1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

 Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

 Defendant.

Civil Action No. 1:21-cv-406-TJK

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT

FEDERAL ELECTION COMMISSION

Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, Plaintiff Campaign Legal 

Center (“CLC”) respectfully moves for the entry of default judgment against Defendant Federal 

Election Commission (“FEC” or “Commission”). On February 16, 2021, CLC brought this action 

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

violations of the Federal Election Campaign Act (“FECA”). CLC effected service on the United 

States Attorney for the District of Columbia and the Attorney General of the United States on 

February 22, 2021. The FEC acknowledged receipt of the Complaint and Summons on March 11,

2021. See ECF No. 8; Declaration of Mark P. Gaber, Ex. 1, ¶ 6.

1 The FEC’s deadline to file a 

responsive pleading was April 23, 2021. See ECF Nos. 7, 8. The FEC has failed to appear, answer, 

plead, or otherwise defend this action as required by the Federal Rules of Civil Procedure, and the 

Clerk of Court entered a default against the FEC on May 10, 2021. See ECF No. 9.

1 The FEC’s counsel explained that its offices were closed, and thus unable to receive mail. Thus, 

while CLC satisfied its service obligations, see Fed. R. Civ. P. 4(i)(2) (requiring plaintiff to “send 

a copy of the summons and complaint by registered or certified mail to the agency”), CLC took 

the additional step of providing electronic copies to the FEC. See Deeley Email, Ex. 1-A.

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

appropriate because the uncontroverted evidence establishes that the FEC has failed to act on 

CLC’s administrative complaint, and that this failure to act is contrary to law. Pursuant to 52 

U.S.C. § 30109(a)(8)(C), Plaintiff asks this Court to declare that the FEC’s failure to act is contrary 

to law and to direct the FEC to conform within thirty days. A proposed order is attached.

STATEMENT OF FACTS

I. Plaintiff’s Administrative Complaint

1. On October 16, 2018, CLC filed an administrative complaint with the FEC showing 

that Heritage Action, a tax-exempt 501(c)(4) corporation, had violated FECA by failing to disclose 

the contributors who paid for its election advertising during the 2018 election cycle. See Admin. 

Compl., ECF No. 1-1, ¶¶ 1, 4; Gaber Decl., Ex. 1, ¶ 3. 

2. Relying on publicly available information, including the FEC’s own records, 

Heritage Action’s own statements, and press accounts, CLC’s administrative complaint establishes 

that Heritage Action violated 52 U.S.C. § 30104 by failing to disclose the identity of contributors 

who gave for the purpose of financing Heritage Action’s “independent expenditures”—advertising 

expressly advocating the election or defeat of federal candidates—during the 2018 election cycle.

See Admin. Compl., ECF No. 1-1, ¶¶ 17, 19, 21–23.

3. As detailed in the administrative complaint, on August 8, 2018, Heritage Action 

announced in a press release and in an interview with the news publication McClatchy that it 

planned to solicit contributions for and spend $2.5 million on independent expenditures supporting 

candidates in twelve specified congressional races during the November 2018 general election. Id.

¶¶ 5–7, 18; see also Heritage Action Press Release, ECF No. 1-5; McClatchy Article, ECF No. 1-

6. 

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4. According to FEC records, Heritage Action spent $374,177 on independent 

expenditures in the form of mailers and digital advertising in mid-September 2018. In reports filed 

with the FEC, Heritage Action disclosed making $233,585 in independent expenditures on 

September 17, 2018, and $140,592 in independent expenditures on September 19, 2018. See 

Admin. Compl., ECF No. 1-1, ¶¶ 8–9; see also Heritage 48-Hour FEC Report, ECF No. 1-7; 

Heritage Quarterly FEC Report, ECF No. 1-8. 

5. Despite expressly stating that it would solicit contributors for the purpose of paying 

for these expenditures, see supra ¶ 3, Heritage Action did not disclose to the FEC any contributors. 

See Admin. Compl., ECF No. 1-1, ¶¶ 8–9; see also Heritage 48 Hour FEC Report, ECF No. 1-7; 

Heritage Quarterly FEC Report, ECF No. 1-8.

6. Plaintiff’s administrative complaint therefore demonstrates that Heritage Action 

violated Section 30104 of FECA by failing to make these required disclosures to the FEC. Id. ¶¶ 1, 

11, 16–17, 23.

7. On October 22, 2018, the FEC sent CLC a letter acknowledging receipt of the

Complaint and designating it Matter Under Review 7516 (“MUR 7516”). See FEC Admin. Compl. 

Acknowledgment Letter for MUR 7516, ECF No. 1-9; See Gaber Decl., Ex. 1, ¶ 4.

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

7516. See Gaber Decl., Ex. 1, ¶ 5.

9. CLC allowed the FEC more than 850 days to take action on its administrative

complaint before filing this action on February 16, 2021. See Compl., ECF No. 1. 

II. The FEC’s Failure to Act

10. During recent years, the FEC has repeatedly declined to actively enforce campaign 

finance laws. As Commissioner Ellen Weintraub summarized in 2019, the FEC has “frequently 

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closed matters without so much as making a phone call to investigate potential wrongdoing” and 

“[e]nforcement actions pending before the Commission languished for months or years . . . causing 

some to near the end of their statutory limitations,” only for “Commissioners to then decline to 

investigate at all,” or for the Commission “to end up with inadequate outcomes years too late to 

make a meaningful difference to the public.” Office of Comm’r Ellen L. Weintraub, The State of 

the Federal Election Comm’n: 2019 End of Year Report at 2 (Dec. 20, 2019), Ex. 2.

11. Between 2006 and 2016, for example, the rate at which the FEC deadlocked on 

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

Ann M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election 

Comm’n Reveals the Unlikelihood of Draining the Swamp at 1 (Feb. 2017), Ex. 3. As a result of 

deadlocks, the FEC has routinely failed to investigate serious allegations of campaign finance 

violations and has closed matters without resolution. Id. 

12. Indeed, as the FEC itself admitted to the Committee on House Administration in 

2019, the FEC has had at least one deadlocked vote in the majority (50.6%) of the enforcement 

matters it has considered in executive sessions since 2012. See FEC, Responses to Questions from 

the Committee on House Administration at 20 (May 1, 2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin.pdf; see also FEC, Chair Ellen L. 

Weintraub’s Supplementary Responses to Questions from the Committee on House Administration

at 4 (May 1, 2019), https://www.fec.gov/resources/cmscontent/documents/FEC_Response_to_House_Admin_Attachment_A_Weintraub.pdf (noting 

that “a slim majority of 51% have at least one split vote along the way”).

13. At the end of 2020, Commissioner Weintraub summarized that the FEC had 466 

unresolved pending matters before the agency—a “backlog” that leaves campaign finance laws 

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unenforced and threatens to do so permanently for “matters imperiled by the statute of limitations.” 

FEC, Statement of Commissioner Ellen L. Weintraub On the Senate’s Votes to Restore the Federal 

Election Commission to Full Strength at 1 (Dec. 9, 2020), Ex. 4.

III. The FEC’s Lack of Quorum

14. Over 950 days have elapsed since Plaintiff filed its administrative complaint, with 

no action or further correspondence from the Commission concerning MUR 7516. See FEC, 

Enforcement Query System, https://eqs.fec.gov/eqs/searcheqs (search for “MUR 7516” yields the 

response “No Matches Found”).

15. During this period, the FEC was temporarily without a quorum of commissioners 

on two separate occasions. Specifically, the FEC was without a quorum from Sept. 1, 2019 to June 

5, 2020, and from July 3, 2020 to December 18, 2020. See Press Release, FEC, FEC remains open 

for business, despite lack of quorum (Sept. 11, 2019), Ex. 5; Press Release, FEC, James E. Trainor 

III sworn in as Commissioner (June 5, 2020), Ex. 6; Press Release, FEC, Caroline C. Hunter to 

depart Federal Election Commission (June 26, 2020), Ex. 7; Press Release, FEC, Shana Broussard, 

Sean Cooksey, Allen Dickerson sworn in as Commissioners (Dec. 18, 2020), Ex. 8.

16. Without a quorum of Commissioners, the FEC was unable to “launch any new 

investigations, issue any advisory opinions, promulgate any rules, or render any decisions in 

pending enforcement actions.” Ex. 2 at 1 n.1; see also 52 U.S.C. § 30106(c). 

17. But the FEC has had a quorum, and thus has been able to act on Plaintiff’s 

administrative complaint, for nearly sixteen of the thirty months that it has been pending. See supra 

¶ 15. This includes the ten-and-a-half months that the complaint was pending before the 

Commission initially lost its quorum in 2019, and the five months during which the Commission 

has failed to take any public action since it regained its quorum in December 2020. Id.

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18. Nonetheless, the FEC has taken no known action on CLC’s administrative 

complaint against Heritage Action. See Gaber Decl., Ex. 1, ¶¶ 5, 10.

IV. The FEC’s Default

19. For the FEC to defend against a lawsuit alleging unlawful delay of an enforcement 

matter, four Commissioners must vote affirmatively to authorize the defense. See 52 U.S.C. § 

30106(c); 30107(a)(6).

20. It is apparent that some number of Commissioners have grown reluctant to defend 

agency inaction. Indeed, this is one of several unlawful delay lawsuits in which the FEC has failed

to appear in Court and mount a defense. See, e.g., Campaign Legal Ctr. v. FEC (Iowa Values), 

No. 1:20-cv-01778-RCL (D.D.C.) (filed June 30, 2020); Campaign Legal Ctr. v. FEC 

(45Committee, Inc.), No. 1:20-cv-00809-ABJ (D.D.C.) (filed Mar. 24, 2020); Campaign Legal 

Ctr. v. FEC (Right to Rise Super PAC), No. 1:20-cv-00730-CRC (D.D.C.) (filed Mar. 13, 2020); 

CREW v. FEC (SEALs for Truth), No. 1:19-cv-02753-RCL (D.D.C.) (filed Sept. 16, 2019).

21. The FEC has not appeared, filed an answer, or otherwise defended in this action to 

date. See Gaber Decl., Ex. 1, ¶ 10.

22. Plaintiff CLC has incurred $400 in costs, as defined under 28 U.S.C. § 1920, in

seeking this default judgment. See Gaber Decl., Ex. 1, ¶ 11; ECF No. 1 (docket text showing receipt 

of payment for filing fee).

LEGAL STANDARD

I. Default by the Government under Rule 55

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

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

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

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

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

cases or obey the court’s orders.’” Payne v. Barnhart, 725 F. Supp. 2d 113, 119 (D.D.C. 2010) 

(quoting Alameda v. Sec’y of Health, Ed. and Welfare, 622 F. 2d 1044, 1048 (1st Cir. 1980)). “In 

determining whether default judgment against the government is proper, a court may accept as true 

the plaintiff’s uncontroverted evidence,” Payne, 725 F. Supp. 2d at 116, including public record 

evidence, see Doe v. Democratic People’s Republic of Korea Ministry of Foreign Affairs 

Jungsong-Dong, 414 F. Supp. 3d 109, 120 (D.D.C. 2019); see also, e.g., Order, Citizens for 

Responsibility and Ethics in Washington v. FEC, Case No. 1:19-cv-02753-RCL (D.D.C. Apr. 9, 

2020) (ECF No. 9) (granting motion for default judgment against FEC where plaintiff 

demonstrated, “by evidence that satisfies the Court, that the FEC’s failure to act on the 

administrative complaints . . . is contrary to law”). Where, as here, default has been entered against 

the government, “the quantum and quality of evidence that might satisfy a court can be less than 

that normally required.” Alameda, 622 F.2d at 1048.

II. Contrary to Law Standard

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

“contrary to law” by unreasonably delaying action on the underlying administrative complaint. 52 

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

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

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

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

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

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

In determining whether the FEC has acted “expeditiously,” the Court may look to the 

factors listed in Common Cause v. FEC concerning “the credibility of the allegation, the nature of 

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

as the novelty of the issues involved.” 489 F. Supp. at 744. In addition, the Court may consider the

so-called “TRAC factors” outlined in Telecomm. Research & Action Ctr. v. F.C.C.:

(1) the time agencies take to make decisions must be governed by a 

rule of reason[;] (2) where Congress has provided a timetable or 

other indication of the speed with which it expects the agency to 

proceed in the enabling statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that might be reasonable 

in the sphere of economic regulation are less tolerable when human 

health and welfare are at stake; (4) the court should consider the 

effect of expediting delayed action on agency activities of a higher 

or competing priority; (5) the court should also take into account the 

nature and extent of the interests prejudiced by delay; and (6) the 

court need not find any impropriety lurking behind agency lassitude 

in order to hold that agency action is unreasonably delayed.

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

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

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

at *4.

ARGUMENT

Under this Court’s test for evaluating agency inaction, the undisputed evidence 

demonstrates that the Commission has unlawfully failed to act on CLC’s administrative complaint.

In light of the Commission’s default, Plaintiff is therefore entitled to a judgment against the 

Commission pursuant to Rule 55 of the Federal Rules of Civil Procedure.

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I. Plaintiff’s Administrative Complaint States Credible Allegations that Heritage 

Action Violated FECA.

Plaintiff’s administrative complaint provides substantial evidence that Heritage Action 

violated its FECA disclosure obligations. Under Common Cause v. FEC, the Court first considers 

“the credibility of the allegation” at issue in the underlying administrative complaint. See 489 F. 

Supp. at 744. FEC administrative complaints are credible when they contain “specific 

documentation of the amounts spent and the purposes of the spending,” along with specific 

evidence as to the violations alleged. Citizens for Percy ’84 v. FEC, No. 84-cv-2653, 1984 WL 

6601, at *3 (D.D.C. Nov. 19, 1984). Plaintiff has provided specific documentation concerning the 

amounts Heritage Action spent, the purposes of its spending, and specific evidence of the FECA 

violations at issue here. 

FECA requires that persons other than political committees, including 501(c) organizations 

like Heritage Action, disclose to the FEC certain information about contributions made to support 

independent expenditures. Specifically, an entity that makes independent expenditures in excess 

of $250 in a calendar year must report to the FEC, among other things, the identity of each person 

“who makes a contribution . . . in excess of $200 within the calendar year,” 52 U.S.C. 

§ 30104(b)(3)(A) (cross-referenced in id. § 30104(c)(1)), and “each person who made a 

contribution in excess of $200 . . . for the purpose of furthering an independent expenditure,” id. 

§ 30104(c)(2)(C). These provisions “require[] the identification of such donors contributing for 

the purpose of furthering the not-political committee’s own express advocacy for or against the 

election of a federal candidate, even when the donor has not expressly directed that the funds be 

used in the precise manner reported.” Citizens for Responsibility and Ethics in Washington 

(“CREW”) v. FEC, 316 F. Supp. 3d 349, 423 (D.D.C. 2018), aff’d, 971 F.3d 340 (D.C. Cir. 2020).

Indeed, the FEC issued guidance on October 4, 2018 confirming that “for independent 

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expenditures made on or after Sept. 18, 2018,” entities must disclose the identity of contributors 

for “all contributions received by [the] reporting non-political committee” from August 4 to 

September 30, 2018 if the contributor gave more than $200 within the calendar year. See FEC 

October 4, 2018 Press Release, ECF No. 1-3 at 3 (emphasis in original). 

Plaintiff’s administrative complaint provides specific evidence that Heritage Action is a 

covered entity that failed to make required disclosures of donors who contributed more than $200 

to fund its independent expenditures in mid-September 2018. See supra Statement of Facts ¶¶ 1–

6. Heritage Action is a 501(c)(4) corporation, an entity other than a political committee that is 

covered by the relevant Section 30104 disclosure requirements. See id. ¶ 2. Based on public 

information from Heritage Action’s press releases and interview with McClatchy, CLC established 

that Heritage Action solicited contributions to fund its plans to spend $2.5 million on express 

advocacy during the November 2018 general election. See id. ¶¶ 2–3. Heritage Action received 

contributions from donors in excess of $200 within the calendar year for its independent 

expenditures and reported that it spent $374,177 of independent expenditures in mid-September 

2018 on twelve specified congressional candidates in the form of mailers and digital advertising. 

See id. ¶¶ 3–4. On two of its fall 2018 FEC reports, however, Heritage Action failed to make 

required disclosures identifying donors who contributed more than $200 to fund its independent 

expenditures. See id. ¶¶ 4–5. This failure to disclose violated 52 U.S.C. §§ 30104(c)(1), (c)(2)(C).

Plaintiff’s administrative complaint therefore credibly alleges, and presents substantial evidence, 

that Heritage Action violated FECA’s donor disclosure requirements for entities other than 

political committees making independent expenditures. 

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

Threat to the Electoral System.

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

ongoing threat to the integrity of the election system. In the FEC delay context, “the nature of the 

threat posed,” Common Cause, 489 F. Supp. at 744, is considered substantial where, as here, the 

underlying matter “involve[s] allegations” of conduct that undercuts a “principal purpose[] of 

FECA,” see DSCC, 1996 WL 34301203, at *5. “[T]he significance of the threat to the integrity of 

[an] . . . election” is “obvious” where there is a “likelihood” that the illegal activity will continue. 

Percy, 1984 WL 6601, at *3; see also DSCC, 1996 WL 34301203, at *5 (“The threat to the 

electoral system is highlighted not only by the amounts of money involved and the impact upon 

close elections, but by the serious threat of recurrence.”). Absent any prospect of enforcement for 

the disclosure violations at issue here, there is a substantial likelihood that this type of illegal 

activity will continue or even grow to further threaten the electoral system.

Unreported contributions by undisclosed persons threaten the fundamental fairness of 

American elections and undermine the core purpose of FECA because they deny the electorate 

necessary information about precisely who is funding the advocacy for and against candidates for 

federal office. A principal purpose of campaign finance law is to ensure voters know “who is 

speaking about a candidate shortly before an election.” Citizens United v. FEC, 558 U.S. 310, 369 

(2010). Disclosure laws provide crucial “transparency [that] enables the electorate to make 

informed decisions and give proper weight to different speakers and messages,” id. at 371, and are 

key to prevent “corruption and avoid the appearance of corruption,” Buckley v. Valeo, 424 U.S. 1, 

66–67 (1976). Thus, the disclosure requirements relevant here both enable voters to evaluate the 

nature and agenda behind political spending, see Citizens United, 558 U.S. at 369–70, and are 

critical to enforce other aspects of FECA, such as the prohibition of foreign national spending in 

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U.S. elections and its restrictions on coordination between candidate campaigns and outside 

groups. See Buckley, 424 U.S. at 66–67; see also CREW v. FEC, 316 F. Supp. 3d at 423 (ruling 

that the benefits of disclosure under Section 30104 “includ[e] informing the electorate, deterring 

corruption, and enforcing bans on foreign contributions being used to buy access and influence to 

American political officials”). For these reasons, the “[Supreme] Court has endorsed disclosure as 

‘a particularly effective means of arming the voting public with information.’” Stop This Insanity 

Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 17 (D.C. Cir. 2014) (quoting McCutcheon v. 

FEC, 572 U.S. 185, 224 (2014)). 

The FEC’s failure to take action against the manifest violations alleged in CLC’s 

administrative complaint “not only makes it eminently possible” that Heritage Action and other 

entities will conceal the source of their independent expenditures to skirt FECA’s requirements, 

“but also provides a clear roadmap for doing so.” Shays v. FEC, 528 F.3d 914, 925 (D.C. Cir. 

2008) (citing McConnell v. FEC, 540 U.S. 93, 177 n.69 (2003)). Heritage Action’s failure to

disclose the identity of its contributors wholly disregards Chief Judge Howell’s 2018 opinion in 

CREW v. FEC, 316 F. Supp. 3d at 387. There, the Court explicitly ruled that 501(c)(4) entities 

such as Heritage Action must disclose “the identification of . . . donors contributing for the purpose 

of furthering the not-political committee’s own express advocacy for or against the election of a 

federal candidate, even when the donor has not expressly directed that the funds be used in the 

precise manner reported.” Id. at 423. The FEC promulgated guidance putting these reporting 

obligations beyond doubt. See ECF No. 1-3. Heritage Action failed to comply with the law as 

articulated by the Court in CREW v. FEC and implemented by the FEC. Allowing the FEC to

remain indefinitely idle on CLC’s complaint enables Heritage Action to continue violating the law, 

disregards the directives of this Court in CREW v. FEC, and demonstrates to other violators that 

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they can flout Section 30104’s reporting requirements without the threat of enforcement 

consequences. 

Heritage Action’s undisclosed contributions keep the public in the dark about who is 

funding election advertising, depriving voters of information necessary to discern and 

informatively act upon political messages. Allowing these violations to go uncorrected opens “an 

immense loophole that would facilitate the circumvention of the Act’s” disclosure framework and 

creates “‘the potential for gross abuse.”’ See Shays v. FEC, 414 F.3d 76, 98 (D.C. Cir. 2005) 

(quoting Orloski v. FEC, 795 F.2d 156, 165 (D.C. Cir. 1986)). Thus, permitting such blatant 

evasion of FECA’s requirements is plainly “inconsistent with the statutory mandate,” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981), and the FEC’s extensive delay 

in acting on CLC’s administrative complaint poses a substantial and ongoing threat to the electoral 

system.

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

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

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

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

Cause, 489 F. Supp. at 744; TRAC, 750 F.2d at 80. Indeed, the evidence provided in CLC’s 

administrative complaint, including evidence of the Commission’s own records and publicly 

available information from Heritage Action’s statements and press accounts, is more than 

sufficient to allow the Commission to proceed expeditiously to investigate and resolve this matter.

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

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

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

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

exclusively within control of the Commission”). 

Moreover, lack of resources also does not justify the FEC’s substantial delay in this matter. 

“Whatever deference an agency is due in resource allocation decisions, it is entitled to substantially 

less deference when it fails to take any meaningful action within a reasonable time period.” DSCC, 

1996 WL 34301203, at *5–6. This is because “threats to the health of our electoral processes . . .

require timely attention.” Id. at *8. Here, the FEC has failed to take any official action on Plaintiff’s 

complaint for over thirty months, nearly sixteen of which the Commission had a quorum and ample 

time to act on the alleged FECA violations. See supra Statement of Facts ¶¶ 14–18. Such a delay 

is unreasonable by any measure and represents the habitual problems of FEC underenforcement

and dilatory administration of campaign finance laws in recent years. See id. ¶¶ 10–13. By 

comparison, Judge Lamberth recently entered a default judgment against the FEC in a case 

involving a much shorter eight-month delay, ruling that the one-month stretch the FEC had a 

quorum in summer 2020 indicated it “was statutorily capable of acting on the complaint during 

that period.” See Order at 1 n.1, Campaign Legal Ctr. v. FEC (Iowa Values), No. 1:20-cv-01778-

RCL (D.D.C. Oct. 14, 2020) (ECF No. 14); see also Order at 1, CREW v. FEC (SEALs for Truth), 

(D.D.C. Apr. 4, 2020) (ECF No. 9) (entering default judgment in case involving an approximately 

fourteen-month delay). 

Moreover, the chronology of this case suggests that the FEC’s inaction is not simply a 

matter of competing priorities or scarce resources. The Commission cannot appear in federal court 

to defend against a lawsuit unless four Commissioners affirmatively vote to do so. See 52 U.S.C. 

§§ 30106(c); 30107(a)(6). As such, the Commission’s failure to appear in this action almost 

certainly reflects an affirmative determination by a controlling bloc of Commissioners that the 

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Commission’s more than 950-day delay in acting on Plaintiff’s underlying complaint is 

indefensible, and thus a defense has not been authorized by the requisite four Commissioners. 

Finally, even if the FEC’s failure to act were due to the press of other business, a ruling for

Plaintiff will provide the Commission an opportunity to relieve its burden rather than add to it.

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

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

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

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

Court recently recognized, Congress “legislated a fix” by providing a citizen suit provision to 

ensure the law could still be enforced when the FEC’s abdication of its duties is “contrary to law” 

and is in default. CREW v. Am. Action Network, 410 F. Supp. 3d 1, 6 (D.D.C. 2019).

If the FEC fails to conform due to its prioritization of other matters, or for any other reason, 

FECA authorizes Plaintiff to file suit directly against Heritage Action. See id. That outcome would 

ease the Commission’s enforcement burden and would avoid any concern about “the effect of 

expediting delayed action on agency activities of a higher or competing priority.” TRAC, 750 F.2d 

at 80; see also Sierra Club v. Whitman, 268 F.3d 898, 905 (9th Cir. 2001) (emphasizing that citizen 

suit provisions exist to “enforce compliance without federal expense”). Judge Lamberth took 

precisely this path in the same case referenced above, entering a default judgment against the FEC 

and, after the FEC failed to conform with the Court’s order requiring it to take action, authorized

CLC to pursue a citizen suit action to enforce compliance with FECA. See Campaign Legal Ctr. 

v. Iowa Values, No. 1:21-cv-00389-RCL (D.D.C.) (filed Feb. 12, 2021) (citizen suit related to FEC 

delay action in Case No. 1:20-cv-01778). This path shows that entering a default judgment and 

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allowing for a private right of action effectuates Congress’s intent that campaign finance laws 

remain enforced despite the FEC’s failure to act. 

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

Plaintiff’s administrative complaint does not involve novel issues. The FEC’s delay may 

be contextualized by “the novelty of the issues involved.” See Common Cause, 489 F. Supp. at 

744. Far from novel, the disclosure requirements at issue here are a core part of FECA’s statutory 

framework. Because the FEC has recently investigated the very same types of violations that CLC

raises here, novelty does not warrant the FEC’s two-and-a-half years of inaction. 

As stated supra Part I, CLC’s administrative complaint makes credible allegations that 

Heritage Action violated FECA’s requirements for not-political committees to disclose the identity 

of donors supporting their independent expenditure disbursements. These disclosure issues are not 

novel for at least three reasons. First, the Commission has promulgated guidance on this exact 

topic, putting its familiarity with the Section 30104 disclosure requirements beyond doubt. See 

ECF No. 1-3; see also Admin. Compl., ECF No. 1-1, ¶¶ 14–16. Second, in 2018 this Court detailed 

the issues involved in the relevant FECA donor disclosure requirements, providing a clear 

explication of the statutory scheme for the FEC to follow and apply. See CREW v. FEC, 316 F. 

Supp. 3d at 387–411. Third, the FEC is routinely asked to analyze whether 501(c) organizations 

have properly disclosed their independent expenditure donors. See Percy, 1984 WL 6601, at *4 

(finding that issues that make up a substantial amount of the Commission’s workload are not

“novel”). Since 2018, for example, the FEC has analyzed the legal and factual matters involved in 

administrative complaints alleging Section 30104 disclosure violations on multiple occasions. See, 

e.g., First General Counsel’s Report at 10–12 & n.43, American Progress Now, FEC MUR 7643

(May 4, 2020), www.fec.gov/files/legal/murs/7643/7643_05.pdf (last visited May 21, 2021); 

Case 1:21-cv-00406-TJK Document 10 Filed 05/24/21 Page 16 of 21
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Second General Counsel’s Report at 2–3 & n.9, Indivisible Kentucky, Inc., FEC MUR 7286 (May 

10, 2019), www.fec.gov/files/legal/murs/7286/19044473205.pdf (last visited May 21, 2021); 

accord First General Counsel’s Report at 5–6 & n.18, Nat’l Rifle Assoc., FEC MUR 7314 (May 

28, 2019), www.fec.gov/files/legal/murs/7314/19044473629.pdf (last visited May 21, 2021) 

(noting the disclosure requirements for 501(c)(4) organizations). 

In short, the underlying violations at issue here are not novel. The Commission is 

accustomed to applying the relevant law to Section 30104 disclosure violations like those 

demonstrated in Plaintiff’s administrative complaint.

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

Intent that the Commission Act Expeditiously.

The FEC’s delay in acting on Plaintiff’s administrative complaint is unreasonable. 

Although courts have declined to find that the FEC must act on every complaint within 120 days 

or within an election cycle, see FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986), this “is not 

the equivalent of unfettered FEC discretion to determine its own time line,” DSCC, 1996 WL 

34301203, at *7–8. Rather, Congress “expect[ed] that the Commission would fulfill its statutory 

obligations so that [FECA] would not become a dead letter.” Id. And, the multitude of “short 

deadlines governing the speed with which such complaints must be handled” demonstrates that 

Congress expected FEC enforcement actions to advance expeditiously. Rose v. FEC, 608 F. Supp. 

1, 11 (D.D.C. 1984). This is because “[t]he deterrent value of the Act’s enforcement provisions 

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

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

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

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

marks omitted).

Case 1:21-cv-00406-TJK Document 10 Filed 05/24/21 Page 17 of 21
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The FEC’s failure to take any known action on CLC’s administrative complaint for over 

thirty months signals a regulatory breakdown. And the Commission’s lack of a quorum during 

certain periods since Plaintiff filed its administrative complaint does not justify its extensive delay. 

To begin with, CLC’s administrative complaint was pending with the FEC for over ten months

before the Commission lost its quorum on September 1, 2019. See supra Statement of Facts ¶¶ 15, 

17. The FEC also regained a quorum for over a month during summer 2020, but did not act. See 

id.; see also Order at 1 n.1, Campaign Legal Ctr. v. FEC, No. 1:20-cv-01778 (D.D.C. Oct. 14, 

2020) (ECF No. 14) (finding this one month period to be sufficient time for the FEC to act).

Finally, the FEC has had a quorum for the last five months, see supra Statement of Facts ¶ 17, 

during which nothing prevented the Commission from acting on CLC’s administrative complaint.

In total the FEC has maintained a quorum for sixteen of the last thirty months since Plaintiff filed 

its administrative complaint. See id. 

The FEC’s continued inaction makes clear that its poor record of stalled enforcement in 

recent election cycles due to deadlock among the Commissioners is by no means a thing of the 

past. See id. ¶¶ 10–13, 20. The only mechanism for ensuring the allegations in Plaintiff’s 

administrative complaint will be investigated and adjudicated in a reasonable time frame is an 

order from this Court requiring the FEC to conform, the failure of which will allow Plaintiff to 

avail itself of FECA’s private right of action. See 52 U.S.C. § 30109(a)(8)(C); see also Order at 1,

Campaign Legal Ctr. v. FEC, No. 1:20-cv-01778-RCL (D.D.C. Feb. 11, 2021) (ECF No. 24); 

Campaign Legal Ctr. v. Iowa Values, No. 1:21-cv-00389-RCL (D.D.C.) (filed Feb. 12, 2021). 

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

The FEC’s failure to take action on CLC’s administrative complaint prejudices Plaintiff 

and the public. The thirty-month delay at issue here damages the public’s confidence in our 

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election system by allowing apparent violations of FECA to go uninvestigated and unredressed. 

Likewise, the lack of enforcement and corresponding lack of any legal consequences for breaking 

federal campaign finance law emboldens Heritage Action, and others who might seek to emulate 

that organization’s activities, to continue to flout FECA’s requirements. See DSCC, 1996 WL 

34301203, at *8 (“[T]hreats to the health of our electoral processes [] require timely attention . . . 

[and] should not be encouraged by FEC lethargy”). Because the FEC has failed to act, CLC and 

the voting public will continue to be prejudiced because they will be denied the information to 

which they are statutorily entitled about precisely who is advocating for and against candidates for 

federal office through 501(c) organizations.

This delay also prejudices Plaintiff by withholding information about how the FEC is 

interpreting key FECA provisions. If the FEC is permitted to withhold a decision on this matter

indefinitely, plaintiffs will never learn “the basis” of its inaction, see 11 C.F.R. § 111.20(a), and

accordingly have no way to ensure that their administrative complaints are being processed evenhandedly and consistent with the law, see, e.g., Democratic Cong. Campaign Comm. v. FEC, 831 

F.2d 1131, 1133 (D.C. Cir. 1987) (holding the FEC must “explain coherently the path [it is] taking” 

when it resolves an enforcement matter).

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

apparent violations of the law to go uninvestigated and unredressed.2 So too, the lack of 

enforcement and corresponding lack of any consequence for illegal behavior necessarily 

encourages Heritage Action and others who seek to emulate its activities to continue to violate 

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

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

to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80; see also Rose, 209 F. 

Supp. at 12 (“[T]he Court need not and does not make such findings.”). 

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campaign finance law. See DSCC, 1996 WL 34301203, at *8. As such, CLC and the voting public 

will continue to be harmed because they will be denied necessary information about precisely who 

is advocating for and against candidates for federal office. 

CONCLUSION

Plaintiff’s uncontested evidence establishes that Defendant FEC has acted contrary to law 

in failing to take action on the underlying administrative complaint. Plaintiff is entitled to an entry 

of default judgment against the Defendant. Thus, Plaintiff respectfully requests that the Court:

(1) Enter judgment that the FEC’s failure to act on Plaintiff’s administrative complaint is 

contrary to law under 52 U.S.C. § 30109(a)(8)(A);

(2) Order the FEC to conform to the judgment within 30 days pursuant to 52 U.S.C. 

§ 30109(a)(8)(C); and

(3) Award Plaintiff its costs of $400 incurred in this action pursuant to 28 U.S.C. § 1920. 

See Gaber Decl., Ex. 1, ¶ 11; ECF No. 1.

Case 1:21-cv-00406-TJK Document 10 Filed 05/24/21 Page 20 of 21
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Dated: May 24, 2021 Respectfully submitted,

/s/ Mark Gaber

Mark P. Gaber (DC Bar No. 988077)

Adav Noti (DC Bar No. 490714)

Molly E. Danahy (DC Bar No. 1643411)

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegal.org

mgaber@campaignlegal.org

mdanahy@campaignlegal.org

Attorneys for Plaintiffs

Case 1:21-cv-00406-TJK Document 10 Filed 05/24/21 Page 21 of 21