IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER 

1101 14th St., NW, Ste. 400 

Washington, D.C. 20005 

CATHERINE HINCKLEY KELLEY 

1101 14th St., NW, Ste. 400 

Washington, D.C. 20005 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION 

1050 First St., NE 

Washington, D.C. 20463 

 Defendant. 

Civil Action No: 1:19-cv-02336-JEB 

PLAINTIFFS’ OPPOSITION TO CORRECT THE RECORD’S 

AND HILLARY FOR AMERICA’S MOTION TO INTERVENE 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

mmcallen@campaignlegalcenter.org 

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Attorneys for Plaintiffs 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 1 of 20
ii 

TABLE OF CONTENTS

 Page 

TABLE OF AUTHORITIES ...................................................................................................... iii 

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

FACTUAL AND LEGAL BACKGROUND ...............................................................................2 

A. Statutory framework for FEC administrative complaints ..............................................2 

B. The FEC’s dismissal of CLC’s administrative complaint alleging a massive 

coordination scheme by Correct the Record and the Clinton campaign ........................4 

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

I. Movants are not entitled to intervention as a matter of right or permissive intervention ..........5 

A. The circumstances of this case are unique and confound the rote application of 

Crossroads GPS that movants urge ...............................................................................6 

B. FECA does not entitle respondents to take up the government’s role in an 

administrative review action where the agency has chosen not to participate ..............9 

II. At a minimum, the motion to intervene is premature and fails to address the practical 

significance of the Commission’s default ................................................................................14 

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

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 2 of 20
iii 

TABLE OF AUTHORITIES 

Page

Cases: 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .....................................................13

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ...........................................................3, 12

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015) ...........1, 5, 6, 13 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”) .....3, 11

Deutsche Bank Nat. Tr. Co. v. FDIC, 717 F.3d 189 (D.C. Cir. 2013).......................................9, 10

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) ...................................12

Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ..................................................6 

Galliano v. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) .....................................................13

Hollingsworth v. Perry, 570 U.S. 693 (2010) ................................................................................10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................9, 10 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ...............................................................................5

Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc) ................................................................9

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)......................................................................13, 14

United Transp. Union v. ICC, 891 F.2d 908 (D.C. Cir. 1989) ......................................................10

Washington Tennis & Educ. Found., Inc. v. Clark Nexsen, Inc., 270 F. Supp. 3d 158 

(D.D.C. 2017) ............................................................................................................................9 

Statutes and Regulations:

28 U.S.C. § 1331 ..............................................................................................................................5 

52 U.S.C. § 30106(c) .............................................................................................................2, 3, 12 

52 U.S.C. § 30107(a)(6) .........................................................................................................2, 3, 12 

52 U.S.C. § 30107(e) ...................................................................................................................2, 9 

52 U.S.C. § 30109(a)(1) .............................................................................................................2, 12 

52 U.S.C. § 30109(a)(2) ...................................................................................................................3 

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

52 U.S.C. § 30109(a)(4)(A) .............................................................................................................3 

52 U.S.C. § 30109(a)(5) ...................................................................................................................3 

52 U.S.C. § 30109(a)(6)(A) .............................................................................................................3 

52 U.S.C. § 30109(a)(8) .........................................................................................1, 6, 8, 10, 11, 12 

52 U.S.C. § 30109(a)(8)(A) ...............................................................................................1, 3, 5, 12 

52 U.S.C. § 30109(a)(8)(B) ...................................................................................................3, 5, 15 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 3 of 20
iv 

52 U.S.C. § 30109(a)(8)(C) .................................................................................................4, 10, 12 

Administrative Record Materials: 

Amended Certification, MURs 6940, 7097, 7146, 7160, and 7193 (Correct the 

Record) (signed June 13, 2019), https://www.fec.gov/files/legal/murs/7146/

19044472151.pdf ...................................................................................................................1, 5 

First General Counsel’s Report, MURs 6940, 7097, 7146, 7160, and 7193 (Correct 

the Record) (Oct. 16, 2018), https://www.fec.gov/files/legal/murs/7146/190444

72082.pdf ...................................................................................................................................4 

Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioner 

Caroline C. Hunter, MURs 6940, 7097, 7146, 7160, 7193 (Correct the Record) 

(Aug. 21, 2019), https://www.fec.gov/files/legal/murs/7146/7146_1.pdf. ................................5 

Statement of Reasons of Chair Ellen L. Weintraub, MURs 6940, 7097, 7146, 7160, 

7193 (Correct the Record) (Sept. 20, 2019), https://www.fec.gov/files/legal/murs/

7146/7146_2.pdf ....................................................................................................................5, 8 

Other Materials: 

Chair Ellen L. Weintraub’s Suppl. Responses to Questions from House Admin. 

Comm. (May 1, 2019), https://www.fec.gov/resources/cms-content/documents/

FEC_Response_to_House_Admin_Attachment_A_Weintraub.pdf ..........................................7 

Dartunorro Clark, ‘It’s going to be a crisis’: Turning out the lights at the 

undermanned FEC, NBC News (Aug. 30, 2019), https://www.nbcnews.com/

politics/2020-election/it-s-going-be-crisis-turning-out-lights-undermanned-fecn1048376....................................................................................................................................8 

Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” to Rescue the 

Agency From Gridlock, Mother Jones (Feb. 20, 2019), https://www.motherjones.

com/politics/2019/02/elections-commission-chief-uses-the-nuclear-option-torescue-the-agency-from-gridlock ...............................................................................................7 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 4 of 20
v 

TABLE OF ABBREVIATIONS 

CTR Correct the Record 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

HFA Hillary for America 

MUR Matter Under Review 

OGC Office of General Counsel (FEC) 

SOR Statement of Reasons 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 5 of 20
1 

INTRODUCTION 

Plaintiffs Campaign Legal Center and Ms. Catherine Hinckley Kelley (collectively, 

“CLC”) oppose the motion to intervene filed by Correct the Record (“CTR”) and Hillary for 

America (“HFA”) at this time because the motion is premature and fails to account for the 

distinctive circumstances of this case. 

On August 2, 2019, CLC filed this lawsuit challenging the Federal Election Commission’s 

dismissal of its administrative complaint against CTR/HFA as contrary to law under 52 U.S.C. 

§ 30109(a)(8)(A). This particular case is unique, however, because the Commission could not 

muster the statutorily required, four-vote majority necessary to defend its own dismissal of CLC’s 

complaint. See Amended Certification at 3, MURs 6940, 7097, 7146, 7160, and 7193 (Correct the 

Record) (signed June 13, 2019), https://www.fec.gov/files/legal/murs/7146/19044472151.pdf. To 

CLC’s knowledge, this marks the first instance in which the Commission has affirmatively decided 

not to defend its dismissal of an enforcement complaint in an administrative review action under 

section 30109(a)(8). 

Shortly before the motion to intervene was filed on October 1, counsel for CTR/HFA asked 

counsel for CLC if they would consent to their motion. Plaintiffs’ counsel demurred, noting that 

the Commission had not yet appeared or filed a responsive pleading. At that time, the FEC’s role 

in this litigation remained uncertain in light of its failed vote to authorize a legal defense and 

subsequent loss of voting quorum. On October 8, the Commission defaulted by failing to file a 

responsive pleading to plaintiffs’ complaint, and to date, it has not appeared or filed any papers. 

Thus, in moving to intervene, CTR and HFA are not merely seeking to join the FEC as a 

defendant in this action, as was the case for the intervenor-movants in Crossroads Grassroots 

Policy Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015), the precedent on which CTR/HFA’s 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 6 of 20
2 

motion principally relies. Instead, CTR and HFA are effectively asking to step into the agency’s 

shoes, and, as private parties, defend its decision even though the agency has affirmatively decided 

not to stand behind its own action. But their intervention would nullify the carefully balanced 

statutory scheme in the Federal Election Campaign Act (“FECA”), which precludes a defense of 

the Commission’s dismissal of an administrative complaint unless four Commissioners authorize 

such a defense. 52 U.S.C. §§ 30106(c), 30107(a)(6). Granting the movants’ request would 

undermine this statutory check on the Commission’s deliberate intransigence or non-enforcement 

of the law. 

And even if CTR/HFA’s participation in the case were appropriate, their motion—which 

preceded the FEC’s default here—does not anticipate the procedural complications caused by this 

default, failing to take into account, for example, the need for the FEC to nevertheless certify the 

administrative record before this case can proceed. 

CLC respectfully urges the Court to deny CTR/HFA’s motion at this time. CLC would not 

object, however, to CTR/HFA’s participation as amicus curiae. 

FACTUAL AND LEGAL BACKGROUND 

A. Statutory framework for FEC administrative complaints 

The FEC is the exclusive civil enforcement authority for violations of FECA. 52 U.S.C. 

§§ 30106(b)(1), 30107(e). 

Any person may file an administrative complaint with the Commission alleging a violation 

of FECA. Id. § 30109(a)(1). The Commission, after reviewing the complaint and any responses, 

may then vote on whether there is sufficient “reason to believe” that a violation has occurred to 

justify an investigation. FECA requires the Commission to take action through majority votes, and 

certain decisions—including whether to find “reason to believe” and proceed with an investigation, 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 7 of 20
3 

id. § 30109(a)(2), initiate civil enforcement proceedings, id. § 30107(a)(6), or defend 

administrative review actions, id.—require the affirmative vote of at least four Commissioners. Id.

§ 30106(c). 

After the investigation, the FEC’s Office of General Counsel (“OGC”) can recommend 

that the Commission vote on whether there is “probable cause” to believe the law has been 

violated. Id. § 30109(a)(3). If the Commission determines, by an affirmative vote of at least four 

Commissioners, that there is probable cause to believe that a violation of the law has been 

committed, it attempts to correct such violation and enter a conciliation (i.e., settlement) agreement 

with the respondent, which may include payment of a civil penalty. Id. § 30109(a)(4)(A), (5). If 

the Commission is unable to correct the violation and enter a conciliation agreement with the 

respondent, it may, by the affirmative vote of at least four Commissioners, institute a civil action 

against the respondent in federal district court. Id. § 30109(a)(6)(A). 

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 (“SOR”) that will 

serve as the basis for any subsequent judicial review. Common Cause v. FEC, 842 F.2d 436, 449 

(D.C. Cir. 1988); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1135 & n.6 (D.C. 

Cir. 1987) (“DCCC”). 

FECA provides that “[a]ny party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . may file a petition” in district court within 60 days of the 

dismissal seeking review of the Commission’s action. 52 U.S.C. § 30109(a)(8)(A), (B). The 

Commission must authorize a defense against any such action by four votes. Id. §§ 30106(c), 

30107(a)(6). If the court finds the dismissal “contrary to law,” it may order the Commission to 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 8 of 20
4 

conform with such declaration within 30 days, id. § 30109(a)(8)(C), failing which the complainant 

may bring a civil action directly against the respondent to remedy the violation. Id. 

B. The FEC’s dismissal of CLC’s administrative complaint alleging a massive 

coordination scheme by Correct the Record and the Clinton campaign 

In the run-up to the 2016 elections, the super PAC CTR declared an ambitious plan to 

“push back against” critics of then-Democratic presidential nominee Hillary Clinton by 

coordinating millions of dollars of opposition research and media outreach with the Clinton 

campaign. Compl. ¶¶ 60-63. CTR’s founder and chair, David Brock, announced to the news media 

that his venture would not violate FECA’s contribution restrictions and disclosure requirements 

applicable to “coordinated expenditures” because, he claimed, FEC rules exempted unpaid Internet 

posts from the statutory coordination regime, and CTR would focus its expenditures on this exempt 

online activity. Id. ¶¶ 2, 61-62. 

On October 6, 2016, CLC filed a complaint with the FEC alleging that CTR had made, and 

HFA had received, millions of dollars in illegal and excessive in-kind contributions in the form of 

coordinated expenditures, and had failed to properly disclose this activity to the public as required 

by FECA. Id. ¶¶ 58-59. The FEC designated this proceeding Matter Under Review (“MUR”) 7146. 

After reviewing the allegations in plaintiffs’ administrative complaint, OGC recommended 

the Commission find reason to believe that CTR and HFA violated FECA by making and 

accepting, respectively, “unreported excessive and prohibited in-kind contributions” in the form 

of coordinated expenditures, and authorize an investigation. First General Counsel’s Report at 25-

26, MURs 6940, 7097, 7146, 7160, and 7193 (Correct the Record) (Oct. 16, 2018), https://www.

fec.gov/files/legal/murs/7146/19044472082.pdf. 

On June 4, 2019, the Commission voted on OGC’s recommendation but failed, by a vote 

of 2-2, to obtain the four affirmative votes needed to find “reason to believe” and proceed with an 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 9 of 20
5 

investigation. The Commission subsequently voted 4-0 to close the file. See Amended 

Certification at 4. 

Plaintiffs’ filed this action on August 2, 2019 to challenge this dismissal as arbitrary, 

capricious, and contrary to law under 52 U.S.C. § 30109(a)(8)(A) and 28 U.S.C. § 1331, one day 

before the expiration of the 60-day statutory filing deadline for such an action. 52 U.S.C. 

§ 30109(a)(8)(B). At the time plaintiffs filed their judicial complaint, the two controlling 

Commissioners who voted against a reason-to-believe finding still had not issued a Statement of 

Reasons or any explanation for their vote. See Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). 

Their Statement would not issue until August 21—19 days after CLC commenced this 

lawsuit, and 18 days after the expiration of the statutory period for seeking judicial review. See

Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioner Caroline C. 

Hunter, MURs 6940, 7097, 7146, 7160, 7193 (Correct the Record) (Aug. 21, 2019), https://www.

fec.gov/files/legal/murs/7146/7146_1.pdf. On September 20, dissenting Commissioner and 

current FEC Chair Ellen L. Weintraub issued her own Statement of Reasons explaining her vote 

to find “reason to believe” and proceed with an investigation. See Statement of Reasons of Chair 

Ellen L. Weintraub, MURs 6940, 7097, 7146, 7160, 7193 (Correct the Record) (Sept. 20, 2019), 

https://www.fec.gov/files/legal/murs/7146/7146_2.pdf. 

ARGUMENT 

I. Movants are not entitled to intervention as a matter of right or permissive intervention. 

 The D.C. Circuit considers a four-factor test when deciding whether to grant intervention 

as a matter of right: (1) whether the intervenor-movant’s motion is timely; (2) whether the movant 

has a “legally protected” interest in the action; (3) whether the action threatens to impair the 

movant’s proffered interest in the action; and (4) whether an existing party to the action will 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 10 of 20
6 

adequately represent the movant’s interests. Crossroads, 788 F.3d at 320. In addition, in this 

Circuit, any party seeking to intervene as of right, whether as a plaintiff or a defendant, is required 

to demonstrate standing. “To establish standing under Article III, a prospective intervenor—like 

any party—must show: (1) injury-in-fact, (2) causation, and (3) redressability.” Fund for Animals, 

Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003). 

While CTR/HFA may meet some of the requirements for intervention, the FEC’s 

affirmative decision not to authorize a defense of this action, and its corollary decision to default, 

deprives them of a legally protectable interest in this case. For the same reason, CTR and HFA 

lack standing to try to justify the agency’s own decision-making, which the FEC itself refuses to 

defend. To hold otherwise would upset the careful balance prescribed by FECA, which specifically 

requires four affirmative votes when the Commission decides whether to defend its decision not 

to pursue the violations alleged in an administrative complaint. 

A. The circumstances of this case are unique and confound the rote application of 

Crossroads GPS that movants urge. 

CTR and HFA rely principally on the Crossroads GPS decision to support their motion to 

intervene, asserting it was “procedurally identical” to this case and compels granting intervention 

as of right for any respondent to an FEC complaint who seeks to participate in a challenge to the 

complaint’s dismissal. CTR/HFA Mem. at 4. 

Plaintiffs do not dispute that Crossroads GPS, in many circumstances, supports 

intervention by administrative respondents in a case seeking review under 52 U.S.C. 

§ 30109(a)(8). Indeed, CLC attorneys are counsel to the plaintiffs in the litigation that gave rise to 

that decision, Public Citizen v. FEC, No. 1:14-cv-00148-RJL (D.D.C.), and consented to 

Crossroads’ motion to intervene as a defendant there. 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 11 of 20
7 

But this case is clearly different. On June 4, 2019, the FEC voted on whether to authorize 

the defense of the controlling Commissioners’ dismissal of plaintiffs’ administrative complaint, 

but failed to garner the requisite four votes to defend. As a result, the FEC has defaulted by failing 

to answer or respond to CLC’s complaint. 

The FEC Chair who voted against authorizing a legal defense has explained that her vote 

was based on her longstanding and intensifying concern that the Commission has adopted a de 

facto policy of non-enforcement, explaining: “If [the Commissioners] are not going to vote to 

enforce the law, I’m not going to pull any punches and I’m not going to be shy about calling them 

out.” Nihal Krishan, Elections Commission Chief Uses the “Nuclear Option” to Rescue the Agency 

From Gridlock, Mother Jones (Feb. 20, 2019), https://www.motherjones.com/politics/2019/02/

elections-commission-chief-uses-the-nuclear-option-to-rescue-the-agency-from-gridlock. She 

further stated, “[i]f [the Commission] get[s] sued, that requires four votes to defend those kinds of 

lawsuits . . . I’m not going to authorize the use of agency resources to defend that litigation.” Id. 

The concern about the FEC’s failure to enforce the law is particularly acute in the area of 

illegal coordination between spenders and candidates. When asked by the House Administration 

Committee in an oversight proceeding, Chair Weintraub stressed that the Commission has not 

pursued a single violation of the coordination regulations since Citizens United. See Chair Ellen 

L. Weintraub’s Suppl. Responses to Questions from House Admin. Comm. at 4 (May 1, 2019), 

https://www.fec.gov/resources/cms-content/documents/FEC_Response_to_House_Admin_

Attachment_A_Weintraub.pdf (emphasis added) (“Since the Supreme Court’s decision in Citizens 

United, how many times has the Commission found a violation of the coordination regulations?”—

“The simple answer is zero.”). See also id. at 5. As the dissenting Chair explained in her SOR here, 

the problem at the FEC goes beyond episodic gridlock, and verges on near-total abandonment of 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 12 of 20
8 

the Commission’s statutory enforcement responsibilities. Weintraub SOR at 11 (noting that 

controlling Commissioners agreed “in principle” that “the internet exception does not swallow the 

coordination rules,” but “[i]n practice” they “have never seen a case of coordination that they were 

willing to pursue”). 

To CLC’s knowledge, the Commission’s refusal to defend its dismissal of an 

administrative complaint against a section 30109(a)(8) suit in district court is unprecedented. 

Moreover, as Chair Weintraub made clear, her vote against authorizing a defense here was 

grounded in deep-seated substantive disagreements among the Commissioners about the scope of 

the coordination rules and the agency’s statutory obligation to enforce FECA—so the FEC’s 

absence is not the result of administrative accident or incapacity. Allowing CTR and HFA to step 

into the agency’s shoes at this juncture would nullify the veto that Commissioner Weintraub duly 

exercised in accordance with FECA’s unique structure. 

And the FEC’s hands are now doubly tied: soon after it dismissed CLC’s administrative 

complaint, the Commission lost its quorum upon the resignation of Commissioner Matthew 

Petersen, which left three of its six seats vacant. See, e.g., Dartunorro Clark, ‘It’s going to be a 

crisis’: Turning out the lights at the undermanned FEC, NBC News (Aug. 30, 2019), https://www.

nbcnews.com/politics/2020-election/it-s-going-be-crisis-turning-out-lights-undermanned-fecn1048376. Since August 31, the FEC thus has not had the four votes necessary to revisit its earlier 

vote against authorizing a legal defense of the dismissal underlying this case; nor can it presently 

take any other dispositive action on the administrative complaint were this matter to be remanded 

back to the Commission. 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 13 of 20
9 

B. FECA does not entitle respondents to take up the government’s role in an 

administrative review action where the agency has chosen not to participate. 

The FEC has taken the extraordinary step of deciding not to defend its dismissal of CLC’s 

administrative complaint. Allowing CTR and HFA to intervene as defendants in the FEC’s absence 

would override this policy choice and effectively allow private respondents to usurp the 

Commission’s “exclusive” civil enforcement authority. 52 U.S.C. §§ 30106(b)(1), 30107(e). 

Indeed, if movants were permitted to intervene at this juncture—and thereby maintain, in the 

FEC’s name, a case the FEC chose not to litigate—it would countermand the Commission’s wellrecognized authority to set its policy agenda, decide how to enforce FECA, and direct whether and 

how to defend its actions in court. 

CTR/HFA have not even acknowledged the FEC’s decision not to defend, much less 

established any particularized or “legally protected interest” in continuing this case without the 

FEC’s participation. Accordingly, they cannot demonstrate Article III injury or meet the analogous 

requirements of Rule 24(a). The statutory scheme likewise confirms that HFA and CTR should 

not be substituted for the Commission because they lack prudential standing; permitting them to 

litigate in the agency’s stead would undermine the FEC’s exclusive civil enforcement authority. 

“[T]hey are effectively seeking to enforce the rights of third parties (here, the [FEC]), which the 

doctrine of prudential standing prohibits.” Deutsche Bank Nat. Tr. Co. v. FDIC, 717 F.3d 189, 194 

(D.C. Cir. 2013) (citing Steffan v. Perry, 41 F.3d 677, 697 (D.C. Cir. 1994) (en banc)). See 

Washington Tennis & Educ. Found., Inc. v. Clark Nexsen, Inc., 270 F. Supp. 3d 158, 163 n.3 

(D.D.C. 2017) (noting that “this court remains bound by the D.C. Circuit’s treatment of third-party 

standing as a threshold, jurisdictional issue”). 

The “irreducible constitutional minimum” of standing comprises three elements: (1) injuryin-fact, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 14 of 20
10 

(1992). To demonstrate a cognizable “injury in fact,” the putative intervenor must have suffered 

“an invasion of a legally protected interest” that is: “(a) concrete and particularized[;]” and “(b) 

actual or imminent, not conjectural or hypothetical[.]” Id. Where standing is rooted in future injury, 

a party “must demonstrate a realistic danger of sustaining a direct injury” to establish 

redressability. United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). 

CTR and HFA face no immediate or even conceivably imminent injury as a result of this 

lawsuit. For one thing, assuming plaintiffs succeed on the merits, neither respondent will be 

“ordered . . . to do or refrain from doing anything.” Hollingsworth v. Perry, 570 U.S. 693, 705 

(2010). The only remedy available in an action under section 30109(a)(8) is a declaration that the 

FEC acted “contrary to law” in dismissing the complaint, in which case “the Commission” may be 

“direct[ed]” to “conform with such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C) 

(emphasis added). Moreover, CTR and HFA claim future injuries that depend on the independent 

action of an absent third party—the FEC, which exercised its prerogative to default—but they 

make no genuine effort to address the agency’s deliberate absence in this litigation.1 See Deutsche 

Bank Nat. Trust Co., 717 F.3d at 193 (“[W]here a threshold legal interpretation must come out a 

specific way before a party’s interests are even at risk, it seems unlikely that the prospect of harm 

is actual or imminent.”). 

 

1

 Moreover, given the FEC’s current lack of a quorum, CTR/HFA’s hypothesized injuries based 

on “exposure to enforcement proceedings before the FEC,” CTR/HFA Mem. at 5, can only 

possibly occur at the end of an even more speculative and attenuated chain of events, requiring the 

actions of multiple independent third parties including new appointments to the FEC by the 

President and their approval by the U.S. Senate. There is no practical threat that “the agency could 

seek to regulate [CTR/HFA] directly and immediately after the dismissal order is revoked.” Id. at 

8. Barring that, the only possible enforcement action they face would be a private right of action 

brought by these plaintiffs in this Court—at some future date—following a contrary-to-law finding 

and remand to the FEC. 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 15 of 20
11 

The only defendant that can be sued under section 30109(a)(8) is the FEC, and putative 

intervenors are not an appropriate replacement for the agency. The statute does not contemplate, 

much less establish, the procedural or substantive rights of any other would-be defendants. And 

FECA’s judicial review provision, 52 U.S.C. § 30109(a)(8), expressly limits participation in 

administrative review actions to FEC complainants. 

Nor can CTR or HFA offer any unique legal arguments that might augment or differ from 

the arguments made by the controlling Commissioners. The only question before the Court is 

whether the dismissal of CLC’s administrative complaint was contrary to law, and its review is 

limited to considering the controlling Commissioners’ stated rationale for the dismissal on the 

basis of governing law and the administrative record.2 Any argument CTR or HFA offers that 

would add to, amplify, or amend the controlling Commissioners’ reasoning would not only be 

legally irrelevant, but would obfuscate the written rationale provided by the Commission. DCCC, 

831 F.2d at 1135 n.6 (“Intelligent review requires justifications by the Commission or 

Commissioners for the FEC’s dispositions.”) (emphasis added). Their participation as intervenors 

will not—and cannot—elucidate the FEC’s reasoning and thus will simply delay and complicate 

the resolution of this litigation. 

FECA certainly does not support granting CTR/HFA a right to step into the agency’s shoes 

here. Congress’s design of the statutory cause of action in this case, as with its design of the 

statutory scheme as a whole, reflects a delicate equilibrium of competing objectives. This goal is 

reflected in the balanced partisan composition of the Commission itself, as well as the Act’s 

 

2

 Assuming the case proceeds on an eventual motion for default judgment, the inquiry under 

Rule 55(d) would likely be the same. 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 16 of 20
12 

administrative enforcement provisions, which are carefully structured to weigh the potential for 

partisan overreach against the need to secure compliance with the Act’s provisions. 

For those reasons, Congress required that “[a]ll decisions of the” Commission “with respect 

to the exercise of its duties and powers under the provisions of this Act shall be made by a majority 

vote of the members of the Commission.” 52 U.S.C. § 30106(c). In the same subsection, it further

specified that “the affirmative vote of 4 members of the Commission shall be required in order for 

the Commission to take any action” with respect to certain activities, including to “defend (in the 

case of any civil action brought under section 30109(a)(8) of this title).” Id. §§ 30106(c); 

30107(a)(6) (emphasis added). “To ignore this [4-vote] requirement,” as the D.C. Circuit has noted 

in another context, “would be to undermine the carefully balanced bipartisan structure which 

Congress has erected.” Common Cause, 842 F.2d at 449 n.32. 

Congress balanced its desire for partisan parity in the composition of the FEC with several 

limited mechanisms for private involvement to ensure that partisan deadlock does not render 

FECA meaningless. See, e.g., 52 U.S.C. § 30109(a)(1) (permitting filing of complaints with the 

FEC); id. § 30109(a)(8)(A) (permitting complainant to file civil action challenging FEC 

dismissal); id. § 30109(a)(8)(C) (authorizing complainant to bring civil action against violator if 

FEC fails to conform to judicial decision arising from (a)(8)(A) suit). The affirmative four-vote 

requirement for the defense of actions for judicial review under section 30109(a)(8) provides an 

additional safeguard against partisan gridlock or intransigence. 

Efforts to litigate various FECA questions outside the statutory regime, i.e., beyond the 

sharply delimited bounds of these review mechanisms, have long been rebuffed as “inappropriate 

interference with the FEC’s responsibilities.” FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480, 487 (1985). As the Fifth Circuit has opined, “[t]he statute provides a strong basis 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 17 of 20
13 

for scrupulously respecting the grant by Congress of ‘exclusive jurisdiction’ to the FEC: the FEC 

is entrusted with the exclusive power to investigate violations of the Act, and the Act creates a 

detailed administrative process that the FEC must follow in its investigations.” Stockman v. FEC, 

138 F.3d 144, 152 (5th Cir. 1998).  

The unique circumstances of this case and the “unusual” features of FECA’s statutory 

scheme thus weigh heavily against allowing a private litigant to override the Commission’s 

prerogatives in this area. See Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) 

(“This statute is unusual in that it permits a private party to challenge the FEC’s decision not to 

enforce.”). Cf. Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1368 (D.C. Cir. 1988) (“Part of the 

design of FECA . . . is to place responsibility for the civil enforcement of matters specifically 

covered by the Act exclusively in the hands of the FEC in the first instance.”). 

To be sure, circuit precedent “look[s] skeptically on government entities serving as 

adequate advocates for private parties,” Crossroads, 788 F.3d at 321—but that concern is not 

presently implicated in this case, because the government defendant has refused to participate. And 

although the Crossroads decision recognized that certain respondents can participate in 

administrative review actions as intervenor-defendants alongside the FEC, it does not confer a 

right to usurp the FEC’s statutory role to decide whether this action should be defended at all. 

Indeed, the very reasons that intervention was held appropriate in Crossroads GPS counsel 

against granting it to HFA/CTR here. In Crossroads, the D.C. Circuit found it “apparent [that] the 

Commission and Crossroads hold different interests.” 788 F.3d at 321 (noting that FEC and 

Crossroads “disagree[d] about the extent of the Commission’s regulatory power, the scope of the 

administrative record, and post-judgment strategy”). By the same token, CTR and HFA obviously 

cannot represent the Commission’s interests, because they seek to commandeer its “exclusive 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 18 of 20
14 

jurisdiction” over civil enforcement matters and override its decision not to defend here. Allowing 

intervention at this juncture would permit administrative respondents—who are specifically 

excluded from any role in actions brought under FECA’s judicial review provision—to 

countermand the Commission’s decision to forgo a defense in this case. See Stockman, 138 F.3d 

at 153 (noting that “Section [30109](a)(8) is the only provision of the Campaign Act that provides 

for judicial review at behest of private parties”—but “only for people who have filed an 

administrative complaint”). 

Nor is intervention necessary to secure “a full, adversarial presentation on the issues by 

parties with a concrete sta[k]e in the outcome.” CTR/HFA Mem. at 10. It is not clear what 

arguments prospective intervenors hope to make as parties that they could not present just as 

“full[y]” as amici curiae. Instead, what they evidently hope to gain is the right to file dispositive 

motions and delay resolution on the merits. But plaintiffs must meet their burdens under Article 

III and the court must consider its own subject-matter jurisdiction regardless, whether or not 

intervenors put either at issue through dispositive motions. Granting intervention will only 

obfuscate the issues and needlessly prolong this case. The motion should be denied. 

II. At a minimum, the motion to intervene is premature and fails to address the 

practical significance of the Commission’s default.

In the alternative, the Court should decline to admit any intervenor-defendant into this 

lawsuit until the FEC certifies and transmits the administrative record upon which the lawsuit must 

proceed. The Commission’s decision not to defend the dismissal does not relieve its obligation to 

certify the contents of the administrative record under the local rules “within 30 days following 

service of the answer to the complaint or simultaneously with the filing of a dispositive motion, 

whichever occurs first.” LCvR 7(n)(1). That will likely require court action, given that the agency 

has not appeared—and cannot participate substantively—in this case. 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 19 of 20
15 

Moreover, because the controlling Commissioners failed to release their SOR within the 

60-day statutory period for seeking judicial review of its dismissal here, see 52 U.S.C. 

§ 30109(a)(8)(B), plaintiffs will have to file an amended complaint addressing the SOR. As 

intervenor-movants highlight, the two controlling Commissioners who voted against finding 

“reason to believe” did not release their SOR until 78 days after the Commission closed the file, 

19 days after Plaintiffs commenced this lawsuit, and 18 days after the expiration of the statutory 

period for seeking judicial review. Now that the deadline for the FEC’s responsive pleading has 

come and gone, clarifying the FEC’s role in this litigation, plaintiffs intend to file an amended 

complaint addressing the SOR within 21 days of the FEC’s default. If this Court does indeed admit 

CTR and HFA as intervenors, their motion to dismiss should be held in abeyance pending the 

filing of CLC’s amended complaint. 

CONCLUSION 

The motion to intervene should be denied at this time. In the alternative, if this motion is 

granted, this Court should hold CTR/HFA’s motion to dismiss in abeyance until such time as the 

FEC certifies and transmits the administrative record and plaintiffs file their amended complaint. 

Dated: October 15, 2019 

Respectfully submitted, 

/s/ Tara Malloy 

Tara Malloy (DC Bar No. 988280) 

tmalloy@campaignlegalcenter.org 

Megan P. McAllen (DC Bar No. 1020509) 

mmcallen@campaignlegalcenter.org 

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400 

Washington, D.C. 20005 

(202) 736-2200 

Case 1:19-cv-02336-JEB Document 11 Filed 10/15/19 Page 20 of 20