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’ OPENING 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

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 1 of 83
ii

CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), plaintiffs-appellants Campaign Legal 

Center and Catherine Hinckley Kelley hereby certify as follows: 

(a) Parties and Amici. Campaign Legal Center and Catherine Hinckley 

Kelley are plaintiffs in the district court and appellants in this Court. 

Pursuant to Circuit Rule 26.1, Campaign Legal Center certifies that it is a 

nonpartisan, nonprofit corporation that has no parent companies, does not issue 

stock, and in which no publicly held corporation has any form of ownership interest. 

Campaign Legal Center works to protect and strengthen the U.S. democratic process 

across all levels of government, including by supporting campaign finance reform 

through litigation, policy analysis, and public education. 

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

in the district court and appellee in this Court, but has not appeared in either.

Hillary for America and Correct the Record are intervenor-defendants in the 

district court and intervenor-appellees in this Court.

The Institute for Free Speech appeared in the district court as an amicus curiae

and no amici have yet appeared in this Court.

(b) Rulings Under Review. Plaintiffs-appellants appeal the December 2, 

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

Columbia (Boasberg, J.), denying plaintiffs’ motion for summary judgment and 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 2 of 83
iii

granting intervenor-defendants’ motions for summary judgment, and the February 

12, 2021 final order dismissing the case. The December 2, 2020 memorandum 

opinion is reported at Campaign Legal Center v. FEC, 507 F. Supp. 3d 79 (D.D.C. 

2020).

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

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

other court of which counsel are aware.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 3 of 83
iv

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii

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

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

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

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

JURISDICTIONAL STATEMENT..........................................................................5

ISSUES PRESENTED ..............................................................................................6

STATUTES AND REGULATIONS.........................................................................6

STATEMENT OF THE CASE .................................................................................7

A. Statutory and Regulatory Framework .............................................................7

1. Coordinated expenditures are in-kind contributions subject to 

FECA’s comprehensive disclosure requirements ......................................7

2. The FEC exempts only a narrow category of unpaid internet 

communications from regulation as “coordinated communications” ........9

3. Statutory framework for FEC administrative complaints........................11

B. Factual Background.......................................................................................12

C. Proceedings Below........................................................................................15

SUMMARY OF ARGUMENT...............................................................................18

STANDARD OF REVIEW.....................................................................................21

ARGUMENT...........................................................................................................21

I. Plaintiffs Have Standing to Bring Their FECA Claim.......................................21

A. Plaintiffs have suffered informational injury ................................................23

1. The dismissal of their administrative complaint deprives plaintiffs 

of information that FECA requires to be disclosed..................................23

2. The factual information plaintiffs seek is not available to them..............26

a. Existing FEC filings lack the requisite information about Correct 

the Record’s undisclosed in-kind contributions to Clinton.................27

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 4 of 83
v

b. A “hypothetical” reconstruction of the FECA disclosure 

information plaintiffs seek does not rectify their informational 

harm ....................................................................................................30

3. Both plaintiffs demonstrated that their inability to access FECA 

disclosure information directly and concretely injures their interests .....33

B. Campaign Legal Center also suffers organizational injury, providing an 

alternative basis for standing that the district court failed to address ...........36

II. Plaintiffs’ Standing Is Not Categorically Precluded by Wertheimer v. FEC .....39

A. Wertheimer does not foreclose standing where plaintiffs fail to receive 

specific, FECA-required factual information that is neither 

“duplicative” nor “trivial” .............................................................................41

B. The broad informational rights in FECA are not vindicated by partial 

disclosure.......................................................................................................48

CONCLUSION .......................................................................................................53

CERTIFICATE OF COMPLIANCE.......................................................................54

CERTIFICATE OF SERVICE................................................................................55

ADDENDUM...........................................................................................................--

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 5 of 83
vi

TABLE OF AUTHORITIES

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

Cases: Page

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) (en banc)............................................................52

Alliance for Democracy v. FEC, 

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

Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 

946 F.3d 615 (D.C. Cir. 2020) ...............................................................37, 38, 39

Buckley v. Valeo, 424 U.S. 1 (1976)..........................................................7, 8, 51, 52

Campaign Legal Center v. FEC,

334 F.R.D. 1 (D.D.C. 2019) ...............................................................................16

Campaign Legal Center v. FEC, 

245 F. Supp. 3d 119 (D.D.C. 2017) (“CLC I”) ............................................25, 57

Campaign Legal Center & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) (“CLC II”).......................................23, 34, 35, 49

Comm. on the Judiciary of U.S. House of Representatives v. McGahn, 

968 F.3d 755 (D.C. Cir. 2020) (en banc)..................................................2, 21, 22

Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988) ...........................................................................12

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) .........................................................24, 45, 46, 49

Citizens for Responsibility and Ethics in Washington v. 

Am. Action Network, 410 F. Supp. 3d 1 (D.D.C. 2019) .....................................50

Citizens for Responsibility and Ethics in Washington v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) (“CREW 2007”) ..........................................45, 46

Citizens for Responsibility and Ethics in Washington v. FEC, 

799 F. Supp. 2d 78 (D.D.C. 2011) .....................................................................29

Ctr. for Individual Freedom v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012) ...........................................................................24

*FEC v. Akins,

524 U.S. 11 (1998) .....................................2, 5, 19, 20, 22, 23, 33, 34, 35, 50, 52

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 6 of 83
vii

Free Speech for People v. FEC, 

442 F. Supp. 3d 335 (D.D.C. 2020) ...................................................................46

Friends of Animals v. Jewell, 

824 F.3d 1033 (D.C. Cir. 2016) .........................................................................21

Friends of Animals v. Jewell, 

828 F.3d 989 (D.C. Cir. 2016) .....................................................................34, 50

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) ...........................................................................................50

Judicial Watch, Inc. v. FEC, 

293 F. Supp. 2d 41 (D.D.C. 2003) .....................................................................44

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) ...........................................................................................21

Maloney v. Murphy, 

984 F.3d 50 (D.C. Cir. 2020) .................................................................21, 47, 52

McConnell v. FEC, 

540 U.S. 93 (2003) .........................................................................................7, 51

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

797 F.3d 1087 (D.C. Cir. 2015) .............................................................36, 37, 39

Public Citizen v. DOJ, 

491 U.S. 440 (1989) ...........................................................................................22

Spokeo, Inc. v. Robins, 

136 S. Ct. 1540 (2016) .......................................................................................47

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004) .....................................................................11

Shays v. FEC, 

528 F.3d 914 (D.C. Cir. 2008) (“Shays III”)............................................3, 24, 48

*Wertheimer v. FEC, 

268 F.3d 1070 (D.C. Cir. 2001) ...........4, 6, 19, 24, 29, 38, 41, 42, 43, 44, 48, 49

Zivotofsky ex rel. Ari Z. v. Secretary of State, 

444 F.3d 614 (D.C. Cir. 2006) ...........................................................................50

Statutes:

28 U.S.C. § 1291 .......................................................................................................5

28 U.S.C. § 1331 .......................................................................................................6

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 7 of 83
viii

52 U.S.C. § 30101(8)(A)(i) .......................................................................................7

52 U.S.C. § 30101(8)(A)(ii) ..................................................................................... 7

52 U.S.C. § 30104 ...........................................................................................2, 8, 26

52 U.S.C. § 30104(b)(2)............................................................................................3

52 U.S.C. § 30104(b)(2)(D).................................................................................8, 32

52 U.S.C. § 30104(b)(3)......................................................................................8, 24

52 U.S.C. § 30104(b)(3)(B).....................................................................................32

52 U.S.C. § 30104(b)(4)(H)(i).............................................................................9, 41

52 U.S.C. § 30104(b)(5)(A).................................................................................9, 32

52 U.S.C. § 30104(b)(6)(B)(i).......................................................................9, 32, 41

52 U.S.C. § 30109(a)(1) ..........................................................................................11

52 U.S.C. § 30109(a)(3) ..........................................................................................11

52 U.S.C. § 30109(a)(4)(A).....................................................................................11

52 U.S.C. § 30109(a)(5) ..........................................................................................11

52 U.S.C. § 30109(a)(6)(A).....................................................................................11

52 U.S.C. § 30109(a)(8) ....................................................................................15, 41

52 U.S.C. § 30109(a)(8)(A).................................................................................6, 12

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

52 U.S.C. § 30109(a)(9) ......................................................................................6, 12

52 U.S.C. § 30116(a)...........................................................................................8, 26

52 U.S.C. § 30116(a)(7)(B).................................................................................3, 24

52 U.S.C. § 30116(a)(7)(B)(i) ...............................................................................7, 9

52 U.S.C. § 30116(d)(2)....................................................................................19, 43

52 U.S.C. § 30118 .....................................................................................................8

Regulations and Rulemaking Documents:

11 C.F.R. § 100.26.............................................................................................10, 14

11 C.F.R. § 100.155.................................................................................................10

11 C.F.R. § 104.13(a) ............................................................................................3, 8

11 C.F.R. § 109.20(a) ................................................................................................9

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 8 of 83
ix

11 C.F.R. § 109.20(b)................................................................................................8

11 C.F.R. § 109.21.........................................................................................9, 10, 14

11 C.F.R. § 109.21(a)(1)............................................................................................9

11 C.F.R. § 109.21(b)................................................................................................8

11 C.F.R. § 109.21(c) ..............................................................................................10

11 C.F.R. § 109.21(d)..............................................................................................10

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

(Explanation & Justification) .......................................................................10, 11

Other Materials:

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

(No. 00-5371), 2001 WL 36037938...................................................................42

Instructions for FEC Form 3P and Related Schedules, FEC, https://www.

fec.gov/resources/cms-content/documents/fecfrm3pi.pdf....................................8

S. Rep. No. 92-229 (1971).................................................................................. 8, 51

S. Rep. No. 93-689 (1974).......................................................................................51

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 9 of 83
x

GLOSSARY OF ABBREVIATIONS

APA Administrative Procedure Act

CLC Campaign Legal Center

CREW Citizens for Responsibility and Ethics in Washington

FEC Federal Election Commission

FECA Federal Election Campaign Act

PETA People for the Ethical Treatment of Animals

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 10 of 83
1

INTRODUCTION

In the run-up to the 2016 elections, the super PAC Correct the Record declared 

an ambitious plan to spend millions of dollars on opposition research and media 

outreach to support then-presidential candidate Hillary Clinton—while openly 

coordinating with her campaign, Hillary for America (“Clinton campaign”). JA 47-

48 ¶¶ 64-67. Correct the Record, intervenor here alongside Hillary for America,

1

claimed that this would not give rise to any in-kind contributions to Clinton subject 

to disclosure or regulation under the Federal Election Campaign Act (“FECA” or 

“the Act”), because Correct the Record would engage only in the types of unpaid 

internet communications that FEC regulations exempt from the statutory 

coordination regime. JA 32-33 ¶¶ 2, 65-66. 

But its activities were not so confined. Plaintiffs-Appellants Campaign Legal 

Center and Catherine Hinckley Kelley (collectively, “plaintiffs”) filed an 

administrative complaint with the FEC after widespread news reports indicated that 

Correct the Record and Hillary for America were coordinating on a host of 

activities—including campaign surrogate training, opposition research and tracking,

polling, and media rapid-response efforts—“which are not fairly characterized as 

‘communications’” exempt from the coordination rules. JA 188. Nevertheless, and 

1 Defendant Federal Election Commission (“FEC”) did not appear in the district 

court after a vote to authorize defense of suit failed 3-1, JA 53 ¶ 83; JA 254, and has 

not appeared in this appeal.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 11 of 83
2

contrary to the recommendation of the FEC’s Office of General Counsel, the 

Commission split 2-2 on whether there was reason to believe this massive joint 

undertaking gave rise to any “unreported, excessive, and prohibited in-kind 

contributions” from Correct the Record to the Clinton campaign, and dismissed 

plaintiffs’ complaint. JA 208, 252-55. Plaintiffs filed this action to challenge the 

dismissal as contrary to law. 

* * *

Despite the complexity of intervenors’ coordination scheme and their 

elaborate arguments defending its legality, this appeal boils down to a simple 

question: have plaintiffs shown an injury-in-fact arising from the dismissal of their 

administrative complaint sufficient to establish standing under Article III?

The answer is equally simple: yes. Plaintiffs’ administrative complaint

charged, among other things, that Correct the Record and Hillary for America 

violated 52 U.S.C. § 30104 by failing to disclose any of the in-kind contributions 

made by Correct the Record or received by Hillary for America in the course of their 

multi-million dollar joint venture. JA 162-63, Counts IV & V. Under FEC v. Akins,

524 U.S. 11 (1998), this missing disclosure information—encompassing the 

amounts, dates, and purposes of each in-kind contribution that resulted from 

intervenors’ coordinated spending—“establishes a quintessential injury in fact.”

Comm. on the Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 12 of 83
3

762 (D.C. Cir. 2020) (en banc) (citing Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 

2008) (“Shays III”)). 

The complication in this case—a complication generating dozens of pages of 

ink spilled and two conflicting district court opinions below—arose not from the

nature of plaintiffs’ informational deprivation, but from the defense intervenors

asserted in an effort to “cure” it. Intervenors did not contend that they reported the 

information FECA requires with respect to these contributions, see 52 U.S.C. 

§§ 30104(b)(2), 30116(a)(7)(B); 11 C.F.R. § 104.13(a); instead, they argued that 

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

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

in the 2015-16 election cycle. 

That claim is wrong. Correct the Record’s existing reports do not contain the 

requisite information about the amounts, dates, and purposes of the contributions it

made to Clinton via coordinated expenditures; nor can that information be feasibly 

reconstructed from other sources. Correct the Record primarily reported

undifferentiated disbursements for general overhead expenses like payroll, salary, or 

travel, or mixed-purpose disbursements covering both non-exempt and potentially 

exempt activities, without describing any in a manner that would allow plaintiffs to 

distinguish coordinated expenditures from non-coordinated or exempt activities.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 13 of 83
4

What the district court wrestled with so mightily below—coming to opposite 

conclusions at different junctures of this litigation based on the same facts—was 

whether this “form” of reporting suffices to provide plaintiffs with the information 

they are due under FECA. It recognized that Correct the Record reported its 

disbursements only in general terms (e.g., “salary” or “travel”), making it impossible 

to discern which disbursements, in whole or part, funded its undisclosed 

contributions to Hillary for America. At the motion to dismiss phase, the court 

accordingly concluded that “without itemized disclosures, [plaintiff] has no

information as to the actual amount of money that, in its view, should have been 

considered a contribution or expenditure under the Act,” JA 95 (emphasis added), 

and thus “has proven its informational injury,” JA 100. The court also recognized 

that the FEC’s dismissal allowed intervenors to coordinate and conceal potentially 

millions of dollars in contributions, thereby depriving plaintiffs of FECA-required 

information and “creat[ing] a loophole that effectively vitiates the plain language of 

FECA.” JA 106. 

In ruling on cross-motions for summary judgment six months later, however, 

the court had a change of heart—not because plaintiffs had failed to meet their 

heightened burden or intervenors presented new arguments, but based on the court’s 

independent conclusion that its “previous Opinion did not sufficiently take account 

of” the “rule” of Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001), which 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 14 of 83
5

“spell[ed] doom for Plaintiffs’ standing.” JA 294-95. The court now believed the 

information that remained outstanding was more in line with a legal finding of 

coordination. Although acknowledging that this still “may sound like a factual 

determination—i.e., the campaign and PAC in fact coordinated,” it concluded that

plaintiffs have “no standing to sue.” JA 295-96, 297. 

This second ruling, however reluctantly reached, was in error. The Supreme 

Court has made clear that 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. None of the in-kind contributions resulting from intervenors’ 

coordination scheme have been disclosed in any form, nor is the information FECA 

requires otherwise available to plaintiffs. Recasting the statutory requirement that 

political committees disclose in detail the amounts, dates, and purposes of all 

contributions as a “legal determination” simply because the contributions take the 

form of coordinated expenditures “vitiates” FECA’s goal of ensuring transparency 

in the funding of candidate campaigns. 

The district court’s dismissal of this action for lack of standing should be 

reversed and the case remanded for further proceedings.

JURISDICTIONAL STATEMENT

This Court has jurisdiction over this timely appeal from a final order in the 

U.S. District Court for the District of Columbia under 28 U.S.C. § 1291 and 52 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 15 of 83
6

U.S.C. § 30109(a)(9). The district court exercised jurisdiction of the case under 28 

U.S.C. § 1331 and 52 U.S.C. § 30109(a)(8)(A). Plaintiffs timely filed this Appeal 

on April 7, 2021, within sixty days of the district court’s decision and order entered 

February 12, 2021, and also appeal the district court’s interlocutory order and 

opinion entered December 2, 2020.

Plaintiffs-Appellants have standing for the reasons detailed herein.

ISSUES PRESENTED

1. Whether the district court erred in ruling that plaintiffs suffered no 

cognizable Article III injury when plaintiffs have been deprived of statutorily 

required information regarding the true amounts, dates, and purposes of the inkind contributions that the Clinton campaign received from Correct the Record, a 

supposedly “independent” committee that in fact coordinated with the candidate’s 

campaign. 

2. Whether the district court erred in interpreting Wertheimer v. FEC, 

268 F.3d 1070 (D.C. Cir. 2001), to circumscribe plaintiffs’ informational rights 

merely because the FECA-required disclosure information they lack involves 

contributions that took the form of coordinated expenditures. 

STATUTES AND REGULATIONS

All applicable statutory and regulatory provisions are reproduced in the 

Addendum to this brief.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 16 of 83
7

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

1. Coordinated expenditures are in-kind contributions subject to 

FECA’s comprehensive disclosure requirements.

The Act defines “contribution” as a “gift . . . of money or anything of value 

made by any person for the purpose of influencing any election for Federal office.” 

52 U.S.C. § 30101(8)(A)(i). 

FECA “has always treated expenditures made ‘at the request or suggestion of’ 

a candidate as coordinated,” McConnell v. FEC, 540 U.S. 93, 221-22 (2003), and 

regulated them “as contributions rather than expenditures . . . [to] prevent attempts 

to circumvent the Act through prearranged or coordinated expenditures amounting 

to disguised contributions.” Buckley v. Valeo, 424 U.S. 1, 46-47, 67 (1976) (per 

curiam). Accordingly, all expenditures made “in cooperation, consultation, or 

concert, with, or at the request or suggestion of, a candidate, his authorized political 

committees, or their agents” (i.e., coordinated expenditures) are in-kind 

contributions to that candidate. 52 U.S.C. § 30116(a)(7)(B)(i). In-kind contributions 

also include “the payment . . . of compensation for the personal services of another 

person which are rendered to a political committee without charge for any purpose.” 

Id. § 30101(8)(A)(ii).

Like all contributions to candidates, those taking the form of coordinated 

expenditures are subject to FECA’s comprehensive disclosure requirements—which 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 17 of 83
8

were crafted to “expos[e] large contributions and expenditures to the light of 

publicity,” Buckley, 424 U.S. at 67, and ensure that voters “know exactly how a 

candidate’s campaign is financed,” S. Rep. No. 92-229, at 57 (1971)—as well as its

contribution limits and source restrictions. See 52 U.S.C. §§ 30104, 30116(a),

30118; 11 C.F.R. §§ 104.13(a), 109.20(b), 109.21(b). 

For each reporting period and the calendar year, a candidate-authorized 

committee must disclose the total contributions received from other committees, 

including in-kind contributions in the form of coordinated expenditures. 52 U.S.C. 

§ 30104(b)(2)(D). The candidate’s report must also itemize all contributions 

received from other committees, including those in the form of coordinated 

expenditures, and for each contribution, state its date, value, and whether it was in 

support of the candidate’s primary or general election. Id. § 30104(b)(3)(B); see

Instructions for FEC Form 3P and Related Schedules 5, FEC (updated May 2016). 

Because in-kind contributions received by a candidate’s campaign are also 

functional “expenditures” of that campaign, the report must disclose a coordinated 

expenditure in two ways: as a contribution received and an expenditure made by the 

candidate. 11 C.F.R. §§ 104.13(a), 109.20(b), 109.21(b).

Likewise, for each reporting period and the election cycle, a non-candidate

committee must disclose its total contributions to other committees, including inkind contributions in the form of coordinated expenditures. A committee must 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 18 of 83
9

itemize each contribution made to another committee, including its coordinated 

expenditures, stating for each the date, amount, and recipient’s name and address. 

52 U.S.C. § 30104(b)(4)(H)(i), (6)(B)(i). In addition, because in-kind contributions 

by a committee are also expenditures of that committee, the report must disclose the 

person to whom each expenditure is made and its date, amount, and purpose. Id. 

§ 30104(b)(5)(A).2

2. The FEC exempts only a narrow category of unpaid internet 

communications from regulation as “coordinated communications.”

Adopting language from 52 U.S.C. § 30116(a)(7)(B)(i), FEC regulations 

define “coordination” as expenditures “in cooperation, consultation or concert with, 

or at the request or suggestion of, a candidate, a candidate’s authorized committee, 

or a political party committee.” 11 C.F.R. § 109.20(a). 

In addition to this general coordination regulation, the FEC has also 

promulgated rules defining a subset of coordinated expenditures made for certain 

“coordinated communications.” Id. § 109.21. To qualify as coordinated under 

section 109.21, a communication must (1) be paid for by a person other than the 

candidate, id. § 109.21(a)(1); (2) satisfy one of the content standards set forth in 

section 109.21(c); and (3) satisfy one of the conduct standards set forth in section

2 These disclosure requirements apply to all non-authorized political committees, 

including hybrid or “Carey committees” like Correct the Record. See JA 45 ¶¶ 56-

57.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 19 of 83
10

109.21(d). The “content” standards in section 109.21(c) cover only “public 

communications,” which include communications made by “broadcast, cable, or 

satellite communication, newspaper, magazine, outdoor advertising facility, mass 

mailing, or telephone bank to the general public, or any other form of general public 

political advertising.” Id. § 100.26.

In its 2006 “internet rulemaking,” the FEC carved out a narrow exception to 

the definition of “public communications” for “communications over the Internet” 

that are not “placed for a fee on another person’s Web site.” See Internet 

Communications, 71 Fed. Reg. 18589, 18613 (Apr. 12, 2006) (Explanation & 

Justification). Therefore, unpaid internet communications are not public 

communications and cannot be “coordinated communications” under 11 C.F.R. 

§ 109.21, but expenditures for paid internet communications are not exempt. To 

maintain consistency across its rules, the FEC also exempted “Internet activity” by 

individuals and groups of individuals from the regulatory definitions of 

“contribution,” id. § 100.94, and “expenditure,” id. § 100.155, provided this activity 

was “uncompensated.” 71 Fed. Reg. at 18604 (emphasis added).

This “internet exception” was necessarily narrow, because it responded to a 

judicial ruling striking down the FEC’s prior rule that had exempted the internet 

entirely from the coordination rules and was found to conflict with the Act’s clear 

terms, “severely undermine” its purposes, and “create the potential for gross abuse.” 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 20 of 83
11

Shays v. FEC, 337 F. Supp. 2d 28, 69-70, 72 (D.D.C. 2004). Accordingly, in its 2006 

Explanation and Justification, the FEC made clear that many payments underlying 

exempt internet activity were still “expenditures” under the rules, even where those 

payments supported eventual exempt internet communications. For example, “a 

political committee’s purchase of computers for individuals to engage in Internet 

activities for the purpose of influencing a Federal election, remains an ‘expenditure’ 

by the political committee,” even if the internet activities conducted on that 

computer may have been exempt. 71 Fed. Reg. at 18606. 

3. Statutory framework for FEC administrative complaints.

Any person may file a complaint with the FEC alleging a violation of the Act. 

52 U.S.C. § 30109(a)(1). After reviewing the complaint, any responses thereto, and 

the Office of General Counsel’s recommendations, the Commission votes on 

whether there is sufficient “reason to believe” that a FECA violation occurred to 

justify an investigation. After any investigation, if the Commission determines that 

there is probable cause to believe the law has been violated, id. § 30109(a)(3), it 

seeks a conciliation agreement with the respondent, which may include civil 

penalties, id. § 30109(a)(4)(A), (5). If the Commission is unable to correct the 

violation and enter a conciliation agreement, it may institute a civil action in federal 

district court. Id. § 30109(a)(6)(A). All of these decisions require four affirmative 

votes.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 21 of 83
12

If, at any of these decision-making junctures, fewer than four Commissioners 

vote to proceed, the Commission may vote to dismiss the complaint and the 

“controlling” group of Commissioners who voted not to proceed must issue a 

Statement of Reasons to serve as the basis for any judicial review. Common Cause 

v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). “Any party aggrieved” by the dismissal 

of its FEC complaint may seek review in the U.S. District Court for the District of 

Columbia to determine whether the dismissal was “contrary to law,” 52 U.S.C. 

§ 30109(a)(8)(A), (B), and appeal any such decisions to this Court, id. § 30109(a)(9).

B. Factual Background

On October 6, 2016, plaintiffs filed a sworn administrative complaint 

(designated Matter Under Review 7146) against Correct the Record and Hillary for 

America for failing to disclose Correct the Record’s in-kind contributions to the 

Clinton campaign in the form of coordinated expenditures and for violating FECA’s 

contribution restrictions. JA 46 ¶ 62.

Plaintiffs’ administrative complaint—one of five raising similar concerns—

documented millions of dollars Correct the Record spent on opposition research, 

message development, and press outreach for the benefit of Clinton’s campaign. JA 

47 ¶¶ 63, 72. Correct the Record’s leadership publicly admitted to the news media 

that its activities were coordinated with Hillary for America but claimed that 

virtually all of the group’s expenditures involved exempt “communications over the 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 22 of 83
13

Internet.” JA 47-48 ¶ 66. This claim, however, as the plaintiffs argued, was 

contradicted by unrefuted reports that Correct the Record had spent millions of 

dollars on numerous non-communication activities, such as paying staff to build 

relationships with reporters; contracting with consultants to provide “on-camera 

media training” for Clinton supporters and surrogates; hiring private polling firms; 

and paying for extensive travel. JA 48-50 ¶¶ 68-71.

After reviewing plaintiffs’ complaint together with the four other complaints, 

respondents’ written replies, and other available evidence, the FEC’s Office of 

General Counsel recommended the Commission find reason to believe that Correct 

the Record and Hillary for America violated FECA by making and accepting 

excessive and prohibited in-kind contributions and failing to report those 

contributions. JA 51 ¶ 74. The General Counsel’s Report rejected claims by 

respondents that Correct the Record’s expenditures were communications covered 

by the internet exception, and instead found that most of its approximately $9 million 

in spending went toward a “wide array of activities, most of which are not fairly 

characterized as ‘communications.’” JA 51 ¶ 75 (emphasis in original). The Report

also noted that in responding to the administrative complaints, neither Correct the 

Record nor Hillary for America had disputed “the description or scope of [Correct 

the Record’s] activities on behalf of [Hillary for America] as set forth in [plaintiffs’ 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 23 of 83
14

administrative complaint].” JA 51 ¶ 76. Nor did either dispute that their myriad noncommunication activities were, in fact, coordinated. JA 52 ¶ 79.

On June 4, 2019, the FEC’s then-four Commissioners deadlocked 2-2 on 

whether to find reason to believe that Correct the Record and/or Hillary for America

had violated any provision of the Act, and dismissed the administrative complaint. 

JA 252-55. 

On August 21, 2019, the two controlling Commissioners issued their 

Statement of Reasons. JA 256-73; see also JA 53 ¶ 85. They drew the opposite 

conclusion from the Office of General Counsel. With respect to Correct the Record’s 

expenditures that the controlling Commissioners believed related to internet 

communications—“for example, computer equipment, office space, software, web 

hosting, video equipment, placing a poll online, and salaries for individuals to 

conduct internet activity,” JA 267—the Commissioners determined they were 

exempt internet communications, or “input costs” for such communications, under 

11 C.F.R. § 109.21. 

Their theory was that an expenditure cannot be “coordinated” if it in any way 

supports, or can be retrospectively “associated” with, an internet communication 

exempt from the definition of “public communication” in 11 C.F.R. § 100.26. They 

also rejected the possibility that overhead expenditures must be allocated across the 

exempt and non-exempt activities they supported, claiming that “exempting only 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 24 of 83
15

those component fees deemed essential for the internet communication’s placement 

would eviscerate the internet exemption . . . and potentially chill political speech 

online.” JA 268.

As for the universe of Correct the Record’s spending that even the controlling 

Commissioners conceded was “unrelated to creating and disseminating online 

political communications,” JA 266, they argued that plaintiffs had not alleged facts 

sufficient to establish coordination conclusively, “transaction-by-transaction,” and 

had “fail[ed] to meet their burden.” JA 271. In so holding, the Commissioners chose 

to disregard public statements by Correct the Record, as provided in plaintiffs’

complaint and otherwise obtained by the Office of General Counsel, see JA 119-21

¶¶ 9-12; JA 125-27 ¶¶ 24, 26-27; JA 190-91, 194-95, as well as corroborating 

documents posted on Wikileaks that were presented by complainants other than

Campaign Legal Center, JA 194-96. They also did not address that, as the General 

Counsel’s Report noted, respondents never denied that many of these activities were 

in fact coordinated. 

C. Proceedings Below 

Plaintiffs filed this action under 52 U.S.C. § 30109(a)(8) and the 

Administrative Procedure Act (“APA”) on August 2, 2019, challenging the dismissal 

of their FEC complaint as contrary to law, and arbitrary, capricious and an abuse of 

discretion. JA 8. On August 21, 2019, seventy-eight days after dismissing the 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 25 of 83
16

administrative complaint, the controlling Commissioners issued their Statement of 

Reasons, and plaintiffs amended their complaint on October 29, 2019 to address its 

belated issuance. JA 32-61.

The FEC has not appeared to defend this action, but Correct the Record and

Hillary for America sought and were granted the right to do so in the agency’s place

as Defendant-Intervenors, over plaintiffs’ objection. JA 91; Campaign Legal Center

v. FEC, 334 F.R.D. 1 (D.D.C. 2019).

On February 4, 2020, intervenors moved to dismiss for lack of standing and 

failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 

In opposing the motion, plaintiffs submitted two declarations substantiating their 

standing claims, see JA 96, one from Plaintiff Kelley, JA 68-70, and one from 

Brendan Fischer, Director of Federal Reform at Campaign Legal Center. JA 71-82. 

On June 4, 2020, the district court denied the motion, holding that plaintiffs had 

“proven [their] standing” and “present[ed] significant and largely uncontroverted 

evidence that the Commission’s dismissal of [their] administrative complaint was 

‘contrary to law.’” JA 111. 

In ruling on the motion to dismiss, the court rejected intervenors’ argument 

that Correct the Record had included all FECA-required information about the 

alleged coordinated spending in its 2015-16 FEC committee reports, noting that 

“CLC has no information as to the actual amount of money that, in its view, should 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 26 of 83
17

have been considered a contribution or expenditure under the Act.” JA 95. 

Accordingly, the court concluded that plaintiffs had been deprived of factual 

information about the contributions that Correct the Record made to Hillary for 

America via coordinated expenditures, including their amounts, dates, and 

purposes—and that it was “clear” this “information would help” plaintiffs and 

“advance CLC’s mission of ‘improving democracy and promoting representative, 

responsive, and accountable government for all citizens.’” JA 94-95.

The parties then briefed cross-motions for summary judgment on the merits, 

with intervenors simultaneously renewing their challenge to plaintiffs’ standing. 

“After previously coming out the other way,” the court “reverse[d] field,” JA 291, 

based on its own reconsideration of the applicable law. Explaining this reversal as 

compelled by precedent and necessary to correct the “error” of its earlier decision,

JA 288, the district court now determined that “plaintiff[s] lack[] a cognizable 

informational injury” because, the court believed, the information plaintiffs seek was 

“reported in some form” in Correct the Record’s existing FEC filings. JA 294. 

According to the court, providing plaintiffs with further factual information about 

the undisclosed contributions would amount to a mere “legal determination,” JA 

296, and was “precluded by a faithful reading of Wertheimer.” JA 297.

The court then ordered further briefing on whether plaintiffs could maintain 

their APA claim even if they lacked standing with respect to their FECA claim. In 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 27 of 83
18

the end, it dismissed this claim too, entering its final order dismissing the case on 

February 12, 2021. JA 309. This appeal followed. JA 318.

SUMMARY OF ARGUMENT

Plaintiffs appeal because the district court’s ruling that plaintiffs lack standing 

is premised on three legal errors.

First, importantly, this is not a factual dispute. The district court agreed that 

neither intervenor disclosed (and the public record does not otherwise reveal) the 

detailed, FECA-required information plaintiffs seek regarding Correct the Record’s 

in-kind contributions to the Clinton campaign, itemized with their specific amounts, 

dates, and purposes. Instead, the court focused on the degree to which some of this 

information could be “hypothetical[ly]” deduced from Correct the Record’s existing 

FEC reports—by, for instance, disaggregating “lump sum” overhead disbursements 

into constituent coordinated “sub-expenditures,” or intuiting “purposes” for such 

sub-expenditures that had not been reported. See JA 301-02. 

This entire line of inquiry was in error. The basis for plaintiffs’ informational

injury is clear—their failure to obtain the FECA-required information sought in their 

administrative complaint about Correct the Record’s unreported contributions to the 

Clinton campaign. Once it was also clear that the existing public record could not 

supply all statutorily required information, the inquiry should have been at an end. 

A plaintiff that “suffers an ‘injury in fact’” under Akins because it “fails to obtain 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 28 of 83
19

information which must be publicly disclosed pursuant to a statute,” 524 U.S. at 21,

need not settle for hypothetical accounts of what the missing disclosures might be—

particularly where, as here, the effort could be no more than partially successful. 

Second, the district court suggests that wherever a plaintiff seeks information 

about contributions that are clearly subject to disclosure under the Act but may also 

implicate a collateral “legal determination”—for instance, “that [Correct the Record]

vastly exceeded the $2,700 contribution limit and improperly used union and 

corporate funds in doing so,” JA 296—the plaintiff’s failure to obtain FECArequired disclosures about those contributions can never support informational 

standing. This is not how informational injuries work. A “finding of coordination” 

can lead to a legal determination that FECA’s contribution restrictions were violated

and prompt statutory disclosure obligations. A plaintiff’s failure to receive all 

FECA-required information about a contribution is no less injurious simply because 

the undisclosed contribution could also implicate other FECA violations. 

To hold otherwise is a distortion of Wertheimer. That case involved a request 

to construe terms in the Presidential Election Campaign Fund Act such that a class 

of political party expenditures coordinated with presidential candidates would 

constitute contributions to those candidates, and thus, would be prohibited when they 

supported publicly funded candidates. 268 F.3d at 1071. But the expenditures 

plaintiffs wanted to require candidates to report as contributions were already 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 29 of 83
20

required to be disclosed and itemized by political parties in a way that revealed all 

pertinent information about each transaction—they were designated “§ 441a(d) 

expenditures,” or party-coordinated expenditures,3 and reported with their amounts, 

dates, and purposes. Declaring again that those expenditures were “coordinated” 

therefore would amount to only a “legal conclusion” that the expenditures were 

unlawful. Id. at 1075.

Wertheimer’s holding was that a plaintiff lacks informational injury if all it 

seeks is a legal conclusion or entirely duplicative reporting. It does not categorically 

preclude a finding of Article III injury simply because a plaintiff’s informational 

harm stems from undisclosed coordinated expenditures, as the district court 

extrapolated incorrectly below. Indeed, interpreting Wertheimer in this way puts it 

in considerable tension with Akins, which underscored that FECA reflects “a 

congressional intent to cast the standing net broadly.” 524 U.S. at 19.

Third, in addition to misconceiving plaintiffs’ informational injury and 

misapplying Wertheimer, the district court erred in failing to consider whether 

plaintiff Campaign Legal Center had demonstrated a distinct organizational injury

that would suffice to confer standing. The court initially found in its June 2020 

decision that Campaign Legal Center had sufficiently pled organizational injury, 

3 Section 441a(d) was editorially reclassified as 52 U.S.C. § 30116(d), and pertains 

to expenditures by national and state party committees “in connection with general 

election campaign of candidates for Federal office.” See also infra note 6.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 30 of 83
21

although it did not make explicit if this was a stand-alone basis for standing. In its 

December 2020 ruling, the court found no informational injury due to deprivation of 

FECA-mandated information, but did not address whether Campaign Legal Center

had nevertheless suffered an organizational injury sufficient to meet Article III 

standards.

For all these reasons, the district court’s December decision should be 

reversed and the case remanded for further proceedings.

STANDARD OF REVIEW

This Court “review[s] questions of standing de novo.” Maloney v. Murphy, 

984 F.3d 50, 58 (D.C. Cir. 2020) (citing Blumenthal v. Trump, 949 F.3d 14, 18 (D.C. 

Cir. 2020)). “In doing so, [the Court] accepts as true the plaintiffs’ material factual 

allegations, and . . . assume[s] that the [plaintiffs] would prevail on the merits of their 

lawsuit.” Id. (citing McGahn, 968 F.3d at 762).

ARGUMENT

I. Plaintiffs Have Standing to Bring Their FECA Claim.

To show Article III standing, plaintiffs must establish three elements: (1) 

“injury in fact”; (2) causation; and (3) redressability. Friends of Animals v. Jewell, 

824 F.3d 1033, 1040-41 (D.C. Cir. 2016). Each “element” of standing must be 

supported “with the manner and degree of evidence required at the successive stages 

of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 31 of 83
22

Plaintiffs’ injury—the deprivation of information to which they are entitled 

under FECA regarding the undisclosed in-kind contributions alleged in their 

administrative complaint—is directly traceable to the FEC’s dismissal of their 

complaint. And the relief they seek—an order declaring the dismissal contrary to 

law—would unquestionably redress their injuries. See Akins, 524 U.S. at 25. Neither 

proposition was seriously contested below. The only real question in this appeal is

whether plaintiffs have shown a cognizable “injury in fact,” and specifically, 

whether the informational deprivation that caused their injuries satisfies the 

standards of Article III. 

It clearly does. “[T]he denial of information to which the plaintiff claims to 

be entitled by law establishes a quintessential injury in fact.” McGahn, 968 F.3d at

766 (discussing Akins and Public Citizen v. DOJ, 491 U.S. 440 (1989)). Here, FECA 

entitles plaintiffs to comprehensive disclosure of the in-kind contributions Correct 

the Record made and Clinton’s campaign received in the form of coordinated 

expenditures—including itemized information about their dates, amounts, and 

purposes. There is no dispute that FECA requires this disclosure, nor that intervenors

never provided it. In short, there is no question that the “statute (on the claimant’s 

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

to doubt their claim that the information would help them.’” Campaign Legal Center

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 32 of 83
23

& Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (“CLC II”) (citation 

omitted). Plaintiffs have demonstrated their standing.

A. Plaintiffs have suffered informational injury.

1. The dismissal of their administrative complaint deprives plaintiffs of 

information that FECA requires to be disclosed.

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. In Akins, the Supreme Court held that the plaintiffs had suffered an injury in 

fact because they had been unable “to obtain information—lists of AIPAC 

donors . . . and campaign-related contributions and expenditures—that, on [the 

plaintiffs’] view of the law, the statute requires that AIPAC make public.” Id. 

Because the plaintiffs had been deprived of that information and there was “no 

reason to doubt” that the concealed information would be helpful for evaluating 

candidates and their relationships with AIPAC, the plaintiffs’ injury was sufficient 

to confer standing. Id.

Consistent with Akins, this Court has recognized that plaintiffs are injured in 

fact when an alleged FECA violation causes the concealment of information that is 

required to be disclosed under the statute, including information about coordinated 

expenditures. For example, in Shays III, this Court held that the plaintiff had standing 

under Akins to sue the FEC for promulgating an unlawfully narrow “coordinated 

communications” rule, which would result in presidential candidates failing to 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 33 of 83
24

“report as contributions many expenditures that [the plaintiff] believes [the Act]

requires them to report.” 528 F.3d. at 923. See also Ctr. for Individual Freedom v. 

Van Hollen, 694 F.3d 108, 109 (D.C. Cir. 2012) (per curiam). 

To be sure, Akins standing is unavailable in cases where the “information” 

plaintiffs seek is not factual information at all, but merely a legal determination about 

what FECA prohibits. See Wertheimer, 268 F.3d at 1074 (finding no standing where 

plaintiffs “failed to show either that they are directly being deprived of any 

information or that the legal ruling they seek might lead to additional factual 

information”). That undisputed principle has no bearing on this case, where 

plaintiffs’ injury is not an abstract “interest in having the Executive Branch act in a 

lawful manner,” Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997), but a 

concrete denial of plaintiffs’ statutory right to obtain information.

Specifically, plaintiffs seek information about what expenditures Correct the 

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

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

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

exemption for unpaid online communications. And FECA treats all expenditures 

made “in cooperation, consultation, or concert, with, or at the request or suggestion 

of, a candidate, his authorized political committees, or their agents” as 

“contribution[s] to such candidate,” id. § 30116(a)(7)(B), subject to FECA’s general 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 34 of 83
25

reporting requirements for “contributions.” See supra at 7-9 (Statutory and 

Regulatory Framework).

The district court acknowledged these statutory reporting requirements, JA 

288-89, and no party disputes that FECA requires full, itemized disclosure of a 

political committee’s expenditures made in coordination with a candidate—by both 

the committee and the candidate. The FEC’s failure to require such disclosure from 

Correct the Record and Hillary for America deprives plaintiffs of information that 

FECA requires to be disclosed.

That this outstanding disclosure might also support a legal determination that 

the unreported contributions were excessive or from prohibited sources does not 

obviate plaintiffs’ right to receive the information that FECA requires. See, e.g.,

Campaign Legal Center v. FEC, 245 F. Supp. 3d 119, 122-23 (D.D.C. 2017) (“CLC 

I”) (finding informational injury arising from alleged violations of “straw donor”

prohibition that entails both disclosure obligations and contribution restrictions). 

The district court appeared to believe that where a “finding of coordination” 

implicated a “legal determination”—for instance, “that [Correct the Record] vastly 

exceeded the $2,700 contribution limit and improperly used union and corporate 

funds in doing so,” JA 296—it would not entail the type of “factual information” 

that supports informational standing. This is incorrect. A “finding of coordination” 

can lead to both a legal determination that FECA’s substantive contribution 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 35 of 83
26

restrictions were violated, 52 U.S.C. § 30116(a), and reporting obligations under 52 

U.S.C. § 30104. A plaintiff’s informational harm is no less significant simply 

because a disclosure violation is accompanied by other violations of law.

2. The factual information plaintiffs seek is not available to them. 

No party contends that Correct the Record or Hillary for America actually 

reported any of the in-kind contributions alleged by plaintiffs, or provided the 

itemized information about the amounts, dates, and purposes of such contributions

as FECA requires. Still, the district court ultimately accepted that the information 

plaintiffs seek is already available to them, JA 299, whether through Correct the 

Record’s past FEC filings or through the news reports and other sources cited in 

plaintiffs’ administrative complaint.

4

But plaintiffs have made clear that they do not know the magnitude of 

unreported in-kind contributions arising from this scheme: the public record does 

not reveal which activities were in fact coordinated between Clinton’s campaign and 

4 Although news reports make clear that Correct the Record and Hillary for 

America coordinated some activities that gave rise to reportable in-kind 

contributions, plaintiffs know only the broadest contours of that activity, and nothing 

about the specific coordinated expenditures that funded it. This is a far cry from the 

detailed, verified campaign finance information, provided in disclosure reports filed 

under penalty of perjury, that FECA demands. Plaintiffs need not settle for 

incomplete second-hand information contained in media reports in lieu of the 

comprehensive verified disclosure they are owed under FECA.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 36 of 83
27

Correct the Record, nor the extent to which any of Correct the Record’s reported 

disbursements in fact funded its contributions to Clinton.

Indeed, even after reviewing the groups’ filings and responses to the 

administrative complaint, the FEC’s General Counsel determined that an 

investigation was necessary because “the extent” of Correct the Record’s unreported 

in-kind contributions to the Clinton campaign remained unknown. JA 33 ¶ 4; JA 

209. In similar circumstances, plaintiffs had informational standing to learn the true 

donors behind discrete contributions funneled through corporate entities to super 

PACs even though there were news reports suggesting who those donors might be—

because “the [FEC’s] General Counsel did not believe it knew the entire story about 

the contributions.” CLC I, 245 F. Supp. 3d at 127. So too here: “[i]f the General 

Counsel did not know the whole story then, there is little reason to believe that 

plaintiffs know it now.” Id.

a. Existing FEC filings lack the requisite information about Correct the 

Record’s undisclosed in-kind contributions to Clinton.

Intervenors argued, and the district court ultimately accepted, that because 

Correct the Record’s committee filings from the 2015-16 cycle reported all of the 

group’s disbursements, plaintiffs are suing merely to have that spending “reclassified” as in-kind contributions. JA 303. But this argument is based on the false 

premise that Correct the Record’s reports actually disclose specific, itemized 

“expenditures” that could be “re-classified” as coordinated or non-coordinated. 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 37 of 83
28

During the 2015-16 election cycle, Correct the Record filed periodic reports 

with the FEC disclosing $9.61 million in disbursements. JA 191. It reported no 

contributions to Hillary for America. JA 192.

5 As the FEC’s General Counsel noted, 

most of Correct the Record’s reported disbursements were for purposes that were

“not communication-specific, including payroll, salary, travel, lodging, meals, rent, 

fundraising consulting, computers, digital software, domain services, email services, 

equipment, event tickets, hardware, insurance, office supplies, parking, and 

shipping.” JA 192. Some of its disbursements were “explicitly mixed” between 

communications and non-communications purposes, including “video consulting 

and travel” and “communication consulting and travel.” JA 193. 

These generic and mixed-purpose disbursement descriptions do not reveal 

“[t]he details” of Correct the Record’s in-kind contributions to Hillary for America

“to the same extent” as FECA requires, JA 304, because they make it impossible to 

know whether or the extent to which any given payment supported its coordinated 

expenditures. 

At the motion to dismiss phase, the district court recognized that the available 

reporting could not stand in for the missing FECA-required information, noting that 

“without itemized disclosures, [plaintiff] has no information as to the actual amount 

5 Correct the Record did report receiving two payments from Hillary for America

in 2015, totalling $281,961—comprising less than 3 percent of Correct the Record’s 

total receipts for the election cycle. JA 192.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 38 of 83
29

of money that, in its view, should have been considered a contribution or expenditure 

under the Act.” JA 95. See also id. (“[I]t seems likely that some portion of [Correct 

the Record]’s travel was ‘in cooperation, consultation, or concert, with, or at the 

request or suggestion of’ [Hillary for America] . . . but [plaintiffs] cannot know this 

amount . . . without itemized disclosures.”).

The district court then reversed course, finding that under “a faithful reading 

of Wertheimer,” this missing information amounted to only a legal “finding of 

coordination.” JA 297. The court recognized that under Wertheimer, “it was 

‘conceivable that certain facts are necessarily implied by the label ‘coordinated,’” 

but insisted that plaintiffs had “at no point . . . ever explained what those ‘certain 

facts’ would be.” JA 298 (quoting 268 F.3d at 1075). This ignores the court’s own

prior ruling specifically noting those facts: FECA-required factual information about 

the amounts, dates, and purposes of Correct the Record’s undisclosed in-kind 

contributions to Clinton. See JA 95.

This case is thus unlike the decisions cited by intervenors and the district court 

where all information about an allegedly coordinated expenditure—date, amount, 

purpose, recipient—was known, so it was conceivable to simply move “a PAC’s 

travel expenditures totaling $10,243” from one line on a report to another and 

“reclassify” them as coordinated. See JA 303 (discussing Citizens for Responsibility 

and Ethics in Washington (CREW) v. FEC, 799 F. Supp. 2d 78, 89 (D.D.C. 2011)).

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 39 of 83
30

The same is not true here; even in its second opinion, the district court recognized

that Correct the Record’s reported disbursements would have to be “disaggregated” 

into more meaningful “sub-expenditures” to reveal the FECA-required information 

that remains undisclosed. JA 301. But there is no such thing as a “sub-expenditure.” 

There are the “already-reported” general disbursements that Correct the Record did 

disclose and the in-kind contributions that neither intervenor disclosed; as a factual 

matter, the two are not equivalent. The district court was simply wrong to conclude 

that “[t]he details of the relevant transactions here have already been disclosed, by 

Defendants, to the same extent they would be if Plaintiffs’ suit were successful.” JA 

304 (emphasis original).

b. A “hypothetical” reconstruction of the FECA disclosure information 

plaintiffs seek does not rectify their informational harm.

In order to make the informational deficit here more concrete, it is helpful to

reexamine a specific category of spending to show how the district court’s attempt 

to “reclassify” and “disaggregate” Correct the Record’s reported disbursements is 

unworkable and does not provide the FECA information that plaintiffs are seeking.

For example, in the proceedings below, plaintiffs illustratively highlighted 

and the district court discussed Correct the Record’s reported disbursements to one 

individual on its payroll (of its at least 20 to 30 paid staffers, see JA 156; JA 152-55 

¶ 90): namely, its 36 “salary” payments to David Brock totaling over $168,500. See 

Pls.’ Opp’n to Motion to Dismiss at 17 (Dkt. No. 27). While the amounts of these 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 40 of 83
31

disbursements varied, one typical paycheck was the $4,521 that Brock received on 

July 28, 2016. Like most overhead expenses Correct the Record paid, this payment 

was reported simply as “Salary.” Id. There is reason to believe, however, that 

Brock’s salary payments compensated him for work in coordination with the Clinton 

campaign on matters other than exempt online communications. These portions

should have been broken off from the lump sum disbursement and reported as inkind contributions, including their dates, amounts, and purposes. See JA 199 

(General Counsel’s Report found that “[t]he available information shows that 

[Correct the Record] systematically coordinated with [Hillary for America] on its 

activities”).

The district court initially recognized that the salary disclosure in existing 

reports could not cure Correct the Record’s failure in the first instance to disclose all 

FECA-required information about its alleged coordinated expenditures. The court’s 

June 2020 decision noted that if Correct the Record had correctly disclosed these 

salary disbursements (in whole or in part) as in-kind contributions to Clinton, it 

“would have [had] to report both (a) how much of Brock’s salary paid for production 

costs related to internet communications not properly exempted from regulation 

under Plaintiffs’ interpretation of the internet-communications exception, and (b) 

any of his other activities that were, despite [Correct the Record]’s characterization, 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 41 of 83
32

coordinated with [Clinton’s campaign].” JA 94 (citing 52 U.S.C. § 30104(b)(2)(D), 

(3)(B), (5)(A), (6)(B)(i)).

Six months later, the district court found the opposite. But Correct the 

Record’s reports provide no information about the dates or amounts of the in-kind 

contributions arising from those salary disbursements, nor “purpose” information 

indicating whether the disbursements related to exempt or non-exempt activity—

making it impossible to determine whether they funded any of Correct the Record’s 

“coordinated expenditures.” 

Nor is it possible to glean this information from Correct the Record’s reported 

disbursements. Indeed, the full page that the district court has to devote to explain 

how plaintiffs could hypothetically disaggregate one disbursement of $4,521.56 for 

Brock’s “salary” into differentiated coordinated “sub-expenditures,” JA 301-02—

meant to demonstrate how all FECA-required information might be deduced from 

Correct the Record’s thousands of reported disbursements—instead testifies to the 

impossibility of reconstructing the actual coordinated expenditures plaintiffs allege 

occurred. If plaintiffs have to construct a “hypothetical world” and “suppose” facts 

about the FECA information they seek, JA 301, they plainly do not have access to 

that information in any meaningful way. 

The granularity of this analysis should not obscure that the district court was 

essentially positing imaginary contributions to further the purely intellectual 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 42 of 83
33

exercise of whether disaggregation was feasible. The court “supposed” that half of 

one $4,521.56 monthly salary disbursement to one Correct the Record employee 

represented coordinated spending and should have been disclosed as an in-kind 

contribution of $2,260.78. JA 301. But this is not the FECA-required information 

plaintiffs are due; this is just a supposition in service of a hypothetical. What are the 

actual amounts, dates, and purposes of Correct the Record’s contributions to the 

Clinton campaign? Both with respect to this single example, and across Correct the 

Record’s hundreds of other disbursements? Plaintiffs remain in the dark. However 

well-intentioned, the district court’s intelligent guess work is no substitute for the 

detailed and comprehensive disclosure plaintiffs are owed under FECA. 

And these illustrative “salary” disbursements comprise only a small fraction 

of the universe of Correct the Record disbursements that could have funded its 

undisclosed contributions to the Clinton campaign. But they make clear that neither 

committee has provided the public accounting of coordinated expenditures to which 

plaintiffs are entitled under FECA, and Correct the Record’s filed reports do not cure 

this failure.

3. Both plaintiffs demonstrated that their inability to access FECA 

disclosure information directly and concretely injures their interests.

Under Akins, a plaintiff suffers an injury in fact when it shows that it has been 

deprived of information that must be publicly disclosed pursuant to a statute, 524 

U.S. at 21, and “there is no reason to doubt their claim that the information would 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 43 of 83
34

help them.” CLC II, 952 F.3d at 356. There was no serious dispute that plaintiffs had 

proven this second element of the informational injury test below, nor did the district 

court dismiss on this basis. Nor is there any doubt that plaintiffs “suffer[], by being 

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

requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 

2016).

Like the Akins plaintiffs, plaintiff Kelley is a U.S. citizen and a registered 

voter. JA 39 ¶ 26; JA 68 ¶ 1; see Akins, 524 U.S. at 13. As a voter, she wishes to use 

information missing from Correct the Record’s and Hillary for America’s disclosure 

reports to assess candidates for office and to evaluate the role that Correct the 

Record’s funders and operatives and similar outside groups might play in the 2020 

and future elections. JA 69 ¶ 4. Kelley would also use the information to evaluate 

the range of political messages she hears and to monitor the influence of campaign 

money on officeholders and public policy. JA 68-69 ¶ 3. As a result of the FEC’s 

failure to require Correct the Record and Hillary for America to disclose the extent 

of their coordinated expenditures, Kelley cannot access concrete information that 

she would use in her capacity as a voter. JA 69 ¶ 5; Akins, 524 U.S. at 24-25 (holding 

that an informational injury is “sufficiently concrete and specific” when it is 

“directly related to voting, the most basic of political rights.”).

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 44 of 83
35

The denial of access to complete and accurate FECA disclosure information 

also inflicts concrete injury on Campaign Legal Center (also known as “CLC”),

which has been deprived of factual campaign finance information that is statutorily 

required to be disclosed and that would be helpful to its organizational mission and 

activities. See CLC II, 952 F.3d at 356. The informational rights Congress created

by requiring disclosure under FECA applies with equal force to those individuals 

and organizations, like CLC, who “communicate” such information to voters to 

facilitate informed participation in the political process. Akins, 524 U.S. at 21 

(“There is no reason to doubt [plaintiffs’] claim that the information would help them 

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

office.”).

Indeed, a central way that Campaign Legal Center works to advance its 

mission involves researching the money used to influence elections and 

communicating its research to voters. See JA 71-77; JA 36 ¶ 17. CLC relies on the 

comprehensive information reported under FECA to develop a wide variety of 

public education materials, including reports, blogs, and social media content, to 

inform voters about the sources and extent of candidates’ financial support and the 

role of outside groups in elections. JA 73-79 ¶¶ 11-21; 28. It also routinely uses 

information from FEC disclosure reports to prepare letters and complaints submitted 

to the FEC and state campaign finance agencies, JA 78 ¶ 22,support state and federal 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 45 of 83
36

court filings, JA 81-82 ¶¶ 36-37, and develop testimony and educational materials 

for legislators, partner organizations, and other policymakers, JA 78-79 ¶¶ 22-28; 

JA 39-40 ¶¶ 31-34. These efforts are directly harmed by the FEC’s dismissal here. 

JA 35 ¶ 11.

B. Campaign Legal Center also suffers organizational injury, providing an 

alternative basis for standing that the district court failed to address.

Campaign Legal Center has also proven both prongs of the test for 

organizational injury: first, that the FEC’s dismissal “injured [Campaign Legal 

Center’s] interest,” and second, that it “used resources to counteract that harm.” JA 

97 (citing People for the Ethical Treatment of Animals (PETA) v. U.S. Dep’t of 

Agric., 797 F.3d 1087, 1094 (D.C. Cir. 2015)). Despite addressing this distinct claim 

of organizational injury in ruling on the motion to dismiss, the district court’s second 

decision makes no mention of it, although plaintiffs’ summary judgment briefing 

made clear that organizational injury was an independent basis for Campaign Legal 

Center’s standing. The failure to address it was reversible error.

In addition to the statutory informational harm suffered by both plaintiffs, 

Campaign Legal Centersuffers organizational injury because it depends on complete 

and accurate FECA information to advance its mission and programmatic activities.

“As in PETA,” the challenged agency action here “has ‘perceptibly impaired’”

plaintiff’s “organizational interests by depriving it ‘of key information that it relies 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 46 of 83
37

on’ to fulfill its mission.” Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946 

F.3d 615, 619 (D.C. Cir. 2020) (citing PETA, 797 F.3d at 1094). 

The declaration submitted by Campaign Legal Center’s Director of Federal 

Reform below describes in detail the injuries caused by incomplete FEC disclosures 

to each of the organization’s four programmatic activities: public education, JA 73-

78 ¶¶ 11-21; legislative policy, JA 78-79 ¶¶ 22-28; regulatory practice, JA 79-80

¶¶ 29-32; and litigation, JA 81-82 ¶¶ 33-37. Most crucially, complete and accurate 

reports are essential for its efforts to analyze FEC reports and inform voters about 

campaign spending and the true sources and nature of candidates’ support. Id. ¶ 9. 

Incomplete reporting also directly hinders Campaign Legal Center’s ability to 

engage effectively in federal and state regulatory proceedings, develop reform 

proposals, provide expert and legislative testimony, and produce amicus briefs, 

because all of these activities depend on access to reliable and complete FEC 

disclosure data. See 79-81 ¶¶ 27-28, 32, 36.

And the organization has “used resources to counteract the harm.” PETA, 797 

F.3d at 1094. The inability to access information regarding intervenors’ coordinated 

expenditures required Campaign Legal Center to “divert resources from other 

organizational needs”—including the public education and campaign finance reform 

activities detailed above—to answer questions from reporters and others about 

Correct the Record’s and Hillary for America’s incomplete disclosures. JA 77 ¶ 20. 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 47 of 83
38

The FEC’s actions in this case thus caused plaintiff to divert resources from its 

routine, mission-furthering activities to attempt to remedy gaps in required reporting.

In its June 2020 decision, the district court found that Campaign Legal Center 

had alleged facts sufficient to establish a cognizable organizational injury, although 

it did not make clear if it considered this an independent basis for standing or 

contingent on establishing informational injury under Akins. JA 96-100. But it 

agreed that the FEC’s dismissal injured Campaign Legal Center’s organizational 

interests and impeded discrete programmatic activities by depriving it of information 

that “CLC needs for work central to its mission,” JA 99, and concluded that these 

“injuries are surely “more than simply a setback to the organization’s abstract social 

interests,” JA 99 (quoting Am. Anti-Vivisection Soc’y, 946 F.3d at 618). The court 

also found that Campaign Legal Center had “pled in adequate detail” that it “must 

use resources to counteract the harms of inadequate disclosure.” JA 100. 

In its December 2020 ruling, the district court found no informational injury 

because it believed (incorrectly) that all the statutorily required information plaintiffs 

seek was available “in some form,” JA 304 (quoting Wertheimer, 268 F.3d at 1074-

75), a counterfactual that plaintiffs vigorously dispute. But it did not address whether 

the informational deprivation it deemed non-cognizable under Akins nevertheless 

inflicted organizational injury. This was a reversible omission. 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 48 of 83
39

Even if the conjectural, unverified, and incomplete information available to 

plaintiffs could suffice to rectify their statutory informational injury, Campaign 

Legal Center would still suffer cognizable organizational injury under PETA. 

Indeed, its “claim for standing is even stronger than was PETA’s,” because, 

“[w]hereas PETA had standing even though it had no legal right to the incident 

reports it sought,” plaintiff here is seeking information that is unquestionably subject 

to public disclosure under the Act. Am. Anti-Vivisection Soc’y, 946 F.3d at 619 

(citing PETA, 797 F.3d at 1103 (Millett, J., dubitante)). 

As an organization that advances its mission by informing the press, 

policymakers, and the public about federal candidates’ campaign financing, 

Campaign Legal Center cannot perform its core programmatic activities effectively 

with partial or unconfirmed disclosure data. The existing public record simply does

not reveal the magnitude and nature of Correct the Record’s contributions to the 

Clinton campaign, and whatever incomplete information it does contain is not a 

substitute for the detailed information FECA requires and on which Campaign Legal 

Center depends. But the district court failed to consider this harm.

II. Plaintiffs’ Standing Is Not Categorically Precluded by Wertheimer v. FEC.

Plaintiffs’ administrative complaint alleged that Correct the Record and the 

Clinton campaign had engaged in an ongoing scheme to coordinate campaign

spending over the course of an entire election cycle, giving rise to numerous discrete 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 49 of 83
40

in-kind contributions—likely totaling in the millions of dollars, but their actual scope 

is impossible to quantify because not a single one was disclosed. The district court 

nevertheless concluded that under Wertheimer, these direct and continuing 

violations of FECA disclosure provisions inflict no cognizable informational harm. 

In so holding, the court came perilously close to treating Wertheimer as a reflexive 

barrier to Article III standing in all cases involving undisclosed coordinated 

expenditures, regardless of the factual context or statutorily required disclosure 

information outstanding.

But this analysis rests on an improperly confined view of the informational 

rights created in FECA. None of the precedents and lower court decisions cited in 

its December 2020 decision authorized the district court to circumscribe the 

informational rights FECA creates based on the form a contribution takes. Voters 

are entitled to detailed information about all contributions and expenditures by 

candidates, whether they arise from coordinated expenditures or direct cash 

transfers. The Act’s treatment of coordinated expenditures as contributions reflects 

a congressional determination that when a candidate is involved in deciding how its 

supporters’ resources are directed, that is a fact the public should know—on the same 

terms and to the same extent as any other contribution. 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 50 of 83
41

A. Wertheimer does not foreclose standing where plaintiffs fail to receive 

specific, FECA-required factual information that is neither “duplicative” 

nor “trivial.”

Contrary to the district court’s belief that Wertheimer and related “precedents 

spell doom for Plaintiffs’ standing,” JA 294, there is no categorical rule that FECA 

plaintiffs lack cognizable injury whenever the information they seek involves 

undisclosed contributions from a political committee to a candidate via coordinated 

expenditures. 

This case is unlike Wertheimer in multiple material respects. For one thing, 

Wertheimer was an action under section 9011(b) of the Presidential Election 

Campaign Fund Act—not FECA section 30109(a)(8)—seeking a prospective 

construction of the terms “contribution” and “expenditure” within the meaning of 

the Fund Act, under its distinct review provision authorizing individuals eligible to 

vote for President to institute actions “as may be appropriate to implement or 

construe” its provisions. 268 F.3d at 1071. Unlike FECA, however, the Fund Act 

does not itself require any public disclosure. Id. at 1072. And unlike plaintiffs here, 

the plaintiffs in Wertheimer were seeking a forward-looking declaration construing 

the Fund Act to prohibit specific activity by classifying it as coordinated in the first 

instance; specifically, they sought a declaration that a class of political party 

expenditures coordinated with presidential candidates “constitute contributions to 

and expenditures by” those candidates, and “as a corollary,” that publicly-funded 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 51 of 83
42

presidential candidates “may not coordinate with their respective political parties” 

on such expenditures. Id. at 1071.

But most importantly, unlike here, there was no outstanding factual 

information because the plaintiffs were seeking purely “duplicative reporting of 

information that under existing rules [was] already required to be disclosed.” Id. at 

1075. It was undisputed that political parties were required to report as coordinated 

“§ 441a(d) expenditures” precisely the transactions plaintiffs wanted presidential 

candidates to report as contributions, so “each transaction [plaintiffs] allege[d] [was] 

illegal” was in fact disclosed in the relevant political party’s FEC reports as a 

coordinated expenditure, id. at 1074. And in its briefing, the FEC stressed that the 

complaint “made no factual allegations that any publicly funded presidential 

candidate had failed to report contributions from political party committees. . . or 

that any party committee had failed to report a soft money disbursement . . . or a 

coordinated expenditure in support of a presidential candidate,” as was required 

under FECA and FEC regulations. See Br. for FEC at 35, Wertheimer v. FEC, 268 

F.3d 1070 (D.C. Cir. 2001) (No. 00-5371), 2001 WL 36037938. 

As Judge Garland explained in a succinct concurrence, the plaintiffs had 

“fail[ed] to articulate how a judicial declaration would provide them with additional 

information” given that the law already provided for the disclosures they sought:

[Plaintiffs] contend that in the absence of the judicial declaration they 

seek, they are deprived of information that a political party committee 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 52 of 83
43

has coordinated its expenditures with its presidential candidate. The 

FEC responds, and appellants do not dispute, that political party 

committees are already required to report and to identify such 

coordinated expenditures as § 441a(d) expenditures in their FECA 

filings. 

268 F.3d at 1075 (Garland, J., concurring in the judgment) (emphasis added) (citing 

2 U.S.C. § 434(b)(4)(H)(iv), (6)(B)(iv); 2 U.S.C. § 441a(d)(2); FEC v. Colorado 

Republican Fed. Campaign Comm., 533 U.S. 431 (2001)). Because § 441a(d) 

expenditures were already required to be disclosed and itemized in a way that 

revealed all of the pertinent information about each transaction—the fact of 

cooperation between the party and the candidate, and the expenditure’s amount, date, 

and purpose—declaring that those expenditures were “coordinated” would amount 

only to a “legal conclusion” that the expenditures were unlawful. Id. at 1075.6

On these facts, the judicial decree the plaintiffs were seeking would not “lead 

to additional factual information,” but would merely create an obligation for 

candidates to provide “duplicative reporting” of coordinated spending that the 

parties were already disclosing as such. Id. at 1074-75. The Court was left to 

conclude that the plaintiffs were “only seek[ing] the same information from a 

different source.” Id. at 1075. At the same time, however, the Court recognized that 

6 By designating these expenditures as “§ 441a(d) expenditures,” the party flagged 

that those expenditures were coordinated with the candidate. See 52 U.S.C. 

§ 30116(d)(2) (formerly codified at 2 U.S.C. § 441a(d)(2)) (limiting parties’ 

spending “in connection with the general election campaign of [a] candidate for 

President of the United States”).

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 53 of 83
44

there might be other contexts in which plaintiffs could show that “certain facts are 

necessarily implied by the label ‘coordinated’”—but the plaintiffs there “did not 

make clear what were those facts (nor did they make this argument to the district 

court or in their briefs).” Id.

This case is very different. Here, plaintiffs seek a ruling that will result in new

factual revelations—by compelling intervenors to disclose their coordinated 

expenditures and thereby reveal for the first time the precise amounts, dates, and 

purposes of Correct the Record’s in-kind contributions to the Clinton campaign. 

Unlike in Wertheimer, the disclosures plaintiffs seek will uncover facts that do not 

duplicate and cannot be deduced from available FEC filings. 

All of the other “precedents” that supposedly “spell doom” for plaintiffs’ 

standing are also off point. JA 294. Each involved discrete—in most cases, 

singular—transactions as to which all pertinent, FECA-reportable facts were known, 

or at most, where any outstanding information was exceedingly de minimis or 

“trivial,” or not actually subject to disclosure under the Act at all. Wertheimer, 268 

F.3d at 1075; see also, e.g., Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 (D.D.C. 

2003) (no informational injury where a candidate allegedly failed to report the 

complainant’s own in-kind contribution because the individual was already “aware 

of the facts underlying his own alleged contributions”); Alliance for Democracy v. 

FEC, 362 F. Supp. 2d 138, 145-46 (D.D.C. 2005) (no informational injury stemming 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 54 of 83
45

from FEC’s asserted failure to calculate the value of a mailing list that allegedly 

constituted an illegal in-kind contribution because it had “no single, objective value” 

and the plaintiffs already had access to the necessary data for an estimation because 

the FEC did investigate).

For example, in CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) (“CREW 

2007”), this Court held that a plaintiff lacked standing to challenge the FEC’s 

dismissal of a complaint concerning an allegedly illegal contribution of a list of 

conservative activists to President George W. Bush’s reelection campaign. Id. at 

341. Despite having extensive information about the list and how the Bush campaign 

acquired it, the plaintiff claimed to sustain informational injury because no precise 

valuation of the list had been disclosed. Id. at 339. The Court explained that this 

theory of injury was “highly attenuated” because “the list’s precise value—if that 

could be determined—would add only a trifle to the store of information about the 

transaction already publicly available.” Id. at 339-40 (emphasis added). Moreover, 

the plaintiffs had not actually alleged any disclosure violations in their 

administrative complaint, making the asserted informational harms “appear 

unredressable.” Id. at 339.

As Circuit precedent makes clear, the touchstone of the informational standing 

analysis is “the nature of the information allegedly withheld.” Common Cause, 108 

F.3d at 417. None of these cases involved allegations of informational harm that 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 55 of 83
46

were remotely comparable to the direct and significant disclosure violations at issue 

here. And the information plaintiffs seek—specifically, itemized information about 

each unreported in-kind contribution arising from a super PAC’s “systematic” 

coordination with a presidential candidate across an entire election cycle, possibly 

totaling in the millions of dollars—can hardly be dismissed as a “trifle.” CREW 

2007, 475 F.3d at 340. 

Wertheimer and its progeny cannot “dictate the outcome here.” JA 303. Yet 

the district court relied on them to second-guess its own original determination that 

plaintiffs suffered informational injury because they were deprived of factual 

information. The upshot is that under its reading of Wertheimer and related cases, 

any injury premised on a failure to disclose in-kind contributions that take the form 

of coordinated expenditures amounts to a “legal conclusion,” regardless of “the 

nature of the information allegedly withheld.” Common Cause, 108 F.3d at 417. 

The court’s heavy reliance on another recent district court standing decision, 

Free Speech for People v. FEC, 442 F. Supp. 3d 335 (D.D.C. 2020), is instructive. 

See JA 298. In that case, the plaintiff already knew “(1) that an in-kind contribution 

took place, (2) the source of the contribution, (3) the amount of the contribution, (4) 

the purpose of the contribution, and (5) the date of the contribution”—and indeed, 

“a great deal more,” by virtue of a federal criminal prosecution confirming many 

additional details about the one transaction at issue. 442 F. Supp. 3d at 343 (emphasis 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 56 of 83
47

added). The plaintiff suffered no informational injury because there was no 

conceivable information left to disclose under FECA, id., not because the failure to 

disclose in-kind contributions as FECA requires can never give rise to a cognizable 

informational injury. See JA 298. 

Far from “spell[ing] doom” for plaintiffs’ standing, Wertheimer and its 

progeny make clear that the informational injury here falls squarely within the scope 

of those recognized as cognizable in Akins. Nor are plaintiffs’ informational rights 

limited simply because the factual deprivation they identify, which “is accomplished 

and complete, and continues to be felt,” Maloney, 984 F.3d at 61 (citing Spokeo, Inc. 

v. Robins, 136 S. Ct. 1540, 1549-50 (2016)), involves undisclosed contributions that 

may have also violated substantive contribution limits or source restrictions. The 

standing inquiry assumes plaintiffs’ theory of the law is correct—it does not turn 

back the clock and look at what factual information would have been subject to 

disclosure if all parties had followed the law in the first place. 

As interpreted by the district court, Wertheimer would be in considerable 

tension with the governing precedent of Akins, a conflict the district court itself 

appeared to recognize. It noted that “[o]ne could be forgiven for thinking, as 

Plaintiffs appear to, that whether an expenditure was coordinated between a PAC 

and a campaign is a piece of information—regardless of its separate lawenforcement consequences—that citizens can also use to inform their participation 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 57 of 83
48

in the political process.” JA 297. But plaintiffs do not claim to be injured because 

they lack information about “coordination”; they are injured because when an 

expenditure is coordinated, FECA compels its disclosure as a contribution.

7

Fortunately this Court can easily avoid any potential conflict by recognizing 

that the coordinated expenditures at issue in Wertheimer were not only known to be 

“coordinated,” but already required to be reported as such by parties, 268 F.3d at 

1075 (Garland, J., concurring in the judgment). The Court thus had no occasion to 

consider whether plaintiffs deprived of the “fact of coordination” in the first instance 

would be injured. That would also avoid a conflict with the informational injury 

recognized in Shays III, which confirmed that the failure to obtain FECA-required 

disclosures about coordinated expenditures is “no differen[t]” than “the injury 

deemed sufficient to create standing in Akins.” 528 F.3d at 923.

B. The broad informational rights in FECA are not vindicated by partial 

disclosure.

The district court “reverse[d] field” (JA 291) from its initial recognition that 

plaintiffs have standing based on a radical proposition: that FECA, a statute devoted 

7 Of course, it is also true that the “fact of coordination” could be a kind of 

information useful to informed voting, no less than the disclosures sought in Akins.

As Judge Boasberg expounded, “upon learning that a candidate and a PAC 

coordinated, an interested voter could choose to avoid supporting, financially or 

electorally, that candidate or other candidates who coordinate with that same PAC 

or its leaders in the future. Why should the deprivation of such a finding not 

constitute actionable informational injury?” JA 297.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 58 of 83
49

to informing voters in comprehensive detail about the money raised and spent in 

federal elections, creates no informational rights with respect to the actual amounts, 

dates, and purposes of in-kind contributions received by a candidate. JA 301-02.

But “‘[t]he law is settled that a denial of access to information qualifies as an 

injury in fact where a statute (on the claimant’s reading) requires that the information 

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

would help them.’” CLC II, 952 F.3d at 356 (emphasis added) (citation omitted). 

This principle is not limited to particular categories of FECA-required 

disclosure information. Under the district court’s reading of Wertheimer, however, 

a plaintiff suffers a cognizable Article III injury only when it has no information 

about an in-kind contribution, notwithstanding its inability to obtain specific FECArequired information regarding the contribution’s amount, date, or purpose. On this 

reasoning, a FECA plaintiff alleging a concrete denial of statutorily required 

disclosure information—including “how much money a candidate spent in an 

election,” Common Cause, 108 F.3d at 417—lacks a cognizable injury wherever the 

immediate sources of the money are known but the amounts are not. And such a 

plaintiff’s informational standing would be foreclosed regardless of whether “the 

increase in information resulting from” the legal ruling it seeks is “trivial,” as in 

Wertheimer, 268 F.3d at 1075, or “admittedly quite high,” as here. JA 304. That 

cannot be compatible with Akins.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 59 of 83
50

Even if Correct the Record’s total reported spending in 2015-16 at least 

suggests an upper limit for its overall in-kind contributions to the Clinton campaign, 

this possible ceiling cannot satisfy FECA’s standard for comprehensive, itemized 

reporting of all campaign receipts and expenditures, nor vindicate the statutory “right 

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

and when they are spending it.” CREW v. Am. Action Network, 410 F. Supp. 3d 1,

12 (D.D.C. 2019) (citing Akins, 524 U.S. at 24-25).8 Knowing that some proportion 

of Correct the Record’s approximately $9.6 million of “already-disclosed” 

disbursements funded its unreported in-kind contributions to Clinton does not fulfill 

plaintiffs’ informational rights under FECA to know which of Correct the Record’s 

reported disbursements (and which portions of which disbursements) funded its 

coordinated expenditures, in what amounts, and for which purposes. 

FECA mandates detailed, itemized disclosures of all contributions received 

and expenditures made by a candidate, including in-kind contributions in the form 

of coordinated expenditures. Congress provided for transparency about “[t]he 

sources of a candidate’s financial support” to “aid the voters in evaluating those who 

8 This Court has recognized informational injuries where “plaintiffs sought to 

compel compliance with statutory provisions that guaranteed a right to receive 

information in a particular form.” Friends of Animals, 828 F.3d at 994 (emphasis 

added) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-75 (1982), and 

Zivotofsky ex rel. Ari Z. v. Secretary of State, 444 F.3d 614, 615-19 (D.C. Cir. 2006)). 

The informational harm here is far more consequential.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 60 of 83
51

seek federal office” and “alert the voter to the interests to which a candidate is most 

likely to be responsive and thus facilitate predictions of future performance in 

office,” as the Supreme Court recognized in upholding the reporting requirements. 

Buckley, 424 U.S. at 66-67. Indeed, the comprehensive candidate disclosure 

provisions in FECA, which generally predate its contribution limits, are closely tied 

to the Act’s original and animating purpose: achieving “total disclosure” of the 

amounts and sources of funds used to influence federal elections, id. at 76, so voters 

“know exactly how a candidate’s campaign is financed.” S. Rep. No. 92-229, at 57 

(1971); see also S. Rep. No. 93-689, at 2 (1974) (noting that FECA was “predicated 

upon the principle of public disclosure”).

Requiring the disclosure of “expenditures controlled by or coordinated with 

the candidate,” as the Supreme Court has likewise made clear, is closely tied to 

FECA’s core informational and anti-corruption purposes, because such expenditures 

“have virtually the same value to the candidate as a contribution and would pose 

similar dangers of abuse.” Buckley, 424 U.S. at 46. Accordingly, “Congress has 

always treated expenditures made ‘at the request or suggestion of’ a candidate as 

coordinated,” McConnell, 540 U.S. at 221-22, and regulated them as contributions 

rather than expenditures to prevent “disguised contributions.” Buckley, 424 U.S. at 

46-47. Like all contributions to candidates, therefore, those taking the form of 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 61 of 83
52

coordinated expenditures are subject to FECA’s comprehensive reporting provisions 

to expose them to “the light of publicity” and ensure “full disclosure.” Id. at 67.

The disclosure provisions at issue here thus serve the electorate’s compelling 

interest in knowing “where political campaign money comes from and how it is 

spent by the candidate,” id. at 66, by requiring prompt, accurate, and complete 

disclosure of all funds a candidate receives and spends, as well as by preventing 

“disguised contributions” to candidates in the form of coordinated expenditures, see 

id. at 46-47. 

The district court’s disregard for the missing information here is patently at 

odds with the broad informational rights bestowed under FECA, where “[t]he whole 

theory of the statute is that voters are benefitted insofar as they can determine who 

is contributing what to whom.” Akins v. FEC, 101 F.3d 731, 737 (D.C. Cir. 1996) 

(emphasis added) (en banc) (citing Buckley, 424 U.S. at 66-67), vacated on other 

grounds by 524 U.S. 11 (1998). What a candidate actually received and spent in an 

election is information at the heart of FECA’s disclosure regime, and withholding it 

from plaintiffs here “is a quintessential form of concrete and particularized injury 

within the meaning of Article III.” Maloney, 984 F.3d at 59. 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 62 of 83
53

CONCLUSION

For the foregoing reasons, 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.

Dated: July 22, 2021

Respectfully submitted,

/s/ Megan P. McAllen

Megan P. McAllen (DC Bar No. 1020509)

Tara Malloy (DC Bar No. 988280)

CAMPAIGN LEGAL CENTER

1101 14th Street N.W., Suite 400

Washington, DC 20005

(202) 736-2200

E-mail: mmcallen@campaignlegalcenter.org

Attorneys for Plaintiffs-Appellants

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 63 of 83
54

CERTIFICATE OF COMPLIANCE

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

because it contains 11,877 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/ Megan P. McAllen

Megan P. McAllen

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 64 of 83
55

CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2021, I electronically filed this Brief with the 

Clerk of Court for the United States Court of Appeals for the District of Columbia 

Circuit by using the appellate CM/ECF system, thereby serving all persons required 

to be served. 

/s/ Megan P. McAllen

Megan P. McAllen

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 65 of 83
ADDENDUM

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 66 of 83
ADDENDUM – TABLE OF CONTENTS

Federal Statutes

52 U.S.C. § 30101(8)(A) .........................................................................................1a

52 U.S.C. § 30104(b)...............................................................................................1a

52 U.S.C. § 30109(a)...............................................................................................5a

52 U.S.C. § 30116(a)(7)(B)(i) .................................................................................9a

Federal Regulations

11 C.F.R. § 100.26.................................................................................................10a

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

11 C.F.R. § 109.20.................................................................................................10a

11 C.F.R. § 109.21(a)-(e) ......................................................................................11a

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 67 of 83
1a

UNITED STATES CODE

TITLE 52. VOTING AND ELECTIONS

Chapter 301—Federal Election Campaigns

Subchapter 1—Disclosure of Federal Campaign Funds

§ 30101. Definitions 

When used in this Act:

* * *

(8)(A) The term “contribution” includes—

(i) any gift, subscription, loan, advance, or deposit of money or anything of value 

made by any person for the purpose of influencing any election for Federal office; 

or

(ii) the payment by any person of compensation for the personal services of 

another person which are rendered to a political committee without charge for any 

purpose.

* * *

§ 30104. Reporting requirements

(b) Contents of reports. Each report under this section shall disclose—

(1) the amount of cash on hand at the beginning of the reporting period;

(2) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the total amount 

of all receipts, and the total amount of all receipts in the following categories:

(A) contributions from persons other than political committees;

(B) for an authorized committee, contributions from the candidate;

(C) contributions from political party committees;

(D) contributions from other political committees;

(E) for an authorized committee, transfers from other authorized 

committees of the same candidate;

(F) transfers from affiliated committees and, where the reporting 

committee is a political party committee, transfers from other political party 

committees, regardless of whether such committees are affiliated;

(G) for an authorized committee, loans made by or guaranteed by the 

candidate;

(H) all other loans;

(I) rebates, refunds, and other offsets to operating expenditures;

(J) dividends, interest, and other forms of receipts; and

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 68 of 83
2a

(K) for an authorized committee of a candidate for the office of 

President, Federal funds received under chapter 95 and chapter 96 of Title 26;

(3) the identification of each—

(A) person (other than a political committee) who makes a 

contribution to the reporting committee during the reporting period, whose 

contribution or contributions have an aggregate amount or value in excess of 

$200 within the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), or in any lesser amount if the 

reporting committee should so elect, together with the date and amount of any 

such contribution;

(B) political committee which makes a contribution to the reporting 

committee during the reporting period, together with the date and amount of 

any such contribution;

(C) authorized committee which makes a transfer to the reporting 

committee;

(D) affiliated committee which makes a transfer to the reporting 

committee during the reporting period and, where the reporting committee is 

a political party committee, each transfer of funds to the reporting committee 

from another political party committee, regardless of whether such 

committees are affiliated, together with the date and amount of such transfer;

(E) person who makes a loan to the reporting committee during the 

reporting period, together with the identification of any endorser or guarantor 

of such loan, and the date and amount or value of such loan;

(F) person who provides a rebate, refund, or other offset to operating 

expenditures to the reporting committee in an aggregate amount or value in 

excess of $200 within the calendar year (or election cycle, in the case of an 

authorized committee of a candidate for Federal office), together with the date 

and amount of such receipt; and

(G) person who provides any dividend, interest, or other receipt to 

the reporting committee in an aggregate value or amount in excess of $200 

within the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office), together with the date and 

amount of any such receipt;

(4) for the reporting period and the calendar year (or election cycle, in the 

case of an authorized committee of a candidate for Federal office), the total amount 

of all disbursements, and all disbursements in the following categories:

(A) expenditures made to meet candidate or committee operating 

expenses;

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 69 of 83
3a

(B) for authorized committees, transfers to other committees 

authorized by the same candidate;

(C) transfers to affiliated committees and, where the reporting 

committee is a political party committee, transfers to other political party 

committees, regardless of whether they are affiliated;

(D) for an authorized committee, repayment of loans made by or 

guaranteed by the candidate;

(E) repayment of all other loans;

(F) contribution refunds and other offsets to contributions;

(G) for an authorized committee, any other disbursements;

(H) for any political committee other than an authorized 

committee—

(i) contributions made to other political committees;

(ii) loans made by the reporting committees;

(iii) independent expenditures;

(iv) expenditures made under section 30116(d) of this title; and

(v) any other disbursements; and

(I) for an authorized committee of a candidate for the office of 

President, disbursements not subject to the limitation of section 30116(b) of 

this title;

(5) the name and address of each—

(A) person to whom an expenditure in an aggregate amount or value 

in excess of $200 within the calendar year is made by the reporting committee 

to meet a candidate or committee operating expense, together with the date, 

amount, and purpose of such operating expenditure;

(B) authorized committee to which a transfer is made by the 

reporting committee;

(C) affiliated committee to which a transfer is made by the reporting 

committee during the reporting period and, where the reporting committee is 

a political party committee, each transfer of funds by the reporting committee 

to another political party committee, regardless of whether such committees 

are affiliated, together with the date and amount of such transfers;

(D) person who receives a loan repayment from the reporting 

committee during the reporting period, together with the date and amount of 

such loan repayment; and

(E) person who receives a contribution refund or other offset to 

contributions from the reporting committee where such contribution was 

reported under paragraph (3)(A) of this subsection, together with the date and 

amount of such disbursement;

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 70 of 83
4a

(6) (A) for an authorized committee, the name and address of each 

person who has received any disbursement not disclosed under paragraph (5) 

in an aggregate amount or value in excess of $200 within the calendar year 

(or election cycle, in the case of an authorized committee of a candidate for 

Federal office), together with the date and amount of any such disbursement;

(B) for any other political committee, the name and address of 

each—

(i) political committee which has received a contribution from 

the reporting committee during the reporting period, together with the 

date and amount of any such contribution;

(ii) person who has received a loan from the reporting 

committee during the reporting period, together with the date and 

amount of such loan;

(iii) person who receives any disbursement during the reporting 

period in an aggregate amount or value in excess of $200 within the 

calendar year (or election cycle, in the case of an authorized committee 

of a candidate for Federal office), in connection with an independent 

expenditure by the reporting committee, together with the date, amount, 

and purpose of any such independent expenditure and a statement 

which indicates whether such independent expenditure is in support of, 

or in opposition to, a candidate, as well as the name and office sought 

by such candidate, and a certification, under penalty of perjury, whether 

such independent expenditure is made in cooperation, consultation, or 

concert, with, or at the request or suggestion of, any candidate or any 

authorized committee or agent of such committee;

(iv) person who receives any expenditure from the reporting 

committee during the reporting period in connection with an 

expenditure under section 30116(d) of this title, together with the date, 

amount, and purpose of any such expenditure as well as the name of, 

and office sought by, the candidate on whose behalf the expenditure is 

made; and

(v) person who has received any disbursement not otherwise 

disclosed in this paragraph or paragraph (5) in an aggregate amount or 

value in excess of $200 within the calendar year (or election cycle, in 

the case of an authorized committee of a candidate for Federal office), 

from the reporting committee within the reporting period, together with 

the date, amount, and purpose of any such disbursement;

(7) the total sum of all contributions to such political committee, together 

with the total contributions less offsets to contributions and the total sum of all 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 71 of 83
5a

operating expenditures made by such political committee, together with total 

operating expenditures less offsets to operating expenditures, for both the reporting 

period and the calendar year (or election cycle, in the case of an authorized 

committee of a candidate for Federal office); and

(8) the amount and nature of outstanding debts and obligations owed by or 

to such political committee; and where such debts and obligations are settled for less 

than their reported amount or value, a statement as to the circumstances and 

conditions under which such debts or obligations were extinguished and the 

consideration therefor.

* * *

§ 30109. Enforcement 

(a) Administrative and judicial practice and procedure

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the Commission. Such 

complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and subject 

to the provisions of section 1001 of Title 18. Within 5 days after receipt of a 

complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts any 

vote on the complaint, other than a vote to dismiss, any person so notified shall have 

the opportunity to demonstrate, in writing, to the Commission within 15 days after 

notification that no action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or take any other 

action under this section solely on the basis of a complaint of a person whose identity 

is not disclosed to the Commission.

(2) If the Commission, upon receiving a complaint under paragraph (1) or 

on the basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its members, 

that it has reason to believe that a person has committed, or is about to commit, a 

violation of this Act or chapter 95 or chapter 96 of Title 26, the Commission shall, 

through its chairman or vice chairman, notify the person of the alleged violation. 

Such notification shall set forth the factual basis for such alleged violation. The 

Commission shall make an investigation of such alleged violation, which may 

include a field investigation or audit, in accordance with the provisions of this 

section.

(3) The general counsel of the Commission shall notify the respondent of 

any recommendation to the Commission by the general counsel to proceed to a vote 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 72 of 83
6a

on probable cause pursuant to paragraph (4)(A)(i). With such notification, the 

general counsel shall include a brief stating the position of the general counsel on 

the legal and factual issues of the case. Within 15 days of receipt of such brief, 

respondent may submit a brief stating the position of such respondent on the legal 

and factual issues of the case, and replying to the brief of general counsel. Such 

briefs shall be filed with the Secretary of the Commission and shall be considered 

by the Commission before proceeding under paragraph (4).

(4) (A) (i) Except as provided in clauses (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there 

is probable cause to believe that any person has committed, or is about to 

commit, a violation of this Act or of chapter 95 or chapter 96 of Title 26, the 

Commission shall attempt, for a period of at least 30 days, to correct or prevent 

such violation by informal methods of conference, conciliation, and 

persuasion, and to enter into a conciliation agreement with any person 

involved. Such attempt by the Commission to correct or prevent such 

violation may continue for a period of not more than 90 days. The 

Commission may not enter into a conciliation agreement under this clause 

except pursuant to an affirmative vote of 4 of its members. A conciliation 

agreement, unless violated, is a complete bar to any further action by the 

Commission, including the bringing of a civil proceeding under paragraph 

(6)(A).

(ii) If any determination of the Commission under clause (i) 

occurs during the 45-day period immediately preceding any election, 

then the Commission shall attempt, for a period of at least 15 days, to 

correct or prevent the violation involved by the methods specified in 

clause (i).

(B) (i) No action by the Commission or any person, and no 

information derived, in connection with any conciliation attempt by the 

Commission under subparagraph (A) may be made public by the 

Commission without the written consent of the respondent and the 

Commission.

(ii) If a conciliation agreement is agreed upon by the Commission 

and the respondent, the Commission shall make public any conciliation 

agreement signed by both the Commission and the respondent. If the 

Commission makes a determination that a person has not violated this 

Act or chapter 95 or chapter 96 of Title 26, the Commission shall make 

public such determination.

* * *

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 73 of 83
7a

(5) (A) If the Commission believes that a violation of this Act or of 

chapter 95 or chapter 96 of Title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may 

include a requirement that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation.

(B) If the Commission believes that a knowing and willful violation 

of this Act or of chapter 95 or chapter 96 of Title 26 has been committed, a 

conciliation agreement entered into by the Commission under paragraph 

(4)(A) may require that the person involved in such conciliation agreement 

shall pay a civil penalty which does not exceed the greater of $10,000 or an 

amount equal to 200 percent of any contribution or expenditure involved in 

such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation).

(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and willful 

violation of this Act which is subject to subsection (d), or a knowing and 

willful violation of chapter 95 or chapter 96 of Title 26, has occurred or is 

about to occur, it may refer such apparent violation to the Attorney General 

of the United States without regard to any limitations set forth in paragraph 

(4)(A).

(D) In any case in which a person has entered into a conciliation 

agreement with the Commission under paragraph (4)(A), the Commission 

may institute a civil action for relief under paragraph (6)(A) if it believes that 

the person has violated any provision of such conciliation agreement. For the 

Commission to obtain relief in any civil action, the Commission need only 

establish that the person has violated, in whole or in part, any requirement of 

such conciliation agreement.

(6) (A) If the Commission is unable to correct or prevent any violation 

of this Act or of chapter 95 or chapter 96 of Title 26, by the methods specified 

in paragraph (4), the Commission may, upon an affirmative vote of 4 of its 

members, institute a civil action for relief, including a permanent or temporary 

injunction, restraining order, or any other appropriate order (including an 

order for a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation) 

in the district court of the United States for the district in which the person 

against whom such action is brought is found, resides, or transacts business.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 74 of 83
8a

(B) In any civil action instituted by the Commission under 

subparagraph (A), the court may grant a permanent or temporary injunction, 

restraining order, or other order, including a civil penalty which does not 

exceed the greater of $5,000 or an amount equal to any contribution or 

expenditure involved in such violation, upon a proper showing that the person 

involved has committed, or is about to commit (if the relief sought is a 

permanent or temporary injunction or a restraining order), a violation of this 

Act or chapter 95 or chapter 96 of Title 26.

(C) In any civil action for relief instituted by the Commission under 

subparagraph (A), if the court determines that the Commission has established 

that the person involved in such civil action has committed a knowing and 

willful violation of this Act or of chapter 95 or chapter 96 of Title 26, the court 

may impose a civil penalty which does not exceed the greater of $10,000 or 

an amount equal to 200 percent of any contribution or expenditure involved 

in such violation (or, in the case of a violation of section 30122 of this title, 

which is not less than 300 percent of the amount involved in the violation and 

is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation).

(7) In any action brought under paragraph (5) or (6), subpoenas for 

witnesses who are required to attend a United States district court may run into any 

other district.

(8) (A) Any party aggrieved by an order of the Commission dismissing 

a complaint filed by such party under paragraph (1), or by a failure of the 

Commission to act on such complaint during the 120-day period beginning on 

the date the complaint is filed, may file a petition with the United States 

District Court for the District of Columbia.

(B) Any petition under subparagraph (A) shall be filed, in the case of 

a dismissal of a complaint by the Commission, within 60 days after the date 

of the dismissal.

(C) In any proceeding under this paragraph the court may declare that 

the dismissal of the complaint or the failure to act is contrary to law, and may 

direct the Commission to conform with such declaration within 30 days, 

failing which the complainant may bring, in the name of such complainant, a 

civil action to remedy the violation involved in the original complaint.

(9) Any judgment of a district court under this subsection may be appealed 

to the court of appeals, and the judgment of the court of appeals affirming or setting 

aside, in whole or in part, any such order of the district court shall be final, subject 

to review by the Supreme Court of the United States upon certiorari or certification 

as provided in section 1254 of Title 28.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 75 of 83
9a

(10) Repealed. Pub.L. 98-620, Title IV, § 402(1)(A), Nov. 8, 1984, 98 Stat. 

3357

(11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph (6), 

it may petition the court for an order to hold such person in civil contempt, but if it 

believes the violation to be knowing and willful it may petition the court for an order 

to hold such person in criminal contempt.

(12) (A) Any notification or investigation made under this section shall 

not be made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with respect to 

whom such investigation is made.

(B) Any member or employee of the Commission, or any other 

person, who violates the provisions of subparagraph (A) shall be fined not 

more than $2,000. Any such member, employee, or other person who 

knowingly and willfully violates the provisions of subparagraph (A) shall be 

fined not more than $5,000.

* * *

§ 30116(a)(7) For purposes of this subsection—

* * *

(B)(i) expenditures made by any person in cooperation, consultation, or 

concert, with, or at the request or suggestion of, a candidate, his authorized 

political committees, or their agents, shall be considered to be a contribution 

to such candidate;

* * *

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 76 of 83
10a

CODE OF FEDERAL REGULATIONS 

Title 11—FEDERAL ELECTIONS

Chapter I—Federal Election Commission

Subchapter A—General

§ 100.26 Public communication

Public communication means a communication by means of any broadcast, cable, 

or satellite communication, newspaper, magazine, outdoor advertising facility, mass 

mailing, or telephone bank to the general public, or any other form of general public 

political advertising. The term general public political advertising shall not include 

communications over the Internet, except for communications placed for a fee on 

another person’s Web site.

* * *

§ 104.13 Disclosure of receipt and consumption of in-kind contributions.

(a) (1) The amount of an in-kind contribution shall be equal to the usual and 

normal value on the date received. Each in-kind contribution shall be reported as a 

contribution in accordance with 11 CFR 104.3(a).

(2) Except for items noted in 11 CFR 104.13(b), each in-kind contribution shall 

also be reported as an expenditure at the same usual and normal value and reported 

on the appropriate expenditure schedule, in accordance with 11 CFR 104.3(b).

* * *

§ 109.20 What does “coordinated” mean? 

(a) Coordinated means made in cooperation, consultation or concert with, or at 

the request or suggestion of, a candidate, a candidate’s authorized committee, or a 

political party committee. For purposes of this subpart C, any reference to a 

candidate, or a candidate’s authorized committee, or a political party committee 

includes an agent thereof.

(b) Any expenditure that is coordinated within the meaning of paragraph (a) of 

this section, but that is not made for a coordinated communication under 11 CFR 

109.21 or a party coordinated communication under 11 CFR 109.37, is either an inkind contribution to, or a coordinated party expenditure with respect to, the candidate 

or political party committee with whom or with which it was coordinated and must 

be reported as an expenditure made by that candidate or political party committee, 

unless otherwise exempted under 11 CFR part 100, subparts C or E.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 77 of 83
11a

§ 109.21 What is a “coordinated communication”?

(a) Definition. A communication is coordinated with a candidate, an authorized 

committee, a political party committee, or an agent of any of the foregoing when the 

communication:

(1) Is paid for, in whole or in part, by a person other than that candidate, 

authorized committee, or political party committee;

(2) Satisfies at least one of the content standards in paragraph (c) of this section; 

and

(3) Satisfies at least one of the conduct standards in paragraph (d) of this section.

(b) Treatment as an in-kind contribution and expenditure; Reporting—(1) 

General rule. A payment for a coordinated communication is made for the purpose 

of influencing a Federal election, and is an in-kind contribution under 11 CFR 

100.52(d) to the candidate, authorized committee, or political party committee with 

whom or which it is coordinated, unless excepted under 11 CFR part 100, subpart 

C, and must be reported as an expenditure made by that candidate, authorized 

committee, or political party committee under 11 CFR 104.13, unless excepted under 

11 CFR part 100, subpart E.

(2) In-kind contributions resulting from conduct described in paragraphs (d)(4) 

or (d)(5) of this section. Notwithstanding paragraph (b)(1) of this section, the 

candidate, authorized committee, or political party committee with whom or which 

a communication is coordinated does not receive or accept an in-kind contribution, 

and is not required to report an expenditure, that results from conduct described in 

paragraphs (d)(4) or (d)(5) of this section, unless the candidate, authorized 

committee, or political party committee engages in conduct described in paragraphs 

(d)(1) through (d)(3) of this section.

(3) Reporting of coordinated communications. A political committee, other than 

a political party committee, that makes a coordinated communication must report 

the payment for the communication as a contribution made to the candidate or 

political party committee with whom or which it was coordinated and as an 

expenditure in accordance with 11 CFR 104.3(b)(1)(v). A candidate, authorized 

committee, or political party committee with whom or which a communication paid 

for by another person is coordinated must report the usual and normal value of the 

communication as an in-kind contribution in accordance with 11 CFR 104.13, 

meaning that it must report the amount of the payment as a receipt under 11 CFR 

104.3(a) and as an expenditure under 11 CFR 104.3(b).

(c) Content standards. Each of the types of content described in paragraphs 

(c)(1) through (c)(5) of this section satisfies the content standard of this section.

(1) A communication that is an electioneering communication under 11 CFR 

100.29.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 78 of 83
12a

(2) A public communication, as defined in 11 CFR 100.26, that disseminates, 

distributes, or republishes, in whole or in part, campaign materials prepared by a 

candidate or the candidate’s authorized committee, unless the dissemination, 

distribution, or republication is excepted under 11 CFR 109.23(b). For a 

communication that satisfies this content standard, see paragraph (d)(6) of this 

section.

(3) A public communication, as defined in 11 CFR 100.26, that expressly 

advocates, as defined in 11 CFR 100.22, the election or defeat of a clearly identified 

candidate for Federal office.

(4) A public communication, as defined in 11 CFR 100.26, that satisfies 

paragraph (c)(4)(i), (ii), (iii), or (iv) of this section:

(i) References to House and Senate candidates. The public communication 

refers to a clearly identified House or Senate candidate and is publicly distributed or 

otherwise publicly disseminated in the clearly identified candidate’s jurisdiction 90 

days or fewer before the clearly identified candidate’s general, special, or runoff 

election, or primary or preference election, or nominating convention or caucus.

(ii) References to Presidential and Vice Presidential candidates. The public 

communication refers to a clearly identified Presidential or Vice Presidential 

candidate and is publicly distributed or otherwise publicly disseminated in a 

jurisdiction during the period of time beginning 120 days before the clearly 

identified candidate’s primary or preference election in that jurisdiction, or 

nominating convention or caucus in that jurisdiction, up to and including the day of 

the general election.

(iii) References to political parties. The public communication refers to a 

political party, does not refer to a clearly identified Federal candidate, and is publicly 

distributed or otherwise publicly disseminated in a jurisdiction in which one or more 

candidates of that political party will appear on the ballot.

(A) When the public communication is coordinated with a candidate and it is 

publicly distributed or otherwise publicly disseminated in that candidate’s 

jurisdiction, the time period in paragraph (c)(4)(i) or (ii) of this section that would 

apply to a communication containing a reference to that candidate applies;

(B) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated during 

the two-year election cycle ending on the date of a regularly scheduled non–

Presidential general election, the time period in paragraph (c)(4)(i) of this section 

applies;

(C) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated during 

the two-year election cycle ending on the date of a Presidential general election, the 

time period in paragraph (c)(4)(ii) of this section applies.

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 79 of 83
13a

(iv) References to both political parties and clearly identified Federal 

candidates. The public communication refers to a political party and a clearly 

identified Federal candidate, and is publicly distributed or otherwise publicly 

disseminated in a jurisdiction in which one or more candidates of that political party

will appear on the ballot.

(A) When the public communication is coordinated with a candidate and it is 

publicly distributed or otherwise publicly disseminated in that candidate’s 

jurisdiction, the time period in paragraph (c)(4)(i) or (ii) of this section that would 

apply to a communication containing a reference to that candidate applies;

(B) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated in the 

clearly identified candidate’s jurisdiction, the time period in paragraph (c)(4)(i) or 

(ii) of this section that would apply to a communication containing only a reference 

to that candidate applies;

(C) When the public communication is coordinated with a political party 

committee and it is publicly distributed or otherwise publicly disseminated outside 

the clearly identified candidate’s jurisdiction, the time period in paragraph 

(c)(4)(iii)(B) or (C) of this section that would apply to a communication containing 

only a reference to a political party applies.

(5) A public communication, as defined in 11 CFR 100.26, that is the functional 

equivalent of express advocacy. For purposes of this section, a communication is the 

functional equivalent of express advocacy if it is susceptible of no reasonable 

interpretation other than as an appeal to vote for or against a clearly identified 

Federal candidate.

(d) Conduct standards. Any one of the following types of conduct satisfies the 

conduct standard of this section whether or not there is agreement or formal 

collaboration, as defined in paragraph (e) of this section:

(1) Request or suggestion. (i) The communication is created, produced, or 

distributed at the request or suggestion of a candidate, authorized committee, or 

political party committee; or

(ii) The communication is created, produced, or distributed at the suggestion of 

a person paying for the communication and the candidate, authorized committee, or 

political party committee assents to the suggestion.

(2) Material involvement. This paragraph, (d)(2), is not satisfied if the 

information material to the creation, production, or distribution of the 

communication was obtained from a publicly available source. A candidate, 

authorized committee, or political party committee is materially involved in 

decisions regarding:

(i) The content of the communication;

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 80 of 83
14a

(ii) The intended audience for the communication;

(iii) The means or mode of the communication;

(iv) The specific media outlet used for the communication;

(v) The timing or frequency of the communication; or

(vi) The size or prominence of a printed communication, or duration of a 

communication by means of broadcast, cable, or satellite.

(3) Substantial discussion. This paragraph, (d)(3), is not satisfied if the 

information material to the creation, production, or distribution of the 

communication was obtained from a publicly available source. The communication 

is created, produced, or distributed after one or more substantial discussions about 

the communication between the person paying for the communication, or the 

employees or agents of the person paying for the communication, and the candidate 

who is clearly identified in the communication, or the candidate’s authorized 

committee, the candidate’s opponent, the opponent’s authorized committee, or a 

political party committee. A discussion is substantial within the meaning of this 

paragraph if information about the candidate’s or political party committee’s 

campaign plans, projects, activities, or needs is conveyed to a person paying for the 

communication, and that information is material to the creation, production, or 

distribution of the communication.

(4) Common vendor. All of the following statements in paragraphs (d)(4)(i) 

through (d)(4)(iii) of this section are true:

(i) The person paying for the communication, or an agent of such person, 

contracts with or employs a commercial vendor, as defined in 11 CFR 116.1(c), to 

create, produce, or distribute the communication;

(ii) That commercial vendor, including any owner, officer, or employee of the 

commercial vendor, has provided any of the following services to the candidate who 

is clearly identified in the communication, or the candidate’s authorized committee, 

the candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, during the previous 120 days:

(A) Development of media strategy, including the selection or purchasing of 

advertising slots;

(B) Selection of audiences;

(C) Polling;

(D) Fundraising;

(E) Developing the content of a public communication;

(F) Producing a public communication;

(G) Identifying voters or developing voter lists, mailing lists, or donor lists;

(H) Selecting personnel, contractors, or subcontractors; or

(I) Consulting or otherwise providing political or media advice; and

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 81 of 83
15a

(iii) This paragraph, (d)(4)(iii), is not satisfied if the information material to the 

creation, production, or distribution of the communication used or conveyed by the 

commercial vendor was obtained from a publicly available source. That commercial 

vendor uses or conveys to the person paying for the communication:

(A) Information about the campaign plans, projects, activities, or needs of the 

clearly identified candidate, the candidate’s opponent, or a political party committee, 

and that information is material to the creation, production, or distribution of the 

communication; or

(B) Information used previously by the commercial vendor in providing services 

to the candidate who is clearly identified in the communication, or the candidate’s 

authorized committee, the candidate’s opponent, the opponent’s authorized 

committee, or a political party committee, and that information is material to the 

creation, production, or distribution of the communication.

(5) Former employee or independent contractor. Both of the following 

statements in paragraphs (d)(5)(i) and (d)(5)(ii) of this section are true:

(i) The communication is paid for by a person, or by the employer of a person, 

who was an employee or independent contractor of the candidate who is clearly 

identified in the communication, or the candidate’s authorized committee, the 

candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, during the previous 120 days; and

(ii) This paragraph, (d)(5)(ii), is not satisfied if the information material to the 

creation, production, or distribution of the communication used or conveyed by the 

former employee or independent contractor was obtained from a publicly available 

source. That former employee or independent contractor uses or conveys to the 

person paying for the communication:

(A) Information about the campaign plans, projects, activities, or needs of the 

clearly identified candidate, the candidate’s opponent, or a political party committee, 

and that information is material to the creation, production, or distribution of the 

communication; or

(B) Information used by the former employee or independent contractor in 

providing services to the candidate who is clearly identified in the communication, 

or the candidate’s authorized committee, the candidate’s opponent, the opponent’s 

authorized committee, or a political party committee, and that information is 

material to the creation, production, or distribution of the communication.

(6) Dissemination, distribution, or republication of campaign material. A 

communication that satisfies the content standard of paragraph (c)(2) of this section 

or 11 CFR 109.37(a)(2)(i) shall only satisfy the conduct standards of paragraphs 

(d)(1) through (d)(3) of this section on the basis of conduct by the candidate, the 

candidate’s authorized committee, or the agents of any of the foregoing, that occurs 

after the original preparation of the campaign materials that are disseminated, 

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 82 of 83
16a

distributed, or republished. The conduct standards of paragraphs (d)(4) and (d)(5) of 

this section may also apply to such communications as provided in those paragraphs.

(e) Agreement or formal collaboration. Agreement or formal collaboration 

between the person paying for the communication and the candidate clearly 

identified in the communication, or the candidate’s authorized committee, the 

candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, is not required for a communication to be a coordinated communication. 

Agreement means a mutual understanding or meeting of the minds on all or any part 

of the material aspects of the communication or its dissemination. Formal 

collaboration means planned, or systematically organized, work on the 

communication.

* * *

USCA Case #21-5081 Document #1907371 Filed: 07/22/2021 Page 83 of 83