IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

HERITAGE ACTION FOR AMERICA, 

Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

et al., 

Defendants. 

 

Civil Action No. 1:22-cv-01422 (CJN) 

PLAINTIFF’S OPPOSITION TO 

FEC’S SECOND MOTION TO DISMISS

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 1 of 17
TABLE OF CONTENTS 

Page

 -iTABLE OF AUTHORITIES ......................................................................................................... ii 

INDEX OF EXHIBITS ................................................................................................................. iv 

INTRODUCTION ......................................................................................................................... 1 

BACKGROUND ........................................................................................................................... 1 

ARGUMENT ................................................................................................................................. 2 

I. THE FEC AGAIN WRONGLY CONFLATES MOOTNESS WITH STANDING............ 2 

II. THE FEC HAS FAILED TO ESTABLISH MOOTNESS ................................................... 3 

A. Heritage Action has not obtained all of the relief it seeks in its challenge 

to the FEC’s unlawful concealment policy .................................................................. 3 

B. In all events, the two exceptions to the mootness doctrine apply ................................ 6 

1. The Commission’s voluntary cessation of concealing records 

in a handful of MURs does not moot this case ................................................... 6 

2. The concealment policy’s application is capable of repetition 

yet evading review .............................................................................................. 9 

CONCLUSION ............................................................................................................................ 10 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 2 of 17
TABLE OF AUTHORITIES 

Page(s)

 -iiCASES

Aulenback, Inc. v. Fed. Highway Admin., 

103 F.3d 156 (D.C. Cir. 1997) ...................................................................................................6 

CLC v. FEC, 

No. 1:20-cv-0809-ABJ, 2021 WL 5178968 (D.D.C. Nov. 8, 2021) .........................................4 

CLC v. FEC, 

No. 1:21-cv-0406-TJK (D.D.C.), appeal filed, 

No. 22-5140 (D.C. Cir. May 20, 2022) ..................................................................................4, 5 

CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) ............................................................................................4, 7, 8 

CREW v. FEC, 

799 F. Supp. 2d 78 (D.D.C. 2011) .........................................................................................3, 4 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) ...................................................................................................7 

FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007) ...................................................................................................................9 

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

528 U.S. 167 (2000) ......................................................................................................... passim 

Giffords v. FEC, 

No. 19-cv-1192-EGS, 2021 WL 4805478 (D.D.C. Oct. 14, 2021) ...........................................9 

In re Burrell, 

415 F.3d 994 (9th Cir. 2005) .....................................................................................................6 

Klayman v. Obama, 

142 F. Supp. 3d 172 (D.D.C. 2015) .......................................................................................2, 6 

Motor & Equip. Mfrs. Ass’n v. Nichols, 

142 F.3d 449 (D.C. Cir. 1998) ...................................................................................................5 

Payne Enters., Inc. v. United States, 

837 F.2d 486 (D.C. Cir. 1988) ...................................................................................................4 

Pub. Citizen v. Dep’t of State, 

276 F.3d 634 (D.C. Cir. 2002) ...................................................................................................4 

Ralls Corp. v CFIUS, 

758 F.3d 296 (D.C. Cir. 2014) .................................................................................................10 

Reid v. Hurwitz, 

920 F.3d 828 (D.C. Cir. 2019) ...................................................................................................2 

United States v. W. T. Grant Co., 

345 U.S. 629 (1953) ...................................................................................................................6 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 3 of 17
TABLE OF AUTHORITIES 

(continued) 

Page(s)

 -iiiSTATUTES

52 U.S.C. § 30109 ............................................................................................................................9 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 4 of 17
 -ivINDEX OF EXHIBITS 

Exhibit A Statement of Commissioner Ellen L. Weintraub on the Voting Decisions of FEC 

Commissioners (Oct. 4, 2022) 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 5 of 17
 -1- 

INTRODUCTION 

Despite dozens of new pages, the FEC’s “Second Motion to Dismiss” treads little new 

ground. Instead, it largely rehashes the same mootness arguments already refuted in completed 

briefing on the FEC’s first Motion to Dismiss (and in subsequent filings). It is baffling why the 

Commission took the resources of the taxpayers, Plaintiff, and the Court merely to procedurally 

reprioritize its misguided jurisdictional arguments. Although Heritage Action for America 

(“Heritage Action”) shares the FEC’s interest in promptly resolving this case, it does not share the 

Commission’s interest in redundant briefing. So this second opposition will be brief. 

Most of the FEC’s latest salvo misses the mark by (again) conflating mootness with 

standing. Time and again the Commission invokes standing cases in an attempt to shirk its “heavy 

burden” to establish mootness. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 

U.S. 167, 189–90 (2000). Those cases are beside the point, as Heritage Action has alleged an 

unlawful agency policy that the Commission does not even acknowledge—let alone repudiate—

even as the policy’s architect touts that strategy as poised to return. 

In any event, this case is not moot because Heritage Action has not obtained all of the relief 

it sought in the complaint. The FEC has not, and cannot, establish that the concealment policy is 

gone for good. And Heritage Action’s situation—the same plight as at least seven other similarly 

situated respondents harmed by the concealment policy—is capable of repetition yet evading 

review. This case should continue, starting with discovery to reveal the full extent of the FEC’s 

unlawful concealment. Pl.’s Mot. for Discovery, Dkt. No. 29. 

BACKGROUND 

The background relevant to the first Motion to Dismiss, Dkt. No. 17, is set forth in Heritage 

Action’s first Opposition. Pl.’s Combined Mem. in Opp’n to Defs.’ Mot. to Dismiss & in Support 

of Pl.’s Cross-Mot. for Summ. J. 4–11, Dkt. No. 20-1 (“1st Opp’n”). Since that time, the parties 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 6 of 17
 -2- 

have completed briefing on: Heritage Action’s Cross-Motion for Summary Judgment, Dkt. No. 

20; the FEC’s Motion to Stay Briefing on that cross-motion (which this Court denied), Dkt. No. 

22; Pl.’s Motion for Discovery, Dkt. No. 29; as well as Heritage Action’s Motion to Expedite 

Consideration of and Motion for a Hearing Regarding the Motion for Discovery, Dkt. Nos. 32, 33. 

The Commission previously informed the Court of the MUR file closures that are the focus of its 

Second Motion to Dismiss, Dkt. No. 27. And Heritage Action previously informed the Court of 

one FEC Commissioner’s acknowledgment of the concealment policy and commitment to using 

the tactic again if given the opportunity, Notice, Dkt. No. 34,1

 as well as the D.C. Circuit’s most 

recent rejection of the legal theory behind the concealment policy, Notice, Dkt. No. 37. 

ARGUMENT 

I. THE FEC AGAIN WRONGLY CONFLATES MOOTNESS WITH STANDING. 

As a threshold matter, Heritage Action explained in its first Opposition why the 

Commission was wrong to conflate mootness with standing. 1st Opp’n 13. Although the FEC 

now at least acknowledges it “has the burden of proving mootness,” it still attempts to dodge that 

burden by pivoting (in the same sentence) to standing. 2d Mot. 20. But the two are not the same, 

Reid v. Hurwitz, 920 F.3d 828, 833 (D.C. Cir. 2019), and it is the FEC, not Heritage Action, who 

bears the “heavy burden” to establish mootness at this stage, Laidlaw, 528 U.S. at 189–90. While 

the Commission misleadingly invokes cases that exclusively address standing when purporting to 

describe the standard for mootness, this Court should reject that ploy. See, e.g., 2d Mot. 20 

(quoting Klayman v. Obama, 142 F. Supp. 3d 172, 184 (D.D.C. 2015), for much of its paragraph 

1

 That same Commissioner soon doubled down on the concealment policy’s validity and 

usefulness in a lengthy public statement. Statement of Commissioner Ellen L. Weintraub on the 

Voting Decisions of FEC Commissioners (Oct. 4, 2022) (lauding “the alternative enforcement 

path” that is the concealment policy at issue in this case), available at https://tinyurl.com/

48zvuyc3, attached as Exhibit A. 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 7 of 17
 -3- 

purporting to describe mootness when that case was about standing and did not mention mootness 

at all); 2d Mot. 22 (quoting CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011), which addressed 

only standing). 

II. THE FEC HAS FAILED TO ESTABLISH MOOTNESS. 

Turning to the actual issue here—mootness—none of the FEC’s transparent attempts to 

unilaterally moot this case can succeed, for the reasons Heritage Action has already explained. 1st 

Opp’n 14–20. Heritage Action has not obtained all the relief it desires, and even if it had, 

subsequent events only further confirm that both exceptions to the mootness doctrine, voluntary 

cessation and capable of repetition yet evading review, mean this case remains a live controversy. 

A. Heritage Action has not obtained all of the relief it seeks in its challenge to 

the FEC’s unlawful concealment policy. 

To start, Heritage Action has yet to receive all of its requested relief, meaning this case 

cannot be moot. In an attempt to evade this problem, the Commission incorrectly blinkers its 

characterization of the “relief” Heritage Action seeks by focusing almost exclusively on the 

Complaint’s prayer for the release of concealed records. 2d Mot. 1, 8, 15, 20; see Compl. 28, ¶ c, 

Dkt. No. 1. But from the beginning Heritage Action has also sought both: (1) a declaratory 

judgment that Defendants acted unlawfully by concealing its terminating action; and (2) an order 

setting aside the concealment policy. Compl. 28, ¶¶ a–b. So this case is not just about “materials,” 

“documents,” and “information.” 2d Mot. 16, 20, 21. 

And as for documents, Heritage Action sought those records in at least MUR 7516 and 

seven other enforcement matters that it believed were subject to the concealment policy. Compl. 

28, ¶ d (seeking “voting records and statements of reasons in any enforcement matter after the 

Commission fails to garner four votes to initiate an enforcement action based on the complaint”). 

Given the surreptitious nature of the FEC’s policy and its course of conduct—which Judge Kelly 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 8 of 17
 -4- 

and Judge Jackson have described as “unseemly” and “disturbing,”2

 and which four Judges of the 

D.C. Circuit have recently described as “of great[] concern”3

—it would hardly be a surprise if 

other MURs have suffered or are still suffering similar fates. And because the FEC has never 

disavowed the existence of the concealment policy, it cannot represent, and has not represented, 

that only eight matters have fallen prey to the concealment policy. That is why discovery would 

be appropriate and another reason why this case is not moot. 

In any event, as Heritage Action has explained, courts “have never allowed agencies to 

defeat judicial review of their [policies] by occasionally waiving them in individual cases.” Reply 

in Support of Cross-Mot. for Summ. J., Dkt. No. 28 (quoting Pub. Citizen v. Dep’t of State, 276 

F.3d 634, 641 (D.C. Cir. 2002), and collecting other cases). And “even though a party may have 

obtained relief as to a specific request [for documents], this will not moot a claim that an agency 

policy or practice will impair the party’s lawful access to information in the future.” Opp’n to 

Mot. to Stay, Dkt. No. 24 (quoting Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. 

Cir. 1988)).4

Moreover, a declaratory judgment would provide effectual relief to Heritage Action both 

by undermining the false premise underlying the citizen suit (that the FEC failed to act on 

Campaign Legal Center’s (“CLC”) administrative complaint) and helping explain why Heritage 

Action did not intervene in CLC’s suit alleging the FEC’s failure to act sooner. As Heritage Action 

2

 Mem. 7, CLC v. FEC, No. 1:21-cv-0406-TJK (D.D.C. June 6, 2022), Dkt. No. 34, appeal 

filed, No. 22-5140 (D.C. Cir. May 20, 2022); CLC v. FEC, No. 1:20-cv-0809-ABJ, 2021 WL 

5178968, at *9 (D.D.C. Nov. 8, 2021). 

3 CREW v. FEC, 55 F.4th 918, 921 (D.C. Cir. 2022) (Rao, J., concurring in the denial of 

rehearing en banc). 

4

 The FEC’s primary case on the informational relief point, CREW v. FEC, 799 F. Supp. 

2d 78 (D.D.C. 2011), is inapposite because it is neither about mootness nor about a policy or 

practice of concealment. See 2d Mot. 22. 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 9 of 17
 -5- 

has explained, the prospect that a declaratory judgment in its favor will affect future litigation 

typically defeats mootness. 1st Opp’n 16–17 (collecting cases). A declaration that the FEC was 

unlawfully concealing its actions on CLC’s administrative complaint would help Heritage Action 

defend against CLC’s citizen suit, by confirming that CLC lacked proper authorization to bring it 

in the first place. Revealing and confirming the full extent of the Commission’s concealment 

policy also would help Heritage Action intervene in CLC’s suit against the FEC that alleged 

unlawful failure to act and (because of the FEC’s “unseemly” failure to appear) eventually 

authorized the separate citizen suit by default. Mem. 7, CLC v. FEC, No. 1:21-cv-0406-TJK 

(D.D.C. June 6, 2022), Dkt. No. 34, appeal filed, No. 22-5140 (D.C. Cir. May 20, 2022). Judge 

Kelly denied intervention on the (incorrect) premise that Heritage Action’s motion to intervene 

was untimely. Id. But if this Court confirms that the FEC unlawfully concealed action on CLC’s 

administrative complaint, then Heritage Action can more effectively demonstrate the reasons it 

could not have intervened sooner and therefore why its intervention motion was in fact timely. See 

Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998) (requiring that “interim 

relief or events have completely and irrevocably eradicated the effects of the alleged violation” for 

mootness to apply). 

Critically, a declaratory judgment also will provide Heritage Action relief against future

applications of the concealment policy (both to MURs in which it is a party and to MURs in which 

it has an informational interest). As explained both in earlier filings and below, the Commission’s 

voluntary cessation without either a judicial decision or settlement to bind it leaves the door wide 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 10 of 17
 -6- 

open for the concealment policy to return, as its architect desires. See Ex. A.5

 So an enforceable 

judgment is needed to prevent the concealment policy’s future reapplication. 

B. In all events, the two exceptions to the mootness doctrine apply. 

1. The Commission’s voluntary cessation of concealing records in a 

handful of MURs does not moot this case. 

Even if Heritage Action had received its requested relief, this case would still be alive. 

“The only conceivable basis for a finding of mootness in this case is [the Commission’s] voluntary 

conduct. ... It is well settled that a defendant’s voluntary cessation of a challenged practice does 

not deprive a federal court of its power to determine the legality of the practice. [I]f it did, the 

courts would be compelled to leave “[t]he defendant ... free to return to his old ways.” Laidlaw, 

528 U.S. at 189 (internal quotation marks omitted). The standard “for determining whether a case 

has been mooted by the defendant’s voluntary conduct is stringent: ‘A case might become moot if 

subsequent events made it absolutely clear that the allegedly wrongful behavior could not 

reasonably be expected to recur.’” Id. That “heavy burden” “lies with the party asserting 

mootness.” Id.6

5

 The FEC’s primary case on the declaratory relief point is inapposite because that case 

involved “negotiated settlements by the parties” rather than “the mere ‘voluntary cessation of 

allegedly illegal activity,’” as is the case here. Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 

156, 162 (D.C. Cir. 1997) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)); 

see 2d Mot. 24–25. 

6

 The FEC again misunderstands the standard for mootness when it quotes Klayman’s 

language about “certainly impending” harms. 2d Mot. 28. As explained above, Klayman was 

about standing, not mootness. There is no requirement that a plaintiff’s endurance of another 

unlawful injury be certainly impending to defeat mootness. Rather, it is the defendant’s burden to 

make “absolutely clear” that recurrence cannot reasonably be expected. Laidlaw, 528 U.S. at 189. 

The FEC’s next case, Aulenback, is distinguishable because the agency there entered into a 

settlement, as opposed to unilaterally ceasing the alleged misconduct. 103 F.3d at 162. And the 

FEC’s out-of-circuit case, In re Burrell, addressed “continuing legal harm from res judicata or 

collateral estoppel arising from [plaintiff’s] mooted claims when such harm is merely hypothetical 

and speculative,” not—as the FEC’s selective quotation suggests—just the specter of continuing 

legal harm in general. Compare 415 F.3d 994, 999 (9th Cir. 2005), with 2d Mot. 29. 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 11 of 17
 -7- 

As Heritage Action has explained, the FEC has not acknowledged—much less 

disavowed—the concealment policy, and it is far from “absolutely clear” that the concealment 

policy will not recur. Id.; see 1st Opp’n 18–20. Even now, the Commission refuses to admit the 

concealment policy ever existed, and its silence on whether the concealment policy could be 

applied again in the future is deafening. See 2d Mot. 20 (minimizing “the Commission’s supposed

failure to disclose vote certifications and statements of reasons” (emphasis added)); id. at 27, 31, 

34. Indeed, the Commission casually mentions Commissioner Ellen L. Weintraub’s “views” about 

the legality of the concealment policy, 2d Mot. 16, despite both controlling D.C. Circuit precedent 

to the contrary, see, e.g., CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021), rehearing denied, 55 F.4th 

918 (D.C. Cir. 2022); see Notice, Dkt. No. 37, and the Commission’s own acknowledgment in 

prior litigation that “it takes four Commissioner votes to proceed on an enforcement matter, but 

only three to cause a file to be closed,” FEC Br. 47, CREW v. FEC, 993 F.3d 880 (No. 19-5161), 

2019 WL 6341135. The Commission itself has had every opportunity and every reason to disavow 

the unlawful practice that Heritage Action has alleged in this litigation and yet ... crickets. 

Moreover, the Commission’s voluntary-cessation argument hangs on the “commit[ment]” 

of just one of six Commissioners “to advocat[e]” for “clos[ing] files when they have reached a 

final determination.” 2d Mot. 10, 11 n.11. Even if that one Commissioner disagrees (and 

continues to disagree) with her predecessor about the concealment policy—a fact that alone 

highlights the policy’s dubious nature—the FEC’s composition is not static, and under the 

Commission’s view, the loss of a single other Commissioner opposing the concealment policy 

would rejuvenate it immediately. The Commissioner’s present opposition to the concealment 

policy, moreover, does not mean either (i) that she necessarily will continue to hold the line or (ii) 

that any successor of hers would take the same approach. After all, as the FEC puts it, 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 12 of 17
 -8- 

“Commissioners remain free to reconsider their earlier votes and change their minds.” FEC Opp’n 

to Pl.’s Mot. for Summ. J. 32, Dkt. No. 26; see 2d Mot. 32 (“[I]t was simply a difference in views 

between Commissioner Lindenbaum and her predecessor....”). 

Perhaps most importantly, the concealment policy’s architect has given every indication 

that it will be applied to future MURs once she has the votes again to do so. As Heritage Action 

has explained, Commissioner Weintraub confirmed in October that she and her colleagues caused 

numerous MURs to be victims of the concealment policy and that they have not abandoned the 

policy. See Notice, Dkt. No. 34. She made “zero apologies for using every tool [she] can find to 

get the law enforced” via the novel concealment policy. Id. at 2. Even controlling D.C. Circuit 

precedent could not stop Commissioner Weintraub’s determination; her defense of the 

concealment policy in defiance of what she recognized as that court’s “bad caselaw” makes clear 

that only this Court’s invalidation of the concealment policy has any certainty of restraining the 

policy’s future application—especially now that the D.C. Circuit has declined her invitation to 

revisit its precedents en banc. Id.; compare Ex. A at 4, with CREW, 55 F.4th 918 (denying 

rehearing en banc); see also Dkt. 19-9, Exhibit H, Statement of Reasons of Commissioners Shana 

M. Broussard and Ellen L. Weintraub (July 7, 2022) (arguing that Heritage Action violated FECA 

and should be subject to enforcement). And after Heritage Action pointed this out, Commissioner 

Weintraub responded in her public statement confirming that she “quite consciously and 

intentionally cast votes that put these matters on their current paths,” that this strategy “is indeed 

departing from past Commission practice,” and that she believes this is a “proper response to 

changes the D.C. Circuit has made to the law underlying the Commission’s dismissals,” which she 

sees as a “series of unfortunate precedents,” Ex. A at 4, 6 n.29. It is mystifying why the FEC’s 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 13 of 17
 -9- 

Acting General Counsel refuses to acknowledge the existence of the concealment policy when 

Commissioner Weintraub has been quite candid about its existence.7 

At bottom, the FEC’s assertion that there is “no evidence” that the challenged conduct will 

recur strains credulity. 2d Mot. 33. Where there’s smoke there’s fire (which is why discovery is 

urgently needed to confirm the full extent of the concealment policy). And a temporary lull cannot 

be mistaken for an “absolutely clear” termination, Laidlaw, 528 U.S. at 189, especially where the 

concealment policy’s instigator continues to pound the drum for its return. The law does not 

require Heritage Action to wait until the FEC (and CLC) tries to run this play again. 

2. The concealment policy’s application is capable of repetition yet 

evading review.

The second exception to mootness also applies in this case. Cases that present issues that 

are “capable of repetition, yet evading review” are not moot. FEC v. Wis. Right to Life, Inc., 551 

U.S. 449, 462 (2007). That exception applies when the challenged action occurs too quickly to be 

fully litigated prior to cessation and there is a reasonable expectation that the same complaining 

party will be targeted again. See id. 

Here, three Commissioners’ obvious and admitted aim was to trigger a citizen suit by 

concealing FEC action on an administrative complaint. Under the Federal Election Campaign Act, 

that can be accomplished quickly: a failure-to-act suit leading to a citizen suit may be filed merely 

120 days after the administrative complaint is lodged. 52 U.S.C. § 30109; see, e.g., Giffords v. 

FEC, No. 19-cv-1192-EGS, 2021 WL 4805478, at *2 (D.D.C. Oct. 14, 2021) (CLC filed four 

7

 According to the FEC’s General Counsel, while “the decision of whether to defend a 

Section 30109(a)(8) action is subject to the vote ... of the FEC Commissioners,” the decision to 

defend the FEC against this lawsuit and others “brought pursuant to the APA and the Freedom of 

Information Act” “is not subject to a Commissioner vote.” FEC Opp’n to Mot. for Discovery 27, 

Dkt. No. 30. Accordingly, the arguments made by the FEC in this case do not represent the views 

of any, much less a majority, of the Commissioners. 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 14 of 17
 -10- 

administrative complaints in July 2018 and filed suit against the FEC in April 2019 for failing to 

act on those complaints). Combine that with the concealment policy, which in Heritage Action’s 

MUR operated to conceal FEC action for years, and the concealment issue occurs too quickly (and 

too surreptitiously) to be litigated before voluntary cessation like the FEC’s belated document 

dump here. See, e.g., Ralls Corp. v CFIUS, 758 F.3d 296, 322 (D.C. Cir. 2014) (applying “twoyear rule of thumb” for voluntary cessation of agency action). And as explained both above and 

previously, there is more than a reasonable expectation that Heritage Action will be targeted again. 

See supra Part II.B.1.; 1st Opp’n 19–20. At bottom, if the FEC’s voluntary cessation moots this 

case, then the concealment policy’s application will evade review and remain capable of repetition 

(as its architect intends). See Ex. A at 2 n.11 (asserting that “this APA action ... is quite moot”). 

* * * 

Lastly, this Court should reject the Commission’s plea to “exercise ... discretion and 

dismiss this matter on prudential grounds.” 2d Mot. 27. Setting aside the fact that this discretion 

would apply only to the request for a declaratory judgment (and not vacatur), numerous Judges in 

this District and Circuit have expressed concern over the Commission’s tactics, but each in a 

procedural posture they found unfit to actually confront the concealment policy. This case presents 

that opportunity—indeed that imperative—to both shed light on the concealment policy’s full 

extent and ensure that it is then snuffed out for good. 

CONCLUSION 

The Court should deny the FEC’s first and second Motions to Dismiss. 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 15 of 17
 -11- 

Dated: January 18, 2023 Respectfully submitted, 

/s/ Brett A. Shumate 

Brett A. Shumate 

 (D.C. Bar No. 974673) 

E. Stewart Crosland 

 (D.C. Bar No. 1005353) 

Brinton Lucas 

 (D.C. Bar No. 1015185) 

Stephen J. Kenny 

 (D.C. Bar No. 1027711) 

Charles E.T. Roberts 

 (D.C. Bar No. 1780573) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

Counsel for Plaintiff 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 16 of 17
 

CERTIFICATE OF SERVICE 

I hereby certify that on January 18, 2023, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and distribution to all registered 

participants of the CM/ECF System, which will serve all counsel of record. 

/s/ Brett A. Shumate 

Brett A. Shumate 

Case 1:22-cv-01422-CJN Document 41 Filed 01/18/23 Page 17 of 17