ORAL ARGUMENT NOT YET SCHEDULED 

No. 21-5081 

UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

__________________________ 

CAMPAIGN LEGAL CENTER and CATHERINE HINCKLEY KELLEY, 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

HILLARY FOR AMERICA and CORRECT THE RECORD, 

Intervenor-Appellees. 

__________________________ 

On Appeal from the U.S. District Court 

for the District of Columbia, No. 1:19-cv-02336-JEB 

Before the Honorable James E. Boasberg, District Court Judge 

__________________________ 

INTERVENOR-APPELLEES’ PRINCIPAL AND RESPONSE BRIEF 

_______________________

Marc Erik Elias (D.C. Bar No. 442007) 

Aria C. Branch (D.C. Bar No. 1014541) 

PERKINS COIE LLP 

700 Thirteenth Street N.W., Suite 800 

Washington, D.C. 20005-3960 

Telephone: 202.654.6200 

Counsel for Intervenor-Appellees 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 1 of 63
- i - 

CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES 

 Pursuant to Circuit Rule 28(a)(1), Appellees Hillary for America (the 

“Campaign”) and Correct the Record hereby certify as follows: 

(a) Parties and Amici: Campaign Legal Center (“CLC”) and Catherine 

Hinckley Kelley (“Kelley”) are plaintiffs in the District Court and appellants in the 

instant appeal. 

 The Federal Election Commission (“FEC”) is the defendant in the District 

Court and appellee in this Court. While the FEC has the authority to defend itself in 

cases brought against it, the Commissioners must authorize the defense by a majority 

vote. 52 U.S.C. §§ 30106(c), 30107(a)(6). In this case, the Commissioners did not 

authorize suit and the FEC has never made an appearance. 

 The Campaign and Correct the Record intervened in this matter in the District 

Court. “After the FEC fell one vote short of the four required to authorize its defense 

of this lawsuit, the [District] Court permitted the Campaign and Correct the Record 

to intervene as Defendants.” JA 287. They are appellees in this matter. 

 Pursuant to Circuit Rule 26.1(a), the Campaign and Correct the Record certify 

that neither the Campaign nor Correct the Record have parent companies, 

subsidiaries, or affiliates which own at least 10% of the stock of the Campaign or 

Correct the Record which have any outstanding securities in the hands of the public. 

Pursuant to Rule 26.1(b), the Campaign is the presidential campaign committee to 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 2 of 63
 - ii - 

elect Hillary Rodham Clinton. Pursuant to Rule 26.1(b), Correct the Record is a 

dormant hybrid political action committee or “PAC.” 

 The Institute for Free Speech appeared before the district court in this case as 

amicus curiae, and no amici have appeared or sought to appear before this Court. 

(b) Rulings Under Review: CLC and Kelley appeal from the December 2, 

2020 memorandum opinion and order of the U.S. District Court for the District of 

Columbia (Boasberg, J.), denying CLC and Kelley’s motion for summary judgment 

and granting the Campaign and Correct the Record’s motion for summary judgment 

on the basis that CLC and Kelley lack standing because they had failed to establish 

an injury-in-fact, and from the District Court’s February 12, 2021 final order 

dismissing the case. The December 2, 2020 memorandum opinion is reported at 

Campaign Legal Center v. FEC, 507 F. Supp. 3d 79 (D.D.C. 2020). 

(c) Related Cases: The ruling under review has not previously been before 

this Court or any other court on appeal. There are no related cases pending in this 

Court or any other court of which counsel are aware. 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 3 of 63
 - iii - 

TABLE OF CONTENTS 

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

JURISDICTIONAL STATEMENT .......................................................................... 8 

ISSUE PRESENTED ................................................................................................. 9 

STATEMENT OF THE CASE .................................................................................. 9 

A. Statutory and Regulatory Framework ........................................................................ 9 

1. Powers and duties of the FEC. ................................................................................. 9 

2. FEC regulations provide clear and strict definitions as to when an internet 

communication may be deemed a reportable in-kind contribution. ............. 10 

3. FEC decisions regarding rulemaking and in evaluating administrative 

complaints are entitled to deference. .................................................................... 13 

4. Relevant FEC Reporting Regulations .................................................................. 14 

B. Factual Background .......................................................................................... 17 

STANDARD OF REVIEW ..................................................................................... 23 

ARGUMENT ........................................................................................................... 23 

A. CLC and Kelley lack standing because they failed to establish an injury-infact. ................................................................................................................................... 26 

1. CLC and Kelley have not been deprived of any factual information 

sufficient to show informational injury. .............................................................. 28 

2. The re-classification of Correct the Record’s already-disclosed

expenditures would not result in the disclosure of any additional factual 

information. ................................................................................................................ 30 

3. CLC and Kelley’s attempt to manufacture standing by “trimming the sails” 

on their theory of coordination fails. .................................................................... 33 

B. The District Court properly found that Wertheimer and the cases that 

followed foreclose CLC and Kelley’s claim of informational injury. ............. 36 

C. The District Court did not conclude that a request for a legal determination 

always forecloses an informational injury-in-fact. ............................................... 45 

D. Contrary to what Appellants now claim, CLC did not plead a separate and 

discrete organizational injury and, even if it had, no such injury would be 

cognizable. ...................................................................................................................... 47 

E. Kelley’s alleged harm is not redressable. ................................................................ 50 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 4 of 63
 - iv - 

CONCLUSION ........................................................................................................ 51 

LOCAL RULE 32(g)(1) CERTIFICATE OF COMPLIANCE .............................. 52 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 5 of 63
 - v - 

TABLE OF AUTHORITIES 

CASES

Air All. Houston v. U.S. Chem. & Safety Hazard Investigation Bd., 

365 F. Supp. 3d 118 (D.D.C. 2019) .............................................................. 35, 49 

Akins v. FEC, 

736 F. Supp. 2d 9 (D.D.C. 2010) ..................................... 5, 14, 35, 40, 41, 44, 46 

Alliance for Democracy v. FEC, 

362 F. Supp. 2d 138 (D.D.C. 2005) ........................................................ 30, 43, 44 

Burson v. Freeman, 

504 U.S. 191 (1992) ............................................................................................ 14 

Campaign Legal Ctr. v. FEC, 

Case No. 1:19-cv-02336-JEB, Doc. No. 42 (D.D.C. Sept. 25, 2020) ...... 7, 19, 34 

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011) .............................................................. 17, 18 

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

410 F. Supp. 3d 1 (D.D.C. 2019) .................................................................. 28, 30 

CLC v. FEC, 

245 F. Supp. 3d 119 (D.D.C. 2017) ........................................................ 35, 36, 46 

CLC v. FEC, 

254 F. Supp. 3d 119 (D.D.C. 2017) .................................................................... 30 

CLC v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) ............................................................................ 28 

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) ................................................................ 28, 29, 30 

Common Cause v. Schmitt, 

512 F. Supp. 489 (D.D.C. 1980), aff’d mem., 455 U.S. 129 (1982) ................... 13 

CREW v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ...................................................................... 34, 37 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 6 of 63
 - vi - 

Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election 

Integrity, 

878 F.3d 371 (D.C. Cir. 2017) ................................................................ 27, 48, 49 

FEC v. Akins, 

524 U.S. 11 (1998) ............................................................................ 24, 27, 35, 40 

FEC v. DSCC, 

454 U.S. 27 (1981) .............................................................................................. 14 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ............................................................................................ 13 

Free Speech for People v. FEC, 

442 F. Supp. 3d 335 (D.D.C. 2020) .................................................. 37, 44, 45, 51 

Freedom Watch, Inc. v. McAleenan, 

442 F. Supp. 3d 180 (D.D.C. 2020) .................................................................... 27 

Friends of Animals v. Jewell, 

828 F.3d 989 (D.C. Cir. 2016) ...................................................................... 27, 48 

Friends of the Earth v. Laidlaw Envtl. Services (TOC), Inc., 

528 U.S. 167 (2000) ...................................................................................... 26, 50 

Judicial Watch, Inc. v. FEC, 

293 F. Supp. 2d 41 (D.D.C. 2003) .................................................... 30, 42, 43, 44 

Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 

424 F. Supp. 3d 26 (D.D.C. 2020), aff’d, 848 F. App’x 428 (D.C. 

Cir. 2021) ............................................................................................................ 48 

Maloney v. Murphy, 

984 F.3d 50 (D.C. Cir. 2020) .............................................................................. 23 

Nader v. FEC, 

725 F.3d 226 (D.C. Cir. 2013) ................................................................ 28, 29, 30 

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986) ............................................................................ 14 

People for the Ethical Treatment of Animals v. USDA, 

797 F.3d 1087 (D.C. Cir. 2015) .......................................................................... 50 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 7 of 63
 - vii - 

Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008) ...................................................................... 41, 42 

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) ................................................................................................ 9 

United States v. Students Challenging Regulatory Agency Procedures, 

412 U.S. 669 (1973) ............................................................................................ 27 

Vroom v. FEC, 

951 F. Supp. 2d 175 (D.D.C. 2013) .............................................................. 28, 29 

W. Sur. Co. v. U.S. Eng’g Constr., LLC, 

955 F.3d 100 (D.C. Cir. 2020) ............................................................................ 23 

* Wertheimer v. FEC, 

268 F.3d 1070 (D.C. Cir. 2001) .... 2, 5, 6, 8, 9, 22, 23, 24, 30, 33, 36, 37, 38, 40, 

41, 42, 44, 45 

STATUTES

52 U.S.C. § 30101 ...................................................................................................... 9 

52 U.S.C. § 30104(b) ......................................................................................... 15, 31 

52 U.S.C. § 30104(b)(3) .......................................................................................... 23 

52 U.S.C. § 30104(b)(5)(A) ..................................................................................... 15 

52 U.S.C. § 30106(c) ........................................................................................... 4, 10 

52 U.S.C. § 30107(a)(6) ............................................................................................. 4 

52 U.S.C. § 30109(a)(1) ........................................................................................... 10 

52 U.S.C. § 30109(a)(3) ........................................................................................... 10 

52 U.S.C. § 30109(a)(6)(A) ..................................................................................... 10 

52 U.S.C. § 30109(a)(8)(C) ..................................................................................... 14 

52 U.S.C. § 30106(a)(1) ....................................................................................... 9, 10 

52 U.S.C. § 30109(a)(2) ........................................................................................... 10 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 8 of 63
 - viii - 

OTHER AUTHORITIES

11 C.F.R. § (4)(i)(A) ................................................................................................ 16 

11 C.F.R. § 100.26 ............................................................................................. 11, 12 

11 C.F.R. § 100.73 ................................................................................................... 20 

11 C.F.R. § 104.3 ............................................................................................... 15, 31 

11 C.F.R. § 104.3(b)(3)(i)(A)-(B) ............................................................................ 16 

11 C.F.R. § 104.3(b)(3)(i)(B) ................................................................................... 33 

11 C.F.R. § 104.3(b)(3)-(4) ...................................................................................... 15 

11 C.F.R. § 104.13(b)(2) .................................................................................... 16, 17 

11 C.F.R. § 109.20 ............................................................................................. 12, 13 

11 C.F.R. § 109.21 ....................................................................................... 12, 13, 20 

70 Fed. Reg. 16967 (Apr. 4, 2005) .......................................................................... 12 

71 Fed. Reg. 18589 (Apr. 12, 2006) ........................................................................ 12 

Fed. R. Civ. P. 56 ..................................................................................................... 27 

H.R. Rep. No. 94-917 (1976) ................................................................................... 14 

Matter Under Review 6729 ...................................................................................... 11 

Matter Under Review 7023 ...................................................................................... 11 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 9 of 63
 - ix - 

GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center

FEC Federal Election Commission 

FECA Federal Election Campaign Act

JA Joint Appendix 

PAC Political Action Committee 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 10 of 63
- 1 - 

INTRODUCTION 

 Alarmed by what campaign finance reformers saw as a major loophole that 

emerged during a hotly contested presidential election, when a Democratic group 

spent large sums for the Clinton campaign’s apparent benefit, the adherent of a proreform organization sued the Federal Election Commission (“FEC”), asking the 

agency to step in and uphold the contribution limits. To get into federal court and 

avoid asserting a generalized grievance, the plaintiff reform organization claimed 

informational standing, alleging that, because the Democratic group did not disclose 

its spending as contributions, and because the Clinton campaign did not disclose 

receiving the asserted contributions, the controlling Commissioners’ decision not to 

act deprived the reform group of information about the true extent of the Clinton 

campaign’s financing. But this claim had a fatal flaw, which was that the Democratic 

group had already registered with the FEC, and already disclosed all of its receipts 

and disbursements, even if not characterizing its spending as contributions. This 

Court rejected the reform group’s claim for lack of standing, holding that the reform 

group was not really seeking additional facts, but only the legal determination that 

the Democratic group was making illegal contributions and the Clinton campaign 

receiving them. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 11 of 63
 - 2 - 

 These are the facts of Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)—

and of this case. Here, the plaintiff is not Fred Wertheimer nor the organization he 

led, Democracy 21, but a different organization, the Campaign Legal Center 

(“CLC”), and its senior leader, Catherine Kelley. The candidate is not Bill Clinton, 

who won re-election to the presidency in 1996, but Hillary Rodham Clinton, who 

was the Democratic nominee in 2016. And the Democratic group is not the 

Democratic National Committee, but Correct the Record, which, like the DNC in 

1996, is a political committee registered with the FEC that publicly discloses all of 

its receipts and disbursements. 

 Appellants CLC and Kelley concede, as they must, that the only issue on 

appeal is whether the District Court erred in applying the well-settled law of this 

Circuit to conclude that they lack standing under Article III of the United States 

Constitution.1

 The District Court did not err, as Wertheimer and this Circuit’s other 

precedent make clear, and the decision should therefore be affirmed on appeal. 

 CLC and Kelley go to considerable lengths to discuss the merits of their 

underlying, substantive claim about the campaign finance laws. But the ink they spill 

is just a distraction from the central question of whether they have standing. In fact, 

1 See, e.g., Corrected Appellants’ Opening Brief, Doc. No. 1907371 (“Br.”) at 6 

(framing the issues on appeal as first, whether the District Court erred in finding they 

lacked standing, and second, whether in so doing the District Court erred in applying 

this Court’s clear precedent). 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 12 of 63
 - 3 - 

CLC and Kelley have not suffered any concrete or particularized informational 

injury, which is their only articulated basis for standing. See JA 292. 

 This appeal is only the most recent chapter in a long history of CLC’s attempt 

to re-write the FEC’s rules as to when political communications posted on the 

internet should be treated as “public communications” that are subject to the FEC’s 

coordination rules and otherwise regulated by the Federal Election Campaign Act of 

1971, as amended (“FECA”)—which itself is just a continuation of the broader 

efforts of reform adherents’ turn to the federal courts to secure desired policy ends, 

when they cannot obtain those results from the FEC or Congress. 

 In this litigation against Correct the Record and Hillary for America (the 

“Campaign”), CLC pushes the same convoluted theory of coordination it did during 

the FEC’s 2006 Internet Rulemaking: that the costs to produce an unpaid online 

communication—including for example, filming costs, staff time, and overhead 

costs (hereinafter referred to as “input costs”)—should be treated as “coordinated 

expenditures” or “in-kind contributions” under FEC regulations, and thus as subject 

to the contribution limits. The centerpiece of CLC and Kelley’s 2016 Administrative 

Complaint before the FEC was that Correct the Record made prohibited in-kind 

contributions to the Campaign, in the form of input costs for unpaid online 

communications. Time and time again, however, the FEC has rejected CLC’s theory 

because the FEC recognizes that “uncompensated Internet activity” will inevitably 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 13 of 63
 - 4 - 

result in the speaker incurring certain input or operating costs, and that such costs 

are necessarily not in-kind contributions, even if the unpaid online communications 

are coordinated with a campaign. JA 268. 

 When the FEC applied the plain text of its regulations and longstanding 

precedent to dismiss CLC and Kelley’s 2016 Administrative Complaint, CLC and 

Kelley initiated this suit against the FEC in the District Court, challenging the FEC’s 

decision under FECA and the Administrative Procedure Act.2

 After cross-motions 

for summary judgment, the District Court applied the clear precedent of this Circuit 

to correctly hold that CLC and Kelley lack standing to bring their claims because 

they have not suffered any concrete or particularized injury-in-fact. It is undisputed 

that Correct the Record disclosed each of its 2015-2016 expenditures on campaign 

finance reports that are publicly available on the FEC’s website. CLC and Kelley 

lack no factual information. 

 Specifically, as the District Court found, CLC and Kelley’s singular alleged 

injury—an informational harm—is synonymous with their desire for the FEC to 

make a legal determination that Correct the Record coordinated with the Campaign 

2

 The FEC is the defendant in the District Court and appellee in this Court. While 

the FEC has the authority to defend itself in cases brought against it, the 

Commissioners must authorize the defense by a majority vote. 52 U.S.C. 

§§ 30106(c), 30107(a)(6). In this case, the Commissioners did not authorize that 

action and the FEC has never made an appearance. As a result, the District Court 

permitted Correct the Record and the Campaign to intervene as defendants. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 14 of 63
 - 5 - 

as a matter of law and thereby made excessive contributions to the Campaign. 

Precedent makes clear that CLC and Kelley’s request for a purely legal 

determination of coordination does not meet the injury-in-fact requirement, because 

it would not lead to the disclosure of any additional factual information. Indeed, in 

Wertheimer v. FEC, the seminal Circuit precedent on this issue, this Court affirmed 

the district court’s similar order dismissing a complaint for lack of standing because, 

“[t]he Commission contends, and we agree, that, under the Akins test, appellants 

have failed to show either that they are directly being deprived of any information 

or that the legal ruling they seek might lead to additional factual information.” Id. at 

1074. So too here. 

 CLC and Kelley’s claim that “[n]one of the in-kind contributions resulting 

from intervenors’ coordination scheme have been disclosed in any form, nor is the 

information FECA requires otherwise available to plaintiffs,” Br. at 5, is simply not 

true. In fact, the District Court held that CLC and Kelley already have all information 

to which they are entitled. See JA 290, 295-303. The same goes for CLC and 

Kelley’s argument that “[i]ntervenors did not contend that they reported the 

information FECA requires with respect to those contributions; instead, they argued 

that plaintiffs can gather much of the information they seek from the disclosure 

reports that Correct the Record, a registered federal political committee, filed with 

the FEC in the 2015-2016 election cycle.” Br. at 3. To the contrary, as a registered 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 15 of 63
 - 6 - 

political committee, Correct the Record discloses all of its spending according to 

FEC rules. It has already disclosed all its 2015-2016 expenditures on campaign 

finance reports that are publicly available on the FEC’s website. Therefore, as the 

District Court properly found, the statutorily-required information CLC and Kelley 

claim to seek regarding the amount, date, purpose, and recipient of each expenditure 

made by Correct the Record has already been publicly reported. JA 290, 295-303. 

 Put slightly differently, CLC and Kelley seek a legal determination that 

Correct the Record’s expenditures were unlawfully coordinated, but they lack no 

factual information. Practically speaking, if CLC and Kelley prevailed, then Correct 

the Record would have had to file amended FEC reports that would have merely 

moved expenses from one line of its FEC report to another, classifying them as inkind contributions instead of operating expenditures. The Campaign would similarly 

have been required to amend its reports to duplicate this information. But under 

Wertheimer and the cases applying it, this type of duplicative reporting, in which 

litigants “only seek the same information from a different source,” is trivial and does 

not support a cognizable informational injury. Wertheimer, 268 F.3d at 1075. 

 Contrary to CLC and Kelley’s suggestion, the District Court recognized that 

seeking a legal determination of coordination does not always foreclose a cognizable 

informational injury, if such a legal determination of coordination would actually 

result in the reporting of further factual information. See JA 305 (citing CLC v. FEC, 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 16 of 63
 - 7 - 

245 F. Supp. 3d 119 (D.D.C. 2017)). Unfortunately for CLC and Kelley, this is no 

such case. 

CLC and Kelley again try to manufacture an informational injury by 

advancing arguments that directly contradict their arguments on the merits. On the 

merits, CLC and Kelley have argued that every expenditure Correct the Record made 

was required to have been reported as an in-kind contribution. See, e.g., Campaign 

Legal Ctr. v. FEC, Case No. 1:19-cv-02336-JEB, Doc. No. 42 at 38 (D.D.C. Sept. 

25, 2020) (“[B]road, systematic coordination with the Clinton campaign was 

[Correct the Record’s] raison d’être.”). Yet, in direct contradiction to these merits 

arguments, in an attempt to create standing, CLC and Kelly now argue that only 

some of Correct the Record’s expenditures, or some part of certain expenditures, 

may have been reportable as in-kind contributions. See Br. at 27-28. 

 The clear purpose behind these contradictory claims is to try to create an 

informational injury based on the parsing of the undisputedly already-reported 

expenditures. The District Court saw through this scheme. JA 300-301 (“For one 

thing, a plaintiff armed with this theory could seemingly manufacture standing in 

nearly every conceivable case—trimming its sails and claiming only that some 

portion of a previously disclosed expenditure (or some subset of previously 

disclosed expenditures) should be treated as coordinated, and then asserting an 

interest not in knowing whether the expenditure(s) themselves were coordinated (not 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 17 of 63
 - 8 - 

okay), but in knowing what proportion of an entity’s expenditures or activities were 

coordinated (okay). Wertheimer cannot admit of such an easy workaround.”). At this 

point in this litigation, the parties have exchanged multiple briefs. Yet, CLC and 

Kelley have never once attempted to reconcile their view that Correct the Record 

and the Campaign coordinated on all manner of expenditures for merits purposes, 

with their contrived theory that only some of Correct the Record’s expenditures, or 

that only some part of some expenditures, were coordinated with the Campaign for 

standing purposes. Moreover, as the District Court recognized, even if one credited 

CLC and Kelley’s theory that only certain expenditures were coordinated (despite 

the fact that such a theory is plainly inconsistent with their view of the law), “the 

disaggregation Plaintiffs seek would not actually entail the disclosure of any 

information other than legal determinations as to some subset of already-disclosed 

expenditures — exactly the sort of information that Plaintiffs have no standing to 

learn.” JA 301. 

 The District Court granted summary judgment in favor of Correct the Record 

and the Campaign based on the well-settled law of this Circuit, including 

Wertheimer. This Court should affirm the District Court. 

JURISDICTIONAL STATEMENT 

 This Court, like the District Court, is without jurisdiction, because Appellants 

CLC and Kelley lack standing under Article III to bring their claims, as the District 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 18 of 63
 - 9 - 

Court properly concluded and as is detailed more fully herein. Whether a plaintiff 

has standing is a jurisdictional question. Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 86 (1998); Wertheimer, 268 F.3d at 1074. “The requirement that jurisdiction 

be established as a threshold matter ‘spring[s] from the nature and limits of the 

judicial power of the United States’ and is ‘inflexible and without exception.’” Steel 

Co., 523 U.S. at 94–95 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 

382 (1884)). 

ISSUE PRESENTED 

 Whether the District Court correctly held that CLC and Kelley failed to 

establish an informational injury-in-fact when it dismissed their Complaint for lack 

of standing. 

STATEMENT OF THE CASE 

A. Statutory and Regulatory Framework 

1. Powers and duties of the FEC. 

The FEC is an independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement 

of FECA. See generally 52 U.S.C. § 30101 et. seq. The FEC consists of six members 

appointed by the President and confirmed by the United States Senate. Id. at 

§ 30106(a)(1). Congress designed the FEC so that it would not be controlled by a 

single political party; as a result, no more than three Commissioners can be members 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 19 of 63
 - 10 - 

of the same party, id., and an affirmative majority of four Commissioners must vote 

to find reason to believe a violation of FECA has occurred in order to institute an 

investigation of possible violations of the law based on a complaint. Id. at 

§ 30109(a)(2). The FEC may also institute a civil action for relief if it cannot correct 

or prevent any violation of FECA pursuant to its administrative enforcement 

processes. Id. at § 30109(a)(6)(A). 

Any person who believes a violation of FECA has occurred may file an 

administrative complaint with the FEC. Id. at § 30109(a)(1). After reviewing the 

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

is “reason to believe” a violation of FECA has occurred. Id. at § 30109(a)(2).3

 If at 

least four of the Commissioners vote to find such reason to believe, the FEC may 

investigate the alleged violation; otherwise, the FEC must dismiss the administrative 

complaint. Id. at §§ 30106(c), 30109(a)(2). 

2. FEC regulations provide clear and strict definitions as to when an 

internet communication may be deemed a reportable in-kind 

contribution. 

 As the controlling Commissioners noted when they dismissed CLC and 

Kelley’s Administrative Complaint, “[t]o be an in-kind contribution to a candidate 

3

 Prior to the FEC’s vote, the FEC’s Office of General Counsel recommends to the 

FEC in a report whether there is “reason to believe” a violation has occurred. Id. at 

§ 30109(a)(3). The FEC is not bound to adopt or follow the Office of General 

Counsel’s recommendation. Id. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 20 of 63
 - 11 - 

with whom it has been coordinated, an internet communication must be both a 

‘public communication’ and a ‘coordinated communication’ under [FECA] and 

[FEC] regulations.” JA 263. FECA “defines a ‘public communication’ as ‘a 

communication by means of any broadcast, cable, or satellite communication, 

newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank 

to the general public, or any other form of general public political advertising.’” JA 

263-64 (quoting 52 U.S.C. § 30101(22)). And the FEC’s implementing regulations 

clearly define “public communication” to explicitly exclude all internet 

communications “except for communications placed for a fee on another person’s 

Web site.” 11 C.F.R. § 100.26 (emphasis added). As a result, an internet 

communication is not a “public communication” unless the speaker posts it on a 

third party’s online platform and pays a fee to do so. See JA 264. These provisions 

and regulations together are commonly referred to by the FEC as the “internet 

exemption.” See Statement of Reasons of Chair Hunter & Commissioners Goodman 

& Petersen at 4, FEC Matter Under Review 7023 (Kinzler for Congress) (Jan. 23, 

2018); Statement of Reasons of Vice Chair Ravel at 1 n.2, FEC Matter Under 

Review 6729 (Checks and Balances for Economic Growth) (Oct. 24, 2014). 

 Through the internet exemption, the FEC “deliberately excluded the vast 

majority of internet communications from regulation as ‘public communications’ in 

a 2006 rulemaking that focused on internet communications.” JA 264; see also

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 21 of 63
 - 12 - 

Internet Communications, 71 Fed. Reg. 18589 (Apr. 12, 2006). In so doing, the FEC 

“created a ‘broad exemption’ to enable individuals and groups to engage in online 

political discourse without fear of government regulation.” JA 264 (citing 71 Fed. 

Reg. at 18603). CLC and Kelley do not dispute the existence of the internet 

exemption, but instead focus on the input costs associated with generating and 

disseminating such exempt internet communications. 

 CLC and Kelley claim that, while the communications themselves are exempt, 

the input costs associated with such exempt internet communications are in-kind

contributions from Correct the Record to the Campaign. Br. at 24-25. This mirrors 

comments that CLC submitted during the FEC’s 2006 rulemaking regarding internet 

communications, in which they tried and failed to convince the FEC to treat input 

costs for online communications as subject to coordination under 11 C.F.R. 

§ 109.20, a regulation that only applies to “expenditures that are not made for 

communications,” instead of as costs “for a coordinated communication” under 11 

C.F.R. § 109.21. See 11 C.F.R. § 100.26; Notice of Proposed Rulemaking: Internet 

Communications, 70 Fed. Reg. 16967 (Apr. 4, 2005); Democracy 21, CLC & Center 

for Responsive Politics, Comment on Notice 2005-10: Internet Communications 

(June 3, 2005). The FEC considered CLC’s argument and declined to adopt it, 

instead writing a rule that does not treat the costs associated with producing unpaid 

online communications differently than the online communications themselves. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 22 of 63
 - 13 - 

 Because CLC’s preferred rule was never adopted, there is no support in the 

FEC regulations for CLC and Kelley’s position that the costs associated with 

producing unpaid online communications should be regulated under the FEC’s 

general coordinated expenditure regulation, which is found at 11 C.F.R. § 109.20, 

rather than under the regulation that specifically applies to communications, found 

at 11 C.F.R. § 109.21. As the controlling Commissioners explained in dismissing 

CLC and Kelley’s Administrative Complaint: the FEC “has repeatedly interpreted 

the internet exemption to encompass expenses incurred by the speaker to produce an 

internet communication.” JA 267; see also id. at n. 60 (collecting decisions in which 

the FEC has so held). 

3. FEC decisions regarding rulemaking and in evaluating administrative 

complaints are entitled to deference. 

 “Congress has legislated in no uncertain terms with respect to FEC dominion 

over the election law.” Common Cause v. Schmitt, 512 F. Supp. 489, 502 (D.D.C. 

1980) (three-judge court), aff’d mem., 455 U.S. 129 (1982). Indeed, when Congress 

enacted FECA, it vested the FEC “with exclusive jurisdiction over civil enforcement 

of the Act.” FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 198 n.2 (1982) 

(citations omitted). Congress’s plain intention was that the vast majority of issues 

arising under FECA, a highly technical statute that must be interpreted and applied 

in an environment rife with serious First Amendment issues, would be informed by 

the “FEC’s specialized knowledge and cumulative experience” in the area of 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 23 of 63
 - 14 - 

campaign finance. H.R. Rep. No. 94-917, at 4 (1976) (citations omitted); see also

Burson v. Freeman, 504 U.S. 191, 196 (1992) (“[T]he First Amendment has its 

fullest and most urgent application to speech uttered during a campaign for political 

office.” (citations omitted)). Accordingly, courts have regularly and properly found 

that decisions made by the FEC in this highly technical area should be afforded 

substantial deference. 

 In particular, this Court has held that a court may not disturb the FEC’s 

decision to dismiss an administrative complaint unless that decision was “contrary 

to law.” 52 U.S.C. § 30109(a)(8)(C); see also Orloski v. FEC, 795 F.2d 156, 161 

(D.C. Cir. 1986). A decision is “contrary to law” only if “(1) the FEC dismissed the 

complaint as a result of an impermissible interpretation of the Act or (2) the FEC’s 

dismissal . . . was arbitrary or capricious, or an abuse of discretion.” Akins v. FEC, 

736 F. Supp. 2d 9, 16 (D.D.C. 2010). When examining whether the FEC has 

permissibly interpreted FECA, a court is “not to interpret the statute as it [thinks] 

best.” FEC v. DSCC, 454 U.S. 27, 39 (1981). Rather, the court’s role is to determine 

“whether the Commission’s construction was sufficiently reasonable.” Id.

4. Relevant FEC Reporting Regulations 

Under FECA and the FEC’s implementing regulations, all political 

committees, including Correct the Record and the Campaign, must file regular 

reports disclosing the contributions they receive and the expenditures they make. See 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 24 of 63
 - 15 - 

52 U.S.C. § 30104(b); 11 C.F.R. § 104.3. The FEC has created reporting forms for 

committees to use, and each form has multiple “schedules.”4

 “Schedule A” is where 

committees report the contributions they receive, and “Schedule B” is where they 

report their expenditures.5

 There are also “lines” within each “schedule.” On the 

form that political committees like Correct the Record use when they disclose all of 

their receipts and disbursements, Line 21 of Schedule B is for operating expenditures 

and Line 23 of Schedule B is for contributions to federal candidates. See Form 3X. 

When a political committee itemizes an operating expenditure on Line 21 of 

its Schedule B, it must report the amount, date, purpose, and recipient of the 

expenditure. 52 U.S.C. § 30104(b)(5)(A); 11 C.F.R. § 104.3(b)(3)-(4). Specifically, 

as to the “purpose” requirement, the FEC instructs committees to provide a “brief 

statement or description of why the disbursement was made,” and it provides a list 

4 See Registration and Reporting Forms, FEC, https://www.fec.gov/helpcandidates-and-committees/forms/ (last visited Aug. 6, 2021). 

5 See FEC, Form 3 (Report of Receipts and Disbursements for an Authorized 

Committee), https://www.fec.gov/resources/cms-content/documents/fecfrm3.pdf

(rev. May 2016); FEC, Form 3X (Report of Receipts and Disbursements for Other 

than an Authorized Committee), https://www.fec.gov/resources/cmscontent/documents/fecfrm3x.pdf (rev. May 2016) [“Form 3X”]. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 25 of 63
 - 16 - 

of descriptions committees should use, such as “travel,” “wages,” “meals,” and 

“mileage.” 11 C.F.R. § 104.3(b)(3)(i)(A)-(B), (4)(i)(A).6

 

An in-kind contribution, when made by a committee to a campaign, is a 

particular type of expenditure. When a committee makes an in-kind contribution, it 

reports the in-kind contribution on Schedule B, Line 23 in the manner just described 

above for operating expenditures. See 11 C.F.R. § 104.13(b)(2). The only 

differences are that the expense is on a different line, the committee must note 

“contribution in-kind” within the entry, and it must state the name and address of the 

campaign that received the in-kind and the office sought by the relevant candidate.7

 

When a campaign receives an in-kind contribution, it reports the value of the 

item or service as a contribution on its Schedule A and as an expenditure on its 

Schedule B. 11 C.F.R. § 104.13(b)(2).8

 The reason the campaign must also report 

the in-kind contribution as an expenditure is simply so that the campaign’s cash-on6 See also Purpose of Disbursement, FEC, https://www.fec.gov/help-candidatesand-committees/purposes-disbursements/ (Aug. 21, 2018). 

7 See FEC, Instructions for FEC Form 3X and Related Schedules, 8, 10,

https://www.fec.gov/resources/cms-content/documents/fecfrm3xi.pdf (rev. May 

2016). 

8 See FEC, Instructions for FEC Form 3 and Related Schedules, 10, 

https://www.fec.gov/resources/cms-content/documents/fecfrm3i.pdf (rev. May 

2016) [“Form 3 Instructions”]. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 26 of 63
 - 17 - 

hand balance remains accurate, not because doing so requires the campaign to report 

any additional information.9

 

 When a campaign reports receiving an in-kind contribution, it states on 

Schedule A the source, value, and date of the contribution, a notation saying, 

“contribution in-kind,” and a statement of the nature of the contribution. Form 3 

Instructions at 10. Just like the purpose statement for an expenditure, the description 

of the nature of an in-kind contribution should be brief, such as “consulting” or 

“polling.” Id. The campaign will then make a corresponding entry on Schedule B, 

providing the same information as required for an operating expenditure, along with 

a notation that the expense resulted from an in-kind contribution. Id.

B. Factual Background 

 The Campaign is the principal campaign committee of former United States 

Secretary of State Hillary Clinton, who was the nominee of the Democratic Party for 

the office of President of the United States in the 2016 general election. Correct the 

Record is a “hybrid” or Carey political action committee (“PAC”) that registered 

with the FEC in June 2015. Correct the Record reported all of its contributions and 

expenditures on disclosure reports that were regularly filed with the FEC throughout 

9

 If the campaign only reported the in-kind contribution as a receipt, it would appear 

that the campaign had more money in its bank account than it actually does. But by 

reporting the value of the in-kind as an expenditure also, the contribution and the 

expenditure cancel each other out, and the amount of money the campaign reports 

having in its bank account remains accurate. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 27 of 63
 - 18 - 

the 2016 election cycle, during which it served as a strategic research and rapid 

response team designed to defend Secretary Clinton from baseless political attacks. 

As a hybrid PAC, Correct the Record disclosed all of its receipts and disbursements 

to the FEC. It maintained one bank account that was subject to the Act’s contribution 

limits and source restrictions and could make contributions to candidates, and a 

second bank account that could accept unlimited contributions from any source but 

could not contribute to federal candidates, while disclosing the activity from both 

accounts on a single report. See Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011). 

In other words, Correct the Record was half traditional PAC and half super PAC, 

but while disclosing all of its activity to the FEC. See id. 

 Correct the Record conducted the vast majority of its activities online, using 

its website and social media accounts to set the record straight about Secretary 

Clinton’s record when her opponents and media outlets made false and misleading 

claims about her. Correct the Record also shared similar content with the people who 

subscribed to its email list. It conducted a handful of other activities that were not 

related to its online presence, but those activities were relatively rare and represented 

a minor portion of its program. It is undisputed that Correct the Record reported 

every dollar it spent from both of its accounts as “expenditures” or “disbursements” 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 28 of 63
 - 19 - 

on its regularly filed FEC reports and included a purpose description for each 

itemized disbursement.10 

 In October 2016, CLC and Kelley filed their Administrative Complaint before 

the FEC, contending, based in part on information “illegally obtained by Russian 

intelligence officers through hacking operations that targeted computers and 

networks used by [the Campaign] and thereafter published on WikiLeaks,” JA 257 

n.4, that Correct the Record made, and that the Campaign received, excessive 

prohibited in-kind contributions in the form of coordinated expenditures during the 

2016 presidential election. JA 258. CLC and Kelley advanced a sweeping claim that 

Correct the Record’s spending represented coordinated expenditures, and thus inkind contributions to the Campaign. See, e.g., Campaign Legal Ctr., Case No. 1:19-

cv-02336-JEB, Doc. No. 42 at 38. In their administrative responses before the FEC, 

Correct the Record and the Campaign argued that the activities CLC and Kelley 

described in their Administrative Complaint were for unpaid communications over 

the internet that did not fall within the legal definition of “public communications” 

and, thus, would not be in-kind contributions to the Campaign pursuant to the 

internet exemption, regardless of whether they were coordinated. JA 259. The other 

10 See Correct the Record, FEC, https://www.fec.gov/data/committee/C00578997/ 

(last visited Aug. 26, 2020). 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 29 of 63
 - 20 - 

expenditures were either paid for by the Campaign11, were not coordinated, or were 

otherwise exempt from being treated as coordinated expenditures under 11 C.F.R. § 

100.73, the media exemption. JA 259-60. 

 A group of controlling Commissioners agreed with Correct the Record and 

the Campaign, which led to the dismissal of CLC and Kelley’s Administrative 

Complaint. As the controlling Commissioners explained, there was no reason to 

believe that a violation of FECA had occurred. JA 256-72. “[T]o be an in-kind 

contribution to a candidate with whom it has been coordinated, an internet 

communication must be both a ‘public communication’ and a ‘coordinated 

communication’ under [FECA] and [FEC] regulations.” JA 263. Here, “consistent 

with [FEC] precedent,” the controlling Commissioners declined to find that “Correct 

the Record’s expenses for its online communications, including creation and 

production costs, [were] in-kind contributions to [the Campaign] under the 

‘coordinated communication’ standard at 11 C.F.R. § 109.21.” JA 266. In addition, 

the information in the record “did not support finding reason to believe Correct the 

Record and [the Campaign] violated” FECA with regard to “Correct the Record’s 

11 In fact, in their Opening Brief, CLC and Kelley concede that Correct the Record 

did report receiving payments from the Campaign in 2015, Br. at 28 n.5, and fail to 

point to any evidence in the record to support their contention that these payments 

might not have been fair market value for the services that Correct the Record 

provided. See also JA 269 (“[t]he complaints fail to provide the Commission with 

information showing that Correct the Record did not receive fair market 

compensation from Hillary for America for its work”).

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 30 of 63
 - 21 - 

spending that appears unrelated to creating and disseminating online political 

communications” JA 266. Because the controlling Commissioners would not find 

reason to believe a violation occurred, the Commission dismissed CLC and Kelley’s 

Administrative Complaint. 

 On August 2, 2019, CLC and Kelley filed a Complaint in the United States 

District Court for the District of Columbia challenging the dismissal of their 

Administrative Complaint. See JA 8-61. In so doing, CLC and Kelley alleged an 

informational harm as well as an organizational injury derived entirely from the 

alleged informational harm, as their basis for asserting Article III standing 

throughout their Complaint (and their Amended Complaint, which made no 

substantive changes in this regard). See JA 11 at ¶ 10; JA 35 at ¶ 11 (alleging CLC 

and Kelley “have suffered as a result” of the FEC’s dismissal of their Administrative 

Complaint “because they, as well as the public, have been deprived of . . . key 

information about the sources of the campaign’s expenditures,” which “CLC needs 

for work central to its mission and Ms. Kelley needs to properly evaluate candidates 

for federal office”); see also JA 12 - JA 15 (alleging informational injuries only); JA 

36 - JA 40 (same). 

 At the motion to dismiss stage, the District Court originally concluded that 

CLC and Kelley had alleged an informational injury, based on the mistaken 

conclusion that “whether an expenditure was coordinated . . . is a piece of 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 31 of 63
 - 22 - 

information—regardless of its separate law-enforcement consequences,” rather than 

a legal conclusion. JA 297. However, at the summary judgment stage, the District 

Court revisited its own prior holding, noting that a faithful reading of the clear 

precedent of this Circuit demanded a different outcome. Id. The District Court 

therefore held that CLC and Kelley had failed to establish an informational injuryin-fact, on the basis that the “information” CLC and Kelley claimed to lack was 

merely a legal determination that the FEC declined to make. Because CLC and 

Kelley failed to establish an injury-in-fact, the District Court rightly concluded that 

they had failed to establish an essential element of standing. In so doing, the District 

Court carefully applied this Circuit’s decision at Wertheimer, 268 F.3d at 1074, to 

the facts of this case, and also explored and debunked all of CLC and Kelley’s 

attempts to couch their law enforcement grievance within the terms of an 

informational injury. JA 297-307. While the District Court did not separately 

analyze any direct organizational harm alleged by CLC and Kelley, this was for good 

reason: all of their alleged harms were predicated on the information they wrongly 

claimed to have been deprived by the FEC’s dismissal of their complaint. See e.g., 

JA 36-39 (pleading harm to CLC as an organization only as the direct result of the 

purported deprivation of information). 

 CLC and Kelley raise the same arguments again here, hoping for a different 

conclusion on appeal. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 32 of 63
 - 23 - 

STANDARD OF REVIEW 

This Court reviews grants and denials of summary judgment de novo. W. Sur. 

Co. v. U.S. Eng’g Constr., LLC, 955 F.3d 100, 104 (D.C. Cir. 2020) (citing Mayo v. 

Reynolds, 875 F.3d 11, 19 (D.C. Cir. 2017)). “Summary judgment is appropriate if, 

viewing the facts in the light most favorable to the nonmoving party, there is no 

genuine dispute as to any material fact.” Id. (citing Fed. R. Civ. P. 56).12 

ARGUMENT 

 The District Court did not err in holding that CLC and Kelley lack standing. 

First, CLC and Kelley have failed to “show either that they are directly being 

deprived of any information or that the legal ruling they seek might lead to factual 

information.” Wertheimer, 268 F.3d at 1074. Their own brief lays this bare: CLC 

and Kelley state that they “seek information about what expenditures Correct the 

Record made on the activities it coordinated with the Clinton campaign, and the 

amounts, dates, and purposes of these expenditures, see 52 U.S.C. § 30104(b)(3), as 

the law requires to the extent they do not qualify for the FEC’s limited regulatory 

exemption for unpaid online communications.” Br. at 24. The first and most obvious 

12 CLC and Kelley wrongly assert that the Court accepts as true their material factual 

allegations. See Br. at 20-21. For support, CLC and Kelley cite Maloney v. Murphy, 

984 F.3d 50, 58 (D.C. Cir. 2020), which involved an appeal from the district court’s 

grant of a motion to dismiss and not a motion for summary judgment. Br. at 21. On 

appeal following summary judgment, the Court is not required to accept material 

facts alleged by CLC and Kelley as true. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 33 of 63
 - 24 - 

problem with this argument is that the information CLC and Kelley seek about the 

amounts, dates, and purposes of Correct the Record’s expenditures has already been 

publicly reported. As a political committee, Correct the Record must publicly 

disclose its financial activity. While Correct the Record did not classify its 

expenditures as in-kind contributions on the belief that they were not coordinated, 

requiring the re-reporting of the same information as in-kind contributions, rather 

than expenditures, would be a legal conclusion that is not sufficient to show an 

informational injury under Wertheimer. That is because reclassifying Correct the 

Record’s expenditures as in-kind contributions would not lead to additional factual 

information. Supra at 17-19, 20-21. 

 Because they realize that reclassifying expenditures as in-kind contributions 

will not provide additional factual information, CLC and Kelley have tried to 

manufacture standing by “trimming their sails” to assert that only some portions of 

Correct the Record’s expenditures were coordinated. See JA 300-301. But that 

position is not only disingenuous, it is completely inconsistent with their view of the 

law, which is dispositive for purposes of the informational standing analysis. FEC 

v. Akins, 524 U.S. 11, 21 (1998) (“The ‘injury in fact’ that respondents have suffered 

consists of their inability to obtain information . . . that, on respondents’ view of the 

law, the statute requires that [a political committee] make public.”). And even if it 

were not inconsistent with their view of the law, the reclassification of expenditures 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 34 of 63
 - 25 - 

as contributions and the duplicative reporting of that information would reveal only 

a legal finding of coordination; it still would not lead to additional factual 

information. 

 Second, CLC and Kelley’s claim that the District Court erred by suggesting 

that whenever litigants seek a legal determination of coordination there can be no 

informational harm is false and turns on a clear misstatement of the District Court’s 

order. See Br. at 19. Contrary to CLC and Kelley’s claims, the District Court made 

clear that seeking a legal determination of coordination does not always foreclose a 

cognizable informational injury; if a legal determination of coordination would also 

actually result in the reporting of further factual information, then there would be a 

cognizable informational harm. JA 306 (“And even where the Commission is 

unwilling or unable to act, the foregoing standing analysis likely would not bar a suit 

alleging coordinated spending by an entity that does not already disclose its 

expenditures under separate FECA provisions — for example, an individual 

spender.”). But the District Court correctly determined that was not the case here, 

where it is undisputed that Correct the Record has already publicly reported its 

expenditures under FECA. 

 Third, the District Court was not required to separately consider any 

organizational harm alleged by CLC as a result of the dismissal of the Administrative 

Complaint, because any such harm was predicated exclusively on the informational 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 35 of 63
 - 26 - 

injury-in-fact that CLC and Kelley failed to establish. In other words, there was no 

injury to CLC’s mission or diversion of CLC’s resources that could, by any stretch 

of the imagination, be disentangled from their purported informational harm. 

 Accordingly, each of CLC and Kelley’s arguments fail, and the District 

Court’s well-reasoned and precedent-bound decision should be affirmed. 

A. CLC and Kelley lack standing because they failed to establish an injuryin-fact. 

 As the District Court rightly held, under the clear precedent of this Circuit, 

CLC and Kelley do not have any cognizable interest in compelling the FEC to carry 

out a different law enforcement result, and they have failed to establish that they 

have actually been deprived of any information to which they are statutorily entitled. 

CLC and Kelley’s disagreement with the FEC’s coordination rules, and their related 

belief that Correct the Record and the Campaign engaged in an impermissible 

coordination scheme, does not give rise to the informational injury that they allege. 

 To establish standing, a plaintiff must show (1) a concrete, particularized, and 

actual or imminent injury-in-fact that is (2) fairly traceable to the Defendant’s 

challenged action and (3) likely to be redressed by a favorable decision. Friends of 

the Earth v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180-81 (2000). The 

“injury-in-fact” element of standing “serves to distinguish a person with a direct 

stake in the outcome of a litigation—even though small—from a person with a mere 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 36 of 63
 - 27 - 

interest in the problem.” United States v. Students Challenging Regulatory Agency 

Procedures, 412 U.S. 669, 689 n.14 (1973). 

 “What a plaintiff must assert to satisfy this burden varies depending on the 

stage of the litigation,” and the evidentiary burden on a plaintiff “grows heavier at 

each stage.” Freedom Watch, Inc. v. McAleenan, 442 F. Supp. 3d 180, 186 (D.D.C. 

2020). Here, because the District Court dismissed CLC and Kelley’s complaint on a 

motion for summary judgment, CLC and Kelley were required to set forth specific 

evidence that establishes each element of Article III standing and disposes of any 

remaining, genuine issues of material dispute. See Fed. R. Civ. P. 56. 

 To carry their burden of “demonstrating a sufficiently concrete and 

particularized informational injury” to confer standing under Article III, a “plaintiff 

must show that (1) it has been deprived of information that, on its interpretation, a 

statute requires the government or a third party to disclose to it, and (2) it suffers, by 

being denied access to that information, the type of harm Congress sought to prevent 

by requiring disclosure.” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n 

on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017) (emphasis added); see also 

Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). 

 An informational injury-in-fact arises when plaintiffs suffer from an “inability 

to obtain information . . . that, on [their] view of the law, the statue requires that 

[other litigants] make public.” Akins, 524 U.S. at 21. And “denial of access to 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 37 of 63
 - 28 - 

information [only] qualifies as an injury in fact where a statute (on the claimant[’s] 

reading) requires that the information be publicly disclosed and there is no reason to 

doubt their claim that the information would help [it].” CLC v. FEC, 952 F.3d 352, 

356 (D.C. Cir. 2020). 

 As to the federal campaign finance laws, “[t]he Supreme Court has long 

recognized that FECA creates an informational right—the right to know who is 

spending money to influence elections, how they are spending, and when they are 

spending it.” Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 410 F. 

Supp. 3d 1, 12 (D.D.C. 2019) (citing Akins, 524 U.S. at 24-25). But not just any 

information will do to show an informational injury: “the nature of the information 

allegedly withheld is critical to the standing analysis.” Common Cause v. FEC, 108 

F.3d 413, 417 (D.C. Cir. 1997). “Only if the statute grants plaintiff a concrete interest 

in the information sought will he be able to assert any injury in fact.” Nader v. FEC, 

725 F.3d 226, 229 (D.C. Cir. 2013). 

1. CLC and Kelley have not been deprived of any factual information 

sufficient to show informational injury. 

 It is well-settled that a plaintiff’s mere “desire for information concerning a 

violation of FECA,” or what a plaintiff alleges to have been a violation of FECA, 

does not give rise to an injury-in-fact. Vroom v. FEC, 951 F. Supp. 2d 175, 179 

(D.D.C. 2013); see also Common Cause, 108 F.3d at 418 (holding a plaintiff cannot 

“establish injury in fact merely by alleging that he has been deprived of the 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 38 of 63
 - 29 - 

knowledge as to whether a violation of the law has occurred”). This is because 

plaintiffs do not have any cognizable legal interest in “forc[ing] the FEC to ‘get the 

bad guys.’” Nader, 725 F.3d at 230 (quoting Common Cause, 108 F.3d at 418). 

Instead of seeking redress for a cognizable informational injury, “[a]sking the FEC 

to compel information . . . in the hope of showing that [another party] violated” 

campaign finance law “amounts to seeking disclosure to promote law enforcement.” 

Nader, 725 F.3d at 230 (emphasis added). An injury to any such law-enforcement 

interest is merely a generalized grievance insufficient to confer standing. Nader, 725 

F.3d at 230. In other words, there is no “justiciable interest in enforcement of the 

law.” Common Cause, 108 F.3d at 418. 

 Here, the District Court rightly concluded that CLC and Kelley are after a 

purely legal determination and that they have therefore failed to allege any 

cognizable informational injury-in-fact. CLC and Kelley filed their Complaint 

before the District Court in hopes of a court order compelling the FEC to adopt CLC 

and Kelley’s narrow view of the internet exemption, which would, in turn, result in 

penalties for Correct the Record and the Campaign and override the deference owed 

to the FEC in this area of the law. See supra at 13-14. But seeking law enforcement 

consequences is not sufficient to confer standing. See Vroom, 951 F. Supp. 2d at 

179; Common Cause, 108 F.3d at 418. This is because CLC and Kelley do not have 

any cognizable legal interest in “forc[ing] the FEC to ‘get the bad guys,’” or to adopt 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 39 of 63
 - 30 - 

their interpretation of the law. Nader, 725 F.3d at 230. The law is clear that CLC and 

Kelley have no “justiciable interest in enforcement of the law.” Common Cause, 108 

F.3d at 418. 

2. The re-classification of Correct the Record’s already-disclosed 

expenditures would not result in the disclosure of any additional 

factual information. 

A plaintiff also lacks an informational injury-in-fact where the information it 

seeks “is already required to be disclosed” elsewhere and, under that obligation, has 

been “reported in some form.” Wertheimer, 268 F.3d at 1074-75. When that is the 

case, as it is here, it is a clear indication that the plaintiff “do[es] not really seek 

additional facts,” but instead seeks “only the legal determination that” the facts the 

plaintiff already possesses amount to a legal violation. Id. at 1075. Where “plaintiffs 

have all of the information they are entitled to pursuant to FECA,” their coming to 

court anyway makes it “apparent that what they really want is a legal determination” 

that they have no standing to seek. Alliance for Democracy v. FEC, 362 F. Supp. 2d 

138, 148 (D.D.C. 2005).13 

13 See also id. at 149; CLC v. FEC, 254 F. Supp. 3d 119, 125 (D.D.C. 2017) (finding 

plaintiffs lacked standing where they “already possess all the relevant information 

about [certain] contributions”); Citizens for Resp., 799 F. Supp. 2d 78, 89 (D.D.C. 

2011) (finding plaintiff’s failure to “allege any specific factual information they lack 

that is not already publicly available” only “reveals [that] what [they] [we]re actually 

seeking” was a legal determination); Jud. Watch, 293 F. Supp. 2d 41, 47 (D.D.C. 

2003) (holding that plaintiff sought only a “legal determination” because it 

“appear[ed] unlike that [his] administrative complaint [would] yield additional facts 

. . . that [he] was not already aware of.”).

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 40 of 63
 - 31 - 

 That CLC and Kelley seek only a legal determination of coordination is clear 

because the information they claim to seek is already publicly available. “[L]ike any 

other ‘citizen who wants to learn the details of’” Correct the Record’s disbursements, 

CLC and Kelley “can already find the amount, date, recipient, and purpose of every 

single one simply ‘by visiting the Commission’s website.’” JA 295 (quoting CREW 

v. FEC, 475 F.3d 337, 339 (D.C. Cir. 2007). Indeed, a close examination of the 

FEC’s reporting regime makes plain that CLC and Kelley already have all the 

information to which they are entitled under FECA concerning Correct the Record’s 

spending, even if the FEC adopted their view of the law that Correct the Record’s 

spending was coordinated with the Campaign. As explained supra at section A.4 of 

the Statement of the Case, under FECA and the FEC’s regulations, all political 

committees, including Correct the Record and the Campaign, must file regular 

reports disclosing the contributions they receive and the expenditures they make. See 

52 U.S.C. § 30104(b); 11 C.F.R. § 104.3. Under those regulations, Correct the 

Record has already publicly disclosed all of its disbursements in accordance with 

FEC reporting guidelines, in the same detail as if it had treated (or been required by 

the FEC to treat) these disbursements as in-kind contributions. 

 In fact, CLC and Kelley admit that “[d]uring the 2015-2016 election cycle, 

Correct the Record filed periodic reports with the FEC disclosing $9.61 million in 

disbursements.” Br. at 28. CLC and Kelley claim that they lack information about 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 41 of 63
 - 32 - 

the dates, amounts, and purposes of Correct the Record’s expenditures, but after 

multiple rounds of briefing in this case, they have still not explained what further 

detail would be required by the FEC’s reporting requirements. Their most recent 

brief repeatedly argues that in-kind contributions would have to be “itemized.” 

While that is true, all “itemization” means is that a reporting entity like Correct the 

Record must report the dates, amounts, purposes, and sources of the contributions. 

See Br. at 22, 25-27, 46, 50. Correct the Record’s disbursements are already itemized 

to disclose that exact information. Supra at 17-19, 20-21. 

This is because there is no difference between the level or type of information 

a political committee provides when reporting an operating expense and an in-kind 

contribution.14 The only change that would occur is that after a legal determination 

of coordination, expenses now reported as “expenditures” would be disclosed 

instead as “in-kind contributions.” Supra at 6, 14-17. CLC and Kelley already know 

who Correct the Record paid, when they paid them, and how much they paid them. 

Indeed, if Correct the Record amended its reports to change its operating 

expenditures into in-kind contributions, all it would do is move its existing entries 

from Line 21 to Line 23, label the expenditures in-kind contributions, and note that 

the in-kind contributions benefited the Campaign. See id. The amount, date, and 

14 See Instructions for FEC Form 3X and Related Schedules 10, FEC, 

https://www.fec.gov/resources/cms-content/documents/fecfrm3xi.pdf. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 42 of 63
 - 33 - 

purpose description of each expenditure would remain the same, and CLC already 

knows that Correct the Record’s expenditures benefited the Campaign. See JA 299. 

Correct the Record reported the following “purposes” of its expenditures, for 

example: “payroll, salary, travel, lodging, meals, rent, fundraising consulting, 

computers, digital software, domain services, email services, event tickets, 

hardware, insurance, office supplies, parking, and shipping.” Br. at 27 (citing JA 

192). If these expenditures were reported as in-kind contributions, no more detail 

would be required. See 11 C.F.R. § 104.3(b)(3)(i)(B).15 Thus, CLC would not learn 

any new information from this hypothetical amended report. In short, “each 

transaction appellants allege is illegal is reported in some form” already, and 

requiring the Campaign to report these transactions is simply “seek[ing] the same 

information from a different source,” which is insufficient for an informational 

injury. Wertheimer, 268 F.3d at 1074-75. 

3. CLC and Kelley’s attempt to manufacture standing by “trimming the 

sails” on their theory of coordination fails. 

Because they already have the information that is required to be disclosed 

under FECA, CLC and Kelley have revamped their theory of coordination in this 

case to conjure up an informational injury. The District Court correctly rejected this 

15 Purpose of Disbursement, FEC, https://www.fec.gov/help-candidates-andcommittees/purposes-disbursements/ (Aug. 21, 2018); FEC, Instructions for FEC 

Form 3X and Related Schedules, 10, https://www.fec.gov/resources/cmscontent/documents/fecfrm3xi.pdf (rev. May 2016).

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 43 of 63
 - 34 - 

effort, and this Court should too. On appeal, CLC and Kelley claim that their 

purported informational injury “is premised on their desire to learn ‘which 

disbursements’ made by [Correct the Record]—all of which, recall, have already 

been publicly disclosed—‘were made in coordination with [the Campaign] and are 

thus by definition in-kind contributions, and ‘which were made for non-coordinated 

exempt activities.’” JA 294-95 (quoting and extensively citing CLC and Kelley’s 

briefing before the District Court). They focus in particular on Correct the Record’s 

reported expenditures for overhead expenses like travel and rent, arguing that if the 

FEC found Correct the Record’s activities to be coordinated with the Campaign, 

then Correct the Record would have to amend its reports to show how much of each 

overhead payment was an operating expenditure because it related to an exempt 

activity, and how much was an in-kind contribution because it supported coordinated 

activity. See id. at 31. However, as the District Court pointed out, at bottom, the 

classification of a certain portion of an expenditure as an in-kind contribution is a 

legal determination, not an inquiry for additional facts. See CREW, 799 F. Supp. 2d 

at 88–89 (finding plaintiff lacked standing where “[t]he only remaining question was 

a legal dispute about how much of the $10,243 expenditure should be considered a 

contribution to the presidential campaign, and how much should be considered a 

non-contribution expenditure in furtherance of the PAC’s own mission” (emphasis 

added)). 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 44 of 63
 - 35 - 

Moreover, CLC and Kelley’s assertion that some expenditures were 

coordinated while others were not—while convenient for standing—is at odds with 

their own interpretation of the law. On the merits, CLC and Kelley advance a 

sweeping claim that Correct the Record’s spending represented coordinated 

expenditures, and thus in-kind contributions to the Campaign, because of the 

“voluminous record evidence showing that [Correct the Record] and [the Campaign] 

were collaborating across the full range of [Correct the Record]’s activities . . . .” 

CLC, Case No. 1:19-cv-02336-JEB, Doc. No. 42 at 38. They allege “broad, 

systematic coordination with the Clinton campaign ...” Id. They even say it was 

error for the FEC to seek “conclusive evidence on a transaction-by-transaction basis 

to determine whether specific conduct occurred with respect to particular 

expenditures.” Id. (quotation marks omitted). CLC and Kelley are not genuinely 

trying to determine which of Correct the Record’s expenditures were coordinated, 

and which were not. CLC and Kelley have gone to court to advance the argument 

that all of Correct the Record’s spending was coordinated. Under Akins, the relevant 

question to determine whether a plaintiff has informational standing is whether, on 

their view of the law, they have been deprived of factual information. 524 U.S. at 21. 

CLC and Kelley fail that test here. 

The argument with respect to David Brock’s salary provides an example of 

the problems and inconsistencies with CLC and Kelley’s position. On the one hand, 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 45 of 63
 - 36 - 

they contend that (1) only the portions of David Brock’s salary that are “connected” 

to unpaid internet activity should be exempt from being treated as an in-kind 

contribution; (2) the remaining portions of David Brock’s salary that are unrelated 

to unpaid internet activity are in-kind contributions to the Campaign; and (3) 

requiring Correct the Record to divide up Brock’s salary in that manner would 

indicate to Plaintiffs how much time he spent on unpaid internet activity while 

working for Correct the Record. See Br. at 30-31. Yet, CLC and Kelley have 

repeatedly claimed that input costs for unpaid Internet activities are not exempt 

under any circumstances: in their view, Correct the Record’s “disbursements for 

staff salaries amounted to ‘compensation for personal services’ rendered to the 

campaign, and were therefore in-kind contributions under FECA whether or not the 

ultimate activity qualified as a ‘public communication.’” CLC, Case No. 1:19-cv02336-JEB, Doc. No. 27 at 41 n.13 (emphasis added). This Court would have to 

ignore CLC and Kelley’s arguments on the merits to adopt their strained and 

contradictory standing argument here. 

B. The District Court properly found that Wertheimer and the cases that 

followed foreclose CLC and Kelley’s claim of informational injury. 

Wertheimer’s standing analysis precludes jurisdiction here, where CLC and

Kelley seek a legal finding of coordination that would not result in any additional 

factual information. Wertheimer instructs that a plaintiff lacks a cognizable 

informational injury sufficient to establish standing where the information she seeks 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 46 of 63
 - 37 - 

is already required to be disclosed and is reported in some form. Supra at 30; JA 294 

(citing Wertheimer, 268 F.3d at 1074-75). Such a conclusion makes sense, because 

if a plaintiff already has access to the information she seeks, then she is not really 

searching for additional facts, but is instead looking for a legal determination that 

the facts she knows amount to a legal violation. Supra at 30; JA 294 (citing 

Wertheimer, 268 F.3d at 1075). Nothing about this Circuit’s holding in Wertheimer

indicates that it turns on whether the informational harm is prospective or 

retrospective. 

CLC and Kelley strain to differentiate Wertheimer by pointing out that it was 

based on an action brought under the Presidential Election Campaign Fund Act 

(“Fund Act”), not FECA. Br. at 40. But that is a distinction without a difference for 

purposes of analyzing standing. Wertheimer, 268 F.3d at 1074 (“Although 

recognizing the tenuous nature of appellants’ claimed interrelationship between the 

two statutes we prefer to rest our decision on appellants’ failure to assert an injury 

in fact because that is the logical anterior question in any standing analysis.”). 

Indeed, many decisions have relied on Wertheimer despite not involving any 

allegations under the Fund Act. See, e.g., Free Speech for People v. FEC, 442 F. 

Supp. 3d 335, 344 (D.D.C. 2020) (finding a case that only involved FECA “nearly 

on all fours” with Wertheimer); CREW, 799 F. Supp. 2d at 87 (similar). 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 47 of 63
 - 38 - 

Like this case, the claims in Wertheimer turned on whether the appellants had 

established an informational injury sufficient to satisfy Article III’s injury-in-fact 

requirement. 268 F.3d at 1074. Wertheimer’s grievance was that the Democratic 

National Committee and Republican National Committee were spending millions of 

dollars on issue ads that were coordinated with presidential campaigns, which he 

thought were “contributions” under FECA. Id. at 1071. Wertheimer believed such 

spending amounted to coordinated party expenditures under section 441a(d) of 

FECA that vastly exceeded the 441a(d) limits. Id. However, “[b]ecause § 441a(d) 

expenditures were already required to be disclosed and itemized in a way that 

revealed all of the pertinent information about each transaction—the fact of 

cooperation between the party and the candidate, and the expenditure’s amount, date, 

and purpose—declaring that those expenditures were ‘coordinated’ would amount 

only to a ‘legal conclusion’ that the expenditures were unlawful.” Br. at 43. Thus, 

the Court found that Wertheimer lacked an informational harm. Wertheimer stands 

for the proposition that a litigant cannot dress up a generalized grievance as an 

informational injury, and that a plaintiff does not really suffer an informational 

injury when his only grievance is that a category of expenditures should have been 

reported on a different line of the defendant’s FEC reports. 

The exact same logic applies to this case. Correct the Record’s expenditures 

have already been reported in a way that reveals all of the pertinent information 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 48 of 63
 - 39 - 

about each transaction—over $9 million dollars of disbursements have already been 

reported according to their amount, date, and purpose, and it is public record that 

Correct the Record and the Campaign coordinated on a myriad of online activities. 

See supra at 17-19, 31. CLC and Kelley can point to Correct the Record and the 

Campaign’s expenditures with certitude. See, e.g., JA 47 at ¶ 63 (Plaintiffs know and 

have “documented” Correct the Record’s millions of dollars spent on specific 

activities, including opposition research, message development, surrogate training 

and booking, and much more. Purportedly all that is missing is whether certain of 

these expenses were made in “coordination” with the Campaign.); JA 49-50 at ¶ 69 

(Plaintiffs know the salaries that Correct the Record paid its staff. Supposedly 

“missing” is exactly what portion of staff salary was considered “coordinated” with 

the Clinton campaign)16; JA 50 at ¶ 70 (Plaintiffs cite exact dollar amounts that 

Correct the Record reported that it paid in coordination with the Campaign, complete 

with the precise dates and subjects, including a $275,615 payment on June 1, 2015 

for research, and a $6,346 payment on July 17, 2015 for research services). 

16 As explained above, this information is hardly “missing.” See supra at 8, 17-19, 

33-36 (explaining how, instead, their arguments about disaggregating 

disbursements, including salary disbursements, turns on a contrived attempt by CLC 

and Kelley to “trim[] their sails” in a way that is inconsistent with their arguments 

on the merits). In any event, Correct the Record disclosed the amount, source, date, 

and purpose for each of its expenditures. All CLC demands is (a) a movement of 

that existing information, and (b) a duplication of that information on the 

Campaign’s reports. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 49 of 63
 - 40 - 

As the District Court pointed out, the only information that CLC and Kelley 

are potentially missing is whether there are portions of Correct the Record’s already 

disclosed expenditures that were made in coordination with the Campaign. JA 294-

95, 296-97, 299. CLC and Kelley concede as much in their brief, admitting that the 

information they seek is “itemized information about each unreported in-kind 

contribution arising from” coordination with a candidate during the election cycle. 

Br. at 44-45. Practically, this “itemized information” amounts to nothing more than 

Correct the Record and the Campaign taking the already disclosed expenditures and 

rearranging them on new lines in their disclosures. Supra at 6, 14-19, 30-34. Thus, 

despite CLC and Kelley’s assertion that there are “new factual revelations” to be 

made, Br. at 43, there is nothing in the record to support this. 

Just as CLC and Kelley do here, the appellants in Wertheimer also cited Akins

to support their claim that they were injured by not knowing whether certain 

expenditures were coordinated, as they understood the term to be defined under the 

statute. Id. at 1074. But Akins was diametrically different: it involved an organization 

that had failed to register and report as a political committee at all. Accordingly, the 

complainants were completely in the dark as to contributions or expenditures made 

by the organization. Moreover, Akins only supports the claim that a plaintiff suffers 

an informational injury when she is “deprived of information that the Act requires 

be disclosed.” Id.; see also Akins, 524 U.S. at 21. The court in Wertheimer rejected 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 50 of 63
 - 41 - 

the notion that Akins controlled because “appellants have failed to show either that

they are directly being deprived of any information or that the legal ruling they seek 

might lead to additional factual information.” Wertheimer, 268 F.3d at 1074. There, 

“appellants’ counsel did not dispute that all political parties currently report all 

disbursements or that each transaction appellants allege is illegal is reported in some 

form.” Id. The only additional “fact” that could be gleaned was the “fact” of 

“coordination,” but the court concluded that “coordination” is a legal conclusion, not 

a “fact” sufficient to prove an injury-in-fact and establish standing. Id. The same is 

true here. CLC and Kelley do not dispute that all of Correct the Record’s 

expenditures have been reported “in some form.” 

 CLC and Kelley also repeatedly claim that their injury is no different from the 

plaintiff in Shays v. FEC, 528 F.3d 914, 921-22 (D.C. Cir. 2008) (“Shays III”), who 

this court found to have standing to challenge a coordination regulation. Br. at 2-3, 

23-24, 48. However, they brush aside critical differences between their case and 

Shays III in making this claim. Shays III involved a facial challenge to an FEC 

regulation that provided that any public communication that referenced a candidate 

and appeared before the candidate’s electorate within 120 days of an election for a 

presidential candidate, or 90 days for a House or Senate candidate, was a coordinated 

communication if there was evidence of coordinating conduct. Shays, 528 F.3d at 

921-22. Shays argued that the regulation was contrary to FECA because it allowed 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 51 of 63
 - 42 - 

coordinated advertisements aired before the relevant window to evade regulation. 

See id. at 922. 

 This Court concluded that Shays had standing to bring his challenge because, 

if the regulation stood, he would be denied information about who was funding 

candidates’ campaigns. Id. at 923. Critically, though, because this was a facial 

challenge, the Court was able to take into account the fact that the entities with which 

candidates might be coordinating included not just political committees, but 

corporations and labor unions that do not report their spending. Accordingly, if the 

FEC did not require campaigns to report coordinated communications outside of the 

90/120-day window as in-kind contributions, no one would ever know any 

information about who funded certain communications, the dates, or the amount of 

the expenditures, as corporations and labor unions have no disclosure obligations. 

That is the direct opposite of the situation in this case, where Correct the Record 

reports all of its receipts and disbursements to the FEC. 

CLC and Kelley’s attempts to distance themselves from cases applying 

Wertheimer also fail. For example, CLC and Kelley distinguish Judicial Watch, Inc. 

v. FEC, 293 F. Supp. 2d 41, 47 (D.D.C. 2003) by arguing the case turned on the fact 

that plaintiff was seeking information about his own contributions. Br. at 43. Not so. 

Factually, the plaintiff was ultimately seeking a legal determination that the money 

he spent on the Clinton campaign was a contribution and should have been reported 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 52 of 63
 - 43 - 

as such. Judicial Watch, 293 F. Supp. 2d at 47. But the case turned on whether the 

plaintiff had an informational injury because he did not have a full view into how

the Clinton campaign was reporting contributions. Id. The court, citing Wertheimer, 

found the plaintiff lacked standing because he was already aware of the contribution 

amounts and his complaint was unlikely to yield new facts; therefore, he was seeking 

“only ‘a legal characterization or duplicative reporting of information that under 

existing rules is already required to be disclosed.’” Id. at 47 n.9. Judicial Watch is 

not meaningfully distinguishable from this case, where CLC and Kelley are aware 

of the contribution amounts—indeed, they are the ones who have brought the 

amounts to light in their complaint and briefing—and are merely seeking a legal 

characterization of whether certain of these amounts should have been reported as 

“coordinated” expenses. 

Similarly, plaintiffs in Alliance for Democracy v. FEC lacked standing 

because they “already possess[ed] the information they claim to lack.” 362 F. Supp. 

2d 138, 144 (D.D.C. 2005). There, the plaintiffs were aware that a PAC gave John 

Ashcroft a fundraising list of 100,000 donors during his Senate campaign. Id. at 139. 

They sought the precise value of the list, despite no statutory requirement to disclose 

the precise value of the list. And, there were “voluminous documents” available on 

the FEC’s website that provided raw data indicating how the list was developed and 

at what cost, how the committees used the list, and how much income the list 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 53 of 63
 - 44 - 

generated. Id. 145. The plaintiffs cited Akins to support their standing arguments, 

but the court rejected the analogy, noting that, unlike the plaintiffs in Akins, the 

Alliance for Democracy plaintiffs were “seeking a specific monetary value of an 

item that has already been reported” and “began this action while already in 

possession of information regarding the transfer of the mailing list from the [PAC] 

to Ashcroft 2000.” Id. at 147. The court reiterated: no informational injury is 

sustained when “the information required to be disclosed by the statute has already 

been disclosed.” Id. (explaining the “present case is more analogous to Judicial 

Watch” than to Akins.) 

Finally, Free Speech for People v. FEC is another example that mirrors this 

case and similarly found that the plaintiff lacked standing. There, the plaintiff 

claimed that American Media made a $150,000 payment to Karen McDougal “for 

the purpose of influencing the 2016 presidential campaign.” Free Speech for People, 

442 F. Supp. 3d at 340. The plaintiff was aware of this payment, including when it 

was made and its purpose. What the plaintiff wanted to know, and what formed the 

basis of its lawsuit, was whether the Trump Campaign coordinated with American 

Media to pay McDougal. Id. at 343. Applying Wertheimer, a case that it viewed as 

“nearly on all fours,” the court properly found that the plaintiff had failed to establish 

an injury-in-fact for standing purposes. Id. at 344-45. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 54 of 63
 - 45 - 

There is little daylight between Wertheimer, the cases applying it, and this 

case. CLC and Kelley know with certainty the amounts that Correct the Record and 

the Campaign spent, when those payments were made, and the purposes of each 

payment. Supra at 28-34. Correct the Record and the Campaign disclosed everything 

that they were required to disclose under FECA and the relevant FEC regulations. 

CLC and Kelley do not have standing to bring this lawsuit just because they wish 

that they had more granular—and unnecessary—details about how each dollar was 

spent, or because they wish that that same information would have been reported 

differently, in accordance with a legal conclusion that the FEC declined to make. 

“Not every unrequited demand for information from the FEC is sufficient to 

establish Article III standing.” Free Speech for People, 442 F. Supp. 3d at 342. 

C. The District Court did not conclude that a request for a legal 

determination always forecloses an informational injury-in-fact. 

 CLC and Kelley’s claim that the District Court’s decision somehow suggests 

that anytime a plaintiff also seeks a legal determination that there can be no 

informational harm is false and turns on a clear misstatement of the District Court’s 

order. See Br. at 19. Contrary to CLC and Kelley’s claims, the District Court 

correctly recognized that seeking a legal determination of coordination does not

always foreclose a cognizable informational injury, if a legal determination of 

coordination would actually result in the reporting of further factual information. See 

JA 305. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 55 of 63
 - 46 - 

 As an example of such a case, the District Court referenced a prior litigation 

involving CLC. In CLC v. FEC, which involved a review of the FEC’s dismissal of 

five administrative complaints, the court held that with respect to three of the 

complaints, it was clear that neither the FEC nor the plaintiffs knew who was truly 

behind the contributions at issue. JA 305 (citing CLC, 245 F. Supp. 3d at 123-27). 

As to those three complaints, the court found an informational injury, because the 

plaintiffs had a right to information about who made the contributions under Akins. 

JA 305. The District Court here explained that, “[t]he rule sensibly applied by the 

court, therefore, was that the [FEC]’s failure to investigate confers standing only if 

the sought-after injury would uncover nonpublic information that the plaintiffs have 

a cognizable interest in obtaining: the identity of a contributor qualifies; the FEC’s 

confirmation of a fact already known to the public does not.” Id. Here, there is no 

such information. And as discussed above, CLC and Kelley’s only attempt to even 

try to claim there is some such information is in direct contravention to their 

arguments on the merits that virtually all of Correct the Record’s expenditures were 

actually in-kind contributions. See supra at34-37. Accordingly, the District Court 

rightly (and narrowly) held that CLC and Kelley did not establish an informational 

injury-in-fact here; the Court’s holding did not preclude finding an informational 

injury-in-fact simply because a litigant also seeks a legal determination. 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 56 of 63
 - 47 - 

D. Contrary to what Appellants now claim, CLC did not plead a separate 

and discrete organizational injury and, even if it had, no such injury 

would be cognizable. 

 CLC and Kelley make the misleading argument that CLC asserted an injuryin-fact that was separate and discrete from its putative informational injury, and that 

the District Court erred in ignoring this separate basis for standing. See Br. at 36-39. 

This argument is wrong on the facts and on the law. 

 CLC and Kelley’s Complaint lays bare that they did not assert any 

organizational injury to CLC which is, in any way, separate from its alleged 

informational injury. This Court need look no further than the Complaint to see that 

a putative informational injury was the only injury alleged. See supra at 21; see also 

JA 38-39 (alleging that CLC is only harmed as an organization because of the 

purported deprivation, since it uses such campaign finance information, for example, 

to testify before Congress, speak with reporters, and generate publications, and 

because its mission turns on policing such information). In other words, because 

CLC has failed to establish an informational harm, it cannot possibly prove its 

entirely dependent organizational harm. 

This is not an open question of law. When a theory of organizational standing 

is rooted in the organization’s inability to obtain information, the organization 

cannot satisfy organizational standing by showing that access to the information is 

important to its core mission or has impacted its activities and has caused a drain on 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 57 of 63
 - 48 - 

its resources if it has not actually been denied access to the information. See, e.g.,

Friends of Animals v. Jewell, 115 F. Supp. 3d 107, 115 n.9 (D.D.C. 2015), aff’d, 828 

F.3d 989 (D.C. Cir. 2016) (rejecting plaintiff’s theory of organizational injury, which 

was rooted in denial of information, after finding plaintiff had not actually been 

denied information); see also Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 424 

F. Supp. 3d 26, 33 (D.D.C. 2020), aff’d, 848 F. App’x 428 (D.C. Cir. 2021) (noting 

the plaintiff’s theories for both informational and organizational standing “allege 

harms that stem from the FBI’s failure to disclose the desired information” and 

thus their organizational injury was “part and parcel of the alleged informational 

injury” and “[s]ince the organizations have suffered no informational injury . . . the 

alternative theories also fail”). 

 When an organizational injury fails for the same reason an informational 

injury does, it is neither unusual nor improper for courts to address only the 

plaintiff’s informational standing argument and summarily reject their 

organizational standing.17 Similarly, when courts find the plaintiff has stated a 

17 See, e.g., Friends of Animals, 115 F. Supp. 3d at 115 n.9 (“Friends of Animals 

alleges the same (supposedly) concrete injuries to support its informational—and 

organizational—injury theories . . . . Because these allegations (and the arguments 

surrounding them) overlap, the Court will spare the reader a separate discussion of 

their merit. Thus, the Court rejects FOA’s organizational-standing arguments for the 

reasons described infra at 115-16.”); cf. Elec. Priv. Info. Ctr., 878 F.3d at 381 

(Williams, J., concurring) (“Where an organization’s only asserted injury is an 

informational one, we have not engaged in a separate analysis of informational and 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 58 of 63
 - 49 - 

cognizable informational injury, and the plaintiff alleges an organizational injury 

rooted in the same lack of information, they may skip the “injury in fact” analysis 

for organizational standing and just consider whether there has been an impact on 

the organization’s interests. Air All. Houston v. U.S. Chem. & Safety Hazard 

Investigation Bd., 365 F. Supp. 3d 118, 127 (D.D.C. 2019) (“[T]his court need not 

re-evaluate Plaintiffs’ injury in fact for organizational standing purposes, when it 

already has held that Plaintiffs suffered a cognizable informational injury. As to the 

second element of organizational standing—use of resources to counteract the 

harm—Plaintiffs have satisfied it.”). Here, the District Court rightly found that the 

only separate and discrete injury alleged by CLC and Kelley was informational in 

nature, because any organizational harm was collateral and indistinguishable from 

their purported informational harm. Accordingly, the Court did not err in not 

separately addressing and rejecting any allegation of organizational harm. 

 Indeed, none of the cases that CLC and Kelley cite are contradictory to this 

well-settled law. Instead, the cases that CLC and Kelley cite are merely cases where 

courts have taken for granted that an interrelated and inextricable informational harm 

has occurred and then turned their analysis to the collateral organizational injury. 

organizational injury.”); id. (“In its capacity as an organization, EPIC has alleged 

one harm, packaged as two theories (perhaps in the hope that such packaging will 

increase the odds of success). There is no need for us to accept that packaging; doing 

so is a step away from, not towards, legal clarity.”). 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 59 of 63
 - 50 - 

See, e.g., People for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 

1094-96 (D.C. Cir. 2015) (examining only whether an alleged deprivation of 

information impaired the organization’s interests). The cases CLC and Kelley cite 

certainly do not stand for the proposition that an organization’s diversion of 

resources because of and in response to an informational harm that does not exist

can somehow give rise to a separate and independent injury-in-fact. Indeed, 

undersigned counsel is not aware of a single case that reaches that result. 

E. Kelley’s alleged harm is not redressable. 

The only issue before this Court is whether CLC and Kelley have proven an 

injury-in-fact to establish standing—they have not. Even if Kelley could establish 

an injury-in-fact (she cannot), she still fails to establish standing because any alleged 

harm she claims cannot be redressed. Friends of the Earth, 528 U.S. at 180-81. 

Kelley claims that she needed information about coordination between Correct the 

Record and the Campaign to “assess” and “evaluate candidates,” and to ensure that 

she was “exercising her right to an informed vote.” JA 39-40. Kelley states that 

understanding coordinated spending between Correct the Record and the Campaign 

will “allow her to understand the sources of [Clinton’s] financial support, and thus 

the interests to which they are likely to be responsive.” JA 69. The 2016 election is 

long-since over, and Secretary Clinton is no longer a candidate for office, nor is there 

any indication that she will be a candidate in the future. Thus, even if Kelley did 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 60 of 63
 - 51 - 

allege an injury, it would not be related to her “informed participation in the political 

process,” which is required to show an informational injury. Free Speech for People, 

442 F. Supp. 3d at 343. 

CONCLUSION 

 For the foregoing reasons, the District Court’s decision that CLC and Kelley 

lack standing under Article III of the United States Constitution should be affirmed. 

/s/Marc E. Elias 

Marc Erik Elias (DC Bar No. 442007) 

MElias@perkinscoie.com 

Aria C. Branch (DC Bar No.1014541) 

ABranch@perkinscoie.com 

PERKINS COIE LLP 

700 Thirteenth Street N.W., Suite 800 

Washington, D.C. 20005-3960 

Telephone: 202.654.6200 

Facsimile: 202.654.6211 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 61 of 63
 - 52 - 

LOCAL RULE 32(g)(1) CERTIFICATE OF COMPLIANCE 

Certificate of Compliance with Type-Volume Limit, 

Typeface Requirements, and Type-Style Requirements 

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

32(a)(7)(b)(i) because, excluding the parts of the document exempted by Fed. R. 

App. P. 32(f): 

☒ this document contains 12,328 words. 

2. This document complies with the typeface requirements of Fed. R. 

App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) 

because: 

☒ this document has been prepared in a proportionally spaced typeface 

using Microsoft Office Word 2016 in Times New Roman 14-point font. 

/s/Marc E. Elias 

Marc Erik Elias 

Attorney for Hillary for America and Correct the Record 

Dated: August 18, 2021 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 62 of 63
 - 53 - 

CERTIFICATE OF SERVICE 

 I hereby certify that on August 18, 2021, I electronically filed this Brief with 

the Clerk of Court for the United States Court of Appeals for the District of Columbia 

Circuit by using the appellate CM/ECF system, thereby serving all person required 

to be served. 

 

/s/Marc E. Elias 

Marc Erik Elias 

 

USCA Case #21-5081 Document #1910738 Filed: 08/18/2021 Page 63 of 63