Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 1 of 16 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

AB PAC, ) 

) 

Plaintiff, ) Civ. No. 22-2139 (TJK) 

) 

v. ) 

) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

) 

Defendant. ) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS 

Lisa J. Stevenson Jacob Siler (D.C. Bar No. 1003383) 

(D.C. Bar No. 457628) Assistant General Counsel 

Acting General Counsel jsiler@fec.gov 

lstevenson@fec.gov 

Shaina Ward (D.C. Bar No. 1002801) 

Kevin Deeley Attorney 

Associate General Counsel sward@fec.gov 

kdeeley@fec.gov 

FEDERAL ELECTION COMMISSION 

September 26, 2022 1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 
 

 

 

 

Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 2 of 16 

TABLE OF CONTENTS 

BACKGROUND .......................................................................................................................1 

I. THE FEC AND FECA’S ADMINISTRATIVE 

ENFORCEMENT PROCESS........................................................................................1 

II. ADMINISTRATIVE PROCEEDINGS RELATED 

TO PLAINTIFF’S ADMINISTRATIVE COMPLAINT ..............................................3 

ARGUMENT.............................................................................................................................5 

I. AB PAC LACKS ARTICLE III STANDING TO COMPEL 

THE COMMISSION TO ACT ON ITS EXCESSIVE 

CONTRIBUTION CLAIM............................................................................................5 

A. Standard of Review ............................................................................................5 

B. AB PAC Does Not Have Standing to Ask This Court to 

Compel the Commission to Enforce a Contribution Limit 

Against a Third Party .........................................................................................7 

C. AB PAC Lacks Standing to Pursue Its Claim of Excessive 

Contributions Because it is Not a Competitor Candidate ..................................8 

CONCLUSION ........................................................................................................................11 

i 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 3 of 16 

TABLE OF AUTHORITIES 

Cases 

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. 1998) ............................................................................. 9 

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) ............................................................................ 5 

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 9 

Attias v. Carefirst, Inc., 865 F.3d 620 (D.C. Cir. 2017) ................................................................. 6 

Campaign Legal Ctr. v. FEC, 860 F. App’x 1 (D.C. Cir. 2021) .................................................... 7 

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).................................................................. 4, 10 

Citizens for Resp. & Ethics in Wash. v. FEC, 

267 F. Supp. 3d 50 (D.D.C. 2017)............................................................................................7-8 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ................................................................ 7 

Davis v. FEC, 554 U.S. 724 (2008) .......................................................................................... 6, 10 

Fulani v. Brady, 935 F.2d 1324 (D.C. Cir. 1991)......................................................................... 10 

Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 

185 F. Supp. 2d 9 (D.D.C. 2001)................................................................................................. 6 

Haase v. Sessions, 835 F.2d 902 (D.C. Cir. 1987) ......................................................................... 5 

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012)...................................................................... 9 

In re U.S. Catholic Confer. 

885 F.2d 1020 (2d Cir. 1989) .................................................................................................9-10 

Int’l Bhd. of Teamsters v. TSA, 429 F.3d. 1130 (D.C. Cir. 2005)................................................... 7 

Jerome Stevens Pharms., Inc. v. FDA., 402 F.3d 1249 (D.C. Cir. 2005) ....................................... 5 

Lujan v. Def. of Wildlife, 504 U.S. 555 (1992) ............................................................................... 6 

M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019)..................................................... 5 

McConnell v. FEC, 540 U.S. 93 (2003)........................................................................................ 10 

ii 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 4 of 16 

Nat’l Ass’n for Latino Cmty. Asset Builders v. Consumer Fin. Prot. Bureau, 

581 F. Supp. 3d 101 (D.D.C. 2022)............................................................................................. 6 

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .................................................................................. 9 

Simon v. E. Ky. Welfare Rights Org., 

426 U.S. 26 (1976) ...................................................................................................................... 6 

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...................................................................... 7 

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)..................................................................... 8 

Statutes 

52 U.S.C. § 30102(e)(1).................................................................................................................. 4 

52 U.S.C. § 30104........................................................................................................................... 4 

52 U.S.C. § 30106........................................................................................................................... 1 

52 U.S.C. § 30106(b)(1) ............................................................................................................. 1, 2 

52 U.S.C. § 30106(c) ...................................................................................................................... 2 

52 U.S.C. § 30107........................................................................................................................... 1 

52 U.S.C. § 30107(a)(8).................................................................................................................. 1 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

52 U.S.C. § 30109(a)(2).................................................................................................................. 2 

52 U.S.C. § 30109(a)(4)(A)(i) ........................................................................................................ 2 

52 U.S.C. § 30109(a)(6).................................................................................................................. 2 

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 2 

52 U.S.C. § 30109(a)(8).................................................................................................................. 1 

52 U.S.C. § 30109(a)(8)(A) .................................................................................................... 3, 5, 7 

52 U.S.C. § 30109(a)(8)(C) ............................................................................................................ 3 

52 U.S.C. § 30109(a)(12)(A) .......................................................................................................... 3 

iii 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 5 of 16 

52 U.S.C. § 30109(a)(12)(B) .......................................................................................................... 3 

52 U.S.C. § 30111(a)(8).................................................................................................................. 1 

52 U.S.C. § 30116(f)................................................................................................................. 5, 11 

Rules and Regulations 

11 C.F.R. § 111.4............................................................................................................................ 2 

11 C.F.R. § 111.21.......................................................................................................................... 3 

Fed. R. Civ. P. 12(b)(1)........................................................................................................... 1, 5, 6 

iv 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 6 of 16 

Plaintiff AB PAC has filed this action pursuant to 52 U.S.C. § 30109(a)(8), alleging that 

the Federal Election Commission (“Commission” or “FEC”) has failed to timely act on its 

administrative complaint. The underlying administrative complaint alleges that former president 

Donald J. Trump violated the Federal Election Campaign Act of 1971 (“FECA”), by making 

expenditures to advance his 2024 presidential campaign without filing a statement of candidacy 

with the FEC or disclosing those expenditures, and by accepting excessive contributions from his 

leadership PAC and a joint fundraising committee. As detailed below, however, to the extent 

that plaintiff’s administrative complaint alleges that Trump has accepted excessive contributions, 

that portion of the complaint should be dismissed pursuant to Federal Rule of Civil Procedure 

12(b)(1), because plaintiff has not established standing to obtain any relief on this claim. Even 

were the Commission to pursue enforcement of the claim that Trump has accepted excessive 

contributions, as AB PAC requests, AB PAC would not obtain any additional information to 

which it claims it is entitled. Nor does AB PAC suffer a competitive disadvantage from the 

Commission’s alleged inaction on its administrative complaint because AB PAC does not itself 

seek elective office or nominate candidates for election. AB PAC’s allegations as to this claim 

amount to dissatisfaction with a civil law enforcement agency’s level of enforcement against a 

third party and are therefore too remote and speculative to support standing under Article III. 

BACKGROUND 

I. THE FEC AND FECA’S ADMINISTRATIVE ENFORCEMENT PROCESS 

The FEC is a six-member, independent agency of the United States government with 

“exclusive jurisdiction” to administer, interpret, and civilly enforce FECA. See generally 52 

U.S.C. §§ 30106, 30107. Congress authorized the Commission to “formulate policy” with 

respect to FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as are necessary 

to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate 

1 
 

Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 7 of 16 

possible violations of the Act, id. § 30109(a)(1)-(2). The Commission has exclusive jurisdiction 

to initiate civil enforcement actions for violations of the Act in the United States district courts. 

Id. §§ 30106(b)(1), 30109(a)(6). 

FECA permits any person to file an administrative complaint with the Commission 

alleging a violation of the Act. Id. § 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing 

the complaint and any response filed by the respondent, the Commission considers whether there 

is “reason to believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2). If at least four of 

the FEC’s six Commissioners vote to find such reason to believe, the Commission may 

investigate the alleged violation; otherwise, the Commission dismisses the administrative 

complaint. Id. §§ 30106(c), 30109(a)(2). 

If the Commission votes to proceed with an investigation, it then must determine whether 

there is “probable cause” to believe that FECA has been violated. Id. § 30109(a)(4)(A)(i). Like 

a reason-to-believe determination, a determination to find probable cause to believe that a 

violation of FECA has occurred requires an affirmative vote of at least four Commissioners. Id. 

§§ 30106(c), 30109(a)(4)(A)(i). If the Commission so votes, it is statutorily required to attempt 

to remedy the violation informally and attempt to reach a conciliation agreement with the 

respondent. Id. Entering into a conciliation agreement requires an affirmative vote of at least 

four Commissioners and such an agreement, unless violated, operates as a bar to any further 

action by the Commission related to the violation underlying that agreement. Id. If the 

Commission is unable to reach a conciliation agreement, FECA authorizes the agency to institute 

a de novo civil enforcement action in federal district court. Id. § 30109(a)(6)(A). The institution 

of a civil action under section 30109(a)(6)(A) requires an affirmative vote of at least four 

Commissioners. Id. § 30106(c). 

2 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 8 of 16 

FEC administrative enforcement matters are required by FECA to be kept confidential 

until the administrative process is complete. 52 U.S.C. § 30109(a)(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.”); 11 C.F.R. § 111.21. FECA further provides for 

the imposition of a fine on “[a]ny member or employee of the Commission, or any other person, 

who violates” section 30109(a)(12)(A). 52 U.S.C. § 30109(a)(12)(B). 

If, at any point in the administrative process, the Commission determines that no 

violation has occurred or decides to dismiss the administrative complaint for some other reason, 

FECA provides the complainant with a narrow cause of action for judicial review of the 

Commission’s dismissal decision. See id. § 30109(a)(8)(A) (detailing the procedure for seeking 

judicial review of an administrative dismissal and the scope of such review). That statutory 

provision also allows a party who has filed an administrative complaint with the Commission, 

after 120 days, to bring a civil action in this District alleging that the Commission has “fail[ed] to 

act” on its complaint. Id. § 30109(a)(8)(A). 

FECA expressly limits the scope of relief available to a plaintiff challenging an FEC 

dismissal decision or alleging that the Commission has failed to act on an administrative 

complaint. The reviewing court may only (a) declare that the Commission’s failure to act or 

dismissal was “contrary to law” and (b) order the Commission to “conform with” the court’s 

declaration within 30 days. 52 U.S.C. § 30109(a)(8)(C). 

II. ADMINISTRATIVE PROCEEDINGS RELATED TO PLAINTIFF’S 

ADMINISTRATIVE COMPLAINT 

Plaintiff AB PAC alleges that it is a hybrid political action committee (“PAC”) that is 

registered with the FEC. Pl.’s Compl. for Declaratory and Injunctive Relief (“Compl.”) ¶ 18 

3 
 

 

Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 9 of 16 

(Docket No. 1).)1

 AB PAC alleges that it supports Democratic candidates by conducting 

research on Republican candidates, which it releases to the public and the media. (Id. ¶ 19.) 

Plaintiff alleges that it tracks Republican candidates and makes independent expenditures in 

support of Democratic candidates. (Id.) Plaintiff further alleges that it spent tens of millions of 

dollars on communications opposing Trump and supporting then-candidate President Joseph 

Biden in the 2020 presidential election. (Id.) Additionally, plaintiff alleges that in the 2024 

presidential election, AB PAC again plans to make independent expenditures opposing the 

Republican nominee and supporting the Democratic nominee. (Id.) AB PAC does not allege 

that it nominates candidates for federal office, and as an artificial entity, it is not itself eligible to 

stand for election. 

Plaintiff’s court complaint alleges that it filed an administrative complaint with the FEC 

on March 17, 2022. (Id. ¶ 1.) As alleged here, plaintiff’s administrative complaint asserted two 

categories of potential FECA violations that it asked the Commission to investigate. (Id. ¶¶ 48-

49.) The first category alleges that Trump is a “candidate” for the president in the 2024 election 

cycle, and he has therefore violated FECA’s requirement that candidates for federal office file a 

statement of candidate and campaign finance disclosure reports identifying his contributions and 

expenditures. (See id. ¶ 48 (citing 52 U.S.C. §§ 30102(e)(1) and 30104).) The second category 

alleges that Trump has accepted excessive contributions above FECA’s dollar amount limitations 

for his purported 2024 presidential campaign from an entity called “Save America” — his 

leadership PAC — and a joint fundraising committee because those entities spent more than 

A “hybrid PAC” is a committee that accepts funds and makes contributions to candidates 

subject to FECA’s amount and source limitations but that also maintains a separate bank account 

to deposit and spend unlimited funds on independent expenditures and from sources such as 

labor unions or corporations that would otherwise be barred from being contributed to 

candidates. See Carey v. FEC, 791 F. Supp. 2d 121, 131-32 (D.D.C. 2011). 

4 

1 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 10 of 16 

$5,000 on alleged in-kind contributions. (Id. ¶ 49 (citing 52 U.S.C. § 30116(f).) Plaintiff’s 

administrative complaint requests that the Commission “(1) investigate the allegations against 

Mr. Trump, (2) compel disclosure of any expenditures made to support Mr. Trump’s candidacy, 

(3) enjoin Mr. Trump from further violations, and (4) fine Mr. Trump the maximum amount 

permitted by law.” (Id. ¶ 10.) 

On July 20, 2022, plaintiff filed this judicial action against the Commission alleging that 

the Commission has failed to act on its administrative complaint. (See id. ¶ 1.) Plaintiff seeks a 

declaration “that the FEC’s failure to act” is “contrary to law” under 52 U.S.C. § 30109(a)(8)(A) 

& (C). (Compl. ¶ 7.) Plaintiff also seeks “injunctive and declaratory relief” to compel the 

Commission “to act on Plaintiff’s administrative complaint” within 30 days. (Id.; see also 

Compl. Requested Relief ¶¶ 1-4.) 

ARGUMENT 

I. AB PAC LACKS ARTICLE III STANDING TO COMPEL THE COMMISSION 

TO ACT ON ITS EXCESSIVE CONTRIBUTION CLAIM 

A. Standard of Review 

A plaintiff bears the burden of demonstrating that it has properly invoked this Court’s 

subject-matter jurisdiction. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A motion 

to dismiss for lack of standing is properly considered under Rule 12(b)(1), as lack of standing is 

a “defect in subject matter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); 

M.J. v. District of Columbia, 401 F. Supp. 3d 1, 7-8 (D.D.C. 2019). When deciding a motion 

under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as 

true. See Jerome Stevens Pharms., Inc. v. FDA., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Because 

the court has “an affirmative obligation to ensure that it is acting within the scope of its 

jurisdictional authority,” however, the factual allegations in the complaint “will bear closer 

5 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 11 of 16 

scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a 

claim.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 

(D.D.C. 2001) (internal quotation marks omitted); see also Nat’l Ass’n for Latino Cmty. Asset 

Builders v. Consumer Fin. Prot. Bureau, 581 F. Supp. 3d 101, 104 (D.D.C. 2022) (same). As the 

party bringing suit, AB PAC bears the burden of establishing standing. Attias v. Carefirst, Inc., 

865 F.3d 620, 625 (D.C. Cir. 2017). 

To have Article III standing a plaintiff must establish: (1) it has “suffered an ‘injury in 

fact[,]” which the Supreme Court defines as “an invasion of a legally protected interest which is 

(a) concrete and particularized, and (b) actual or imminent, not [merely] conjectural or 

hypothetical,” Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and 

quotation marks omitted); (2) that there is a “causal connection between the injury and the 

conduct complained of[,]” which requires the injury to be “fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of some third party not 

before the court,” id. (internal quotation marks and alterations omitted); and (3) that it is “likely, 

as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. 

(internal quotation marks omitted). These three components of the Article III “case or 

controversy” requirement are designed to ensure that the “plaintiff has alleged such a personal 

stake in the outcome of the controversy as to warrant his invocation of federal court jurisdiction 

and to justify [the] exercise of the court’s remedial powers on his behalf.” Simon v. E. Ky. 

Welfare Rights Org., 426 U.S. 26, 38 (1976) (internal quotation marks omitted). Moreover, 

“standing is not dispensed in gross” and “a plaintiff must demonstrate standing for each claim he 

seeks to press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734 

(2008) (internal quotation marks and alterations omitted). 

6 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 12 of 16 

Where a plaintiff asserts a procedural right, he must show that he has suffered a personal 

and particularized injury that impairs one of his concrete interests. Int’l Bhd. of Teamsters v. 

TSA, 429 F.3d. 1130, 1135 (D.C. Cir. 2005). “[D]eprivation of a procedural right without some 

concrete interest that is affected by the deprivation — a procedural right in vacuo — is 

insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496 

(2009). In the context of a failure-to-act claim pursuant to 52 U.S.C. § 30109(a)(8)(A), it is not 

enough for a plaintiff to allege that the Commission has not acted on an administrative 

complaint. That is so because section 30109(a)(8)(A) “does not confer standing; it confers a 

right to sue upon parties who otherwise already have standing.” Common Cause v. FEC, 108 

F.3d 413, 419 (D.C. Cir. 1997) (per curiam). Rather, a plaintiff bringing a failure-to-act claim 

under section 30109(a)(8)(A) must allege that it suffered some additional concrete injury beyond 

the mere alleged agency inaction. See Campaign Legal Ctr. v. FEC, 860 F. App’x 1, 4-5 (D.C. 

Cir. 2021) (per curiam). 

B. AB PAC Does Not Have Standing to Ask This Court to Compel the 

Commission to Enforce a Contribution Limit Against a Third Party 

As an initial matter, plaintiff cannot establish Article III standing on its excessive 

contribution claim because the only purported injury it has alleged is a generalized desire to see 

the FEC apply the law against third parties. AB PAC fails to show that it has suffered any 

concrete or particularized injury from Trump’s allegedly unlawful acceptance of excessive inkind contributions. As to this portion of its complaint, AB PAC does not allege that the 

Commission’s lack of administrative action causes it to be deprived of information to which it 

believes it is entitled. Nor could it, because even if the Commission brought a successful 

enforcement action based on AB PAC’s allegations that Trump had accepted excessive 

contributions, no additional disclosure would result. See Citizens for Resp. & Ethics in Wash. v. 

7 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 13 of 16 

FEC, 267 F. Supp. 3d 50, 53 (D.D.C. 2017) (“Plaintiffs have alleged no facts that they were 

harmed by the money spent by Murray Energy PAC or by the direct donations that Murray 

Energy employees gave. The particularized harm they plead is not about the money in politics 

but about the lack of information about that money.”). 

The relief AB PAC seeks is for this Court to compel the FEC to enforce a contribution 

limit against a political candidate it opposes. Such concerns cannot be the basis for standing 

because there is no “justiciable interest in having the Executive Branch act in a lawful manner.” 

Common Cause, 108 F.3d at 419. AB PAC has no Article III right to seek “a legal conclusion 

that carries certain law enforcement consequences” for others. Wertheimer v. FEC, 268 F.3d 

1070, 1075 (D.C. Cir. 2001). “While ‘Congress can create a legal right . . . the interference with 

which will create an Article III injury,’ . . . Congress cannot . . . create standing by conferring 

‘upon all persons . . . an abstract, self-contained, noninstrumental ‘right’ to have the Executive 

observe the procedures required by law.’” Common Cause, 108 F.3d at 418 (quoting Lujan, 504 

U.S. at 573) (emphasis in original, internal citation omitted). 

C. AB PAC Lacks Standing to Pursue Its Claim of Excessive Contributions 

Because it is Not a Competitor Candidate 

The only potential injury stemming from the Commission’s alleged inaction as to the 

excessive contribution claim AB PAC identifies is that Trump’s “acceptance of unlawful 

contributions . . . provides him with a competitive edge over the Democratic candidate in the 

2024 presidential election.” (Compl. ¶ 3; see also id. ¶ 6 (alleging Trump has “an unlawful head 

start against his opponents”); id. ¶ 13 (alleging that “the Commission’s inaction is allowing one 

candidate to build a campaign with illegal funds, giving him a competitive advantage over his 

opponents”); id. ¶ 22.) Even assuming it were the case that a Democratic candidate were injured 

8 
 

 

 

Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 14 of 16 

by the Commission’s alleged inaction, that would not support AB PAC’s standing because it is 

not a candidate. 

The D.C. Circuit has recognized that the “illegal structuring of a competitive 

environment” is an injury-in-fact that competitors in that environment have standing to redress in 

federal court. Shays v. FEC, 414 F.3d 76, 85 (D.C. Cir. 2005) (finding standing for members of 

Congress who intended to run for reelection and were challenging FEC regulations applicable to 

candidates and political parties). But the corollary to that doctrine requires that the plaintiff 

actually compete with the person receiving the allegedly illegal benefit. See Hassan v. FEC, 893 

F. Supp. 2d 248, 254 n.6 (D.D.C. 2012) (distinguishing cases in which “already established 

candidates have been found to have standing to challenge an ‘assertedly illegal benefit’ being 

conferred upon someone with whom those candidates compete” (emphasis added)). 

Plaintiff’s allegation that it is injured because a hypothetical candidate it intends to 

support will be at a fundraising disadvantage (see, e.g., Compl. ¶ 3) does not establish competitor 

standing for AB PAC.2 In Gottlieb v. FEC, the D.C. Circuit concluded that a PAC lacked 

standing as a competitor to challenge the use of public matching funds by a candidate it opposed 

“because it was never in a position to receive matching funds itself.” 143 F.3d 618, 621 (D.C. 

Cir. 1998). “Only another candidate could make such a claim.” Id. (emphasis added). As the 

Gottlieb court reasoned, competitor standing “require(s) that the plaintiff ‘show that he 

personally competes in the same arena with the same party to whom the government has 

bestowed the assertedly illegal benefit.’” Id. (quoting In re U.S. Catholic Confer., 885 F.2d 

Plaintiff does not specifically connect the competitive disadvantage a hypothetical 

candidate would face to its own injuries, other than to say that such a disadvantage “harms AB 

PAC.” (Compl. ¶ 22.) That allegation is conclusory and therefore “is not entitled to the 

assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 

9 

2 
Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 15 of 16 

1020, 1029 (2d Cir. 1989)). Similarly, in Fulani v. Brady, the court concluded that a minor party 

candidate for President could not establish competitor standing to challenge the tax-exempt 

status of the sponsor of the Presidential debates, which had excluded her from participating, 

because she was not in competition for that benefit. See 935 F.2d 1324, 1327-28 (D.C. Cir. 

1991). As these cases demonstrate, it is not enough for AB PAC to claim that a candidate it 

supports will be at a disadvantage in raising money. AB PAC must also allege that it is denied 

the benefit of the purported nonenforcement of contribution limits that Trump is receiving. 

Plaintiff cannot make that showing because it is not among Trump’s competitors in any 

election. AB PAC cannot allege, for example, that it must comply with a contribution limitation 

that the Commission is not enforcing against Trump. As a hybrid PAC, plaintiff is permitted to 

raise contributions into a separate account for independent expenditures which are not subject to 

the amount and source limitations FECA places on candidates. See Carey v. FEC, 791 F. Supp. 

2d 121, 131-32 (D.D.C. 2011). Absent being denied a benefit a similarly situated party received, 

moreover, AB PAC is not injured merely because Trump raises and spends more money than 

plaintiff would like. Cf. Davis, 554 U.S. at 741-42; McConnell v. FEC, 540 U.S. 93, 227-28 

(2003) (holding that plaintiff lacked competitive injury because they did ‘“not wish to solicit or 

accept large campaign contributions permitted by”’ federal law). 

To be sure, AB PAC alleges that it is an ideological opponent to Trump and desires a 

different candidate to be elected president in 2024. But a political action committee like AB 

PAC lacks competitor standing to challenge a benefit given to a candidate if that benefit is 

granted solely to candidates, because they are not competitors in the same “arena.” See Gottlieb, 

143 F.3d at 621. It therefore lacks competitor standing with regard to the excessive contribution 

claims it alleges it made to the Commission. 

10 
 

 

Case 1:22-cv-02139-TJK Document 12-1 Filed 09/26/22 Page 16 of 16 

In sum, AB PAC’s excessive contribution claim is insufficient to support standing 

because it does not compete with Trump. AB PAC is not a rival candidate. And its complaints 

about a potential agency enforcement action on this claim are too remote and speculative to 

support standing. Accordingly, the FEC’s Motion to dismiss this portion of plaintiff’s judicial 

complaint should be granted. 

CONCLUSION 

For all the foregoing reasons, the Court should dismiss plaintiff’s complaint to the extent 

it seeks an order compelling the Commission to act on any administrative complaint alleging 

Trump accepted excessive contributions in violation of 52 U.S.C. § 30116(f).

 Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) Jacob Siler (D.C. Bar No. 1003383) 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov jsiler@fec.gov 

Kevin Deeley /s/ Shaina Ward 

Associate General Counsel Shaina Ward (D.C. Bar No. 1002801) 

kdeeley@fec.gov Attorney 

sward@fec.gov 

September 26, 2022 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

11