1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

Civil Action No. 20-cv-0809-ABJ 

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT 

FEDERAL ELECTION COMMISSION 

Plaintiff Campaign Legal Center (“CLC”), pursuant to Rule 55(b) of the Federal Rules of 

Civil Procedure, respectfully moves for the entry of default judgment against Defendant Federal 

Election Commission (“FEC” or “Commission”). CLC brought this action on March 24, 2020, 

challenging Defendant’s unlawful failure to act on Plaintiff’s administrative complaint alleging 

violations of the Federal Election Campaign Act (“FECA”). Service was effected on March 25, 

2020, such that the FEC’s deadline to file a responsive pleading was May 26, 2020. See ECF No. 

6. The FEC failed to appear, answer, plead, or otherwise defend this action as required by the 

Federal Rules of Civil Procedure, and the Clerk of Court entered a default against the FEC on May 

28, 2020. See ECF No. 10. 

For the reasons described below, entry of default judgment against the FEC is appropriate 

because the evidence establishes that the FEC has failed to act and that this failure to act is contrary 

to law. Plaintiff is therefore entitled to 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 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 1 of 18
 

2 

days. Plaintiff further requests that the Court assess $400 in court costs pursuant to 28 U.S.C. 

§ 1920. 

STATEMENT OF FACTS

1. On August 23, 2018, Campaign Legal Center (“CLC”) filed with the FEC an 

administrative complaint showing that during the 2016 Presidential election cycle 45Committee, 

Inc. 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. See FEC 

Matter Under Review (“MUR”) No. 7486 (“Admin. Complaint”), attached hereto as Exhibit 1. 

2. Relying on the FEC’s own records, the administrative complaint demonstrates that 

45Committee reported spending $21,339,015 on independent expenditures opposing presidential 

candidate Hillary Clinton or supporting her opponent, Donald Trump; all of the communications 

were disseminated between October 4, 2016 and November 5, 2016. Id. ¶ 10. It additionally 

demonstrates that 45Committee reported spending $671,320 on electioneering communications 

opposing Florida U.S. Senate candidate Patrick Murphy; those communications were disseminated 

on October 27, 2016.11 Id. 

3. According to 45Committee’s tax returns, spending on these communications alone 

constituted over 48% of its spending in its 2016 tax year, which ran from April 1, 2016 to March 

31, 2017, and likely constituted an even higher percentage of its spending during the 2016 calendar 

year. Id. ¶ 14-15, 27.1

 

1

 Indeed, the complaint demonstrates that 45Committee spent only $1,008,469 in the entire 2015 

tax year. Id. ¶ 26. Even if all of that spending occurred between January 1 and March 31 of 2016, 

45Committee would have spent approximately $22 million on campaign activity out of a total of 

approximately $42.5 million for 2016, meaning approximately 52% of its spending went to 

campaign activity. Id. ¶¶ 26-27. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 2 of 18
 

3 

4. Furthermore, the complaint demonstrates that nearly all of 45Committee’s 

communications were disseminated in the weeks before the election and targeted voters in swing 

states. Id. ¶¶ 11, 28. 

5. The administrative complaint also provides evidence that 45Committee actually 

spent up to $38.3 million—approximately 84% of its total expenditures—on campaign activity 

during 2016. Id. ¶ 29. Relying again on IRS records, the complaint documents 45Committee’s 

payments to the vendors who produced or placed its independent expenditures and electioneering 

communications—payments that exceed the amounts reported to the FEC. Id. 

6. The administrative complaint also documents public reporting on 45Committee as 

well as public statements by 45Committee’s own operatives, indicating both that the entity was 

expressly created for the purpose of providing donors a vehicle through which they could 

anonymously advocate for then-candidate Donald Trump without having to suffer the 

“embarrassment” of associating themselves with his campaign, and that 45Committee raised 

money specifically earmarked for the presidential race. Id. ¶ 6-9. 

7. Furthermore, the administrative complaint demonstrates that during the 2016 

calendar year, every social media post made by 45Committee—whose name itself is a reference 

to the election of the 45th president—pertained to the 2016 election. Id. ¶ 12-13. 

8. Despite its major purpose being campaign activity, 45Committee did not register 

as a political committee and did not file mandatory FEC reports disclosing its contributors, 

expenditures, debts, and obligations. See Committees, 

https://www.fec.gov/data/committees/?q=45+Committee (last visited May, 28, 2020) (search of 

entities registered with the FEC for “45Committee” turns up two results, one independent 

expenditure reporting entity and one electioneering reporting entity). 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 3 of 18
 

4 

9. On August 29, 2018, the FEC sent CLC a letter acknowledging receipt of the 

Complaint and designating it MUR 7486. See Aug. 29, 2018 Letter, attached hereto as Exhibit 3. 

10. CLC has not received any further communication from the FEC regarding MUR 

7643. Gaber Declaration ¶ 2, attached hereto as Exhibit 2. 

11. CLC waited more than 575 days for the FEC to take action on its administrative 

complaint before filing this action on March 24, 2020. 

12. To date, more than 645 days after CLC’s administrative complaint was filed, the 

FEC has not taken any public action with respect to MUR 7486. See FEC, Enforcement Query 

System, https://eqs.fec.gov/eqs/searcheqs (search for “MUR 7486” yields the response “No 

Matches Found”). 

13. The FEC lost a quorum of commissioners on September 1, 2019. See Press Release, 

FEC remains open for business, despite lack of quorum, https://www.fec.gov/updates/fecremains-open-business-despite-lack-quorum/ (Sept. 11, 2019) (attached hereto as Exhibit 4). 

14. Without a quorum, the FEC was unable to “launch any new investigations, issue 

any advisory opinions, promulgate any rules, or render any decisions in pending enforcement 

actions.” See FEC Chair Ellen L. Weintraub, The State of the Federal Election Commission, 

https://www.fec.gov/resources/cms-content/documents/2019-11-01-State-of-the-CommissionELW.pdf, (Nov. 1, 2019) (attached hereto as Exhibit 5); 52 U.S.C. § 30106(c). 

15. On May 19, 2020 the U.S. Senate confirmed the nomination of James E. Trainor 

III to be a member of the Federal Election Commission, restoring a quorum to the Commission. 

See Roll Call Vote 116th Congress – 2nd Session, On the Nomination (Confirmation: James E. 

Trainor III to be a Member of the Federal Election Commission), 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 4 of 18
 

5 

https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&se

ssion=2&vote=00096 (May 19, 2020). 

16. Even before the loss of a quorum, the FEC was “plagued” with “ideological 

obstruction.” See Ellen L. Weintraub, The State of the Federal Election Comm’n: 2019 End of 

Year Report, at 1 (Dec. 20, 2019) (attached hereto as Exhibit 6). As a result of this obstruction, the 

Commission has “frequently closed matters without so much as making a phone call to investigate 

potential wrongdoing” and “[e]nforcement actions pending before the Commission languished for 

months or years . . . causing some to near their statutory limitations,” only for “Commissioners to 

then decline to investigate at all,” or for the Commission “to end up with inadequate outcomes 

years too late to make a meaningful difference to the public.” Id. at 2. 

17. Indeed, between 2006 and 2016, the rate at which the Commission deadlocked on 

substantive votes regarding enforcement matters grew from 2.6% to 30%. Office of Comm’r Ann 

M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Comm’n 

Reveals the Unlikelihood of Draining the Swamp at 1, (Feb. 2017) (attached hereto as Exhibit 7). 

As a result of these deadlocks, the FEC has routinely failed to investigate serious allegations of 

campaign finance violations and closed matters without resolution. Id. 

18. At this time, the FEC remains in default with respect to this lawsuit, and has not 

appeared, filed an answer, or otherwise defended the action. That is so even though a new 

Commissioner has been confirmed by the Senate. 

19. Plaintiffs have incurred $400 in court costs as defined under 28 U.S.C. § 1920 in 

seeking this default judgment. See ECF No. 1 (docket text showing receipt of payment for filing 

fee). 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 5 of 18
 

6 

LEGAL STANDARD 

I. Default by the Government under Rule 55

 A plaintiff may seek a default judgment in a lawsuit where the defendant fails “to plead or 

otherwise defend.” Fed. R. Civ. P. 55(a)-(b). But, “[a] default judgment may be entered against 

the United States, its officers, or its agencies only if the claimant establishes a claim or right to 

relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). Although default against the 

government is disfavored, Rule 55(d) does not “relieve[] the sovereign from the duty to defend 

cases.” Doe v. Democratic People’s Republic of Korea Ministry of Foreign Affairs JungsongDong, 414 F. Supp. 3d 109, 120 (D.D.C. 2019) (citing Commercial Bank of Kuwait v. Rafidain 

Bank, 15 F.3d 238, 242 (2d. Cir. 1994)). “In determining whether the default judgment against the 

government is proper, the court may accept as true the plaintiff’s uncontroverted evidence,” Payne 

v. Barnhart, 725 F. Supp. 2d 113, 116 (D.D.C. 2010), including evidence submitted by affidavit,

see Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, 684 F. Supp. 2d 34, 37 (D.D.C. 2010), 

and public record evidence, see Doe, 414 F. Supp. 3d at 120; see also, e.g., Order, Citizens for 

Responsibility and Ethics in Washington v. FEC, Case No. 1:19-cv-2753-RCL (D.D.C. Apr. 9, 

2020) (granting motion for default judgment where plaintiff demonstrated, “by evidence that 

satisfies the Court, that the FEC’s failure to act on the administrative complaints . . . is contrary to 

law.”). 

II. Contrary to Law Standard

 A Plaintiff is entitled to relief where the undisputed facts show that the FEC has acted 

“contrary to law” by unreasonably delaying action on the underlying complaints. 52 U.S.C. 

§ 30109(a)(8)(c). While FECA “does not require that an [enforcement action] be completed within 

a specific time period,” DSCC v. FEC, No. Civ.A. 95-0349-JHG, 1996 WL 34301203, at *1 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 6 of 18
 

7 

(D.D.C. Apr. 17, 1996), it does impose “an obligation to investigate complaints expeditiously,” id.

at *4; see also Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980) (“Where the issue 

before the Court is whether the agency’s failure to act is contrary to law, the Court must determine 

whether the Commission has acted ‘expeditiously.’”). 

In determining whether the Commission has acted “expeditiously,” the court may look to 

“the credibility of the allegation, the nature of the threat posed, the resources available to the 

agency and the information available to it, as well as the novelty of the issues involved.” Common 

Cause, 489 F. Supp. at 744. In addition, the court may consider the factors outlined in Telecomm. 

Research & Action Ctr. v. F.C.C.: 

(1) the time agencies take to make decisions must be governed by a rule of reason[;] (2) 

where Congress has provided a timetable or other indication of the speed with which it 

expects the agency to proceed in the enabling statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that might be reasonable in the sphere of economic 

regulation are less tolerable when human health and welfare are at stake; (4) the court 

should consider the effect of expediting delayed action on agency activities of a higher or 

competing priority; (5) the court should also take into account the nature and extent of the 

interests prejudiced by delay; and (6) the court need not find any impropriety lurking 

behind agency lassitude in order to hold that agency action is unreasonably delayed. 

750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”) (internal quotation marks omitted). 

Although the Commission’s decision whether or not to investigate “is entitled to 

considerable deference, the failure to act in making such a determination is not.” DSCC, 1996 WL 

34301203, at *4. 

ARGUMENT 

 Under the Common Cause and TRAC factors, the undisputed evidence demonstrates that 

the Commission has unlawfully failed to act on Plaintiff’s administrative complaint. As such, 

Plaintiff is entitled to a default judgment against the Commission pursuant to Rule 55. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 7 of 18
 

8 

I. Plaintiff’s Administrative Complaint States Credible Allegations that 45Committee 

Violated FECA. 

Plaintiff’s administrative complaint provides substantial evidence that 45Committee’s 

major purpose was campaign activity, and thus its failure to register as a political committee and 

to file reports disclosing its contributors, expenditures, and debts violated FECA. See Ex. 1. FEC 

complaints are credible where they contain “specific documentation of the amounts spent and the 

purposes of the spending,” along with specific evidence as to the violations alleged. Citizens for 

Percy ’84 v. FEC, Civ. A No. 84-2653, 1984 WL 6601, at *4 (D.D.C. Nov. 19, 1984). Plaintiff’s 

complaint specifically documents the amounts 45Committee spent on independent expenditures 

and electioneering communications, as well as additional amounts spent on media consultants 

connected to those communications, and provided specific evidence related to the timing of those 

communications, 45Committee’s purpose as publically reported and as acknowledged by its 

operatives, and as demonstrated by its public statement. See Ex. 1 ¶¶ 6-15, 27-29. This evidence 

demonstrates that 45Committee’s major purpose was campaign activity, and thus it constitutes a 

political committee under the standard established by 52 U.S.C. § 30101(4) and Buckley v. Valeo, 

424 U.S. 1, 79 (1976). See Ex. 1. ¶¶ 16-22. As such, Plaintiff’s administrative complaint states 

credible allegations, supported by substantial evidence, demonstrating that 45Committee violated 

FECA by failing to register as a political committee pursuant to 52 U.S.C. §§ 30102 and 30103, 

and by failing to file reports identifying its contributors, expenditures, and debts pursuant to 52 

U.S.C. § 30104. 

II. The FEC’s Delay in Acting on Plaintiff’s Allegations Poses a Substantial and Ongoing 

Threat to the Electoral System. 

 

 The conduct alleged in Plaintiff’s administrative complaint constitutes a substantial and 

ongoing threat to the integrity of the election system, because there is a substantial likelihood that 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 8 of 18
 

9 

this type of illegal activity will continue, or even grow, absent any threat of enforcement. See 

Percy, 1984 WL 6601, at *3 (finding that “the significance of the threat to the integrity of [an] . . . 

election” is “obvious” where there is a “likelihood” that the illegal activity will continue); see also

DSCC, 1996 WL 34301203, at *5 (“The threat to the electoral system is highlighted not only by 

the amounts of money involved and the impact upon close elections, but by the serious threat of 

recurrence.”). Unreported contributions by undisclosed persons threaten the fundamental fairness 

of American elections by denying the electorate necessary information about precisely who is 

advocating for and against candidates for federal office. PAC disclosure requirements not only 

ensure that voters and candidates are able to evaluate messages and understand the agenda behind 

them, see Citizens United v. FEC, 558 U.S. 310, 369-70 (2010), but also are critical to enforcement 

of other aspects of FECA, including prohibitions on foreign spending, excess contributions, and 

coordination, see Buckley, 424 at 56-58. Furthermore, the nature of the threat is substantial where, 

as here, the conduct alleged is contrary to one of the principal purposes of FECA. See, e.g., DSCC, 

1996 WL 34301203, at *5 (finding that the underlying matter involved a substantial threat when 

it “involve[d] allegations” at the core of FECA’s requirements). 

III. The Commission’s Failure to Act on Plaintiff’s Administrative Complaint Is Not 

Excused by Lack of Resources, Competing Priorities, or Lack of Information. 

 Because the FEC has failed to appear in this case, it has put forward no evidence that its 

delay is caused by lack of resources, competing priorities, or lack of information. Cf. Common 

Cause 489 F. Supp. at 744; TRAC, 750 F.2d at 80. Indeed, the evidence gathered by Plaintiff and 

provided in its administrative complaint, much of which relies on the Commissions’ own records 

and publically available IRS records, is more than sufficient to allow the Commission to proceed 

expeditiously. See Percy, 1984 WL 6601, at *4 (finding delay unreasonable where “[m]uch of the 

information in the complaint could be verified from the FEC’s own records”). Thus, the FEC has 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 9 of 18
 

10 

failed to carry its burden of showing that its delay is reasonable. See id. (placing the burden of 

showing lack of resources on the agency because “[k]nowledge as to the limits of [agency] 

resources is exclusively within the control of the Commission”). 

Furthermore, “[w]hatever deference an agency is due in resource allocation decisions, it is 

entitled to substantially less deference when it fails to take any meaningful action within a 

reasonable time period.” DSCC, 1996 WL 34301203, at *5-*6. Here, the FEC has failed to take 

any official action on Plaintiff’s complaint for nearly two years—a delay that is clearly 

unreasonable. See infra Section V. 

Finally, even assuming the Commission’s failure to act is due to the press of other business, 

ruling for Plaintiff will provide the FEC an opportunity to relieve its burden rather than add to it. 

Congress included an alternative enforcement mechanism in FECA, authorizing private actions 

against administrative respondents when FEC does not or cannot act. See 52 U.S.C. 

§ 30109(a)(8)(C) (authorizing private right of action in federal court against administrative 

respondent should the FEC fail to conform to this Court’s judgment within thirty days). If the FEC 

fails to conform due to its prioritization of other matters, or any other reason, FECA authorizes 

Plaintiff to file suit against 45Committee. Notably, that outcome would ease the Commission’s 

enforcement burden, and would avoid any concern about “the effect of expediting delayed action 

on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. 

IV. Plaintiff’s Complaint Does Not Raise Novel Issues. 

FECA’s registration, reporting and disclosure requirements for political committees date 

back to the mid-1970s, and the test for whether an entity constitutes a PAC was adopted in Buckley 

v. Valeo, which was decided in 1976. The Commission has engaged in fact-bound major purpose 

analyses for political committees for decades. Plaintiff’s allegations that 45Committee failed to 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 10 of 18
 

11 

register as a political committee and failed to report its contributors, expenditures, and debts as 

required by FECA are not remotely a “novel” issue. See Percy 1984 WL 6601, at *1 (finding that 

issues that make up a substantial amount of the Commission’s workload are not “novel”). The 

Commission routinely analyzes entities’ major purposes in order to determine whether they 

constitute PACs. See, e.g., Crossroads GPS, FEC MUR 6596, 

https://www.fec.gov/data/legal/matter-under-review/6596/ (last visited May 28, 2020);

Foundation for a Secure and Prosperous America, FEC MUR 6974, 

https://www.fec.gov/data/legal/matter-under-review/6974/ (last visited May 28, 2020); 

Commission on Hope Growth and Opportunity, FEC MURs 6391 and 6471, 

https://www.fec.gov/data/legal/matter-under-review/6391/, https://www.fec.gov/data/legal/ 

matter-under-review/6471/ (last visited May 28, 2020). 

 As such, the Commission is clearly familiar with the relevant law and regulations 

surrounding violations of 54 U.S.C. §§ 30102, 30103, and 30104. These issues are not novel. 

V. The Commission’s Delay Violates the “Rule of Reason,” and Runs Contrary to 

Congress’s Intent that the Commission Act Expeditiously. 

 

 The Commission’s delay is unreasonable. Although “Congress did not impose specific 

time constraints upon the Commission to complete final action . . . it did expect that the 

Commission would fulfill its statutory obligations so that [FECA] would not become a dead letter.” 

DSCC, 1996 WL 34301203, at *7. Thus, although courts have declined to find that the 

Commission must act on every complaint within 120 days or within an election cycle, see FEC v. 

Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986), this “is not the equivalent of unfettered FEC discretion 

to determine its own timeline.” DSCC, 1996 WL 34301203, at *8. Indeed, the multitude of “short

deadlines governing the speed with which such complaints must be handled,” Rose, 608 F. Supp. 

at 11 (emphasis in original), itself demonstrates that Congress expected enforcement actions to 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 11 of 18
 

12 

advance expeditiously. This is because “the deterrent value of the Act’s enforcement provisions 

are substantially undermined, if not completely eviscerated, by the FEC’s failure to process 

administrative complaints in a meaningful time frame.” DSCC, 1996 WL 34301203, at *8; see 

also In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004) (finding that an 

agency’s unreasonable delay “signals the breakdown of regulatory processes”) (internal quotation 

marks omitted). The Commission’s failure to take any official action on Plaintiff’s complaint for 

nearly two years is just such a regulatory breakdown.2

 Indeed, it seems likely that the only way 

the allegations raised in Plaintiff’s administrative complaint will be investigated and adjudicated 

in any reasonable time frame is by this Court ordering the Commission to conform, failing which 

Plaintiff may avail itself of FECA’s private right of action. 

VI. The Commission’s Delay Prejudices Plaintiff and the Public.

The Commission’s failure to act undermines public confidence in our elections by allowing 

apparent violations of the law to go uninvestigated and unredressed. So too, the lack of 

enforcement and corresponding lack of any consequence for illegal behavior necessarily 

encourages 45Committee and others who seek to emulate 45Committee’s activities to continue to 

violate campaign finance law. See DSCC, 1996 WL 34301203, at *8 (“[T]hreats to the health of 

our electoral processes . . . require timely attention [and] should not be encouraged by FEC lethargy 

. . . .”). Because the Commission has failed to act, CLC and the voting public will continue to be 

harmed because they will be denied the information to which they are statutorily entitled about 

precisely who is advocating for and against candidates for federal office. 

 

2

 The Commission’s recent lack of a quorum does not justify its continued delay. Plaintiff’s 

administrative complaint was pending with the FEC for over a year before the Commission lost its 

quorum on September 1, 2019. See Ex. 1, Ex. 4. In any event, the FEC now has a quorum, see

supra ¶ 17, and as such nothing is preventing the Commission from acting on Plaintiff’s complaint 

either on its own initiative on pursuant to an order of this Court. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 12 of 18
 

13 

Furthermore, the excessive delay in acting on Plaintiff’s complaint, together with the 

Commission’s history of inaction and deadlock, gives rise to the appearance of impropriety.3 See 

Kessenich v. Commodity Futures Trading Comm’n, 684 F.2d 88, 97 (D.C. Cir. 1982) (explaining 

that the appearance of impropriety can pose a “concrete danger” to the perceived integrity of an 

agency and the court). This delay is yet one more instance where the Commission has declined to 

investigate or enforce serious allegations of campaign finance violations, see supra ¶ 16-17. This 

pattern continues to give rise to an appearance of impropriety. 

VI. Amicus New Civil Liberties Alliance Fundamentally Misunderstands Plaintiff’s 

Claim and the Applicable Law. 

The New Civil Liberties Alliance (“NCLA”) has filed a brief as amicus curiae in this 

action, nominally in support of the Commission. See NCLA Mot. at 3-4, ECF No. 7; ECF No. 8. 

NCLA contends that Plaintiff CLC lacks standing. In so doing, NCLA fundamentally 

misunderstands Plaintiff’s claim and misapplies the relevant law. NCLA’s brief should be 

disregarded. 

A. Plaintiff CLC Has Suffered an Injury in Fact

NCLA argues that Plaintiff lacks standing because CLC has not suffered an injury 

stemming from the Commission’s failure to act. NCLA Br. at 9, ECF No. 8. The law in this circuit 

is clear, however, “that a denial of denial of access to information qualifies as an injury in fact 

where a statute . . . requires that the information be publicly disclosed and there is no reason to 

doubt their claim that the information would help them.” Campaign Legal Ctr. v. FEC, 952 F.3d 

352, 356 (D.C. Cir. 2020) (quoting Envtl. Def. Fund v. EPA, 922 F.3d 446, 452 (D.C. Cir. 2019) 

 

3

 Although evidence of impropriety may buttress a plaintiff’s claim that the Commission has acted 

contrary to law, “the court need not find any impropriety lurking behind agency lassitude in order 

to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80. Thus, the Court need 

not . . . make such findings” to rule in Plaintiff’s favor. Rose, 209 F. Supp. at 12. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 13 of 18
 

14 

(internal quotation marks omitted) and citing FEC v. Akins, 524 U.S. 11, 21 (1998)). Thus, where 

a plaintiff alleges “violations of FECA provisions that require accurate disclosure of contributor 

information . . . and the filing of public reports by political committees, [52 U.S.C.] §§ 30102, 

30103, 30104,” they have standing to under § 30109(a)(8) if they can show that such disclosures 

“would further their efforts to defend and implement campaign finance reform.” Id. 

CLC is “a nonprofit, nonpartisan organization dedicated to supporting and enforcing 

campaign finance laws.” Id. at 355-56; see also Gaber Dec. ¶ 2. And, “[t]o further its mission, 

Campaign Legal Center participates in ‘public education, litigation, regulatory practice, and 

legislative policy.’” Campaign Legal Ctr., 952 F.3d at 356; Gaber Decl. ¶ 2. Just as in Campaign 

Legal Center, “[t]here is no reason to doubt” that 45Committee’s failure to register and file reports 

as a political committee pursuant to 52 U.S.C. §§§ 30102, 30103, and 30104 obstructs CLC’s 

efforts to “defend and implement campaign finance reform.” Id. Thus, CLC has demonstrated 

injury in fact. Id.

B. Plaintiff CLC’s Injury Is Redressable 

Amicus NCLA argues that CLC’s claim is not redressable because the Commission’s 

decision whether to act on a complaint is entirely discretionary, and thus not properly subject to 

this Court’s jurisdiction. Not so. As noted above, although the Commission’s determination of 

whether to proceed with enforcement on a particular matter “is entitled to considerable deference, 

the failure to act in making such a determination is not.” DSCC, 1996 WL 34301203, at *4 

(emphasis added). 

NCLA’s suggestion that the FEC has total discretion over whether to act is not supported 

by either FECA’s text or judicial precedent. FECA established four stages of enforcement for 

complaints such as those filed by Plaintiff. See 52 U.S.C. § 30109(a). The Commission can vote 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 14 of 18
 

15 

to dismiss a complaint at any stage of the enforcement process, and it can vote to investigate at 

any time after receiving a response from the respondent. See id. But the Commission does not have 

discretion to simply decide not to decide. See DSCC, 1996 WL 34301203, at *4; cf. In re Nat. 

Congressional Club, Nos. 84-5701, 84-5719, WL 148396 (D.C. Cir.1984) (holding that inaction 

by the Commission is subject to the same “standards generally applicable to review of agency 

inaction,” not that it is subject to agency discretion); FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 

1081) (holding that the FEC’s handling of an administrative complaint was “substantially 

justified” because the Commission acted “immediately upon receiving [the complaint];” gave it 

“prompt and sustained agency attention;” and engaged in “thorough consideration of the issues it 

raised”; not because the agency had discretion over whether to act at all). 

Indeed, if the FEC had total discretion to act or not, then § 30109(a)(8)(A)’s “failure to 

act” provision would be meaningless because the Commission’s failure to act would never be 

contrary to law. Furthermore, if the Commission’s obligation to act were merely precatory rather 

than mandatory, there would be no reason to analyze “the credibility of the allegation, the nature 

of the threat posed, the resources available to the agency and the information available to it, as 

well as the novelty of the issues involved.” Common Cause, 489 F. Supp. at 744. Nor would there 

be any reason to probe the reasonableness of the delay, the interests prejudiced by the agency’s 

failure to act, or the appearance or reality of any impropriety in the Commission’s delay. See 

TRAC, 750 F.2d at 80. 

Next, NCLA suggests that any non-discretionary obligation to act on a complaint kicks in 

only after the Commission determines there is reason to believe a violation has occurred. This 

contention also runs counter to the text of FECA. FECA provides complainants a right to file an 

action against the FEC for unlawful failure to act, and the only condition it imposes is that the 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 15 of 18
 

16 

complainant cannot commence such a suit within 120 days of filing its administrative complaint. 

52 U.S.C. 30109(a)(8). The statute does not require complainants to wait until the reason to believe 

determination has been made. See id. Indeed, courts routinely consider whether the FEC 

unlawfully delayed in making the reason to believe determination, and find such delays unlawful. 

See, e.g., DSCC, 1996 WL 34301203, at *9 (finding that the FEC acted contrary to law in delaying 

27 months before making a reason to believe determination, despite finding “no evidence that the 

FEC . . . failed to act reasonably in the investigation of the complaint [once] the ‘reason to believe’ 

determination was made.”); Percy, 1984 WL 6601, at *4 (finding the FEC acted unreasonably in 

delaying making a reason to believe determination for more than five months). 

Finally, NCLA suggests that the entry of a default judgment would “unconstitutionally” 

transfer executive authority to this Court by allowing it to adjudicate whether 45Committee 

violated FECA. But even after the entry of a default judgment, that question would only come 

before this Court if the FEC continues to violate FECA by failing to conform its actions to the law 

within 30 days, triggering Plaintiff’s private right of action under § 30109(a)(8).4

 Nonetheless, 

NCLA contends that where a lack of quorum or a deadlock precludes the FEC from defending a 

lawsuit or conforming to a court order, concerns over separation of powers would preclude this 

 

4

 NCLA also appears to conflate CLC’s complaint against the FEC for failure to act with CLC’s 

underlying administrative complaint against 45Committee; and to misconstrue the relief sought by 

CLC in this Court. CLC does not seek a determination in this action that 45Committee violated 

FECA. Nor does CLC seek an order from this Court directing the FEC to find that there is reason 

to believe 45Committee violated FECA. All CLC asks is for the remedy it is statutorily entitled to 

under § 301019(a)(8): a declaration that the FEC has unlawfully failed to act on Plaintiff’s 

complaint, and an order directing the FEC to conform with the law. The Court’s authority to grant 

a plaintiff the relief they are entitled to under statute for a violation of federal law lies at the heart 

of Article III power. In doing so, the Court would effectuate — not “usurp[ ]” — FECA’s statutory 

enforcement process. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 16 of 18
 

17 

Court from entering default because only the political branches are authorized to resolve such a 

situation. 

NCLA’s amorphous assertion does not bear on the narrow question before the Court, which 

is whether CLC has provided sufficient evidence supporting its claim for a default judgment. See

Fed. R. Civ. P. 55(d). But even assuming its contention were relevant, NCLA ignores the rather 

obvious fact that the political branches have acted to resolve any concerns with respect to a default 

judgment due to lack of quorum or a deadlocked vote. Thus, the FEC now has a quorum. See supra 

¶ 15. As such, nothing precludes the Commission from taking a vote on whether to defend this 

lawsuit or proceed with enforcement against 45Committee. Furthermore, the private right of action 

is the precise statutory mechanism through which FEC deadlock can be resolved: the entry of 

default judgment would not bar the FEC from adjudicating this matter, but rather would start the 

clock ticking on the statutory remedy Congress created for continued FEC intransigence. 

C. NCLA’s Request that the Court Dismiss the Suit Without Prejudice Should Be 

Rejected. 

 NCLA’s request that the Court dismiss this suit without prejudice should be rejected.5 This 

is a suit about agency delay, and CLC already exercised restraint and afforded the FEC far beyond 

the statutorily authorized 120 day period before filing suit.6

 It would be prejudicial to CLC to make 

it refile this lawsuit to give the FEC 60 more days to file an answer. Moreover, with only four 

Commissioners, a unanimous vote would be required to defend this action, 52 U.S.C. §§ 30106(c), 

30107(a)(6), and unanimous FEC votes are hard to come by. It makes no sense to start the litigation 

 

5

 NCLA is an amicus, not an intervenor, and as such has no standing to request dismissal of this 

suit. 

6

 NCLA posits that CLC engaged in gamesmanship by waiting to file its delay suit until after the 

Commission lost its quorum. This makes little sense. CLC certainly had no way to know that the 

FEC’s Vice Chair would resign, much less when he would do so. Nor did CLC have any way to 

know that the vacancy would last for three quarters of a year. 

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 17 of 18
 

18 

clock over to find out if this will be the rare case where unanimity prevails. If the Court enters 

default judgment, and if the Commission wishes to defend, it can seek to file a timely motion to 

vacate that default judgment. But the only mechanism to force the Commission to do something is 

for this Court to act, not to decline to act as NCLA suggests. 

CONCLUSION

 The uncontested evidence demonstrates that the Commission has acted contrary to law in 

failing to act on Plaintiff’s administrative complaint. Plaintiff CLC has standing to bring this claim, 

and is entitled to entry of a default judgment against the Commission. Accordingly, Plaintiff 

respectfully requests that the Court enter judgment that the Commission has acted contrary to law; 

order the Commission to conform to the judgment within 30 days, and assess $400 in court costs 

pursuant to 28 U.S.C. § 1920.7

Dated: June 1, 2020 Respectfully submitted, 

 

 /s/ Mark P. Gaber 

 Adav Noti (DC Bar No. 490714) 

Mark P. Gaber (DC Bar No. 988077) 

Molly E. Danahy (DC Bar No. 1643411) 

CAMPAIGN LEGAL CENTER 

1101 14th Street NW, Ste. 400 

Washington, DC 20005 

(202) 736-2200 

anoti@campaignlegal.org 

mgaber@campaignlegal.org 

mdanahy@campaignlegal.org 

 

7

 Plaintiff respectfully requests that the Court retain jurisdiction over this matter until Defendant 

takes final agency action with respect to Plaintiff’s administrative complaints. Cobell v. Norton, 

240 F.3d 1081, 1109 (D.C. Cir. 2001) (noting district court’s discretion to “retain jurisdiction until 

a federal agency has complied with its legal obligations” and to “compel regular progress reports 

in the meantime”); Alegent Health-Immanuel Med. Ctr. v. Sebelius, 917 F. Supp. 2d 1, 3 (D.D.C. 

2012) (noting that court may retain jurisdiction in “cases alleging unreasonable delay of agency 

action”).

Case 1:20-cv-00809-ABJ Document 11 Filed 06/01/20 Page 18 of 18