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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-3319 (CRC) 

) 

v. ) 

) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) SECOND MOTION TO DISMISS 

)

 Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT OF ITS 

SECOND MOTION TO DISMISS 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Christopher H. Bell (D.C. Bar No. 1643526) 

Acting Assistant General Counsel 

chbell@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

March 1, 2024 (202) 694-1650 

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TABLE OF CONTENTS 

PAGE 

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

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

I. PLAINTIFFS’ ATTEMPT TO RELITIGATE THE MERITS OF 

THEIR ALLEGED ORGANIZATIONAL INUJRY IS IMMATERIAL 

TO WHETHER THESE ARGUMENTS ARE PRECLUDED 

AND FORECLOSED ....................................................................................................2 

II. PLAINTIFFS’ ATTEMPT TO ESTABLISH AN ORGANIZATIONAL 

INJURY IS PRECLUDED AND FORECLOSED ........................................................4 

A. The Court’s “Categorical” Language that Plaintiffs Have no 

Legally Cognizable Interest in Labeling Spending Coordinated 

Precludes Plaintiffs From Establishing an Organizational 

Injury Here .........................................................................................................4 

B. Plaintiffs do not Contest That Their Organizational Theory of 

Injury is Factually Indistinguishable from Their Informational 

Theory, and These Theories Rise and Fall Together .........................................8 

III. EVEN IF THE COURT’S PRIOR HOLDINGS ARE NOT PRECLUSIVE, 

PLAINTIFFS CANNOT ALLEGE A PLAUSIBLE AND ONGOING 

INJURY TO THEIR ORGANIZATIONS STEMMING FROM THIS 

LONG-CONCLUDED PRESIDENTIAL CAMPAIGN.............................................10 

CONCLUSION........................................................................................................................15 

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TABLE OF AUTHORITIES 

PAGE(S) 

CASES 

Am. Soc. For Prevention of Cruelty to Animals v. Feld Ent., Inc., 

659 F.3d 13, 25 (D.C. Cir. 2011)............................................................................................... 15 

B & B Hardware, Inc. v. Hargis Indus., Inc., 

575 U.S. 138 (2015) .................................................................................................................... 4 

California Ass’n of Physically Handicapped, Inc. v. F.C.C., 

778 F.2d 823 (D.C. Cir. 1985) ................................................................................................... 14 

Campaign Legal Ctr. v. FEC (“RTR I”), 520 F. Supp. 3d 38 (D.D.C. 2021) .................4-5, 6-7, 12 

Campaign Legal Ctr. v. FEC (“RTR II”), 578 F. Supp. 3d 1 (D.D.C. 2021) .................................. 5 

Canonsburg General Hospital v. Sebelius, 989 F. Supp. 2d 8 (D.D.C. 2013) ............................ 3-4 

City of Arlington, Tex. V. F.C.C., 569 U.S. 290 (2013) .................................................................. 4 

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........................................................................ 11 

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ................................................................ 14 

Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254 (D.C. Cir. 2006) ....................................... 3 

Doc Soc’y v. Blinken, 2023 WL 5174304 (D.D.C. Aug. 11, 2023).............................................. 11 

Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity (“EPIC”), 

 878 F.3d 371, 379 (D.C. Cir. 2017) ............................................................................. 6, 9-10, 14 

Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136 (D.C. Cir. 2011) ...................................... 15 

FEC v. Akins, 524 U.S. 11 (1998)............................................................................................ 12-13 

GAF Corp. v. United States, 818 F.2d 901 (D.C. Cir. 1987) ................................................... 3, 7-8 

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ............................................................... 14 

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

424 F. Supp. 3d 26 (D.D.C. 2020) ............................................................................................ 8-9 

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

848 F. App’x 428 (D.C. Cir.) ................................................................................................... 8-9 

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Nat’l Ass’n of Home Builders v. EPA, 786 F.3d 34 (D.C. Cir. 2015)......................................... 3, 4 

Nat’l Post Off. Mail Handlers, Watchmen, Messengers, & 

Grp. Leaders Div. of Laborers’ Int’l Union of N. Am. V. Am. 

Postal Workers Union, 907 F.2d 190 (D.C. Cir. 1990) .................................................................. 3 

NOW v. Operation Rescue, 747 F. Supp. 760 (D.D.C. 1990)......................................................... 4 

Otherson v. Dep’t of Just., I.N.S., 711 F.2d 267 (D.C. Cir. 1983) ............................................... 3-4 

People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 

797 F.3d 1087 (D.C. Cir. 2015) ................................................................................................... 6 

Taylor v. Sturgell, 553 U.S. 880 (2008) ....................................................................................... 7-8 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) ..................................................................... 6 

Yamaha Corp. of Am. V. United States, 745 F. Supp. 734 (D.D.C. 1990) ..................................... 3 

Statutes, Etc. 

52 U.S.C. § 30109(a)(8)................................................................................................................ 12 

Restatement (Second) of Judgments § 28........................................................................................ 4 

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INTRODUCTION 

Plaintiffs’ standing to challenge an alleged lack of reporting involving the long-since 

terminated presidential campaign of former Governor Jeb Bush has been litigated to the extreme, 

involving two lawsuits, oral arguments, myriad rounds of briefing, and at least three published 

decisions. In its most recent opinion addressing the Federal Election Commission’s (“FEC” or 

“Commission”) first motion to dismiss, the Court found that its holding in the first lawsuit that 

plaintiffs had not suffered an informational injury sufficient to confer standing precluded a 

contrary finding here. Mem. Op. and Order, Campaign Legal Center, et al. v. FEC, Civ. No. 22-

3319 at 2 (D.D.C. Sept. 26, 2023) (Docket No. 23) (the “Opinion” or “Op.”). The Court further 

expressed skepticism that plaintiffs could prevail on a closely related theory of organizational 

standing, given the Court’s categorial determination in the prior lawsuit that plaintiffs lack of a 

legally cognizable interest in the information they seek, but declined to rule on the issue and 

instead invited the parties to address the Court’s concerns. Id. As a result, the issues before the 

Court have been narrowed to whether plaintiffs are suffering an ongoing organizational injury 

stemming from an alleged lack of reporting, and whether their ability to establish such an injury 

is foreclosed by this Court’s prior decisions. 

The Federal Election Commission’s Second Motion to Dismiss (Docket No. 27) 

(“Second Motion to Dismiss” or “Second MTD”) comprehensively explained why the Court’s 

concerns were warranted, both because the Court’s prior holdings preclude plaintiffs from 

establishing an organizational injury and because plaintiffs’ injury is not in any sense “ongoing,” 

as required for the injunctive relief they seek. In contrast, Plaintiffs’ Response in Opposition to 

Defendant’s Motion to Dismiss (Docket No. 28) (“Response” or “Resp.”) appears to be 

concerned principally with establishing plaintiffs’ standing in the first instance. But these 
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arguments come too late, and are precluded. Plaintiffs do not meaningfully contest that the 

Court’s prior determination that plaintiffs lack a legally cognizable interest in the information 

they seek is preclusive here, and that determination itself precludes plaintiffs from establishing 

that they have suffered an organizational injury-in-fact. Nor do plaintiffs offer new evidence that 

could assuage the Court’s concerns that any injury they might have suffered from a lack of 

reporting in 2015-16 is ongoing, or otherwise causing plaintiffs to divert organizational resources 

today. This Court’s prior holdings, along with the march of time, preclude plaintiffs from 

establishing a live case or controversy for this Court to adjudicate. Plaintiff’s Complaint should 

therefore be dismissed in its entirety. 

ARGUMENT 

I. PLAINTIFFS’ ATTEMPT TO RELITIGATE THE MERITS OF THEIR 

ALLEGED ORGANIZATIONAL INUJRY IS IRRELEVANT TO WHETHER 

THESE ARGUMENTS ARE PRECLUDED AND FORECLOSED 

The FEC’s first motion to dismiss in this matter, (Federal Election Commission’s Motion 

to Dismiss at 13-20 (Docket No. 12),) demonstrated why plaintiffs were precluded from 

establishing an informational injury sufficient to bring their claims by this Court’s prior 

decisions. In response to that first motion, plaintiffs spent many pages, (Plaintiffs’ Response in 

Opposition to Defendant’s Motion to Dismiss at 26-42 (Docket No. 19),) attempting to establish 

the factual basis for their informational injury, while devoting only a fraction of this space to 

addressing whether that entire argument was legally precluded. Plaintiffs most recent Response 

makes the same error, devoting about four pages (Resp. at 16-20) to addressing issue preclusion, 

while the bulk of their argument, (id. at 12-16, 20-29,) attempts to relitigate precisely what is 

foreclosed by this Court’s rulings. 

However, pursuant to the Court’s instructions, Op. at 29, the relevant question at this 

stage in proceedings is whether this Court has already decided an issue of fact or law that 

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precludes plaintiffs from establishing their purported organizational injury, regardless of whether 

they could establish standing if given a second bite at the apple. It is black-letter law that a court 

applying issue preclusion does not revisit the earlier decision. Canonsburg Gen. Hosp. v. 

Sebelius, 989 F. Supp. 2d 8, 17 (D.D.C. 2013) (“A court conducting an issue preclusion analysis 

does not review the merits of the determinations in the earlier litigation.”) (quoting Consol. 

Edison Co. of N.Y. v. Bodman, 449 F.3d 1254, 1257 (D.C. Cir. 2006)); Nat’l Post Off. Mail 

Handlers, Watchmen, Messengers, & Grp. Leaders Div. of Laborers’ Int’l Union of N. Am. v. 

Am. Postal Workers Union, 907 F.2d 190, 194 (D.C. Cir. 1990) (“The doctrine of issue 

preclusion counsels us against reaching the merits in this case, however, regardless of whether 

we would reject or accept our sister circuit’s position.”); Yamaha Corp. of Am. v. United States, 

745 F.Supp. 734, 738 (D.D.C. 1990) (noting the D.C. Circuit’s instruction “that collateral 

estoppel prevents a court from ever reaching the merits”)). And “[a]lthough the dismissal of a 

complaint for lack of jurisdiction does not adjudicate the merit[s] so as to make the case res 

judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a 

second complaint cannot command a second consideration of the same jurisdictional claims.” 

Nat’l Ass’n of Home Builders v. EPA, 786 F.3d 34, 41 (D.C. Cir. 2015) (“Home Builders”) 

(alterations and emphasis in original) (quoting GAF Corp. v. United States, 818 F.2d 901, 912 

n.72 (D.C. Cir. 1987)). 

Plaintiffs’ many pages detailing why they have suffered an organizational injury 

sufficient to confer standing to bring their claim, (Resp. at 12-16, 20-29,) do not address whether 

that precise argument is precluded based upon the well-established criteria for establishing issue 

preclusion under the law of this Circuit (see Second MTD at 10-20). Even assuming the Court’s 

prior determination was “‘patently erroneous,’” this “‘is not alone sufficient’” to avoid its 

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preclusive effect. Canonsburg, 989 F. Supp. 2d at 19 (quoting Otherson v. Dep’t of Just., I.N.S., 

711 F.2d 267, 277 (D.C. Cir. 1983)); Restatement (Second) of Judgments § 28 comment j); see B 

& B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 157–58 (2015) (“issue preclusion 

prevent[s] relitigation of wrong decisions just as much as right ones.”) (internal citations 

omitted); Home Builders 786 F.3d at 44 (Silberman, J., concurring) (agreeing “with the court that 

we are precluded by our prior opinion from acknowledging appellants’ standing” but writing 

separately because the prior opinion “is incorrectly decided and is quite at odds with our 

jurisprudence”); NOW v. Operation Rescue, 747 F. Supp. 760, 769 (D.D.C. 1990) (“Issue 

preclusion . . . is designed to prevent a second court from reweighing the evidence that formed 

the basis for the first court’s judgment.”), aff’d in part, remanded in part sub nom. Nat’l Org. for 

Women v. Operation Rescue, 37 F.3d 646 (D.C. Cir. 1994); cf. City of Arlington, Tex. v. F.C.C., 

569 U.S. 290, 297 (2013) (“A court’s power to decide a case is independent of whether its 

decision is correct, which is why even an erroneous judgment is entitled to res judicata effect.”). 

II. PLAINTIFFS’ ATTEMPT TO ESTABLISH AN ORGANIZATIONAL INJURY IS 

PRECLUDED AND FORECLOSED 

A. The Court’s “Categorical” Language that Plaintiffs Have no Legally 

Cognizable Interest in Labeling Spending Coordinated Precludes Plaintiffs 

From Establishing an Organizational Injury Here 

In its most recent Opinion, the Court determined that its prior holding with respect to 

plaintiffs’ organizational standing was based on facts unique to the prior delay case, and 

therefore did not control whether plaintiffs could establish an organizational injury as to whether 

the FEC acted “contrary to law” in this proceeding. Op. at 26-28. However, the Court 

nonetheless intuited that “the Court’s categorical language that Plaintiffs have ‘no legally 

cognizable interest in labeling spending coordinated if that spending has already been disclosed 

in some format’ may slam shut that door to federal court.” Op. at 27 (citing Campaign Legal 

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Ctr. v. FEC (“RTR I”), 520 F. Supp. 3d 38, 48 (D.D.C. 2021). On this basis the Court 

specifically called on the parties to brief “[w]hether RTR I and [Campaign Legal Ctr. v. FEC 

(“RTR II”), 578 F. Supp. 3d 1 (D.D.C. 2021)] have preclusive effect on organizational 

standing[.]” Op. at 29. The threshold question before this Court is thus whether plaintiffs can 

establish an organizational injury sufficient to confer standing even if they have “no legally 

cognizable interest in labeling spending coordinated[.]” Op. at 27. They cannot. 

Critically, plaintiffs do not dispute that the Court’s determination that plaintiffs have no 

“legally cognizable interest” in labeling pre-existing spending coordinated meets all the criteria 

for issue preclusion. (See Resp. at 16-20.) Instead, plaintiffs declare that “[t]he FEC does not so 

much assert that plaintiffs’ argument for organizational standing is precluded, as just assume that 

it ‘must fail’ on its merits.” (Resp. at 17 (citing Second MTD at 15).) However, this ignores the 

portion of the Commission’s motion (Second MTD at 13-15) that listed the criteria for issue 

preclusion and explained why the Court’s prior language meets these criteria, given that 

plaintiffs’ “interest” in labeling spending coordinated was (1) contested by the parties in RTR I, 

(2) necessarily determined by the Court, and that (3) applying preclusion here would not work no 

basic unfairness on plaintiffs. 

Because plaintiffs do not contest that the Court’s determination that they lack a “legally 

cognizable interest in labeling spending coordinated” is preclusive in this matter, the only 

remaining question is whether that determination controls the outcome in this case. It clearly 

does. The only relief plaintiffs seek in this matter is the disclosure of already-public spending 

information regarding the Right to Rise Super PAC and the Jeb Bush Campaign, in a manner that 

makes clear that this spending was coordinated between the entities. (See Second MTD at 17-18 

(explaining that the information plaintiffs seek in support of their informational and 

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organizational theories of injury are effectively identical, pursuant to plaintiffs’ own description 

of their claims as adopted by this Court).) If plaintiffs lack a legally cognizable interest in 

labeling this spending coordinated, they have not suffered the necessary harm to their interests 

that organizational standing requires. See People for the Ethical Treatment of Animals v. U.S. 

Dep’t of Agric., 797 F.3d 1087, 1094 (D.C. Cir. 2015) (“PETA”) (a plaintiff must first show “that 

the agency’s action or omission to act injured the organization’s interest,” and second, the 

plaintiff must show that it “used its resources to counteract that harm”). As this Circuit has made 

clear, plaintiffs “cannot ground organizational injury on a non-existent interest.” Elec. Priv. Info. 

Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 379 (D.C. Cir. 2017) 

(“EPIC”). 

Moreover, plaintiffs’ assertion that they have identified “new” spending that was not 

considered by the Court in prior proceedings, (Resp. at 18-19,) is immaterial because the Court’s 

operative holding regarding their interest in that information was not cabined to the particular 

information the Court considered at that time. The relevant paragraph of the Court’s opinion 

reads in full: 

Plaintiffs distinguish Wertheimer [v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)] 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 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. The Court thus concludes that plaintiffs lack standing to determine which 

of Right to Rise's disbursements were coordinated with the Bush campaign. 

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RTR I, 520 F. Supp. 3d at 48 (italic emphasis in original, bold emphasis added) (footnote 

omitted). The Court’s plain language thus makes clear that plaintiffs have no legally cognizable 

interest in labeling any spending coordinated if that spending “has already been disclosed in 

some format . . . which is precisely the case for the expenditures plaintiffs seek to uncover 

through this lawsuit[.]” Id. The Court has held that plaintiffs lack a legally cognizable interest 

in this spending, and that holding is preclusive here. 

Accordingly, the Court’s Opinion made clear that plaintiffs cannot establish an 

organizational injury in this case by pointing to information that was previously disclosed and 

plaintiffs merely failed to identify, and instead called on plaintiffs to “identify testing-the-waters 

expenditures that neither the Bush campaign nor Right to Rise disclosed in any form[.]” Op. at 

29 (emphasis added). By their own admission, plaintiffs have not done so. Plaintiffs direct the 

Court’s attention to “seven ‘new’ [testing-the-waters] events” that it had already raised in 

response to the Commission’s first motion to dismiss in this case, but candidly admit that “[t]his 

Court ruled that plaintiffs were precluded from raising these events because plaintiffs ‘fail[ed] to 

explain why they were unable to identify these alleged testing-the-waters events in the delay 

case’ given that footage of such events may have been in the public domain.” (Resp. at 18 

(citing Op. at 24-25).) Plaintiffs’ most recent Response does not explain this omission, and once 

again “fail[s] to explain why they were unable to identify these alleged testing-the-waters events 

in the delay case when the Court afforded them ample opportunities to do so[.]” Op. at 24. 

Plaintiffs further attempt to salvage their argument by reasoning that issue preclusion 

does not, as a general matter, extend to matters that could have been raised[.]” (Resp. at 19 

(emphasis added in plaintiff’s brief) (citing GAF Corp. v. United States, 818 F.2d 901, 913 (D.C. 

Cir. 1987); Taylor v. Sturgell, 553 U.S. 880, 892 (2008).) But as explained supra, pp. 5-7, the 

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Court’s prior holding in RTR I made clear that plaintiffs lack a legally cognizable interest in all 

reporting that had previously been disclosed in some form. This holding was not qualified so as 

to apply only to plaintiffs’ informational injury, or to the particular evidence the Court had 

before it at that time. Plaintiffs’ interest in obtaining this information was both contested and 

necessarily determined in the delay case, and plaintiffs do not seriously contend otherwise. 

As this Court has itself noted, issue preclusion exists to incentivize parties to fully litigate 

issues of fact and law in the first instance, and plaintiffs have not explained their failure to do so 

in this case. “That is no reason to excuse Plaintiffs from issue preclusion; it is the reason issue 

preclusion exists.” Op. at 25. 

B. Plaintiffs do not Contest That Their Organizational Theory of Injury is 

Factually Indistinguishable from Their Informational Theory, and These 

Theories Rise and Fall Together 

In its Second Motion to Dismiss, the Commission explained that even in cases where 

issue preclusion does not per se preclude the courts from considering whether plaintiffs have 

suffered organizational harm this Circuit has found that where an alleged organizational injury is 

“part and parcel of [an] alleged informational injury” the court has rejected, the organizational 

theory must “fail with it.” (Second MTD at 15 (citing Lawyers’ Comm. for 9/11 Inquiry, Inc. v. 

Wray (“Wray”), 848 F. App’x 428, 431 (D.C. Cir.) (in turn citing Lawyers’ Comm. for 9/11 

Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26, 33 (D.D.C. 2020)).) In response, plaintiffs attempt to 

distinguish this controlling precedent by arguing that in these cases “the plaintiffs there had pled 

an injury consisting of only the deprivation of the sought after information itself[,]” and did not 

“articulate[] further concrete impact or harm to their activities by reason of this deprivation.” 

(Resp. at 17.) Plaintiffs misread this precedent which does in fact require dismissal in this case. 

In fact, in both of the cases relied upon by the Commission, the D.C. Circuit found that 

the substantial overlap between plaintiffs’ purported organizational theory of injury and their 

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failed informational theory of injury was a separate and sufficient reason to reject the 

organizational theory, even if there were additional reasons for doing so. Plaintiffs correctly note 

that in Lawyers’ Commission for 9/11 Inquiry v. Wray the court found that plaintiffs’ 

organizational theories impermissibly “rest[ed] on layers of speculation[,]” including speculation 

as to “independent actions of some third party not before th[at] court.” (Resp. at 18 (quoting 

Wray, 848 F. App’x at 431).) But this observation was distinct from, and did not rely upon, that 

court’s earlier observation that plaintiffs “theories of organizational standing” were “‘part and 

parcel of the alleged informational injury’ and thus fail with it.” Id. at 430-31 (citing Lawyers’ 

Comm. for 9/11, 424 F. Supp. 3d at 33). Furthermore, the Wray court specifically noted that the 

organizational theories it considered “allege a range of efforts [plaintiffs] have made and costs 

incurred to advance their missions that came to naught[,]” such as “resources [spent] on their 

State Department reward application, on a petition urging the U.S. Attorney for the Southern 

District of New York to present their additional evidence to a grand jury, and on an engineering 

study on the causes of the collapse of the World Trade Center towers[.]” Id. at 430. Plaintiffs’ 

assertion that the Wray plaintiffs’ theories failed because they “articulated no further concrete 

impact or harm to their activities by reason of th[e] deprivation” of information, (Resp. at 17,) is 

therefore incorrect. 

Plaintiffs’ arguments are similarly misguided with respect to the D.C. Circuit’s decision 

in EPIC, 878 F.3d 371. Contrary to plaintiffs’ suggestions, plaintiffs in that case articulated 

“concrete impact or harm to their activities by reason of th[e] deprivation” of information they 

sought. (Resp. at 17.) In fact, that court explicitly referenced “EPIC’s evidence of 

expenditures,” but found these expenditures did not constitute a cognizable legal injury and were 

instead “a self-inflicted budgetary choice that cannot qualify as an injury in fact.” EPIC, 878 

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F.3d at 379 (quoting Feld, 659 F.3d at 25). This observation followed from the court’s holding 

that “section 208 of the E-Government Act does not confer any [] informational interest on 

EPIC[,]” and therefore “EPIC cannot ground organizational injury on a non-existent interest.” 

Id. (quoting Feld, 659 F.3d at 24-25). That is precisely the case here. The Court has held that 

plaintiffs lack a legally cognizable interest in the information they seek, and that holding is 

preclusive here, see supra, pp. 4-8, particularly where plaintiffs “identif[y] no organizational 

harm unrelated to [their] alleged informational injury.” EPIC, 878 F.3d at 377-78. 

Critically, plaintiffs do not dispute that both their informational and organizational 

theories to establish their injury-in-fact rely entirely on their lack of access to the same set of 

information: allegedly coordinated spending by the RTR Super PAC and the Jeb Bush 

Campaign. (See Second MTD at 17-18; Resp. at 25-26 (“the somewhat different bases for 

injury-in-fact both rely on a theory of informational deprivation”).) That fact places this case 

squarely within the precedent set by the D.C. Circuit in both EPIC and Wray for all relevant 

purposes. This Court’s prior decisions dictate both that plaintiffs have not suffered an 

informational injury and that they lack a legally cognizable interest in seeing previously 

disclosed spending by administrative respondents reported in a different format. Because 

plaintiffs’ organizational theory of injury is materially indistinguishable from their informational 

theory of injury, these closely related arguments both fail. 

III. EVEN IF THE COURT’S PRIOR HOLDINGS ARE NOT PRECLUSIVE, 

PLAINTIFFS CANNOT ALLEGE A PLAUSIBLE AND ONGOING INJURY TO 

THEIR ORGANIZATIONS STEMMING FROM THIS LONG-CONCLUDED 

PRESIDENTIAL CAMPAIGN 

In its Opinion the Court correctly observed that plaintiffs must “prove an ongoing injury 

that the Court can remedy with the injunctive relief sought.” Op. at 28-29 (citing City of Los 

Angeles v. Lyons, 461 U.S. 95, 105 (1983)) (emphasis added). Building on the Court’s 

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observation, the Commission’s Second Motion to Dismiss explained that the D.C. Circuit has 

drawn a clear distinction between an organization’s lack of access to discrete, one-off pieces of 

information (insufficient), and access to a stream of information for use in a specific, regular way 

as part of an organization established activities (sufficient). (Second MTD at 20) (quoting Doc 

Soc’y v. Blinken, Civ. No. 19-3632, 2023 WL 5174304, at *6 (D.D.C. Aug. 11, 2023) (“Recent 

caselaw in this Circuit suggests that an informational injury is sufficiently concrete if an 

organization wishes to use a stream of information in a specific, regular way as part of its 

established activities[;]” while at the same time “[t]he Circuit has [] consistently rejected 

allegations of informational injury based solely on an organization’s lack of access to discrete, 

one-off pieces of information[.]”) (listing and describing cases).) 

In response “Plaintiffs do not deny that they must demonstrate an ongoing injury,” (Resp. 

at 24,) but nonetheless fail to articulate how they are still incurring costs or otherwise diverting 

resources in response to the Commission’s alleged failure to require their sought-after disclosure. 

Plaintiffs argue that their “injuries are ongoing in that they still have not received all the 

information they are due,” (id.,) but do not link the deprivation of information to particular costs 

incurred or resources diverted. Indeed, plaintiffs concede that “it is fair to say that fewer 

‘reporters [are] still dialing CLC’s line’ in connection to plaintiffs’ administrative complaints,” 

but suggest that this is immaterial because “the abuses alleged therein remain acutely relevant to 

this election cycle, where current candidates appear to be closely following Bush’s playbook.” 

(Resp. at 26 (citing Op. at 28).) However, “it is well-established that a plaintiff has no legally 

cognizable interest in a legal conclusion that carries certain law enforcement consequences nor in 

forcing the FEC to get the bad guys.” Op. at 5 (quoting RTR I, 520 F. Supp. 3d at 47). 

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In lieu of evidence that they are suffering an ongoing injury, plaintiffs advance a 

prudential argument, suggesting that their theory of organizational injury must be valid, the 

passage of time notwithstanding, because otherwise the Commission could too easily avoid 

being held to account for purportedly failing to enforce the law. (Resp. at 24-26.) This line of 

argument in effect sidesteps the Court’s concerns with respect to controlling law. Plaintiffs 

begin with the undisputed point that “the mere passage of time cannot moot plaintiffs’ injury[,]” 

arguing that the alternative “would reward FEC delay by effectively immunizing belated 

dismissals from meaningful judicial review under 52 U.S.C. § 30109(a)(8)[.]” (Id. at 24.) 

Plaintiffs state that “according to the FEC’s theory,1

 many courts to have considered whether the 

FEC’s dismissal of an administrative complaint was contrary to law . . . may have actually 

lacked jurisdiction to reach that question[,]” relying principally on FEC v. Akins, 524 U.S. 11 

(1998). (Resp. at 25-26.) 

This argument fails to address the standards by which courts assess the existence (or lack) 

of an ongoing injury where plaintiffs seek injunctive relief, and whether those standards have 

been met in this case. Plaintiffs’ argument is also misguided because requiring plaintiffs to 

demonstrate an ongoing injury in this case does not imply that courts lacked jurisdiction to 

decide prior FECA cases or that courts will lack jurisdiction in future proceedings. While 

plaintiffs are correct that Akins focused on conduct between 1983 and 1988, and that the 

Supreme Court nonetheless asserted jurisdiction over the matter in 1998, the Akins plaintiffs’ 

injury differed from plaintiffs’ here in material ways. Factually, Akins centered on whether the 

American Israel Public Affairs Committee (AIPAC) was a “political committee” as defined by 

While plaintiffs claim to be rebutting “the FEC’s theory,” they are also disputing the 

theory the Court itself articulated. Op. at 25. 

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FECA. Akins, 524 U.S. at 13-15. As the Court surely recognized at the time, the answer to that 

question would impact how the Commission viewed AIPAC’s expenditures in elections 

subsequent to 1988, and thus how that information would be reported by AIPAC in the future. 

Indeed, the organization is an active participant in the national policy debate to this day.2 In 

stark contrast, Jeb Bush suspended his campaign for president in early 2016, and has not sought 

public office since. 

Furthermore, plaintiffs themselves note that the Akins plaintiffs relied on an informational 

theory to establish standing, and acknowledge “the somewhat different bases for injury-in-fact” 

between an informational and organizational theories. (Resp. at 25-26.) This distinction is 

significant since, as the Court observed, the former requires demonstrating a “legal right” to the 

disclosure of coordinated expenditures, whereas the later requires demonstrating, inter alia, “a 

weighty interest” in those disclosures. Op. at 27. Thus, if the Court finds that plaintiffs lack an 

ongoing injury-in-fact sufficient to confer organizational standing in this case, this need not 

dictate whether plaintiffs in future proceedings against the Commission will be able to establish 

an informational injury based on an alleged deprivation of information. 

Plaintiffs’ final argument is that “[t]he FEC’s failure to enforce the law in this area of 

activity . . . has encouraged an upsurge in schemes to game the timing of candidacy 

announcements in order to evade disclosure and circumvent FECA’s contribution limits.” (Resp. 

at 26). In support, they cite three administrative complaints filed by the Campaign Legal Center 

with the Federal Election Commission in 2019, 2022 and 2023 alleging FECA violations by, 

inter alia, the presidential campaigns of Governor Ron DeSantis, former President Trump, and 

Homepage, American Israel Public Affairs Committee (Last visited on Feb. 29, 2024), 

https://www.aipac.org/. 

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former New York mayor Bill De Blasio. (Resp. at 27-29.) These are presented as evidence that 

“[t]he FEC’s enforcement vacuum has generated an increasing volume of watchdog work for 

plaintiffs, requiring plaintiffs to devote additional resources to policing these potential 

violations.” (Id. at 27.) 

This line of reasoning fails several times over. First, it is difficult to imagine what 

evidence plaintiffs might present to demonstrate that the FEC’s alleged failure to enforce the law 

in this case in fact caused the alleged “upsurge in schemes” plaintiffs highlight, and indeed 

plaintiffs present no such evidence here. See California Ass’n of Physically Handicapped, Inc. v. 

F.C.C., 778 F.2d 823, 825 (D.C. Cir. 1985) (“The ‘standing’ requirement is that the challenged 

action cause the injury.”). Second, plaintiffs must demonstrate that the alleged “upsurge in 

schemes” harmed them directly, not that it merely represented a setback to their social interests. 

EPIC, 878 F.3d at 378 (“an organization may establish Article III standing if it can show that the 

defendant's actions cause a ‘concrete and demonstrable injury to the organization’s activities’ 

that is ‘more than simply a setback to the organization's abstract social interests.’”) (citing 

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)); see Clapper v. Amnesty Int’l USA, 133 

S. Ct. 1138, 1141 (2013) (“respondents cannot manufacture standing by choosing to make 

expenditures based on hypothetical future harm that is not certainly impending”). Even 

assuming the highly speculative chain of causation that the Commission’s alleged failure to 

require the disclosure plaintiffs seek in this case caused the allegedly improper campaign 

reporting plaintiffs articulate,3

 this is no more than a setback to plaintiffs’ abstract social 

Of the several examples of “an upsurge in schemes to game the timing of candidacy 

announcements in order to evade disclosure and circumvent FECA’s contribution limits” 

articulated by plaintiffs, (Resp. at 26-29,) only one has so far resulted in the imposition of a 

penalty, in the form of fines agreed to by respondents in a conciliation agreement involving the 

De Blasio campaign, Fairness PAC, and NY Fairness PAC. 

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interests, which is insufficient to confer standing. Third, further assuming that “[t]he FEC’s 

enforcement vacuum has generated an increasing volume of watchdog work for plaintiffs, 

requiring plaintiffs to devote additional resources to policing these potential violations[,]” (Resp. 

at 27,) these costs were voluntarily incurred. See Am. Soc. for Prevention of Cruelty to Animals 

v. Feld Ent., Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (“an organization’s diversion of resources to 

litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary 

choice that cannot qualify as an injury in fact for purposes of standing.”) (quoting Equal Rights 

Ctr. v. Post Props., Inc., 633 F.3d 1136, 1139-40 (D.C. Cir. 2011)). 

In short, plaintiffs’ Response fails to provide evidence that the Commission’s purported 

failure to require reporting involving the long-concluded campaign of former Governor Jeb Bush 

is impacting plaintiffs today, and thus does little to assuage the Court’s “doubts . . . that the 

injury is ongoing[.]” Op. at 29. And even assuming plaintiffs’ prudential concerns were a valid 

basis on which to assess their purported injury-in-fact, they fail to raise a plausible inference that 

a decision in the Commission’s favor here will undermine FECA enforcement in the future. 

Even assuming their purported organizational injury is not precluded, it is certainly not ongoing, 

and therefore fails. 

CONCLUSION 

For the foregoing reasons, plaintiffs’ complaint should be dismissed in its entirety. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

/s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Acting Assistant General Counsel 

chbell@fec.gov 

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COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

March 1, 2024 (202) 694-1650 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 1, 2024, I served the foregoing pursuant to Fed. R. Civ. P. 

5(b)(2)(E) on counsel of record, as a registered ECF user, through the Court’s ECF system.

 /s/ Christopher H. Bell 

Christopher H. Bell (D.C. Bar No. 1643526) 

Acting Assistant General Counsel 

 chbell@fec.gov 

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