............................................................................................... 13

Citizens for Resp. & Ethics in Washington v. Am. Action Network,

No. 18-cv-945 (CRC), 2022 WL 612655 (D.D.C. Mar. 2, 2022) ............................................. 13

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).................................................................... 11

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ................................................................ 8

Davis v. FEC, 554 U.S. 724 (2008)................................................................................................ 7

Fulani v. Brady, 935 F.2d 1324 (D.C. Cir. 1991)......................................................................... 10

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. 1998)........................................................................... 10

Grand Lodge of the Fraternal Ord. of Police v. Ashcroft,

185 F. Supp. 2d 9 (D.D.C. 2001)................................................................................................. 6

Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) ......................................................................... 6

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012).................................................................... 10

In re U.S. Catholic Confer., 885 F.2d 1020 (2d Cir. 1989).......................................................... 10

Int’l Bhd. of Teamsters v. TSA, 429 F.3d. 1130 (D.C. Cir. 2005)................................................... 7

Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005)........................................ 6

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 4 of 20 

KERM, Inc. v. FCC, 353 F.3d 57 (D.C. Cir. 2004) ...................................................................... 13

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ............................................................................. 7

M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019)..................................................... 6

McConnell v. FEC, 540 U.S. 93 (2003)........................................................................................ 11

Nat’l Ass’n for Latino Cmty. Asset Builders v. Consumer Fin. Prot. Bureau,

581 F. Supp. 3d 101 (D.D.C. 2022)............................................................................................. 6

New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002)................................................... 13

People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric.,

797 F.3d 1087 (D.C. Cir. 2015)................................................................................................. 11

Sargent v. Dixon, 130 F.3d 1067 (D.C. Cir. 1997)......................................................................... 8

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ................................................................................ 10

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).............................................................. 7

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...................................................................... 7

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)..................................................................... 9

Statutes

52 U.S.C. § 30102(e)(1).................................................................................................................. 5

52 U.S.C. § 30104........................................................................................................................... 5

52 U.S.C. § 30106........................................................................................................................... 2

52 U.S.C. § 30106(b)(1) ................................................................................................................. 2

52 U.S.C. § 30106(c) .................................................................................................................. 2, 3

52 U.S.C. § 30107........................................................................................................................... 2

52 U.S.C. § 30107(a)(8).................................................................................................................. 2

52 U.S.C. § 30109(a)(1).................................................................................................................. 2

52 U.S.C. § 30109(a)(2).................................................................................................................. 2

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52 U.S.C. § 30109(a)(4)(A)(i) .................................................................................................... 2, 3

52 U.S.C. § 30109(a)(6).................................................................................................................. 2

52 U.S.C. § 30109(a)(6)(A)............................................................................................................ 3

52 U.S.C. § 30109(a)(8)............................................................................................................ 1, 13

52 U.S.C. § 30109(a)(8)(A)................................................................................................... passim

52 U.S.C. § 30109(a)(8)(C) ............................................................................................................ 4

52 U.S.C. § 30109(a)(12)(A).......................................................................................................... 3

52 U.S.C. § 30109(a)(12)(B) .......................................................................................................... 3

52 U.S.C. § 30111(a)(8).................................................................................................................. 2

52 U.S.C. § 30116(f)............................................................................................................. 1, 5, 14

Rules and Regulations

11 C.F.R. § 111.4............................................................................................................................ 2

11 C.F.R. § 111.21.......................................................................................................................... 3

Fed. R. Civ. P. 12(b)(1)............................................................................................................... 1, 6

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 6 of 20 

The Federal Election Commission (“Commission” or “FEC”) respectfully files this

partial motion to dismiss plaintiff’s Amended Complaint for Declaratory and Injunctive Relief

(“Am. Compl.”) (Docket No. 14) pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff

AB PAC alleges that the FEC has failed to act on an administrative complaint in violation of 52

U.S.C. § 30109(a)(8). According to AB PAC, the underlying administrative complaint named a

sole respondent — former president Donald J. Trump — and alleged that he violated the Federal

Election Campaign Act of 1971 (“FECA”) by making expenditures to advance a 2024 campaign

for President without filing a statement of candidacy with the FEC or disclosing those

expenditures and by accepting excessive contributions from his leadership PAC and a joint

fundraising committee.

The FEC moved to dismiss plaintiff’s original Complaint to the extent it sought an order

compelling the Commission to act on any administrative complaint alleging Trump accepted

excessive contributions in violation of 52 U.S.C. § 30116(f) because plaintiff failed to establish

that the Commission’s inaction deprived AB PAC of any information required to be disclosed,

AB PAC could not establish that it was a competitor of Trump, and there was no other sufficient

injury-in-fact to support Article III standing. Rather than oppose that motion, plaintiff amended

its complaint to bolster allegations involving certain political action committees, or PACs, that

were not described as respondents in the administrative complaint and who are allegedly

benefiting from Trump’s alleged FECA violations. Notwithstanding these amendments,

however, plaintiff’s amended complaint suffers from the same critical defect as its original one.

First, AB PAC does not suffer a competitive disadvantage from the Commission’s

alleged inaction on its administrative complaint against Trump because AB PAC does not itself

seek elective office or nominate candidates for election, and therefore does not compete with

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Trump. Second, Trump is the only respondent in plaintiff’s administrative complaint. The

purported injury to AB PAC that plaintiff alleges — that a lack of enforcement by the FEC

against Trump increased competition from the PACs — is too remote and speculative to support

standing under Article III. The FEC’s Motion should be granted.

BACKGROUND

I. THE FEC AND FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS

The FEC is a six-member, independent agency of the United States government with

“exclusive jurisdiction” to administer, interpret, and civilly enforce FECA. See generally 52

U.S.C. §§ 30106, 30107. Congress authorized the Commission to “formulate policy” with

respect to FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary

to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate

possible violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction

to initiate civil enforcement actions for violations of the Act in the United States district courts.

Id. §§ 30106(b)(1), 30109(a)(6).

FECA permits any person to file an administrative complaint with the Commission

alleging a violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing

the complaint and any response filed by the respondent, the Commission considers whether there

is “reason to believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). 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. Id. §§ 30106(c), 30109(a)(2).

If the Commission votes to proceed with an investigation, it then must determine whether

there is “probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i). Like

a reason-to-believe determination, a determination to find probable cause to believe that a

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violation of FECA has occurred requires an affirmative vote of at least four Commissioners. Id.

§§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is statutorily required to attempt

to remedy the violation informally and attempt to reach a conciliation agreement with the

respondent. Id. Entering into a conciliation agreement requires an affirmative vote of at least

four Commissioners and such an agreement, unless violated, operates as a bar to any further

action by the Commission related to the violation underlying that agreement. Id.

§ 30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation agreement, FECA

authorizes the agency to institute a de novo civil enforcement action in federal district court. Id.

§ 30109(a)(6)(A). The institution of a civil action under section 30109(a)(6)(A) requires an

affirmative vote of at least four Commissioners. Id.

FEC administrative enforcement matters are required by FECA to be kept confidential

until the administrative process is complete. 52 U.S.C. § 30109(a)(12)(A) (“Any notification or

investigation made under this section shall not be made public by the Commission or by any

person without the written consent of the person receiving such notification or the person with

respect to whom such investigation is made.”); 11 C.F.R. § 111.21. FECA further provides for

the imposition of a fine on “[a]ny member or employee of the Commission, or any other person,

who violates” section 30109(a)(12)(A). 52 U.S.C. § 30109(a)(12)(B).

If, at any point in the administrative process, the Commission determines that no

violation has occurred or decides to dismiss the administrative complaint for some other reason,

FECA provides the complainant with a narrow cause of action for judicial review of the

Commission’s dismissal decision. See id. § 30109(a)(8)(A) (detailing the procedure for seeking

judicial review of an administrative dismissal and the scope of such review). That statutory

provision also allows a party who has filed an administrative complaint with the Commission,

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after 120 days, to bring a civil action in this District alleging that the Commission has “fail[ed] to

act” on its complaint. Id. § 30109(a)(8)(A).

FECA expressly limits the scope of relief available to a plaintiff challenging an FEC

dismissal decision or alleging that the Commission has failed to act on an administrative

complaint. The reviewing court may only (a) declare that the Commission’s failure to act or

dismissal was “contrary to law” and (b) order the Commission to “conform with” the court’s

declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C).

II. AGENCY PROCEEDINGS RELATED TO PLAINTIFF’S ADMINISTRATIVE

COMPLAINT

Plaintiff AB PAC alleges that it is a hybrid political action committee (“PAC”) that is

registered with the FEC. (Am. Compl. ¶ 17.)1 According to the Amended Complaint, AB PAC

supports Democratic candidates by conducting research on Republican candidates, which it

releases to the public and the media. (Id. ¶ 18.) Plaintiff alleges that it tracks Republican

candidates and makes independent expenditures in support of Democratic candidates. (Id.)

Plaintiff further alleges that it spent tens of millions of dollars on communications opposing

Trump and supporting then-candidate President Joseph Biden in the 2020 presidential election.

(Id.) Additionally, plaintiff alleges that in the 2024 presidential election, AB PAC again plans to

make independent expenditures opposing the Republican nominee and supporting the

Democratic nominee. (Id.) Plaintiff alleges that it “directs most of its operations in competition

with Republican candidates and PACs.” (Id. ¶ 20.) However, AB PAC does not allege that it

A “hybrid PAC” is a committee that accepts funds and makes contributions to candidates

subject to FECA’s amount and source limitations but that also maintains a separate bank account

to deposit and spend unlimited funds on independent expenditures and from sources such as

labor unions or corporations that would otherwise be barred from being contributed to

candidates. See Carey v. FEC, 791 F. Supp. 2d 121, 131-32 (D.D.C. 2011).

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nominates candidates for federal office, and as an artificial entity, it is not itself eligible to stand

for election.

Plaintiff alleges that it filed an administrative complaint with the FEC on March 17,

2022. (Id. ¶ 1.) Plaintiff’s administrative complaint asserted two categories of potential FECA

violations that it asked the Commission to investigate. (Id. ¶¶ 49-53.) The first category alleges

that Trump is a “candidate” for the president in the 2024 election cycle, and he has therefore

violated FECA’s requirement that candidates for federal office file a statement of candidacy and

campaign finance disclosure reports identifying his contributions and expenditures. (See id. ¶ 52

(citing 52 U.S.C. §§ 30102(e)(1) and 30104).) The second category alleges that Trump has

accepted excessive contributions above FECA’s dollar amount limitations for his purported 2024

presidential campaign from an entity called “Save America” — his leadership PAC — and a

joint fundraising committee because those entities spent more than $5,000 on alleged in-kind

contributions. (Id. ¶ 53 (citing 52 U.S.C. § 30116(f).) Plaintiff’s administrative complaint

requests that the Commission “(1) investigate the allegations against Mr. Trump, (2) compel

disclosure of any expenditures made to support Mr. Trump’s candidacy, (3) enjoin Mr. Trump

from further violations, and (4) fine Mr. Trump the maximum amount permitted by law.” (Id. ¶

10.) In this Court, plaintiff seeks a declaration “that the FEC’s failure to act” is “contrary to law”

under 52 U.S.C. § 30109(a)(8)(A) & (C). (Am. Compl. ¶ 7.) Plaintiff also seeks “declaratory

and injunctive relief” to compel the Commission “to act on Plaintiff’s administrative complaint”

within 30 days. (Id.; see also Am. Compl. Requested Relief ¶¶ 1-4.)

On July 20, 2022, plaintiff filed its original Complaint in this Court against the

Commission alleging that the Commission has failed to act on its administrative complaint. (See

Pl.’s Complaint for Declaratory and Injunctive Relief (Docket No. 1).) On September 26, 2022,

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the Commission filed a partial motion to dismiss plaintiff’s complaint asserting that plaintiff

failed to establish Article III standing on its excessive contribution claim and therefore this

portion of the complaint must be dismissed. (See Docket No. 12.) Thereafter, pursuant to Rule

15 of the Federal Rules of Civil Procedure, plaintiff filed the Amended Complaint.

ARGUMENT

I. AB PAC LACKS ARTICLE III STANDING TO COMPEL THE COMMISSION

TO ACT ON ITS EXCESSIVE CONTRIBUTION CLAIM

A. Standard of Review

A plaintiff bears the burden of demonstrating that it has properly invoked this Court’s

subject-matter jurisdiction. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A motion

to dismiss for lack of standing is properly considered under Rule 12(b)(1), as lack of standing is

a “defect in subject matter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987);

M.J. v. District of Columbia, 401 F. Supp. 3d 1, 7-8 (D.D.C. 2019). When deciding a motion

under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as

true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Because

the court has “an affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority,” however, the factual allegations in the complaint “will bear closer

scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a

claim.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14

(D.D.C. 2001) (internal quotation marks omitted); see also Nat’l Ass’n for Latino Cmty. Asset

Builders v. Consumer Fin. Prot. Bureau, 581 F. Supp. 3d 101, 104 (D.D.C. 2022) (same). As the

party bringing suit, AB PAC bears the burden of establishing standing. Attias v. Carefirst, Inc.,

865 F.3d 620, 625 (D.C. Cir. 2017).

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To have Article III standing a plaintiff must establish: (1) it has “suffered an ‘injury in

fact[,]” which the Supreme Court defines as “an invasion of a legally protected interest which is

(a) concrete and particularized, and (b) actual or imminent, not [merely] conjectural or

hypothetical,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and

quotation marks omitted); (2) that there is a “causal connection between the injury and the

conduct complained of[,]” which requires the injury to be “fairly traceable to the challenged

action of the defendant, and not the result of the independent action of some third party not

before the court,” id. (internal quotation marks and alterations omitted); and (3) that it is “likely,

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id.

(internal quotation marks omitted). These three components of the Article III “case or

controversy” requirement are designed to ensure that the “plaintiff has alleged such a personal

stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction

and to justify [the] exercise of the court’s remedial powers on his behalf.” Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 38 (1976) (internal quotation marks omitted). Moreover,

“standing is not dispensed in gross” and “a plaintiff must demonstrate standing for each claim he

seeks to press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734

(2008) (internal quotation marks and alterations omitted).

Where a plaintiff asserts a procedural right, he must show that he has suffered a personal

and particularized injury that impairs one of his concrete interests. Int’l Bhd. of Teamsters v.

TSA, 429 F.3d 1130, 1135 (D.C. Cir. 2005). “[D]eprivation of a procedural right without some

concrete interest that is affected by the deprivation — a procedural right in vacuo — is

insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009).

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In the context of a failure-to-act claim pursuant to 52 U.S.C. § 30109(a)(8)(A), it is not

enough for a plaintiff to allege that the Commission has not acted on an administrative

complaint. That is so because section 30109(a)(8)(A) “does not confer standing; it confers a

right to sue upon parties who otherwise already have standing.” Common Cause v. FEC, 108

F.3d 413, 419 (D.C. Cir. 1997) (per curiam). Rather, a plaintiff bringing a failure-to-act claim

under section 30109(a)(8)(A) must allege that it suffered some additional concrete injury beyond

the mere alleged agency inaction. See Campaign Legal Ctr. v. FEC, 860 F. App’x 1, 4-5 (D.C.

Cir. 2021) (per curiam).

B. AB PAC Does Not Have Standing to Ask This Court to Compel the

Commission to Enforce a Contribution Limit Against a Third Party

As an initial matter, plaintiff cannot rely on its abstract desire to see the law enforced

against Trump in its preferred matter to establish Article III standing on its excessive

contribution claim. A plaintiff’s interest in “seeing that the laws are enforced” is not “legally

cognizable within the framework of Article III.” Sargent v. Dixon, 130 F.3d 1067, 1069 (D.C.

Cir. 1997); see Lujan, 504 U.S. at 573-74. As to its excessive contribution claim, AB PAC does

not allege that the Commission’s lack of administrative action causes it to be deprived of

information to which it believes it is entitled. Nor could it, because even if the Commission

brought a successful enforcement action based on AB PAC’s allegations that Trump had

accepted excessive contributions, no additional disclosure would result. See Citizens for Resp. &

Ethics in Wash. v. FEC, 267 F. Supp. 3d 50, 53 (D.D.C. 2017) (“Plaintiffs have alleged no facts

that they were harmed by the money spent by Murray Energy PAC or by the direct donations

that Murray Energy employees gave. The particularized harm they plead is not about the money

in politics but about the lack of information about that money.”).

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The relief AB PAC seeks is for this Court to compel the FEC to enforce a contribution

limit against a political candidate it opposes. Such concerns cannot be the basis for standing

because there is no “justiciable interest in having the Executive Branch act in a lawful manner.”

Common Cause, 108 F.3d at 419. AB PAC has no Article III right to seek “a legal conclusion

that carries certain law enforcement consequences” for others. Wertheimer v. FEC, 268 F.3d

1070, 1075 (D.C. Cir. 2001). “While ‘Congress can create a legal right . . . the interference with

which will create an Article III injury,’ . . . Congress cannot . . . create standing by conferring

‘upon all persons . . . an abstract, self-contained, noninstrumental ‘right’ to have the Executive

observe the procedures required by law.’” Common Cause, 108 F.3d at 418 (quoting Lujan, 504

U.S. at 573) (emphasis in original, internal citation omitted).

C. AB PAC Lacks Standing to Pursue Its Claim of Excessive Contributions

Because it is Not a Competitor Candidate

In its Amended Complaint, AB PAC alleges that the Commission’s nonenforcement

against Trump places it and the future Democratic nominee for president at a competitive

disadvantage. (Am. Compl. ¶ 3 (arguing that Trump’s “failure to declare his candidacy in

accordance with the law and acceptance of unlawful contributions provides him with a

competitive edge over the Democratic candidate in the 2024 presidential election”); id. ¶ 6

(alleging Trump has “an unlawful head start against his opponents”); id. ¶ 13 (alleging that “the

Commission’s inaction is allowing one candidate to build a campaign with illegal funds”

provides a competitive advantage).) Even assuming it were the case that a Democratic candidate

were injured by the Commission’s alleged inaction, that would not support AB PAC’s standing

because it is not a candidate and does not compete directly with Trump. The D.C. Circuit’s cases

have applied competitor standing for “already established candidates . . . to challenge an

‘assertedly illegal benefit’ being conferred upon someone with whom those candidates compete.”

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See Hassan v. FEC, 893 F. Supp. 2d 248, 254 n.6 (D.D.C. 2012); see also Shays v. FEC, 414

F.3d 76, 85 (D.C. Cir. 2005) (finding standing for members of Congress who intended to run for

reelection and were challenging FEC regulations applicable to candidates and political parties).

But those cases do not extend standing to the established candidate’s political supporters.

Plaintiff’s allegation that it is injured because a hypothetical candidate it intends to

support will be at a fundraising disadvantage (see, e.g., Am. Compl. ¶ 3) does not establish

competitor standing for AB PAC. In Gottlieb v. FEC, the D.C. Circuit concluded that a PAC

lacked standing as a competitor to challenge the use of public matching funds by a candidate it

opposed “because it was never in a position to receive matching funds itself.” 143 F.3d 618, 621

(D.C. Cir. 1998). “Only another candidate could make such a claim.” Id. (emphasis added). As

the Gottlieb court reasoned, competitor standing “require(s) that the plaintiff ‘show that he

personally competes in the same arena with the same party to whom the government has

bestowed the assertedly illegal benefit.’” Id. (quoting In re U.S. Catholic Confer., 885 F.2d

1020, 1029 (2d Cir. 1989)). Similarly, in Fulani v. Brady, the court concluded that a minor party

candidate for President could not establish competitor standing to challenge the tax-exempt

status of the sponsor of the Presidential debates, which had excluded her from participating,

because she was not in competition for that benefit. See 935 F.2d 1324, 1327-28 (D.C. Cir.

1991). As these cases demonstrate, it is not enough for AB PAC to claim that a candidate it

supports will be at a disadvantage in raising money. AB PAC must also allege that it is denied

the benefit of the purported nonenforcement of contribution limits that Trump is receiving.

Plaintiff cannot make that showing because it is not among Trump’s competitors in any

election. AB PAC cannot allege, for example, that it must comply with a contribution limitation

that the Commission is not enforcing against Trump. As a hybrid PAC, plaintiff is permitted to

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raise contributions into a separate account for independent expenditures which are not subject to

the amount and source limitations FECA places on candidates. See Carey v. FEC, 791 F. Supp.

2d 121, 131-32 (D.D.C. 2011). Absent being denied a benefit a similarly situated party received,

moreover, AB PAC is not injured merely because Trump raises and spends more money than

plaintiff would like. Cf. Davis, 554 U.S. at 741-42; McConnell v. FEC, 540 U.S. 93, 227-28

(2003) (holding that plaintiff lacked competitive injury because they did ‘“not wish to solicit or

accept large campaign contributions permitted by”’ federal law).

Nor may AB PAC rely on its allegation that it will voluntarily “spend more money on

independent expenditures supporting the 2024 Democratic presidential nominee” if the

Commission does not enforce FECA in the way it desires against a differently situated person.

(Am. Compl. ¶ 14.) Those increased expenditures result not from any cognizable injury but from

AB PAC’s voluntary decision to counteract others’ spending decisions. See People for the

Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1103 (D.C. Cir. 2015)

(Millett, J., dubitante) (“[W]here concerns about governmental action that was not targeted at the

plaintiffs did not constitute an Article III injury, the costs voluntarily incurred in response to

those concerns could not fill the gap either.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 417

(2013).

To be sure, AB PAC alleges that it is an ideological opponent to Trump and desires a

different candidate to be elected president in 2024. But a political action committee like AB

PAC lacks competitor standing to challenge a benefit given to a candidate if that benefit is

granted solely to candidates, because they are not competitors in the same “arena.” See Gottlieb,

143 F.3d at 621. It therefore cannot rely on its ideological opposition to Trump’s candidacy to

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 17 of 20 

establish competitor standing with regard to the excessive contribution claims it alleges it made

to the Commission.

D. AB PAC’s Allegations About the Activity of Other PACs do Not Establish

Standing

Plaintiff’s Amended Complaint additionally alleges that Save America, a joint

fundraising committee, and other unspecified independent expenditure-only committees are

allegedly illegally raising money with Trump’s support. (See, e.g., Am. Compl. ¶¶ 3, 6, 21-22.)

In addition to its allegations against Trump, plaintiff now claims that it “competes on several

metrics with” the “entire political ecosystem of Republican PACs, Super PACs, and candidates”

to whom Trump’s allegedly unlawful fundraising practices flow. (Id. ¶ 22; see also id. ¶ 13

(“[T]he Commission’s inaction is allowing one candidate to build a campaign with illegal funds

and to raise unlimited funds for independent expenditure-only committees that support him.”).)

Plaintiff further asserts that its “expenditure strategy is in part informed by the behavior of

Republican PACs.” (Id. ¶ 20). Therefore, plaintiff claims, it is at a competitive disadvantage as

a result because “[a] candidate who solicits unlimited funds for independent expenditure-only

committees that will support that candidate also benefits from increased independent

expenditures,” and “[t]he candidate’s opponents, who are abiding by FECA, are at a

disadvantage.” (Id. ¶ 21). These allegations do not cure plaintiff’s lack of standing, however.

Even assuming AB PAC is a competitor in “the entire political ecosystem,” its allegations

about Republican PACs and Super PACs cannot directly support its claim of injury from lack of

enforcement because AB PAC does not allege it asked the Commission to pursue anyone other

than Trump. Critically, AB PAC’s filings indicate that Trump is the only identified respondent

in plaintiff’s administrative complaint. (Am. Compl., Exh. 1, at 1 (identifying “Donald J.

Trump” as sole respondent).) AB PAC’s requested relief was directed solely at Trump, asking

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 18 of 20 

that the Commission “enjoin Mr. Trump from further violations” with no mention of any relief it

was requesting as to any PAC. (Id. at 11.) As a result, the Court does not have jurisdiction to

consider allegations about unnamed respondents, including any named or unnamed PACs

alluded to in plaintiff’s amended complaint. See Citizens for Resp. & Ethics in Wash. v. FEC,

363 F. Supp. 3d 33, 40 (D.D.C. 2018) (“the language of [Section 30109(a)(8)] does not reflect

any intent on the part of Congress to provide for judicial review of the agency’s exercise of its

discretion to decline to pursue the facts beyond the four corners of the administrative

complaint.”). Here too, plaintiff “cannot expand the scope of their administrative complaint now

by reading words into it that were not there.” Id. at 42; see also Citizens for Resp. & Ethics in

Wash. v. Am. Action Network, 410 F. Supp. 3d 1, 20 (D.D.C. 2019), on reconsideration, No. 18-

cv-945 (CRC), 2022 WL 612655 (D.D.C. Mar. 2, 2022) (same).

Moreover, any alleged injury from the purported benefit of nonenforcement that

“flow[s]” to any PAC is too attenuated and speculative to establish standing. Am. Compl. ¶ 22;

see Lujan, 504 U.S. at 560. The D.C. Circuit has held that a party seeking competitor standing

must be a “‘direct and current competitor.’” KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir.

2004) (quoting New World Radio, Inc. v. FCC, 294 F.3d 164, 170 (D.C. Cir. 2002)). The D.C.

Circuit has not extended competitor standing to the type of allegations plaintiff asserts here

against these so-called “competitor” PACs. Plaintiff asserts that the alleged benefits Trump has

received “flow freely from Mr. Trump to the entire political ecosystem of Republican PACs,

Super PACs, and candidates that AB PAC must expend resources to monitor and with whom AB

PAC competes on several metrics, including spending on independent expenditures in support of

preferred candidates.” (Am. Compl. ¶ 22.) However, whether these PACs have gained a

competitive advantage over plaintiff because of Trump’s alleged campaign-finance violations is

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 19 of 20 

far too speculative to constitute injury-in-fact and incapable of being redressed by this Court.

Gottlieb, 143 F.3d at 621 (concluding that an allegation on injury to four voters “‘ability to

influence the political process’ rests on gross speculation and is far too fanciful to merit

treatment as an ‘injury in fact.’”).

AB PAC further speculates that a “candidate who flouts campaign finance laws . . . may

amass more money” for his own campaign and Super PACs supporting it. (Am. Compl. ¶ 21

(emphasis added).) But a Super PAC is permitted to raise unlimited funds for independent

expenditures regardless of Trump’s candidacy status. It is equally plausible that a Super PAC

supporting Trump could raise the same amount of funds even had Trump declared his candidacy.

At base, plaintiff claims that it would not face unfair competition from rival PACs if (1)

the Commission concluded Trump meets FECA’s candidacy definition; (2) Trump filed a

statement of candidacy and abided by FECA’s limits on candidates, either through a conciliation

agreement or through successful enforcement litigation; (3) Republican PACs supporting Trump

had their fundraising levels affected. But what affect a Commission enforcement action against

Trump would have on third parties outside the scope of plaintiff’s administrative complaint is too

speculative and attenuated to support Article III standing.

CONCLUSION

For all the foregoing reasons, the Court should dismiss plaintiff’s amended complaint to

the extent it seeks an order compelling the Commission to act on any administrative complaint

alleging Trump accepted excessive contributions in violation of 52 U.S.C. § 30116(f).

Respectfully submitted,

Lisa J. Stevenson (D.C. Bar No. 457628) Jacob Siler (D.C. Bar No. 1003383)

Acting General Counsel Assistant General Counsel

lstevenson@fec.gov jsiler@fec.gov

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Case 1:22-cv-02139-TJK Document 16-1 Filed 11/04/22 Page 20 of 20 

Kevin Deeley

Associate General Counsel

kdeeley@fec.gov

November 4, 2022

/s/ Shaina Ward

Shaina Ward (D.C. Bar No. 1002801)

Attorney

sward@fec.gov

FEDERAL ELECTION COMMISSION

1050 First Street NE

Washington, DC 20463

(202) 694-1650

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