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,

Intervenors-Appellees.

On Appeal from the United States District Court

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

Before the Honorable James E. Boasberg

APPELLANTS’ REPLY BRIEF

Tara Malloy (DC Bar No. 988280)

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

Email: tmalloy@campaignlegalcenter.org

Email: mmcallen@campaignlegalcenter.org

Counsel for Plaintiffs-Appellants

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TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................iv

TABLE OF AUTHORITIES .................................................................................vi

GLOSSARY OF ABBREVIATIONS.....................................................................x

SUMMARY OF ARGUMENT ..............................................................................1

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

I. Plaintiffs Have Demonstrated Informational Standing .......................................6

A. The district court erred in finding that plaintiffs lack a cognizable 

informational injury ......................................................................................8

1. Plaintiffs have been deprived of FECA-required information 

sought in their administrative complaint about Correct the 

Record’s in-kind contributions to Clinton ................................................8

2. Intervenors’ attempt to recharacterize plaintiffs’ legal theory is both 

false and irrelevant.................................................................................14

B. Wertheimer and its progeny support a finding of injury here.......................18

II. Campaign Legal Center Established a Distinct Injury to its Organizational 

Interests that the District Court Failed to Consider...........................................23

CONCLUSION ....................................................................................................27

CERTIFICATE OF COMPLIANCE.....................................................................29

CERTIFICATE OF SERVICE..............................................................................30

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TABLE OF AUTHORITIES

*Authorities upon which appellants principally rely are marked with an asterisk

Cases: Page

Buckley v. Valeo, 424 U.S. 1 (1976).......................................................... 13, 23, 27

Campaign Legal Center v. FEC, 952 F.3d 352 (D.C. Cir. 2020).........................6, 7

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997)..................................17, 23

Citizens for Responsibility & Ethics in Washington v. FEC, 

799 F. Supp. 2d 78 (D.D.C. 2011) (“CREW”)..................................................21

Electronic Privacy Information Center v. Presidential Advisory 

Commission on Election Integrity, 878 F.3d 371 (D.C. Cir. 2017)...................24

*FEC v. Akins, 524 U.S. 11 (1998)............................................... 2, 7, 8, 11, 22, 23

Friends of Animals v. Jewell, 115 F. Supp. 3d 107 (D.D.C. 2015) ........................24

People for the Ethical Treatment of Animals v. USDA, 

797 F.3d 1087 (D.C. Cir. 2015) (“PETA”).......................................................25

*Wertheimer v. FEC, 268 F.3d 1070 

(D.C. Cir. 2001)............................................................................... 7, 18, 20, 21

Statutes:

52 U.S.C. § 30104(b)(2)......................................................................................1, 8

52 U.S.C. § 30104(b)(4)(H)(i)-(v)...........................................................................9

52 U.S.C. § 30104(b)(5)(A) ....................................................................................9

52 U.S.C. § 30116(a)(7)(B).................................................................................1, 8

Regulations and Rulemaking Documents:

11 C.F.R. § 100.26..................................................................................................1

11 C.F.R. § 104.13(a)..........................................................................................1, 8

11 C.F.R. § 104.13(a)(2).......................................................................................10

11 C.F.R. § 109.20..................................................................................................1

11 C.F.R. § 109.21..................................................................................................1

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GLOSSARY OF ABBREVIATIONS

CLC Campaign Legal Center

FEC Federal Election Commission

FECA Federal Election Campaign Act

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SUMMARY OF ARGUMENT

During the 2015-16 election cycle, the super PAC Correct the Record filed 

reports with the Federal Election Commission (“FEC”) disclosing $9.61 million in 

purportedly independent disbursements, all for the benefit of Hillary Clinton’s 

presidential candidacy. JA 191.

But as plaintiffs-appellants Campaign Legal Center (“CLC”) and Catherine 

Hinckley Kelley alleged in their administrative complaint, there was reason to 

believe that a significant proportion of this spending was coordinated with Clinton’s 

campaign committee, Hillary for America, and did not pay for internet 

communications exempt from the regulatory coordination regime. See 11 C.F.R. 

§§ 100.26, 109.20, 109.21; Appellants’ Opening Br. 9-11.

The Federal Election Campaign Act (“FECA”) provides that coordinated 

expenditures are in-kind contributions and must be reported as such, itemized to 

disclose each contribution’s amount, date, and purpose. See 52 U.S.C. 

§§ 30104(b)(2), 30116(a)(7)(B)(i); 11 C.F.R. §§ 104.3(a)-(b), 104.13(a); 

Appellants’ Opening Br. 7-9. But Correct the Record did not report making any 

contributions to Hillary for America, and Hillary for America did not report 

receiving any contributions from Correct the Record. Indeed, throughout the 

administrative proceedings and this litigation, Correct the Record has maintained

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that “none of [its] over $9 million in expenditures constitute in-kind contributions.”

JA 201.

Plaintiffs’ informational injury thus rests on their uncontroverted claim that 

Correct the Record and Hillary for America, both intervenors here, failed to disclose

“information which must be publicly disclosed pursuant to a statute.” FEC v. Akins, 

524 U.S. 11, 21 (1998). Plaintiffs alleged in their administrative complaint that 

Correct the Record made, and Hillary for America received, numerous undisclosed 

in-kind contributions; the Commission dismissed the administrative complaint 

without remedying any of these disclosure violations; and plaintiffs accordingly filed 

this action to redress their resultant informational harm.

The inquiry should have ended there. Instead, intervenors persuaded the 

district court to accept that Correct the Record’s existing disclosure reports could 

serve as a substitute for the statutorily required information plaintiffs seek. The 

question before this Court is thus a simple one: assuming plaintiffs are correct that 

Clinton received numerous in-kind contributions from Correct the Record, were 

those contributions disclosed by either intervenor in accordance with FECA—or if 

not, is all requisite factual information regarding these unreported contributions 

available in Correct the Record’s existing FEC reports? The answer is no.

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Correct the Record’s 2015-16 reports disclose only the ostensibly independent 

disbursements of a registered super PAC,

1 which primarily took the form of

undifferentiated overhead payments for expenses like payroll, rent, salary, and

travel. It is impossible to discern which disbursements (or which portions of any

given disbursement) paid for activities qualifying for the internet exemption and

which paid for non-exempt activities coordinated with the Clinton campaign. 

Consequently, plaintiffs still do not know how much Correct the Record contributed 

to Clinton in total, nor the specific amounts it contributed to fund any particular

coordinated activity or purpose. 

Intervenors nonetheless maintain that plaintiffs can obtain all the information 

they seek simply by moving Correct the Record’s reported disbursements from

“Line 21” to “Line 23” of its committee reports, thereby reclassifying all of them as 

contributions. Int.-Appellees’ Principal & Resp. Br. 32 (“Resp. Br.”). But this 

assumes every Correct the Record disbursement, in its entirety, was a coordinated 

expenditure. Many, if not most, of its reported disbursements covered both

coordinated and non-coordinated expenditures, which would first need to be 

disaggregated before any “reclassification” could occur. Recharacterizing all of 

1 Correct the Record is organized as a “hybrid” PAC, but operated almost 

exclusively out of its independent expenditure-only, non-contribution account, i.e., 

as a super PAC. See JA 191; JA 115 n.1.

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Correct the Record’s disbursements as “in-kind contributions” would only generate

more inaccurate and incomplete disclosure.

Indeed, even in ruling against plaintiffs at summary judgment, the district 

court recognized that Correct the Record’s reports lacked information about the inkind contributions alleged; that is why it attempted to illustratively “disaggregate” 

this data from the group’s disbursements for “salary” and other overhead. JA 300-

01. It is not plaintiffs’ burden to conjure up missing FECA-required information

about candidate contributions from an incomplete public record and guesswork. And 

regardless, the task of divining the actual amounts of Correct the Record’s 

contributions from its current reports is clearly impossible. It would require 

repeating the district court’s “disaggregation” exercise across numerous discrete 

disbursements—but when the district court attempted it with respect to a single 

$4,521 line item, even that yielded no more than speculation and hypotheticals. JA 

300-02.

The dispute here is thus ultimately not whether FECA-required information is

missing—it is—nor whether the missing information is useful to plaintiffs. Instead, 

intervenors and the district court dispute the “necessity” of this missing disclosure

information, characterizing it as too “granular” to support a finding of cognizable 

informational injury. Resp. Br. 45. It was error for the district court to extend its 

inquiry beyond an analysis of whether plaintiffs are injured by the deprivation of 

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specific FECA-required information to an evaluation of whether “the plaintiffs have 

a cognizable interest in obtaining” this kind of information. JA 305. Here there is no 

dispute that FECA requires itemized, “granular” information about the dates, 

amounts, and purposes of all in-kind contributions made to or received by 

candidates. Plaintiffs have a “cognizable” interest in obtaining all information that 

FECA requires. 

Instead of addressing plaintiffs’ actual asserted bases for standing, intervenors 

devote much of their response brief to recharacterizing plaintiffs’ merits arguments

below. In particular, and contrary to every page in the record, they accuse plaintiffs 

of retreating from a merits position that every expenditure made by Correct the 

Record was coordinated with the Clinton campaign. Resp. Br. 7. This was never 

plaintiffs’ argument. The central problem in both the standing and merits analysis 

has been the mixed nature of Correct the Record’s activities and how to differentiate 

between its coordinated and non-coordinated expenditures. It is impossible to square 

intervenors’ new conception of the case with the briefs and decisions below, all of 

which focused on how to determine which reported expenditures (or which portions 

thereof) qualified for the internet exemption and which did not.

But it is clear why intervenors push this revisionist account now: only if all of 

Correct the Record’s expenditures were coordinated with the Clinton campaign can

they credibly argue that there is no missing information about Correct the Record’s 

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allegedly coordinated expenditures. Then, but only then, it might be possible to 

“reclassify” Correct the Record’s disbursements as in-kind contributions simply by 

moving numbers from one line to another in FEC reports. But the public record does 

not suggest that Correct the Record engaged exclusively in coordinated 

expenditures, nor has this ever been plaintiffs’ position. That intervenors must resort 

to misrepresenting the record only underscores the weakness of their defense: they 

cannot deny that the information plaintiffs seek was not reported by either 

intervenor, in any form or at any time.

ARGUMENT

I. Plaintiffs Have Demonstrated Informational Standing. 

Plaintiffs have established “the ‘irreducible constitutional minimum’ of 

Article III standing: injury-in-fact, causation, and redressability.” Campaign Legal 

Center v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (citation omitted).

As intervenors note, the only live issue with respect to informational standing 

is the first prong: whether plaintiffs have established an injury-in-fact by showing “a 

denial of access to information . . . where a statute (on the claimants’ reading) 

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

their claim that the information would help them.” Id. (citation omitted). See also

Resp. Br. 2-3, 50. More specifically, the dispute centers on whether plaintiffs’ 

informational injury is cognizable given the nature of the FECA-required disclosures 

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they seek—or whether, as intervenors insist, the district court was “precedentbound” under Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001), to conclude that

plaintiffs lack standing. See Resp. Br. 26. This appeal thus turns on the legal errors 

committed by the district court when it reversed itself to find that plaintiffs lack 

informational injury.

Both plaintiffs have also clearly shown causation and redressability. Their

injury flows directly from the FEC’s dismissal of their administrative complaint, and 

can be redressed by a favorable decision in this action under 52 U.S.C. 

§ 30109(a)(8). See Appellants’ Opening Br. 22. While intervenors now contend that 

Plaintiff Kelley’s injury cannot be redressed because “[t]he 2016 election is longsince over,” Resp. Br. 50, there is “no reason to doubt” her continuing interest in this 

information and she is entitled to it under FECA; Akins requires no more. 524 U.S. 

at 21. See also id. at 25 (redressability inquiry considers whether injury is “fairly 

traceable’ to the FEC’s decision about which [plaintiffs] complain”); Campaign 

Legal Center, 952 F.3d at 356 (rejecting argument that organizations lacked standing 

because the information sought would not be useful in “personal voting” or partisan 

political activities).

There are no other contested jurisdictional facts: although intervenors 

insinuate that the district court reversed its initial standing ruling based on the 

heightened burdens plaintiffs must carry at each successive stage of the litigation, 

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Resp. Br. 27, the court at no point suggested that its reversal at summary judgment 

was based on anything other than a re-evaluation of legal precedent. See Appellants’ 

Opening Br. 15-18. Regardless, plaintiffs clearly met their evidentiary burden: they 

submitted uncontroverted declaration testimony that prompted the district court to 

conclude (in its first ruling) that plaintiffs had “proven [their] informational injury” 

and “proven [their] standing.” JA 100, 111. See also JA 68-70 (Kelley Decl.); JA 

71-82 (Fischer Decl.).

A. The district court erred in finding that plaintiffs lack a cognizable 

informational injury.

1. Plaintiffs have been deprived of FECA-required information sought 

in their administrative complaint about Correct the Record’s in-kind 

contributions to Clinton.

Under plaintiffs’ reading of FECA and FEC coordination regulations—a 

reading shared by the FEC’s General Counsel and half the voting Commissioners—

Correct the Record’s activities on Clinton’s behalf likely gave rise to millions of 

dollars in coordinated expenditures. Both committees were required to disclose each

in-kind contribution resulting from these efforts. See 52 U.S.C. §§ 30104(b)(2)-(6), 

30116(a)(7)(B); 11 C.F.R. §§ 104.3(a)-(b), 104.13(a). Neither disclosed a single one. 

“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain 

information which must be publicly disclosed pursuant to a statute.” Akins, 524 U.S. 

at 21. Plaintiffs here suffer cognizable informational injury because they have been 

unable “to obtain information” about “campaign-related contributions and 

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expenditures . . . that, on [the plaintiffs’] view of the law, the statute requires that 

[respondent] make public.” Id.

Intervenors’ only response to this prima facie showing of informational 

deprivation is to reiterate over and over again that Correct the Record “disclosed all 

its 2015-2016 expenditures on campaign finance reports” and that the “amount, date, 

purpose, and recipient of each expenditure made by Correct the Record has already 

been publicly reported.” Resp. Br. 6 (emphases added); see also id. at 24, 38-39. But 

plaintiffs are not seeking information about Correct the Record’s purportedly 

independent “expenditures.” They want to know what portions of this spending 

actually paid for its contributions to Clinton, and the specific amounts, dates, and 

purposes of those contributions. Otherwise put, plaintiffs do not seek to learn how 

much Correct the Record spent, but how much it contributed to Clinton—which both 

committees were required to report but neither did.

FECA requires an unauthorized committee like Correct the Record to report 

the total contributions it makes to other political committees, 52 U.S.C. 

§ 30104(b)(4)(H)(i), and to itemize each contribution, see id. § 30104(b)(6)(B).

Each in-kind contribution made by a political committee is also an operating expense 

of that committee, so the contributing committee must disclose the payment’s 

recipient, “date, amount, and purpose.” Id. § 30104(b)(5)(A); 11 C.F.R. 

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§ 104.13(a)(2). Reciprocal disclosure requirements apply to candidate committees 

receiving in-kind contributions. See Appellants’ Opening Br. 7-9.

Intervenors do not contest these reporting requirements. But beyond making 

the irrelevant point that Correct the Record reported all of its ostensibly independent

“expenditures” in the requisite detail, they also assert that the information it reported 

regarding these expenditures is exactly what it would have disclosed had it 

accurately reported its contributions to Clinton. See Resp. Br. 32-33 (asserting that 

if Correct the Record “change[d] its operating expenditures into in-kind 

contributions” the “amount, date, and purpose description” in its reports “would 

remain the same”). 

This cannot be correct. Correct the Record reported undifferentiated “lump 

sum” disbursements for various overhead expenses, without specifying which 

disbursements (or which portions of a given disbursement) were made for 

coordinated versus non-coordinated activities. See, e.g., JA 192-93 (“[T]he bulk of 

[Correct the Record]’s reported disbursements are for purposes that are not 

communication-specific”—e.g., payroll, salary, travel, lodging, rent, fundraising—

or “for explicitly mixed purposes such as ‘video consulting and travel’ and 

‘communication consulting and travel.’”). Because only some portions of these

multipurpose disbursements funded coordinated activity, the “amounts” reported 

cannot be correct. Nor were the “purposes” reported correctly; without accurate 

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information about whether or to what extent a disbursement paid for activities 

covered by the internet exemption, it is impossible to discern which of Correct the 

Record’s disbursements funded its “coordinated expenditures” in the first place. 

To illustrate this with an example, if a political committee made $50,000 in 

aggregate disbursements for “media consulting” in a reporting period, and some 

amount of that total was connected to non-exempt activities “coordinated” with a 

candidate, FECA does not permit the committee to report the $50,000 as a lumpsum disbursement for media consulting. Instead, the committee must itemize those 

particular expenses from the $50,000 total that funded “coordinated expenditures” 

and report them as contributions. Thus the campaign would have to report, for 

instance, an in-kind contribution in the form of a $20,000 coordinated expenditure

for “media consulting re: press strategy (non-exempt),” and a $30,000 disbursement 

for “media consulting re: social media (exempt).” Only with accurate and complete

reporting about the in-kind contributions made can the public understand what goods 

or services of value the committee has provided to the campaign. The $50,000 thus 

cannot simply be “move[d] . . . from Line 21 to Line 23” and “labeled . . . in-kind 

contributions.” Resp. Br. 32. This “amendment” would also obscure and falsify the 

amount and nature of the actual in-kind contributions made.

Even the district court recognized that, on their face, Correct the Record’s 

existing reports do not disclose any contributions to Hillary for America. JA 301-02. 

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Rather than ending the standing inquiry there, the court embarked on an unsuccessful 

effort to see if it could theoretically disaggregate information about the alleged inkind contributions from Correct the Record’s reported overhead disbursements. But

as illustrated by the court’s intensive attempt to tease apart a single $4,521 salary 

payment to David Brock into coordinated and non-coordinated “sub-expenditures,”

this endeavor was futile. The court came up with only a hypothetical $2,261 in-kind 

contribution that left plaintiffs none the wiser about the actual amounts or dates of 

even one single contribution that Hillary for America received from Correct the 

Record. JA 301-02.

The district court thus did not discover or “disaggregate” the missing 

information so much as deem it insufficiently important. In the words of intervenors, 

the court appeared to believe that plaintiffs “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.” Resp. Br. 45; see also JA 301 (stating that 

“plaintiffs have no cognizable interest in unearthing” “new information” about the 

portion of Brock’s salary payments that constituted in-kind contributions). But 

FECA requires exactly these details about “each dollar” spent in coordination with 

a candidate. It was error for the district court to conclude that plaintiffs have “no 

cognizable interest in learning ‘which activities were in fact coordinated between 

[Correct the Record and Clinton’s campaign],’” JA 295, or the actual amounts, dates, 

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and purposes of such transactions, JA 301—FECA creates this interest by requiring

that the information be publicly disclosed. Moreover, the missing information in this 

case may appear “granular” when focusing on one particular transaction, but the

scale of the informational deficit is harder to dismiss as “unnecessary” when 

considering that the aggregate undisclosed contributions likely totaled millions of 

dollars. 

Intervenors are effectively proposing that if a political committee reports its 

aggregate spending for certain common line items—salary, travel, rent—it meets its

disclosure obligations under FECA, regardless of its failure to disclose distinct

reportable transactions, e.g., candidate contributions, subsumed within that overall 

total. But by this logic, political committees could simply file a single post-election 

report disclosing their total spending, and declare that any more “granular” 

information was “unnecessary.” While this one report might contain some FECAmandated information, it is absurd to claim, as intervenors do, that this is all the 

statute requires.

FECA demands comprehensive information about the sources and scale of a 

candidate’s financial support and a complete accounting of each candidate’s 

spending: it is perhaps the most important information the Act requires. See Buckley 

v. Valeo, 424 U.S. 1, 66-67 (1976) (“[D]isclosure provides the electorate with 

information as to where political campaign money comes from and how it is spent 

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by the candidate in order to aid the voters in evaluating those who seek federal 

office.”) (internal quotation marks omitted). The information plaintiffs seek—the inkind contributions a presidential campaign actually accepted and “spent” in an 

election—is precisely the kind of information that FECA’s disclosure regime is 

designed to make public.

2. Intervenors’ attempt to recharacterize plaintiffs’ legal theory is both 

false and irrelevant.

Instead of defending the district court’s standing decision on its own terms, 

intervenors devote much of their response to describing—and misrepresenting—

plaintiffs’ merits arguments below. Resp. Br. 33-36. But the assertion that plaintiffs 

have somehow “revamped” their merits argument is false. Id. at 33.

First, there is no support for intervenors’ assertion that plaintiffs previously 

argued that “every” disbursement made by Correct the Record constituted a 

coordinated expenditure and thus an in-kind contribution to Clinton.2 Resp. Br. 7. 

This is pure fabrication. The central and dispositive question in both the standing 

and merits analysis has been how the FEC should regulate the “mixed” activities of 

a committee that engaged in both exempt internet communications and a host of non2

Intervenors also falsely assert that plaintiffs relied “on information ‘illegally 

obtained by Russian intelligence officers through hacking operations and thereafter 

published on WikiLeaks.’” Resp. Br. 19 (citing JA 257 n.4). Not so. Several other 

administrative complaints considered alongside CLC’s cited hacked Wikileaks 

information—but CLC’s did not. See JA 54 ¶ 86; JA 57 ¶ 96; JA 263.

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exempt activities, some of which had no conceivable connection to the internet. See,

e.g., Pls.’ Summ. J. Opp’n 16 (ECF No. 42) (distinguishing between “direct 

production costs” and broader “inputs” for purpose of applying internet exemption, 

and noting that plaintiffs’ case “does not rest on any finding that direct production 

costs for internet communications are non-exempt”); JA 105 (distinguishing 

undisputedly exempt costs related to internet communications like “email list rentals 

and contribution-processing fees” from broader “creation and production costs” that 

intervenors were also claiming as exempt). Intervenors themselves acknowledge that 

plaintiffs “do not dispute the existence of the internet exemption.” Resp. Br. 12. 

Plaintiffs have never claimed that all of Correct the Record’s spending was 

“coordinated” within the meaning of the law.

Intervenors thus have no basis for their charge that plaintiffs are “trimming 

the sails” of their merits arguments.

3 Further, there is no doubt that plaintiffs have 

3 The argument relies on misrepresenting a handful of selectively quoted sentences 

from plaintiffs’ summary judgment briefs below, where plaintiffs were arguing that 

there was sufficient evidence to conclude that intervenors’ coordination was not (as 

they claimed) entirely confined to exempt internet activities—by, for example, 

highlighting public reports suggesting the coordination was “broad” and “systemic.” 

See Resp. Br. 35 (citing Pls.’ Summ. J. Opp’n 38 (ECF No. 42)). Plaintiffs never 

argued that the coordination was total. 

This section of the merits argument concerned only a subset of Correct the 

Record’s expenditures—namely, those that even the no-voting Commissioners 

conceded were not exempt because they had no conceivable nexus to the internet.

See JA 269. As to this subcategory, the Commissioners explained that dismissal was 

warranted because the complaint failed to present sufficient evidence to support

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consistently centered their informational standing argument on whether intervenors’ 

existing FEC reports sufficiently revealed which expenditures (or which portions of 

which expenditures) were coordinated. Indeed, two opposing district court opinions 

and multiple briefs below all focused almost exclusively on this issue. JA 95 

(“[W]ithout itemized disclosures, CLC has no information as to the actual amount 

of money that, in its view, should have been considered a contribution”); JA 295 

(noting plaintiffs’ asserted interest in “finding out” “which, if any, of [Correct the 

Record’s] expenditures, or which portions thereof,” were coordinated).

However doubtful the basis of the “trimming their sails” charge, the 

intervenors’ motivation in advancing it is clear. If all of Correct the Record’s

spending amounted to in-kind contributions to Clinton under plaintiffs’ reading of 

the law—if, for instance, Correct the Record conducted no exempt internet 

activities—this case would look much more like Wertheimer. Only in these 

circumstances might it be possible to simply reclassify Correct the Record’s

disbursements by moving them from “Line 21 to Line 23.” There would be no 

daylight between its reported “expenditures” and the “in-kind contributions” alleged.

finding “reason to believe” that any of these offline expenditures were coordinated. 

JA 269-71. In response, plaintiffs argued that the public record at least “makes clear 

that CTR and HFA coordinated some activities that qualified as reportable in-kind 

contributions,” but that “without an FEC investigation, [plaintiffs] do not know 

which activities were in fact coordinated.” Pls.’ Opp’n to Mot. to Dismiss 16 (ECF 

No. 27) (emphasis added).

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But this is neither what the public record suggests nor what plaintiffs have 

argued. Indeed, the unique facts of this case explain why the district court’s attempt 

to follow Wertheimer had the tenor of fitting a square peg in a round hole. The court 

felt bound to interpret Wertheimer as a near-absolute bar to informational standing 

in the context of coordination allegations for fear that a future litigant might 

“manufacture standing” by “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.” JA 300. However, the cornerstone 

of the informational standing inquiry is not what future plaintiffs may allege, but 

“the nature of the information allegedly withheld” from plaintiffs in a given case. 

Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997). The district court’s 

focus on the possibility that later litigants may attempt to engineer standing based 

on pretextual or unsupported allegations about the “mixed” nature of a different

committee’s spending overlooks that here, all record evidence indicates that Correct 

the Record’s spending was in fact mixed between exempt and non-exempt activities. 

It is contrary to every tenet of informational standing doctrine to hold that a plaintiff 

is not entitled to the information a statute requires and the plaintiff has not received

because some later complainant might attempt to “manufacture” an analogous

injury. 

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B. Wertheimer and its progeny support a finding of injury here.

Like the district court, intervenors strain to liken this case to Wertheimer—

arguing that plaintiffs know all FECA-required information about Correct the 

Record’s “$9 million dollars of disbursements [that] have already been reported.” 

Resp. Br. 38-39. But again, this just elides the relevant informational harm. Plaintiffs 

have failed to obtain statutorily required disclosure information about Correct the 

Record’s contributions to Clinton, individually or in aggregate. That Correct the 

Record reported its own “disbursements” does not reveal what proportion of its 

roughly $9 million in overall spending funded its contributions to Clinton—much 

less which of its specific disbursements did so in whole or part. 

This is a far cry from the “duplicative” information deemed insufficient to 

support standing in Wertheimer, 268 F.3d at 1075. See Appellants’ Opening Br. 39-

44. The Wertheimer plaintiffs sought to require presidential candidates to disclose 

the same information about expenditures they coordinated with national political 

parties that the parties themselves were already required to disclose as “§ 441a(d) 

expenditures,” i.e., party-coordinated expenditures. Id. at 1075 (Garland, J., 

concurring). Moreover, the plaintiffs there, who were challenging the FEC’s failure 

to define such coordinated spending as illegal if the coordinating candidate was 

publicly financed, asserted two theories of informational injury: one claiming the 

FEC’s failure deprived them of purely duplicative reporting, and another claiming it 

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prevented them from “determining whether publicly financed candidates were 

abiding by the law.” Id. at 1073. In the end, “they simply failed to establish that the 

ruling sought would yield anything more than a legal characterization or duplicative 

reporting of information that under existing rules is already required to be 

disclosed.” Id. at 1075 (emphasis added).

But plaintiffs here are not seeking duplicative reporting or a declaration of 

illegality. Wertheimer would only be analogous to this case if Correct the Record 

had disclosed its contributions to Clinton and designated them as such, and plaintiffs 

were simply seeking reciprocal disclosure from Clinton of those same transactions. 

As intervenors read Wertheimer, however, a political committee’s failure to disclose 

FECA-required information will likely never give rise to an informational injury: if 

the committee files even a single report, intervenors would argue that its receipts and 

disbursements would have been reported “in some form.” That would amount to a 

breathtaking diminution of the informational rights created in FECA.

Intervenors also err in arguing that plaintiffs’ attempt to learn which

expenditures (or which portions thereof) represented in-kind contributions is nothing 

more than the pursuit of a “legal determination.” Resp. Br. 8, 29. As plaintiffs have 

pointed out, when a statutory disclosure violation occurs and causes informational 

harm, that harm is no less potent simply because the undisclosed contributions might 

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also, once revealed, be found to violate other FECA provisions. See Appellants’ 

Opening Br. 25-26.

The district court apparently agreed with intervenors.

4 Unlike intervenors, 

however, it at least acknowledged that plaintiffs are missing factual information.

See, e.g., JA 301 (noting that plaintiffs seek to learn what “portion of a CTR 

disbursement qualifies as a coordinated expenditure” and which “sub-expenditure 

was coordinated with [the campaign]”). The court, however, recharacterized this 

missing information as amounting to only the “fact of coordination,” which “under 

Wertheimer” is merely “a legal conclusion” Id. (internal quotation marks omitted); 

see also Resp. Br. 34. 

But the better and simpler way of seeing these omissions is to say that Correct 

the Record’s reports lacked “amount” information for the alleged contributions, one 

of the basic categories of data required by FECA. The district court’s convoluted 

language about legal conclusions and “sub-expenditures” elevates semantics above 

substance. Plaintiffs seek to know how much Correct the Record actually contributed 

to Clinton, information to which they are clearly entitled under FECA. Rephrasing

4

Intervenors also defend the district court on the basis that it did “recognize[] that 

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

informational injury.” Resp. Br. 45. The district court’s reasoning may not “always”

foreclose a finding of informational injury in future coordination cases—but it would 

wherever one of the coordinating groups is a federally registered political committee 

that reports some information about its disbursements.

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this as an attempt to uncover the “fact of coordination” or obtain a “legal conclusion” 

does not make it analogous to Wertheimer; however framed, the legal ruling 

plaintiffs seek will lead to “additional factual information” that FECA requires to be 

disclosed. 268 F.3d at 1074.

Finally, insofar as the district court followed its own decision in Citizens for 

Responsibility & Ethics in Washington v. FEC, 799 F. Supp. 2d 78, 87-89 (D.D.C. 

2011) (“CREW”), for the proposition that plaintiffs have no cognizable interest in 

knowing how much a committee contributes to a candidate, its reliance was 

misplaced. In CREW, Peace Through Strength PAC made $10,243 in disbursements

to pay for the travel of then-presidential candidate Rep. Duncan Hunter, and, 

following a reason-to-believe finding and investigation, the FEC’s General Counsel 

publicized its analysis of Hunter’s trips and what the PAC had paid for each. Id. at

82, 88. The contributions were known in granular detail. At issue was the PAC’s 

defense that some portion of the $10,243 disbursement also benefited the PAC, and 

consequently should have been allocated between the candidate and PAC such that 

the resulting contribution would not exceed the applicable $5,000 limit. Id. The 

concern was thus not whether or in what amounts the PAC had contributed to 

Hunter—that was known down to the dollar—but whether the FEC should have 

allocated these funds in such a way as to find a violation of FECA’s contribution 

limits.

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Here, by contrast, plaintiffs do not have any information about how much 

Correct the Record contributed to Clinton, much less an itemized accounting of these 

contributions like the one the FEC generated in the CREW case. And Correct the 

Record is not making a legal argument about how the contribution limits should be 

applied to an allocable expenditure; instead, it has denied making any contributions 

to Clinton. JA 201. Whatever persuasive weight CREW might merit in a different 

case, it should be afforded none here; it certainly does not support the conclusion, 

urged by intervenors, that plaintiffs’ informational injury is “not an inquiry for 

additional facts” but merely an attempt to “reclassify” facts already available to 

them. See Resp. Br. 34. Accepting that plaintiffs lack a cognizable injury because 

the information they seek “is reported in some form,” id. at 37, requires accepting 

that the actual amount of an undisclosed contribution—or a series of them—is not 

“factual information” as to which plaintiffs have any informational interest. 

Neither Akins nor FECA permits circumscribing informational injuries in this 

manner. As intervenors themselves acknowledge, “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.” Resp. Br. 25. 

So too here. Knowing the identities of contributors is a key element of such 

disclosure, JA 305 (allowing that “the identity of a contributor qualifies” as 

cognizable), but it is far from the only important piece of factual information that 

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FECA requires to be disclosed. The precise amounts, dates, and purposes of all 

candidate contributions is clearly also “factual information” subject to disclosure 

under FECA. Cf. Common Cause, 108 F.3d at 418 (finding no informational injury 

but acknowledging that infringement of “an interest in knowing how much money a 

candidate spent in an election” could be legally cognizable under Akins). And as the 

Supreme Court has made clear, a plaintiff “suffers an ‘injury in fact’ when the 

plaintiff fails to obtain information which must be publicly disclosed pursuant to a 

statute.” Akins, 524 U.S. at 21. Plaintiffs are entitled under FECA to full disclosure 

of “where political campaign money comes from and how it is spent by the 

candidate,” Buckley, 424 U.S. at 66-67—including the information they seek here 

about Correct the Record’s undisclosed contributions to Clinton.

II. Campaign Legal Center Established a Distinct Injury to its Organizational 

Interests that the District Court Failed to Consider.

In briefing intervenors’ motion to dismiss and the parties’ cross-motions for 

summary judgment below, Plaintiff Campaign Legal Center made clear that it was 

asserting organizational injury as an independent basis for standing. Pls.’ Opp’n to 

Mot. to Dismiss 25 (ECF No. 27) (“CLC also asserts a claim of organizational 

injury.”); Pls.’ Summ. J. Opp’n 9 (ECF No. 42) (“CLC has also proven both prongs 

of the test for organizational injury.”). In its June 2020 decision, the district court 

found that CLC had not only shown informational injury, but also alleged facts 

sufficient to establish a cognizable organizational injury. JA 96-100. Upon reversing 

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itself on summary judgment and ruling that plaintiffs had suffered no informational 

injury, however, the district court failed to assess whether the deficiencies in 

intervenors’ reporting nevertheless inflicted organizational injury on CLC. If the 

district court viewed the two injuries as interdependent bases for standing, it did not 

say so. This omission was reversible error.

Intervenors argue primarily that it is not “improper” for a court to “summarily 

reject [an] organizational standing” claim if it finds that the “organizational injury 

fails for the same reason an informational injury does.” Resp. Br. 48. Certainly, a 

court could so hold. But the district court here did not—its summary judgment ruling

did not address CLC’s organizational standing at all. Intervenors go so far as to 

surmise that the court found that “the only separate and discrete injury alleged by 

CLC and Kelley was informational in nature, because any organizational harm was 

collateral[.]” Resp. Br. 49. But the court did not mention this issue at all.

The cases intervenors cite only underscore the omission. See Resp. Br. 48-49 

& n.17. In all of them, the courts specifically analyzed whether the informational 

and organizational theories of injury “overlap[ped],” Friends of Animals v. Jewell, 

115 F. Supp. 3d 107, 115 n.9 (D.D.C. 2015), and only then explicitly rejected the 

plaintiffs’ theory of organizational injury, see Elec. Privacy Info. Ctr. v. Presidential 

Advisory Comm’n on Election Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017). No 

such analysis was undertaken here. The only holding on this issue was the district 

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court’s June 2020 decision finding that CLC successfully stated a cognizable 

organizational injury. JA 96-100.

As the district court found, CLC has demonstrated organizational injury by 

showing, first, that the FEC’s dismissal “injured CLC’s interest,” and second, that it

“used resources to counteract that harm.” JA 97 (citing PETA v. USDA, 797 F.3d 

1087, 1094 (D.C. Cir. 2015)). Correct the Record’s failure to disclose complete and 

accurate information about its spending on supposedly exempt internet 

communications—making it impossible for CLC to know the true magnitude of 

intervenors’ coordinated spending—impedes each of CLC’s four programmatic 

activities: public education, JA 73-77 ¶¶ 11-21; legislative policy, JA 78-79 ¶¶ 22-

28; regulatory practice, JA 79-80 ¶¶ 29-32; and litigation, JA 81-82 ¶¶ 33-37. In 

particular, accurate and complete reports are essential to CLC’s efforts to inform 

voters about the true sources and nature of candidates’ support, as well as the 

growing impact of super PACs on federal elections. JA 73 ¶ 9; see PETA, 797 F.3d 

at 1094-95 (finding organizational injury where an agency deprived an organization 

of information necessary to conduct public education efforts).

Even assuming plaintiffs lacked a “cognizable” informational injury under 

FECA, the deficiencies in Correct the Record’s reporting still inflict concrete harm 

on CLC’s operations and impede its pursuit of its mission. There is no dispute here 

that Correct the Record failed to disclose any in-kind contributions to Clinton or 

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delineate its expenditures in a way that would enable CLC to reconstruct the 

information it seeks. The district court ultimately found that this incomplete 

reporting did not constitute a cognizable informational injury under Akins, but only

because it believed that most of this data was available to plaintiffs in “some form” 

or comprised the sort of “legal determination” that Wertheimer rejected as a basis 

for standing. JA 294, 296. Plaintiffs vigorously contest this ruling. But even in so 

holding, the district court was well aware of the deficiencies in intervenors’ 

reporting, noting that “[o]ne could be forgiven for thinking . . . that whether an 

expenditure was coordinated between a PAC and a campaign is a piece of 

information . . . that citizens can also use to inform their participation in the political 

process.” JA 297. So too is the “fact of coordination” a piece of information that 

CLC uses to inform its participation in the political process, as well as its efforts to 

educate the public about the financing of elections. 

The failure to obtain this information perceptibly impairs CLC’s 

programmatic activities, particularly its public education efforts. Because of the 

FEC’s failure to require disclosure in connection with intervenors’ alleged 

coordinated activity, CLC was required to “divert resources from other 

organizational needs” “to answer questions from reporters and allied groups about 

[intervenors’] incomplete disclosures.” Pls.’ Summ. J. Opp’n 10 (ECF No. 42). And 

although the district court apparently believes plaintiffs have access to all 

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information they are due under FECA in “some form,” CLC still does not even know 

how much Correct the Record contributed to Clinton or which activities the 

contributions funded. 

Both plaintiffs are concretely harmed when candidates knowingly and 

strategically conceal the amounts and sources of their contributions, as are all voters 

in their efforts to assess the “sources of a candidate’s financial support” and “the 

interests to which a candidate is most likely to be responsive.” Buckley, 424 U.S. at 

67. But the FEC’s failure to require accurate and complete disclosures from 

intervenors has inflicted extensive harm on CLC’s operations as a campaign finance 

advocacy group, above and apart from its statutory informational injury under Akins. 

It was error for the district court to not even consider this claimed injury.

CONCLUSION

For these reasons and those stated in Appellants’ Opening Brief, the district 

court’s December 2, 2020 ruling and February 12, 2021 final order of dismissal

should be reversed, and the case remanded for further proceedings.

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Dated: September 8, 2021

Respectfully submitted,

/s/ Tara Malloy

Tara Malloy (DC Bar No. 988280)

Megan P. McAllen (DC Bar No. 1020509)

CAMPAIGN LEGAL CENTER

1101 14th Street N.W., Suite 400

Washington, DC 20005

(202) 736-2200

E-mail: tmalloy@campaignlegalcenter.org

E-mail: mmcallen@campaignlegalcenter.org

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE

This response complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(i) 

because it contains 6,166 words, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1). 

This filing 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 

response has been prepared using Microsoft Office Word 2016 in Times New 

Roman 14-point font.

/s/ Tara Malloy

Tara Malloy

USCA Case #21-5081 Document #1913360 Filed: 09/08/2021 Page 33 of 34
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CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2021, I electronically filed this Brief and 

Joint Appendix 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 persons required to be served. 

/s/ Tara Malloy

Tara Malloy

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