UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER and 

DEMOCRACY 21,

 Plaintiffs,

v. 

FEDERAL ELECTION COMMISSION,

 Defendant,

RIGHT TO RISE SUPER PAC, INC.,

 Intervenor-Defendant.

Case No. 20-cv-00730

MEMORANDUM OPINION

While Jeb Bush’s unsuccessful 2016 presidential campaign may seem like a footnote in 

political history given all that has transpired since, it continues to attract the attention of 

organizations dedicated to exposing violations of federal campaign finance laws. Election 

junkies will recall that before the former Florida governor formally launched his candidacy in the 

summer of 2015, the Right to Rise super PAC, which directly supported his run, had already 

amassed approximately $90 million in donations. The accumulation of such a large war chest, 

coupled with Mr. Bush’s fundraising activities and travels to early primary states in advance of 

his official announcement, raised the eyebrows of watchdog groups Campaign Legal Center and 

Democracy 21. Suspecting that the Bush campaign and Right to Rise were improperly 

coordinating their efforts and thereby violating applicable contribution limits and disclosure 

requirements, the groups filed administrative complaints with the Federal Election Commission

(“FEC”). But the complaints languished without action for nearly five years. Undaunted, the 

groups sued the FEC in this Court to compel the agency to investigate the asserted violations. 

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They bring claims under the Federal Election Campaign Act (“FECA”) and the Administrative 

Procedure Act (“APA”). 

Right to Rise intervened as a defendant in the case and now moves to dismiss. It 

contends that plaintiffs lack standing to bring a FECA claim because they have not suffered a 

cognizable injury. And it argues that plaintiffs’ APA claim is foreclosed by the availability of 

judicial review under FECA. Finding that plaintiffs have plausibly alleged an informational 

injury, the Court concludes that they have standing to sue and will exercise jurisdiction over their 

FECA claim. The Court agrees with Right to Rise, however, that the complaint fails to state a 

claim under the APA.

I. Background

A. Procedural Background

Plaintiffs Campaign Legal Center and Democracy 21 claim that the FEC has failed to act 

on their administrative complaints alleging that John Ellis (“Jeb”) Bush and defendantintervenor Right to Rise Super PAC, Inc., violated provisions of the Federal Election 

Campaign Act over the course of Bush’s 2016 presidential bid. Specifically, plaintiffs assert

that Bush coordinated with Right to Rise in an attempt to contravene FECA’s “soft money” 

prohibition, which provides that any entity “established, financed, maintained or controlled by 

or acting on behalf of” a federal candidate must abide by FECA’s “limitations, prohibitions, 

and reporting requirements[.]” 52 U.S.C. § 30125(e)(1); see Compl. ¶ 2, ECF No. 1. 

In the spring of 2015, plaintiffs lodged two complaints with the FEC detailing their 

concerns. Compl. ¶ 4. First, in March 2015, plaintiffs filed a complaint alleging that Bush failed 

to abide by FECA’s (i) “testing-the-waters” disclosure requirements, (ii) campaign contribution 

limits, (iii) candidate registration requirements, and (iv) soft money prohibition. Compl. Ex. B, 

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Mar. Admin. Compl., ECF No. 1-2 (“Mar. Admin. Compl.”). A few months later, plaintiffs filed 

another complaint making similar allegations and expanding upon its claim that Bush

“established” and “controlled” Right to Rise to raise millions of dollars on his behalf without 

regard to FECA’s contribution limits and source prohibitions. Compl. Ex. A, May Admin. 

Compl., ECF No. 1-1 (“May Admin. Compl.”). Plaintiffs requested that the FEC “undertake an 

investigation under 52 U.S.C. § 30109 of respondents Bush and [Right to Rise] to determine 

whether [they] have violated the law by accepting contributions or making expenditures with 

funds raised in excess of the applicable limits under” FECA. Id. at 17 (citing 52 U.S.C. 

§ 30116(a)(1) and 11 C.F.R. § 110.3).

Plaintiffs’ administrative complaints sat without action for nearly five years. Plaintiffs 

responded by filing the present complaint seeking injunctive and declaratory relief to compel the 

FEC to take up the complaints. See Compl. ¶ 2. Plaintiffs allege that the Commission’s inaction

has deprived them of information on the extent of coordination between Right to Rise and the 

Bush campaign, id. ¶ 9, and the extent of Bush’s campaign spending “both during the testing the 

waters phase of his campaign and after . . . Bush had moved beyond testing the waters to become 

a candidate under FECA,” id. ¶ 10 (cleaned up). Plaintiffs also allege that they have suffered 

organizational injuries as a result of the FEC’s inaction, because inadequate disclosure of federal 

campaign finance activity diverts funds and resources from other organizational needs. Id. ¶¶ 19, 

22.

Plaintiffs bring two counts to redress their alleged injuries. In Count I, they claim that the 

FEC’s “failure to act on plaintiffs’ administrative complaints within 120 days of their filing was 

contrary to law” under FECA. Id. ¶ 37 (citing 52 U.S.C. § 30109(a)(8)(A)). And in Count II, 

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they contend that the same inaction constitutes “unlawfully withheld and unreasonably delayed 

agency action under 5 U.S.C. § 706(1)” of the APA. Id. ¶ 39. 

Since the filing of plaintiffs’ complaint, the FEC has neither acted on plaintiffs’ 

administrative complaints nor entered an appearance in this lawsuit. In June 2020, Right to Rise

moved to intervene as a defendant, which the Court promptly permitted. See Mot. to Intervene, 

ECF No. 9; June 8, 2020, Min. Order. Right to Rise then moved to dismiss plaintiffs’ complaint 

on the grounds that plaintiffs lack standing to bring their FECA claim and that their APA claim 

is precluded by FECA’s comprehensive judicial review provisions. See Mot. to Dismiss, ECF 

No. 11. Right to Rise’s motion is ripe for the Court’s review.

B. Statutory Scheme

The Court will first describe FECA’s pertinent campaign finance and disclosure 

requirements before turning to its enforcement provisions.

1. FECA requirements

FECA was passed in 1971 to “remedy any actual or perceived corruption in the political 

process[.]” FEC v. Akins, 524 U.S. 11, 14 (1998). To that end, FECA “imposes limits upon the 

amounts that individuals, corporations, ‘political committees’ (including political action 

committees), and political parties can contribute to a candidate for federal political office.” Id.; 

see 52 U.S.C. § 30116(a) (listing limitations on contributions and expenditures); see also 11 

C.F.R. §§ 300.60, 300.61. Additionally, FECA “imposes limits on the amount these individuals 

or entities can spend in coordination with a candidate,” and treats coordinated expenditures as 

“contributions” under the Act. Akins, 524 U.S. at 14; see 52 U.S.C. § 30101(8)(A) (defining

“contribution” to include “anything of value [given] by any person for the purpose of influencing 

any election for Federal office,” as well as “the payment by any person of compensation for the 

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personal services of another person which are rendered to a political committee without charge

for any purpose”); see also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 438 

(2001) (“Expenditures coordinated with a candidate . . . are contributions under the Act.”). 

FECA incorporates coordinated expenditures in order to “prevent attempts to circumvent the Act 

through prearranged or coordinated expenditures amounting to disguised contributions.” 

Buckley v. Valeo, 424 U.S. 1, 47 (1976). By definition, coordinated expenditures are “in-kind 

contributions, as opposed to direct financial ones, since they are services rendered to the 

campaign.” Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141, 146 (D.D.C. 2020) (“CLC II”). 

FECA imposes certain disclosure and reporting requirements on anyone who becomes a

“candidate,” which FECA defines as “an individual who seeks nomination for election, or 

election, to Federal office,” 52 U.S.C. § 30101(2), including any individual who has accumulated 

an aggregate of over $5,000 in contributions or expenditures, id. § 30101(2)(A); see also 11 

C.F.R. § 100.3(a); 52 U.S.C. § 30101(8)(A) (defining contribution); id. § 30101(9)(A) (defining 

expenditure). Individuals must register with the FEC within ten days of qualifying as a candidate

under FECA. See 52 U.S.C. § 30103(a). Within fifteen days of so qualifying, candidates must 

designate a principal campaign committee, id. § 30102(e)(1), which, in turn, must regularly file 

comprehensive reports that disclose their receipts and disbursements, id. § 30104(a).

FECA contains limited exceptions to the $5,000 threshold for individuals wishing to “test 

the waters” of a potential candidacy. See 11 C.F.R. §§ 100.72, 100.131 (testing-the-waters 

exceptions). The testing-the-waters exceptions permit would-be candidates to evaluate the 

feasibility of candidacy without triggering candidate status when the funds they raise or spend 

for that purpose exceed $5,000. See id. That said, potential candidates must record all funds 

received and payments made pursuant to the testing-the-waters exceptions and, should they 

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eventually become a candidate, disclose those transactions in their principal campaign 

committee’s first report. Id. § 101.3. 

FECA’s testing-the-waters exceptions do not apply to individuals who have decided

(either privately or publicly) that they will run for office. Id. §§ 100.72(b); 100.131(b); see also 

FEC Adv. Op. 1981-32 (Oct. 2, 1981). The regulations thus attempt to distinguish between 

activities that “indicate that a decision has been made to seek nomination for election, or 

election, to a Federal office” from those that indicate that an individual is truly “continuing to 

deliberate whether [he or she] should actually seek elective Federal office.” Id. at 4. “Examples 

of activities that indicate that an individual has decided to become a candidate include, but are 

not limited to” activities in which “[t]he individual raises funds in excess of what could 

reasonably be expected to be used for exploratory activities or undertakes activities designed to 

amass campaign funds that would be spent after he or she becomes a candidate” and “[t]he 

individual makes or authorizes written or oral statements that refer to him or her as a candidate 

for a particular office.” 11 C.F.R. § 100.72(b). 

In addition to the testing-the-waters exceptions, a carveout to certain of FECA’s terms 

exists for so-called super PACs. Super PACs are political committees that are permitted to 

fundraise largely uninhibited by FECA’s source restrictions and contribution limitations so long 

as they make exclusively independent expenditures and do not coordinate with any candidate. 

SpeechNow.org v. FEC, 599 F.3d 686, 689 (D.C. Cir. 2010) (en banc). By contrast, FECA 

subjects any entity “directly or indirectly established, financed, maintained or controlled by or 

acting on behalf of [one] or more candidates” to FECA’s “limitations, prohibitions and reporting 

requirements” when such an entity “solicit[s], receive[s], direct[s], transfer[s], or spend[s] funds 

in connection with an election for Federal office.” 52 U.S.C. § 30125(e)(l). In campaign finance 

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parlance, § 30125(e)(l) prohibits candidates from relying on “soft money” as a means of 

circumventing the terms of FECA.

2. FECA enforcement

The FEC—an independent agency with six Commissioners—is responsible for enforcing 

FECA. See 52 U.S.C. § 30106(b)(1). Any person or entity that believes FECA has been 

violated may file a complaint with the FEC. Id. § 30109(a)(1). If four or more Commissioners 

find “reason to believe” that FECA was or will soon be violated, then the Commission must 

investigate the complaint. Id. § 30109(a)(2). Otherwise, the complaint is dismissed. See id.

§ 30106(c). “Any party aggrieved by an order of the [FEC] dismissing a complaint filed by such 

party . . . or by a failure of the [FEC] to act on such complaint during the 120-day period 

beginning on the date the complaint is filed, may file a petition” in this court. Id.

§ 30109(a)(8)(A).

II. Legal Standard

Right to Rise seeks dismissal of plaintiffs’ complaint for both lack of subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed. R. Civ. P.

12(b)(6).

When analyzing a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, 

courts must “assume the truth of all material factual allegations in the complaint and construe the 

complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from the 

facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). 

That said, courts need not accept plaintiffs’ bare legal conclusions nor unsupported inferences. 

See, e.g., Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To overcome a Rule 

12(b)(1) motion, plaintiffs must show “by a preponderance of the evidence that the Court has 

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subject matter jurisdiction to hear [the] case.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 

F. Supp. 2d 172, 176 (D.D.C. 2004). 

When analyzing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court

must determine whether the complaint “contains sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Citizens for Resp. & Ethics in Wash. v. Am. 

Action Network, 410 F. Supp. 3d 1, 11–12 (D.D.C. 2019) (Cooper, J.) (cleaned up) (“AAN”). 

“To make this determination, the Court must take all of the factual allegations in the complaint 

as true and must construe the complaint liberally in the plaintiff’s favor with the benefit of all 

reasonable inferences derived from the facts alleged.” Id. (cleaned up).

III. Analysis

A. Informational Injury

Right to Rise first challenges plaintiffs’ standing to bring their claims. “Standing to sue 

is a doctrine rooted in the traditional understanding of a case or controversy” in Article III of the 

Constitution. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547 (2016). Article III’s 

“case or controversy” limitation thus forms the basis of constitutional standing doctrine, see

Akins, 524 U.S. at 20, and requires the plaintiff to show that he or she has “(1) suffered an injury 

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely 

to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. An injury in fact 

must be both “(a) concrete and particularized and (b) actual or imminent, not conjectural or 

hypothetical[.]” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 

180 (2000). A “concrete” injury must be “real,” rather than “abstract,” and a “particularized”

injury must “affect the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at 1548 

(cleaned up). 

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Right to Rise’s Rule 12(b)(1) motion focuses on the first element of plaintiffs’ burden to 

establish standing—whether plaintiffs have demonstrated an “injury in fact.” Plaintiffs assert 

that the FEC’s inaction has caused them to suffer both informational and organizational injuries. 

The Court begins (and ends) its standing analysis with plaintiffs’ assertion of informational 

injury.1

“The law is settled that a denial of access to information qualifies as an injury in fact 

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.” Campaign 

Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam) (cleaned 

up); see also AAN, 410 F. Supp. 3d at 12 (“The Supreme Court has long recognized that FECA 

creates an informational right—the right to know who is spending money to influence elections, 

how much they are spending, and when they are spending it.”) (citing Akins, 524 U.S. at 24–25). 

The language of FECA demonstrates “a congressional intent to cast the standing net broadly.” 

Akins, 524 U.S. at 19.

Right to Rise contests plaintiffs’ alleged informational injury in two primary ways. First, 

it claims that plaintiffs have not been deprived any information because Right to Rise, Bush, and 

the Bush campaign have fully complied with FECA’s disclosure requirements; and second, it

argues that, regardless of whether plaintiffs have been deprived of any information, they cannot 

establish standing based on informational injuries because they cannot vote or engage in political 

activity. The Court will take each argument in turn.

 

1 Because the Court finds that plaintiffs have suffered an informational injury, it does not 

address plaintiffs’ contention that they have standing based on organizational injury and FEC 

delay. 

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1. Disclosures required by FECA

The Court begins with Right to Rise’s claim that plaintiffs have no statutory right to 

additional disclosures. See Mot. to Dismiss at 9–12. Broadly speaking, plaintiffs allege that 

FECA requires further disclosures of two categories of information: (1) Bush’s spending when 

he was (at the very least) testing the waters of a possible presidential bid; and (2) Right to Rise’s 

in-kind contributions to the Bush campaign.

a. Testing-the-waters spending

Starting with the first category, plaintiffs assert that Bush has failed to disclose months of 

spending stemming from the testing-the-waters period of his nascent candidacy. See Resp. at 

16–19, ECF No. 13. Specifically, plaintiffs allege that by January 2015, Bush was at least 

testing the waters of a viable presidential bid (and was perhaps a de facto candidate, as explained 

more fully below) and therefore was required to record and disclose all testing-the-waters 

spending in his first disclosure report. See 11 C.F.R. §§ 100.72(a), 100.131(a), 101.3. Right to 

Rise retorts that FECA requires no further disclosures and that Right to Rise, Bush, and the Bush 

campaign fully complied with FECA’s reporting requirements. See Mot. to Dismiss at 10–11; 

Reply at 1–3, 5–6, ECF No. 15. 

Right to Rise’s rebuttal is premature at this stage in the litigation. The Court must 

consider whether FECA “on the claimants’ reading” requires disclosure. Campaign Legal Ctr. & 

Democracy 21, 952 F.3d at 335 (emphasis added) (cleaned up). Here, claimants interpret FECA 

as requiring potential candidates to record testing-the-waters activities and disclose those 

activities if and when they subsequently become candidates. See 11 C.F.R. §§ 100.72(a), 

100.131(a), 101.3. According to plaintiffs, Bush engaged in testing-the-waters activities as early 

as January 2015 but only disclosed them as of June 4, 2015. See Resp. at 17. Thus, on 

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plaintiffs’ read of FECA, they have been deprived of over five months of information that is 

statutorily required to be disclosed. 

Right to Rise strenuously denies that Bush was testing the waters prior to June 2015. See

Mot. to Dismiss at 3, 9–10. But on a motion to dismiss, the Court must accept plaintiffs’ factual 

allegations as true. See Ashcroft v. Iqbal, 554 U.S. 662, 678 (2009); see also Stewart v. Nat’l 

Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). Whether Bush did, in fact, begin testing the 

waters in January 2015 is a merits issue. When evaluating the present motion, then, the Court 

assumes that plaintiffs are correct that Bush was testing the waters as of January 2015. See

AAN, 410 F. Supp. 3d at 13 (assuming truth of plaintiffs’ allegation that political non-profit was 

operating as a “political committee” for purposes of motion to dismiss). Deprivation of the 

disclosures that FECA requires for that disputed period constitutes an informational injury to 

sustain Article III standing.

Plaintiffs further argue that at some point prior to formally declaring his candidacy, Bush 

moved beyond the “testing the waters” phase to become a de facto candidate. See Resp. at 16–

21. Plaintiffs’ administrative complaints are replete with possible indicia of a “shadow” 

campaign. See, e.g., May Admin. Compl. ¶¶ 3–10; Mar. Admin Comp. ¶¶ 45–49. That said, 

plaintiffs acknowledge that they are unaware when Bush’s candidacy achieved this milestone, 

stating that “an investigation remains necessary to pinpoint when precisely Bush became a 

candidate and, consequently, when his FECA reporting obligations commenced.” Resp. at 18. 

It is unclear whether plaintiffs advance this argument as an alternative to their testing-thewaters theory of standing, or whether they assert it is an independent informational injury. 

Should it be the former, the Court need not reach the argument because it has already determined 

that plaintiffs have standing based on the alleged deprivation of Bush’s testing-the-waters 

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disclosures. To the extent that Bush was either a de-facto candidate or testing the waters at some 

point prior to June 2015, then plaintiffs have alleged an informational injury because further 

disclosures would be required. Should it be the latter, however, plaintiffs point to no additional

information that they would receive if Bush had decided to become a candidate, rather than just 

test the waters, at any given time. That is so because (as plaintiffs acknowledge) FECA requires 

that “all funds received or payments made in connection with” the testing-the-water exceptions 

“be considered contributions or expenditures” under FECA and “be reported in accordance with 

11 C.F.R. [§] 104.3 in the first report filed by such candidate’s principal campaign committee.” 

11 C.F.R. § 101.3. Thus, plaintiffs cannot claim informational injury based solely on the 

absence of information as to when Bush moved from testing the waters to mounting an 

undeclared campaign.

b. Coordinated spending

Plaintiffs next contend that they were deprived of information regarding the extent of inkind contributions Bush received from Right to Rise, specifically in the form of coordinated 

spending. See Resp. 21–24. To support that contention, plaintiffs’ complaint contains extensive 

allegations that Bush established Right to Rise to circumvent campaign finance laws. See, e.g.,

Compl. ¶ 26 (alleging that “Bush and his agents reportedly took a direct role in recruiting highlevel staff for Right to Rise”); id. ¶ 27 (alleging that “Bush directly or indirectly ‘controlled’ and 

‘maintained’ the super PAC while a candidate for office”); id. ¶ 28 (alleging that “Bush and his 

agents ‘financed’ Right to Rise Super PAC, and that Bush himself, his advisors, and members of 

his family personally conducted fundraising for the super PAC”). 

It is undisputed that FECA designates coordinated payment for goods or services for a 

candidate’s campaign as “contributions” under FECA. See 52 U.S.C. § 30116(a)(7)(B); see also

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Colo. Republican Fed. Campaign Comm., 533 U.S. at 438. “By definition, these so-called 

coordinated expenditures are in kind—viz. not actual cash—contributions to the candidate.”

Campaign Legal Ctr. v. FEC, -- F. Supp. 3d --, 2020 WL 7059577, at *1 (D.D.C. 2020) (“CLC 

III”). In-kind contributions are therefore subject to FECA’s contribution limits and source 

restrictions, 52 U.S.C. §§ 30116(a), 30118(a), are counted towards the $5,000 threshold that 

triggers candidate status, id. § 30101(2), and are required disclosures for both the contributor and 

the recipient, id. § 30104(b); 11 C.F.R. § 104.13.

Thus, if plaintiffs are correct that Bush (directly or indirectly) established Right to Rise, 

then Right to Rise was prohibited from making more than an aggregate of $2,700 in 

contributions or coordinated expenditures to the Bush campaign or using money raised from 

unions or corporations to fund any coordinated expenditures. See 52 U.S.C. §§ 30116(a), 30118, 

30125(e). Additionally, Right to Rise’s contributions and expenditures would have counted 

towards Bush’s $5,000 candidacy threshold. As a result, on plaintiffs’ telling a vast amount of 

Bush’s campaign fundraising would be deemed illegal under FECA.2 Both Right to Rise and the 

Bush campaign also would be required to provide detailed disclosures of each coordinated 

expenditure. See id. §§ 30104(b)(2), 30116(a)(7)(B). On this latter basis, plaintiffs claim that 

they have suffered an informational injury because “neither [Right to Rise] nor the Bush 

campaign disclosed any in-kind contributions between them, making it impossible to know the 

full scope of [Right to Rise’s] financial relationship with the Bush campaign.” Resp. at 23.

 

2 For instance, plaintiffs’ administrative complaint alleges that Right to Rise held events 

reserved for individual contributors of over $500,000, May Admin. Compl. ¶ 20, that Bush 

headlined “$100,000-a-head fundraisers,” id. ¶ 23, and the Right to Rise was set to raise $100 

million prior to Bush registering as a candidate, id. ¶ 24. 

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Even accepting plaintiffs’ allegations as true, it is well-established that a plaintiff has no 

legally cognizable interest in a “legal conclusion that carries certain law enforcement 

consequences,” Wertheimer v. FEC, 268 F.3d 1070, 1075 (D.C. Cir. 2001), nor in “forc[ing] the 

FEC to ‘get the bad guys,’” Nader v. FEC, 725 F.3d 226, 230 (D.C. Cir. 2013) (quoting 

Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997)). Plaintiffs insist that they do not 

seek a legal conclusion, but rather information as to “which of Right to Rise’s disbursements, in 

whole or in part, qualify as in-kind contributions to the Bush campaign.” Resp. at 3. But 

plaintiffs’ attempt to construe their request as being one for facts (rather than legal 

determinations) is precluded by Wertheimer, 268 F.3d at 1075. There, the D.C. Circuit squarely 

held that there is no statutory right to determining whether an expenditure should be deemed a 

“coordinated” (and thus an in-kind) contribution under FECA. Id.; see also CLC III, 2020 WL 

7059577 at *9 (concluding that plaintiffs lacked standing to determine whether expenditures 

were coordinated with candidate); see also Free Speech for People v. FEC, 442 F. Supp. 3d 335, 

344 (D.D.C. 2020) (same). Although “[i]t is perhaps conceivable that certain facts are 

necessarily implied by the label ‘coordinated,’” the court explained, a finding of coordination is, 

at bottom, “a legal conclusion that carries certain law enforcement consequences.” Wertheimer, 

268 F.3d at 1075. 

Plaintiffs distinguish Wertheimer on the grounds that the plaintiffs there already knew 

that the underlying expenditures were coordinated, whereas here, they do not know precisely 

what portion of Right to Rise’s expenditures qualify as such. See Resp. 24–25. But this 

distinction is immaterial. Wertheimer held that plaintiffs have no legally cognizable interest in 

labeling spending “coordinated” if that spending has already been disclosed in some format, 268 

F.3d at 1075, which is precisely the case for the expenditures plaintiffs seek to uncover through 

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this lawsuit, see Resp. at 24 (“plaintiffs have reason to believe that much of Right to Rise’s $118 

million in total disbursements should have been reported as in-kind contributions to the Bush 

campaign”) (emphasis added); id. at 27 (“plaintiffs are deprived of information as to which of a 

super PAC’s disbursements are actually in-kind contributions to a 2016 presidential campaign) 

(emphasis added). Meanwhile, plaintiffs point to no additional expenditures or transactions that 

their requested information might bring to light.

3

 The Court thus concludes that plaintiffs lack 

standing to determine which of Right to Rise’s disbursements were coordinated with the Bush 

campaign.

2. Voter status

Right to Rise contends that even if FECA entitles plaintiffs to further disclosures, 

plaintiffs cannot claim an informational injury because they are “nonprofit entities . . . that 

cannot vote, have no members who vote, and cannot engage in partisan political activity.” Mot. 

to Dismiss at 13. The Court disagrees.

Plaintiffs need not be voters to assert an informational injury under FECA. Campaign 

Legal Ctr. & Democracy 21, 952 F.3d at 356. In fact, the D.C. Circuit rejected this very

argument when raised against the same plaintiffs presently before the Court. See id. (rejecting 

FEC’s argument that plaintiffs cannot suffer informational injury because they are “[n]onprofits 

 

3 Plaintiffs note that, even if Right to Rise’s disbursements were fully disclosed, Bush 

must have received additional in-kind contributions prior to his official campaign announcement 

because “[t]he campaign reported only $1,089” for in-kind contributions to cover travel, airfare, 

and lodging, which “cannot possibly account for Bush’s reported zigzags around the country to 

meet with high-profile individuals and to attend countless fundraising events[.]” Resp. at 20 

(citing March Admin. Comp. ¶¶ 20–23; May Admin. Compl. ¶¶ 10–11). To the extent plaintiffs 

seek Bush’s pre-candidacy spending, however, that information overlaps with the disclosures 

discussed in Section III.A.1.a, supra. Regardless, plaintiffs support this assertion by pointing to 

allegations of further in-kind contributions from Right to Rise, which has already disclosed its 

disbursements. 

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that cannot vote, have no members who vote,” and do not “engage in partisan political activity”). 

Likewise, in AAN, this Court rejected the defendant’s argument that the plaintiff Center for 

Responsibility and Ethics in Washington (“CREW”), a similar government watchdog group, 

“suffered no cognizable injury . . . because it [could not] vote and, as a 501(c)(3) organization, 

[could not] engage in political activity.” 410 F. Supp. 3d at 12. The Court explained:

In Akins, the Supreme Court held that voters were injured where they claimed 

that information to which they were entitled under FECA “would help them (and 

others to whom they would communicate it) to evaluate candidates for public 

office.” 524 U.S. at 21, 118 S.Ct. 1777 (emphasis added). The D.C. Circuit has 

since explained that a plaintiff suffers injury in fact “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.” Friends of 

Animals v. Jewell, 824 F.3d 1033, 1040–41 (D.C. Cir. 2016) (internal quotation 

marks omitted). The helpfulness of the information does not depend on the 

plaintiff’s status as a voter.

Id. at 13. Right to Rise claims that “AAN was limited to its facts,” specifically a scenario where

a plaintiff seeks disclosure of a 501(c)(4) organization’s spending in support of candidates who, 

unlike Bush, ultimately hold office. See Reply at 4. But neither the Court’s reasoning nor its 

clear statement that “[t]he helpfulness of the information does not depend on the plaintiff’s status 

as a voter,” AAN, 410 F. Supp. 3d at 13, was so constrained.

In fact, Right to Rise’s argument is remarkably similar to that rejected in AAN. Like 

plaintiffs here, CREW “pled that it regularly reviews disclosure reports required by FECA and 

uses the information they contain regarding campaign expenditures for a host of programmatic 

activities[.]” Id.; see also, e.g., Compl. ¶ 16 (alleging that Campaign Legal Center “relies on the 

accurate and complete reporting of campaign finance information to carry out activities central to 

its mission, including the production of reports and other materials to educate the public about 

campaign spending and the true sources and scope of candidates’ financial support”); id. ¶ 18 

(alleging that Campaign Legal Center “uses its analyses of federal campaign finance disclosure 

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information to support its administrative practice at the FEC and before state and local campaign 

finance agencies, and to defend campaign finance laws in its active docket of cases in federal and 

state courts”); id. ¶ 21 (alleging that Democracy 21 “uses its analyses of federal campaign 

finance disclosure information to support its administrative efforts at the FEC, including its 

participation in advisory opinion and rulemaking proceedings”). 

Right to Rise resists the comparison to AAN because CREW specifically used the FECA 

disclosure reports at issue to find correlations between campaign spending and congressional 

activity, see AAN, 410 F. Supp. 3d at 13, which is impossible here given that “Bush suspended 

his presidential campaign more than four years ago and has not sought public office since,” 

Reply at 7. This is another distinction without a difference. Finding correlations between 

campaign spending and congressional activity was but one of a “host of programmatic activities”

advanced by disclosure of the information in AAN, 410 F. Supp. 3d at 13. It does not follow that 

the specific programmatic activity highlighted in AAN is required for non-voter election 

watchdog organizations like plaintiffs to suffer an informational injury.

Rather, as the D.C. Circuit explained in Jewell, plaintiffs allege an informational injury 

where there is “no reason to doubt” that the statutorily required information would help them. 

824 F.3d at 1040–41; see also AAN, 410 F. Supp. 3d at 12–13 (same). This injury is not tethered 

to one particular programmatic activity but is instead rooted in the public’s well-established 

“right to know who is spending money to influence elections, how much they are spending, and 

when they are spending it.” AAN, 410 F. Supp. 3d at 12. Here, plaintiffs allege that the 

information’s disclosure would help them produce complete and accurate public reports on 

campaign spending, support their public education efforts regarding the true sources and scope of 

candidates’ financial support, advance their administrative practice at the FEC and before state 

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and local campaign finance agencies, and assist their established litigation practices in the area of 

campaign-finance compliance. See Compl. ¶¶ 16–21; see also Campaign Legal Ctr. v. FEC, 

245 F. Supp. 3d 119, 127 (D.D.C. 2017) (finding that plaintiffs pled an informational injury 

based on “a number of campaign-finance related activities—including public education, 

litigation, administrative proceedings, and legislative reform efforts—where the sought-after 

information would likely prove useful”). None of these activities depend upon whether Mr. 

Bush ultimately held office. 

B. APA Claim

Right to Rise next argues that plaintiffs’ APA claim (Count II) must be dismissed as 

precluded by FECA. Plaintiffs do not meaningfully refute this argument. Their response, 

relegated to one footnote, is: “Although plaintiffs maintain that the APA provides an alternative 

legal basis for challenging the Commission’s inaction, they are agnostic as to whether the relief 

they seek is ultimately provided under FECA or the APA. At this point in the proceedings, 

however, dismissal of the APA claim would be premature.” Resp. at 43 n.11 (citing CLC II, 466

F. Supp. 3d at 162).

It is well-settled that “where a party fails to respond to arguments in opposition papers, 

the Court may treat those specific arguments as conceded.” Dinkel v. MedStar Health, Inc., 880 

F. Supp. 2d 49, 58 (D.D.C. 2012). It is equally well-settled that a litigant may not “mention a 

possible argument in the most skeletal way, leaving the court to do counsel’s work, create the 

ossature for the argument, and put flesh on its bones.” Schneider v. Kissinger, 412 F.3d 190, 200 

n.1 (D.C. Cir. 2005) (cleaned up). As a result, “a litigant has an obligation to spell out its 

arguments squarely and distinctly, or else forever hold its peace.” Id. While the Court 

appreciates plaintiffs’ candor in noting their agnosticism as to whether the APA might provide 

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relief, the Court must treat the argument as conceded given that plaintiffs have declined to 

meaningfully respond.

In any event, the Court concludes that FECA precludes review of plaintiffs’ claim under

the APA. See Citizens for Responsibility and Ethics in Wash. v. FEC, 164 F. Supp. 3d 113, 119 

(D.D.C. 2015) (“CREW”) (Cooper, J.). In CREW, the plaintiffs brought claims under FECA 

and the APA stemming from the FEC’s dismissal of plaintiffs’ administrative complaints. This 

Court dismissed the APA claims, explaining:

FECA grants the FEC exclusive jurisdiction over civil enforcement of campaign 

finance laws, thereby channeling all complaints of campaign finance violations 

through the FEC. Similarly, FECA funnels all challenges to the FEC’s handling 

of complaints through the U.S. District Court for the District of Columbia. Under 

the system of judicial review established by FECA, the Court can override the 

FEC’s decision to dismiss a complaint if the dismissal was based on an 

impermissible interpretation of FECA or was arbitrary or capricious, or an abuse 

of discretion. This alternative, comprehensive judicial review provision precludes 

review of FEC enforcement decisions under the APA.

Id. at 119–20 (cleaned up). Here, plaintiffs challenge FEC inaction on their administrative 

complaints rather than FEC dismissal of their administrative complaints. But as plaintiffs 

concede elsewhere, courts treat challenges to FEC inaction and dismissal the same in the Article 

III context. See Resp. at 32 (collecting cases). The Court declines to depart from this reasoning 

and will therefore dismiss plaintiffs’ APA claim (Count II). 4

 

4 Plaintiffs’ passing reference to CLC II is inapposite. In CLC II, the parties disputed 

whether FECA provided an adequate remedy for plaintiffs’ challenge to an FEC interpretation of 

a regulation. 466 F. Supp. 3d at 162. The court declined to dismiss plaintiff’s APA claim 

because it alleged a “broader informational injury than their FECA count” and thus could involve 

a distinct standing analysis. CLC III, 2020 WL 7059577 at *9 (detailing plaintiffs’ position at 

the motion to dismiss stage). Here, by contrast, plaintiffs have not differentiated the injuries 

suffered under their APA and FECA claims. 

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IV. Conclusion

For the foregoing reasons, the Court will deny Right to Rise’s motion to dismiss 

plaintiffs’ FECA claim but will grant its motion to dismiss plaintiffs’ APA claim. A separate 

Order will follow.

CHRISTOPHER R. COOPER

United States District Judge

Date: February 19, 2021

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